Clause 1. — (Restriction on Recovery of Possession.)

Orders of the Day — Protection from Eviction Bill – in the House of Commons at 12:00 am on 8th December 1964.

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Photo of Mr James Allason Mr James Allason , Hemel Hempstead 12:00 am, 8th December 1964

I beg to move Amendment No. 1, in page 1, line 16, to leave out from "person" to the end of line 18 and to insert: leaves no such widow or widower, then to such member of his family residing with him for not less than six months, immediately before that person's death as may be decided, in default of agreement, by the court". This Amendment concerns the position where the tenant has died, the tenant has no husband or wife, but there are members of the family living on the premises. This Amendment has two sides to it. One is the question of how long those other members of the family have been living in the premises, whether it is six months or less; secondly, who should decide which member of the family then gets the tenancy.

When we discussed the six months' period in Committee the Joint Parliamentary Secretary rejected the point. I think that I can fairly sum up his argument thus, that the six months' deadline created hard cases; someone might have given up his home and gone to live with the parent to nurse him through his illness and have been there for five and a half months and then failed to be entitled to the tenancy at the end of it; and that, in any case, this was much better settled under Clause 2 by the court when it considered the whole case.

The Amendment seeks to enable the court, in default of agreement, to lay down who has the right to be considered the tenant. The argument was that the amendment by the rent Act of 1933 made this a cause of abuse—that people came in just to nurse a member of their family, perhaps in the last few days before death, and then claimed the tenancy. I think that at that time the argument about the five and a half months was not used. This period of six months has, I think, been proved over the years to have value, and I hope that on reconsideration the Joint Parliamentary Secretary will agree to the Amendment.

Then there is the second barrel of this Amendment: who should decide who is the tenant? There may be several members of the family all living there. There must be one tenant; there cannot be a sort of joint tenancy between the family. The Parliamentary Secretary said that he would look into this and come forward with some suitable Amendment. As he has not brought forward his own Amend- ment, I hope that perhaps he will accept this.

Photo of Mr Graham Page Mr Graham Page , Crosby

I want to support my hon. Friend the Member for Hemel Hempstead (Mr. Allason) in this Amendment for the two reasons which he has explained. The Amendment is a two-barrelled Amendment in that part of it which deals with the necessity to have a decision as to who is entitled to the rights under the Bill, the second point being whether it is necessary to retain the six months' rule which has been a feature of the Rent Acts since 1933.

As to the question of who is entitled to the rights under the Bill, the occupier is the person entitled. The occupier is described in this Clause in subsection (1,c). There can be more than one occupier—any member—I stress the word "any"—of the family residing with the previous tenant at the date of that tenant's death. Now, the occupier is given certain rights under the remainder of the Bill. Under this Clause, the occupier has the right to remain in possession and in residence till a court order is made for removing him. I do not think that there is really any objection to there being several occupiers. The owner might have to bring his case against all those who fell within the description of an occupier under subsection (1) of this Clause.

It is when one gets to Clause 2 that the difficulty arises. Under Clause 2(2) the judge has to decide on whom to impose certain conditions—as to payment of rent, for example. He therefore must decide who is the occupier. If there are several members of the family residing in the house of the former tenant, then the judge has to decide which one is entitled to the benefits and which one is subject to the duties which he can impose on the occupier under Clause 2(2). Then one comes to Clause 2(4). The judge is directed to consider whether the occupier has done something or failed to do something, or whether certain conditions apply to the occupier. He must decide, therefore, who is the occupier.

Therefore, we come back to the too vague, statement in Clause 1(1,c) which applies the term "occupier" to any member of the family and gives no directions as to how the occupier under the Bill is to be decided.

As to the second point, with regard to the six months' rule, it was said in Committee that there were hard cases as a result of this rule, that relatives might have come to stay with the tenant within this six months' period prior to his death and might perhaps have given up their homes and hoped to reside in the controlled house for some time. But, if there have been these hard cases, no effort has been made by legislation since 1933 to correct them; as far as I know no Amendments for removing the six months' period have been tabled to any Rent Act since the 1933 Act; and if there really have been hard cases, and if this six months' rule is not really necessary, it is strange that it has not been amended in the course of the rent legislation since 1933.

Weighing the disadvantages and advantages of this six months' rule, there are far more cases, I would assert, in which the absence of the rule there would have been abuses by the tenant than there would be cases in which the members of the family would suffer hardship. This is an extension to the protection of the controlled tenant. It is an extension of the Rent Restriction Acts and not merely a holding position. I understand that the Bill is really intended as a holding exercise rather than as an amending Bill. But this provision is an effort to amend the law and remove a provision which it was found necessary to insert into the 1933 Act, no effort having been made until now to disturb it.

I therefore hope that the Government will consider this a little more thoroughly than it was considered in Committee and recognise the force of the Amendment.

4.30 p.m.

Photo of Mr Eric Lubbock Mr Eric Lubbock , Orpington

The fact that the provision is contained in the 1933 Act is not a logical reason for retaining it now. I much prefer to approach the matter from first principles. I heard nothing substantial in the arguments of the hon. Members for Hemel Hempstead (Mr. Allason) and Crosby (Mr. Graham Page) which convinced me that they have made an a priori case. There could in some circumstances be cases of people who have resided with the former tenant for five and a half months and who will suffer severe hardship if they are not given the protection of the Bill.

Six months is suggested as the qualifying period for the protection of the Bill, but why not nine months, or one year, or even two years? The fact that no cases of hardship have been drawn to the attention of the hon. Member for Crosby under any of the previous Acts does not mean that none has occurred. I therefore hope that the Joint Parliamentary Secretary will resist that part of the Amendment.

On the other hand, there is substance in the other argument. I have studied the Clause carefully to see how the courts would decide between the claims of two people who were both residing with the tenant at the time of his death. I notice that the Government have tabled a later Amendment to cover a point I raised in Committee. I will not refer to it now, because I should be out of order. I can envisage circumstances in which a blood relation of the former tenant had resided with him in the house at the same time as his natural wife had. It would be impossible, under the Bill in its present form, for the court to decide which of the two should be considered the occupant for the purposes of Clause 2.

I hope that when the Parliamentary Secretary replies he will be able to deal with this point, which has great validity, but will refuse the other point raised in the Amendment.

Photo of Mr Robert Mellish Mr Robert Mellish , Bermondsey

As I promised in Committee, when a similar Amendment was moved, we have given this matter very careful consideration and have consulted our lawyers, particularly as to whether the point about the successive occupier made by the hon. Member for Crosby (Mr. Graham Page) could or should be dealt with in a Bill such as this.

I entirely agree with the hon. Member for Orpington (Mr. Lubbock) that the Amendment deals with two points. I thought that we were generally agreed in Committee on the point about the six months' qualifying period. The right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) himself conceded, as he will see from HANSARD, if he has forgotten it, that there was some substance in my argument about creating an anomaly in a matter such as this. We believe—we are advised that this is so—that there are cases where tenants come to the house, having given up their previous home, to nurse an aged father, for example, and are there for only two or three months. It is a matter for the judge to decide whether such persons should be evicted under the Bill.

This is a very important thing that I want to make clear. I am not here arguing so much about tenancy. The point is whether such a person should be evicted and whether the eviction order should be suspended for, say, 12 months. I hope that by now the whole country realises that in the not too distant future we shawl introduce a Bill which I hope will deal with some of the rather difficult problems mentioned in Committee. We believe that anomalies would be created by adopting a criterion of six months. We therefore believe that it would be wrong to write such a provision into the Bill. We believe that it is right to rely upon the judgment of the person who will hear the case.

I believe that there are cases of people who move in in the last few weeks to try to get the tenancy because they happen to know that the parent has not long to live. This would no doubt be argued by the owner and would be fairly and honestly put to the judge, who would then decide the case on its merits. We think that it would be wrong for Parliament to lay down in an eviction Bill an arbitrary rule that the tenant must have been there for six months. I agree with the hon. Member for Orpington that it would be wrong to write such a provision into the Bill. We reject that part of the Amendment.

I assure the House that we have carefully considered the whole question of the successive occupier. The hon. Member for Crosby raised this matter in Committee. He was given the real answer by my hon. Friend the Member for Manchester, Cheetham (Mr. Harold Lever), who said this: If one wants to serve proceedings, one serves them on whom one alleges to be the occupier. He can sue for possession whoever is there asking for the protection of the Act. If the judge makes an order for possession against that person, he gets possession. But one does not have to decide competing claims in order to decide whether he should get possession or not …All that the Clause does is to give the court power to delay possession, if it thinks right, and denies the landlord the right to strong-arm his way in—a method of getting possession which I thought both sides of the Committee agreed was out of date."—[OFFICIAL REPORT, 26th November, 1964; Vol. 702, cc. 1499–1500.] In a case where the deceased tenant has left no widow, but has left more than one member of his family who were residing with him at the time of his death—say, two daughters—the owner cannot enforce his right to possession without a county court order as long as either daughter remains in occupation and in residence. The owner, in applying to the court for an order for possession, would name both daughters as defendants to the proceedings.

I assure the House that we have considered this matter carefully. We believe that it would be cumbersome and unnecessary to provide machinery for selecting one person as the occupier for the purpose of the Bill in a case where more than one person qualifies.

Photo of Mr Eric Lubbock Mr Eric Lubbock , Orpington

The Bill does imply that the occupier is only one person. Subsection (2) says: In this Act the occupier', in relation to any premises, means the person remaining in occupation … I do not see how there can be more than one of them.

Photo of Mr Robert Mellish Mr Robert Mellish , Bermondsey

On the best advice I have received, in a case where the owner is asking for possession it will be for the judge to decide the matter at the end of the day. He will take into account the evidence offered by the owner and by the defendants. I repeat that here we are arguing about whether persons should be evicted. We are not arguing about who should be the tenant or, in that sense, who the tenancy is to be given to. We are arguing about whether the house should now be vacated and handed over to the owner who is applying for the eviction of one or more persons.

For the reasons I have stated, we are unable to accept the Amendment. We believe that it is cumbersome and unnecessary. We recognise the intentions of those who have tabled the Amendment. I can only assure them that after all the advice we have been given we believe that the Amendment is not necessary.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

In Committee, we asked the Government to think again about the second leg of the Amendment, which we regard as of much the most importance. The Parliamentary Secretary gave an answer which would have been perfectly satisfactory if the Bill merely contained a Clause the effect of which was to prevent evictions. In that case it would have been right to say that no difficulty would arise from the fact that two or more persons were involved. But the Bill does much more. The county court judge may have to decide on what terms people are to remain in the landlord's premises. It does not leave it to the county court judge to decide who shall be the occupier.

This matter is settled by subsection (1,c). If it goes forward in this form and is allowed to bite upon two or more children who were living with the deceased tenant, because in the Clause we are talking about successors, there would by definition he no doubt that for the purposes of Clause 2 those two children would both be occupiers if there was no means of distinguishing which of them would succeed to the tenancy. Both would have been normally residing with the member of their family and they would, therefore, both be persons who remain in occupation after the tenancy. A county court judge, for the purposes of Section 2, would not have any description at all of whether one or the other is the person who was the occupant. He would have to treat both as occupiers. Therefore, for the purposes of Section 2, one would have to ask: what is the unfortunate landlord to do—that is what it comes to—about an offer of accommodation?

Suppose there are two children. One of them is the person who ought to have the tenancy. The older one has lived there all his life, and the other one has lived there only for the last month, and moved in just before the death of the tenant. The landlord offers a new tenancy to the permanently resident older child. He has not offered to one what he has offered to the other one. Under Clause 2, what the county court judge has to consider is whether he thinks that both the occupiers have unreasonably refused the offer of the tenancy of premises or part of the premises for a reasonable term and at a reasonable rent. If the landlord offers the tenancy to both and one accepts and the other refuses, what is to happen then?

What we are doing here is not only creating for former tenants a position as statutory "squatters"—because they are not statutory tenants; the Government have rejected that. This Clause as it is at present is imposing on a landlord not a single statutory squatter whom he knows and can identify, to whom he must make offers and with whom he must deal over the rent. We are creating a class of two or more statutory "squatters" for all the purposes of the Bill, including the whole of Clause 2. This is wrong. It is wrong to impose in premises a person with rights in those premises under the Statute and not to know which of them it is that can exercise those rights. I would have thought that it was necessary that, as between children, one of them should be selected by the county court judge as the person who should succeed and that then it should be left to that person to negotiate with the other members of the family as to how they shall use the premises and what shall be the position between themselves.

Therefore, I agree with the hon. Member for Orpington that there is a great deal of substance in this which will come down to practical problems when the parents die and the house is occupied by a series of individuals some of whom may or may not want to stay on, some of whom may want to make family arrangements between themselves, none of these matters being known to the landlord, who ought to have to deal with one individual, who can then deal with the other members of the family and make the necessary arrangements with the landlord. If they agree amongst themselves, there is no difficulty, because the one whom by consent is to have the statutory "squatter's" right can remain in possession of the premises. The law, for many purposes—trepass and other things—operates on possession and it is right that there should be a single possessor who should be looked to for all purposes, whatever arrangements he make make with the other members of the family.

I return to the six months' argument. I concede that whether there is a six months' period or no period, there will be anomalies. I submit to the House that there are likely to be far more anomalies unless there is some limitation of time than if there is no limitation of time at all. I have had cases in my constituency, one in particular, that caused considerable difficulty. In this case it was the wife of a person who had been sent to prison who got into a tenancy by having lived there for six months. There will be many cases where people slip into a house immediately before the death of termination or giving up of the occupation of the tenancy by the former tenant. We are dealing with successor rights. What we want to ensure is that those who should succeed under the Statute to the right to remain in the premises when they were never themselves the tenant are those who have been there substantially as members of the household.

4.45 p.m.

I should have thought that it was reasonable, and, in practice, it has been shown to be reasonable, under the Rent Act, to say that a person who has resided for a substantial period of time, whether it be six months or three months or any other period, before he should step in to succeed to rights which were never his at all, which he has never enjoyed, in any circumstances, and which did not belong to him. He ought not to be entitled to succeed, as against the landlord, to rights which he never had, merely because it so happens that he has been residing in the same house with

the person who had those rights. While I agree that it can be to some extent dealt with by county court judges, nevertheless one is putting the person who has been in residence for no period at all, with no claim at all, in exactly the same position, as a statutory right, as the former tenant, who was there by contract.

Photo of Mr Eric Lubbock Mr Eric Lubbock , Orpington

That is not quite right, because the court shall have regard to all the circumstances, and among other things they shall consider the length of time one is there.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

Yes, but the court does that with the former tenant, too. The Bill is putting somebody who has resided there for no more than a day in precisely the same position as the former tenant, namely, subject to the decision of the court. Courts are incalculable and one is imposing upon landlords people who would not have had the right unless they had stepped in. While I would not, by itself, have regarded the six months period as vital, combined with the fact that one is putting in an undefined class who may not have resided there for any time at all, I would have regarded the Clause without this Amendment as unsatisfactory.

Mr. Deputy-Speaker:

If the hon. Gentleman is seeking to address the House, he cannot unless he has the leave of the House. He has already spoken.

Question put, That the words proposed to be left out, to the word "family" in line 17, stand part of the Bill:—

The House divided: Ayes 265, Noes 214.

Division No. 32.]AYES[4.47 p.m.
Abse, LeoBraddock, Mrs. E. M.Davies, Ifor (Gower)
Albu, AustenBray, Dr. JeremyDavies, S. O. (Merthyr)
Allaun, Frank (Salford, E.)Brown, Rt. Hn. George (Belper)de Freitas, Sir Geoffrey
Alldritt W. H.Brown, Hugh D. (Glasgow, Provan)Delargy, Hugh
Allen, Scholefield (Crewe)Brown, R. W. (Shoreditch & Fbury)Dell, Edmund
Armstrong, ErnestBuchan, Norman (Renfrewshire, W.)Dempsey, James
Atkinson, NormanBuchanan, RichardDiamond, John
Bagier, Gordon A. T.Butler, Herbert (Hackney, C.)Dodds, Norman
Barnett, JoelButler, Mrs. Joyce (Wood Green)Doig, Peter
Baxter, WilliamCallaghan, Rt. Hn. JamesDriberg, Tom
Beaney, AlanCarmichael, NeilDunn, James A.
Bellenger, Rt. Hn. F. J.Carter-Jones, LewisEdelman, Maurice
Bence, CyrilCastle, Rt. Hn. BarbaraEdwards, Rt. Hn. Ness (Caerphilly)
Bennett, J. (Glasgow, Bridgeton)Chapman, DonaldEdwards, Robert (Bilston)
Bessell, PeterColeman, DonaldEnglish, Michael
Binns, JohnConlan, BernardEnnals, David
Bishop, E. S.Crawshaw, RichardEnsor, David
Blackburn, P.Crosland, AnthonyEvans, Albert (Islington, S.W.)
Blenkinsop, ArthurGrossman, Rt. Hn. R. H. S.Evans, Ioan (Birmingham, Yardley)
Boardman, H.Cullen, Mrs. AliceFernyhough, E.
Boston, T. G.Dalyell, TamFinch, Harold (Bedwellty)
Bowden. Rt. Hn. H. W. (Leics S.W.)Davies, G. Elfed (Rhondda, E.)Fitch, Alan (Wigan)
Boyden, JamesDavies, Harold (Leek)Fletcher, Sir Eric (Islington, E.)
Fletcher, Ted (Darlington)Mabon, Dr. J. DicksonRoberts, Goronwy (Caernarvon)
Fletcher, Raymond (Ilkeston)McBride, NeilRobertson, John (Paisley)
Floud, BernardMcCann, J.Robinson, Rt. Hn. K.(St.Pancras, N.)
Foley, MauriceMacColl, JamesRodgers, William (Stockton)
Foot, Sir Dingle (Ipswich)MacDermot, NiallRogers, George (Kensington, N.)
Foot, Michael (Ebbw Vale)McGuire, MichaelRoss, Rt. Hn. William
Freeson, ReginaldMcInnes, JamesRowland, Christopher
Galpern, Sir MyerMcKay, Mrs. MargaretSheldon, Robert
Garrett, W. E.Mackenzie, Alasdair(Ross & Crom'ty)Shinwell, Rt. Hn. E.
Garrow, A.MacKenzie, Gregor (Rutherglen)Short, Rt. Hn. E. (N'c'tle-on-Tyne, C.)
George, Lady Megan LloydMackie, George Y. (C'ness & S'land)Short, Mrs. Renée (W'hampton, N.E.)
Ginsburg, DavidMackie, John (Enfield, E.)Silkin, John (Deptford)
Gourlay, HarryMcLeavy, FrankSilverman, Julius (Aston)
Grey, CharlesMacMillan, MalcolmSilverman, Sydney (Nelson)
Griffiths, David (Rother Valley)MacPherson, MalcolmSkeffington, Arthur
Griffiths, Rt. Hn. James (Llanelly)Mahon, Peter (Preston, S.)Slater, Mrs. Harriet (Stoke, N.)
Grimond, Rt. Hn. J.Mahon, Simon (Bootle)Slater, Joseph (Sedgefield)
Hale, LeslieMallalieu, E. L. (Brigg)Small, William
Hamilton, James (Bothwell)Manuel, ArchieSmith, Ellis (Stoke, S.)
Hamilton, William (West Fife)Mapp, CharlesSolomons, Henry
Hannan, WilliamMarsh, RichardSoskice, Rt. Hn. Sir Frank
Harrison, Walter (Wakefield)Mason, RoySpriggs, Leslie
Hart, Mrs. JudithMaxwell, RobertSteele, Thomas
Hattersley, RayMellish, RobertStewart, Rt. Hn. Michael
Hayman, F. H.Mendelson, J. J.Stonehouse, John
Hazell, BertMikardo, IanStones, William
Heffer, Eric S.Millan, BruceStrauss, Rt. Hn. G. R. (Vauxhall)
Henderson, Rt. Hn. ArthurMiller, Dr. M. S.Stross, Sir Barnett(Stoke-on-Trent, C.)
Herbison, Rt. Hn. MargaretMilne, Edward (Blyth)Summerskill, Dr. Shirley
Hill, J. (Midlothian)Molloy, WilliamSwain, Thomas
Hobden, Dennis (Brighton, K'town)Monslow, WalterSwingler, Stephen
Holman, PercyMorris, Charles (Openshaw)Symonds, J. B.
Horner, JohnMorris, John (Aberavon)Taverne, Dick
Houghton, Rt. Hn. DouglasMulley, Rt. Hn. Frederick (SheffieldPk)Taylor, Bernard (Mansfield)
Howarth, Robert L. (Bolton, E.)Murray, AlbertThomas, Iorwerth (Rhondda, W.)
Howell, Denis (Small Heath)Neal, HaroldThomson, George (Dundee, E.)
Hoy, JamesNewens, StanThornton, Ernest
Hughes, Cledwyn (Anglesey)Noel-Baker, Francis (Swindon)Thorpe, Jeremy
Hughes, Emrys (S. Ayrshire)Noel-Baker, Rt. Hn. Philip (Derby,S.)Tinn, James
Hughes, Hector(Aberdeen, N.)Norwood, ChristopherTomney, Frank
Hunter, Adam (Dunfermline)Oakes, GordonTuck, Raphael
Hunter, A. E. (Feltham)Ogden, EricUrwin, T. W.
Irvine, A. J. (Edge Hill)O'Malley, BrianVarley, Eric G.
Irving, Sydney (Dartford)Oram, Albert E. (E. Ham, S.)Wainwright, Edwin
Jay, Rt. Hn. DouglasOrbach, MauriceWalden, Brian (All Saints)
Jeger, George (Goole)Orme, StanleyWalker, Harold (Doncaster)
Jeger, Mrs. Lena (H'b'n&St.P'cras,S.)Oswald, ThomasWallace, George
Jenkins, Hugh (Putney)Owen, WillWarbey, William
Johnson, Carol (Lewisham S.)Padley, WalterWatkins, Tudor
Johnston, Russell (Inverness)Page, Derek (King's Lynn)Weitzman, David
Jones, Rt. Hn. Sir Elwyn (W.Ham,S.)Paget, R. T.Wells, William (Walsall, N.)
Jones, J. Idwal (Wrexham)Park, Trevor (Derbyshire, S.E.)white, Mrs. Eirene
Jones, T. W. (Merioneth)Parkin, B. T.Whitlock, William
Kelley, RichardPavitt, LaurenceWilkins, W. A.
Kenyon, CliffordPearson, Arthur (Pontypridd)Willey, Rt. Hn. Frederick
Kerr, Mrs. Anne (R'ter & Chatham)Peart, Rt. Hn. FredWilliams, Alan (Swansea, W.)
Kerr, Dr. David (W'worth, Central)Pentland, NormanWilliams, Mrs. Shirley (Hitchin)
Lawson, GeorgePerry, Ernest G.Williams, W. T. (Warrington)
Leadbitter, TedPopplewell, ErnestWillis, George (Edinburgh, E.)
Ledger, RonPrentice, R. E.Wilson, William (Coventry, S.)
Lee, Rt. Hn. Frederick (Newton)Probert, ArthurWoodburn, Rt. Hn. A.
Lewis, Arthur (West Ham, N.)Rankin, JohnWoof, Robert
Lewis, Ron (Carlisle)Rees, MerlynWyatt, Woodrow
Lomas, KennethReynolds, G. W.Yates, Victor (Ladywood)
Loughlin, CharlesRhodes, Geoffrey
Lubbock, EricRichard, IvorTELLERS FOR THE AYES:
Mr. Howie and Mr. Harper.
NOES
Agnew, Commander Sir PeterBennett, Dr. Reginald (Gos & Fhm)Bruce-Gardyne, J.
Alison, Michael (Barkston Ash)Berkeley, HumphryBuchanan-Smith, Alick
Allason, James (Hemel Hempstead)Berry, Hn. AnthonyBurden, F. A.
Amery, Rt. Hn. JulianBiffen, JohnButcher, Sir Herbert
Anstruther-Gray, Rt. Hn. Sir W.Biggs-Davison, JohnButler, Rt. Hn. R. A.(Saffron Walden)
Astor, JohnBingham, R. M.Campbell, Gordon
Atkins, HumphreyBlack, Sir CyrilChannon, H. P. G.
Awdry, DanielBlaker, PeterChichester-Clark, R.
Baker, W. H. K.Box, DonaldClark, Henry (Antrim, N.)
Balniel, LordBoyd-Carpenter, Rt. Hn. J.Clark, William (Nottingham, S.)
Barlow, Sir JohnBraine, BernardClarke, Brig. Terence (Portsmth, W.)
Batsford, BrianBrewis, JohnCooke, Robert
Beamish, Col. Sir TuftonBrinton, Sir TattonCooper, A. E.
Bennett, Sir Frederic (Torquay)Brown, Sir Edward (Bath)Cooper-Key, Sir Neill
Cordle, JohnHobson, Rt. Hn. Sir JohnPeel, John
Costain, A. P.Hogg, Rt. Hn. QuintinPercival, Ian
Courtney, Cdr. AnthonyHopkins, AlanPeyton, John
Craddock, Sir Beresford (Spelthorne)Hordern, PeterPike, Miss Mervyn
Crosthwaite-Eyre, Col. Sir OliverHornby, RichardPitt, Dame Edith
Crowder, F. P.Hornsby-Smith, Rt. Hn. Dame P.Pounder, Rafton
Cunningham, Sir KnoxHowe, Geoffrey (Bebington)Powell, Rt. Hn. J. Enoch
Curran, CharlesHutchison, Michael ClarkPrice, David (Eastleigh)
Currie, G. B. H.Irvine, Bryant Godman (Rye)Prior, J. M. L.
Dalkeith, Earl ofJenkin, Patrick (Woodford)Pym, Francis
Dance, JamesJennings, J. C.Rawlinson, Rt. Hn. Sir Peter
Davies, Dr. Wyndham (Perry Barr)Jopling, MichaelRidley, Hn. Nicholas
d'Avigdor-Goldsmid, Sir HenryJoseph, Rt. Hn. Sir KeithRidsdale, Julian
Dean, PaulKerby, Capt. HenryRobson Brown, Sir William
Digby, Simon WingfieldKerr, Sir Hamilton (Cambridge)Roots, William
Dodds-Parker, DouglasKimball, MarcusRoyle, Anthony
Doughty, CharlesKing, Evelyn (Dorset, S.)Russell, Sir Ronald
Drayson, G. B.Kitson, TimothySt. John-Stevas, Norman
du Cann, Rt. Hn. EdwardLambton, ViscountScott-Hopkins, James
Eden, Sir JohnLegge-Bourke, Sir HarrySharples, Richard
Elliott, R. W.(N'c'tle-upon-Tyne, N.)Litchfield, Capt. JohnSmith, Dudley (Br'ntf'd & Chiswick)
Errington, Sir EricLloyd, Rt. Hn. Geoffrey (Sut'nC'dfield)Smyth, Rt. Hn. Brig. Sir John
Farr, JohnLloyd, Rt. Hn. Selwyn (Wirral)Soames, Rt. Hn. Christopher
Fell, AnthonyLongden, GilbertSpearman, Sir Alexander
Fisher, NigelLoveys, Walter H.Stainton, Keith
Fletcher-Cooke, Charles (Darwen)Lucas-Tooth, Sir HughSummers, Sir Spencer
Fletcher-Cooke, Sir John (S'pton)McAdden, Sir StephenTaylor, Edward M. (G'gow, Cathcart)
Forrest, GeorgeMacArthur, IanTemple John M.
Foster, Sir JohnMcNair-Wilson, PatrickThomas, Rt. Hn. Peter (Conway)
Galbraith, Hn. T. G. D.Maginnis, John E.Tiley Arthur (Bradford, W.)
Gammans, LadyMaitland, Sir JohnTilney, John (Wavertree)
Gibson-Watt, DavidMarlowe, AnthonyTurton, Rt. Hn. R.H.
Giles, Rear-Admiral MorganMarples, Rt. Hn. ErnestTweedsmuir, Lady
Gilmour, Sir John (East Fife)Marten, Neilvan Straubenzee, W. R.
Glover Sir DouglasMathew RobertVaughan-Morgan, Rt. Hn. Sir John
Glyn, Sir RichardMaude, AngusVickers Dame Joan
Goodhew, VictorMawby, RayWalder, David (High Peak)
Gower, RaymondMaxwell-Hyslop, R. J.Walker, Peter (Worcester)
Grant, AnthonyMaydon, Lt.-Cmdr. S. L. C.Walker-Smith, Rt. Hn. Sir Derek
Grant-Ferris, R.Meyer, Sir AnthonyWall, Patrick
Grieve, PercyMills, Peter (Torrington)Walters, Dennis
Griffiths, Eldon (Bury St. Edmunds)Mills, Stratton (Belfast, N.)Walters, Dennis
Griffiths, Peter (Smethwick)Miscampbell, NormanWard, Dame Irene
Gurden, HaroldMitchell, DavidWeatherill, Bernard
Hall-Davis, A. G. F.Monro, HectorWebster, David
Hamilton, Marquess of (Fermanagh)Morgan, W. G.Whitelaw, William
Harris, Frederic (Croydon, N.W.)Morrison, Charles (Devizes)Williams, Sir Rolf Dudley (Exeter)
Harrison, Col. Sir Harwood (Eye)Mott-Radclyffe, Sir CharlesWills, Sir Gerald (Bridgwater)
Harvey, Sir Arthur Vere (Maccles'd)Murton, OscarWilson, Geoffrey (Truro)
Harvey, John (Walthamstow, E.)Neave, AireyWise, A. R.
Harvie Anderson, MissNicholls, Sir HarmarWolrige-Gordon, Patrick
Hawkins, PaulNicholson, Sir GodfreyWoodhouse, Hn. Christopher
Hay, JohnNoble, Rt. Hon. MichaelWoodnutt, Mark
Heald, Rt. Hn. Sir LionelOnslow, CranleyWylie, N. R.
Heath, Rt. Hn. EdwardOrr, Capt. L. P.S.Younger, Hn. George
Hendry, ForbesOaborn, John (Hallam)
Higgins, Terence L.Osborne, Sir Cyril (Louth)TELLERS FOR THE NOES:
Hiley, JosephPage, R. Graham (Crosby)Mr. More and Mr. Ian Fraser.
Hill, J. E. B. (S. Norfolk)Pearson, Sir Frank (Clitheroe)

Photo of Mr Thomas Williams Mr Thomas Williams , Warrington

I beg to move Amendment No. 2, in page 1, line 17, to leave out "family" and to insert "household".

Mr. Deputy-Speaker:

I think that it would be to the convenience of the House if we also took Amendment No. 3, in line 17, to leave out "family" and to insert "household other than servants".

Photo of Mr Thomas Williams Mr Thomas Williams , Warrington

It is, of course, true that in the Bill the Government seek to carry on the same terminology as they used in previous rent Acts, and I understand that the Government's intention here is not to amend the law, but merely to have a standstill Measure while awaiting a new, fuller and more comprehensive landlord and tenant Act. This carry-on from previous legislation is one of the ways in which in the past considerable hardship has been inflicted on people who have been left in possession of property, who are not members of the former tenant's family but are as closely related as a member of that family could have been.

5.0 p.m.

The House will know that the court is obliged strictly to construe the language in use in Acts. By construction in the past, and one presumes by construction in future in applying the Bill when it becomes an Act, the court will exclude from the protection that is proposed to be given under the Act persons who are not strictly members of the occupier's family.

One thinks, for instance, of people who live in a house with a tenant. They may have been sharing that household with the tenant over a long period. They are bound with bonds of considerable affection to the tenant. They may have given their lives to the care of the former tenant but, not being members of that tenant's family by blood or by law, they are unable to continue to remain in occupation of the premises, and they will not be helped by this Bill.

One thinks of a man and woman who have lived together as though they were husband and wife. One thinks of a family composed of such an irregular union having a child, that child being illegitimate and therefore having no legal right. There are people who live together in companionship. One thinks of frequent cases of two ladies who have been teaching at the same school. They become close friends and go to live together in rented property. After they have been living together for many years the one who happens to be the actual tenant dies and the person who is left, having shared that home for a greater part of her life, has no protection.

In the past this has resulted in a great deal of hardship for people in that position. What we would hope is that, without attempting to bind the Government's hand in future legislation, there should be some provision for these situations. It can easily be done. As this is a short standstill Measure, no hardship can result to the landlord, whereas hardship can result at present to the person who is seeking to remain in possession. It appears to those who have joined with me in putting the Amendment clown that this is an Amendment which in humanity the Government might easily and properly accept.

Photo of Mr Graham Page Mr Graham Page , Crosby

I am sure that the hon. and learned Member for Warrington (Mr. W. T. Williams) put forward the Amendment with the greatest sincerity. His speech indicated that, but as he spoke I wondered how much more impracticable he could get as he went on. The Government have said that they are anxious to speed up the hearing of these actions, to allow people to get to the court quickly and have cases heard if that is necessary. It is necessary to go to court to obtain an order under Clause 1 to get the directions of the court under Clause 2 as to future rent to be paid and so on.

If the occupier is to be any member of the household, it means that the owner, in order to go to court, must serve every member of the household with proceedings before any action can start at all. He has to serve not only every adult member of the household, but every infant member, even a child in arms who is occupying the premises. Therefore, he has to go through the procedure of appointing a guardian ad litem to all the infants in the house.

This was stupid enough as a result of the previous Amendment which required him to appoint a guardian ad litem for those infants to defend actions brought against them. The suggestion now is that this nonsense, this impossible procedure, should be extended to every member of the house-hold without legal definition of what a household may be. The household may be crammed tight with 20 or more people, all under the age of 21, and the unfortunate owner has to appoint a guardian al litem for every one of them. The Bill is becoming more and more a farce as we go on.

Photo of Mr David Weitzman Mr David Weitzman , Stoke Newington and Hackney North

My hon. and learned Friend the Member for Warrington (Mr. W. T. Williams) has made a powerful case in favour of the Amendment. I agree that there may be difficulties about service but, just as one can serve members of the family, one can serve members of a household, and the words of the second Amendment clearly are household other than servants. I have in mind pitiful cases, and I am sure that hon. Members have come across them in their own constituencies, of men and women who have been living together as man and wife for many years.

What is to happen to a woman in that position? Is she not entitled to be protected? The object of the Amendment is to protect a woman in those circumstances. If the House recognises that it would be unfortunate if a woman in that position were not to be protected, it is right that an Amendment of this kind should be accepted. As has been said, this is a short Measure which is intended to protect people through a short period. Nevertheless, injustice may arise during that period. I hope, therefore, that the Government will accept the Amendment.

Photo of Mr Eric Lubbock Mr Eric Lubbock , Orpington

I also hope that the Government will accept the Amendment. I find it difficult to follow the arguments of the hon. Member for Crosby (Mr. Graham Page). He has mentioned this hypothetical babies' home containing 20 or 30 infants under 21, but I hope it will not be suggested that it should be made easier for landlords to evict infants than to evict adults. This was an argument unworthy of the hon. Member. He can do better than that. I am glad that the Amendment received support from the benches opposite, and I hope that the Joint Parliamentary Secretary will accept it.

Photo of Mr James MacColl Mr James MacColl , Widnes

We discussed this matter in Committee when my hon. Friend, my joint half, expressed his great sympathy with the idea behind it. I found no difficulty in principle about it. The difficulties are entirely practical.

It is perfectly true that we want to draw the net as wide as possible to collect people and get them under the protection of the court to avoid eviction. Therefore, there is a great deal to be said for extending the definition of people who are protected, beyond the family, to cover the kind of people who would be covered by the household, excluding, as we probably would all agree, servants.

As my hon. and learned Friend said, there is the case of the unmarried wife who was living with the tenant who dies. There is also perhaps the more important case, less tinged with emotion, of two schoolmistresses who have lived together for many years sharing the house. One of them dies and the other, as I understand it, has no protection. That is a difficult case and one which I should like to deal with.

I would have thought—this is where I venture to differ from my hon. and learned Friend with some trepidation—that the illegitimate children of the union were part of the family living under the protection of the father and would be regarded as part of his family and that would bring them under protection. Therefore, there is some argument for saying that if the children are protected the mother of the children who is living with them and looking after them, if not protected, at any rate is not likely to find herself evicted to leave the children under someone else's care. I would have thought that probably the mother of the children who were illegitimate was protected.

My difficulty in this Bill, which is a holding Measure, is to avoid some of the other difficulties that may arise. For example, there is the problem of what happens where a deserted wife is left in the house and the husband has ceased to reside in the house although he remains the tenant and pays the rent. In what circumstances is she protected? The more I look at it the more it seems to me that there are difficulties about this which make it unwise to rush in with this proposal. I do not challenge it on its merits.

My feeling is that in a holding Bill, if I may use that phrase again without embarrassment, we probably are wise to stick to the classes defined in the Rent Act which have been before the courts. But I would certainly not only promise to, but would want to, look very carefully at the position when our main piece of legislation comes before us. I recognise very much the difficulties of this problem.

Photo of Mr David Weitzman Mr David Weitzman , Stoke Newington and Hackney North

If my hon. Friend recognises that there is merit in this, is he content that injustice should continue even for a short period?

Photo of Mr James MacColl Mr James MacColl , Widnes

The difficulty is that there are other injustices which might be left if we do this. That is why I am hesitant to do it. It is not that I do not want to do it. I feel that it would cause injustices to some people who were extremely worthy but who would not be protected while other people who were less worthy would be protected. If I did not feel that I would be in favour of it. My own feeling at the moment, subject to discussion of this matter this afternoon, is that the wise thing would would be to leave the position as it is at the moment and do something about it when we come to the major Bill. I say that not in any criticism, because I thoroughly appreciate what my hon. Friends have said. They have made an impressive case and my difficulties are purely practical.

5.15 p.m.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

I find myself in complete agreement with the Parliamentary Secretary on this point. I quite understand the points that were made by the hon. and learned Member for Warrington (Mr. W. T. Williams) and the hon. and learned Member for Stoke Newington and Hackney North (Mr. Weitzman) who spoke for the widening of the provision. I agree with the Parliamentary Secretary that those cases are probably within the law already. As I understand it, there is authority of the court that a woman who had lived for 12 years with a tenant as his mistress and had two children by him was included and was a member of his family. The court has indicated, admittedly only obiter, that an illegitimate child, if a guardian ad litem is appointed for this purpose, is a member of the family. I find it difficult to see how an illegitimate child cannot be a member of the family of the deceased tenant.

Photo of Mr Thomas Williams Mr Thomas Williams , Warrington

I think I am wrong about that and I do not pursue it.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

There is the case of the mother of the illegitimate children who has been there for a shorter period than 12 years. The law may be in some doubt about that, but I agree with the Parliamentary Secretary that more than likely if she is looking after the children she will have protection. Therefore, one is left only with an extension of rights that are intended to protect tenants temporarily to everyone within the tenant's household.

While it may include some for whom one may feel a great deal of sympathy, like school teachers who have lived together for a long period, it would include a tremendous number of other people who are wholly unmeritorious. Any person, friend or companion who had lived in the household for any time, however short, would be a member of the household and would have to be served and come before the court and the whole thing would have to be considered. Any paying guest who was a member of the household would have to be served, any au pair girl who was a member of the household would come within the Bill, any lodger living as a member of the family would come within the Bill.

Servants, of course, ought to be out, but au pair girls who are not servants but who live in a household, or foreigners who come to learn a language and live in a household, would all be in, and also, of course, any temporary mistress who had only been there for a month or two would also be in because she would be a member of the household, and any guest within any form of relationship who happened to be living as a member of the household would be covered. All these people would become occupiers on the death of the tenant and would have to be served and go before the court. While I appreciate that it is intended to take in a narrow line beyond members of the family, the Amendment would extend it so widely that an enormous additional category of people would have to be hauled before the court with no prospect that they would be allowed to remain in possession. For these reasons, I agree entirely with the Parliamentary Secretary in the view he takes.

Mr Deputy-Speaker:

The hon. Gentleman must ask leave of the House to speak again even if he wishes to withdraw the Amendment

Photo of Mr Thomas Williams Mr Thomas Williams , Warrington

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Mr James MacColl Mr James MacColl , Widnes

I beg to move Amendment No. 4, in page 2, line 16, at the end to insert: (4) In any proceedings for an offence under this section, it shall be a defence to prove that the owner believed, and had reasonable cause to believe, that the occupier had ceased to reside in the premises. This matter arose in discussion in Committee and the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) moved an Amendment which included a good deal more than the particular point with which our Amendment deals. It included, at the end, that it should not be a recovering of possession within the meaning of the criminal part of the Bill if the owner took possession in the reasonable belief that the occupier had previously given up possesion. The right hon. and learned Gentleman raised the case of a person who has left, but nobody quite knows whether he has actually gone or not until someone can go into the house and see what the situation is.

In the discussion, I said that if there were a loophole as regards the flitting tenant we should try to move an Amendment to stop it. This Amendment deals with that fairly narrow point. It provides that, if someone is charged with the offence of enforcing possession without a court order, it shall be a good defence that he believed, and had reasonable cause to believe, that the occupier had ceased to reside in the premises. I hope that this will appeal to the right hon. and learned Gentleman as a reasonable attempt to meet the point. We think that it covers it succinctly and effectively.

Question proposed, That those words be there inserted in the Bill.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

I beg to move, as an Amendment to the proposed Amendment, after "ceased" to insert "to occupy or".

First, I thank the Government for tabling their Amendment, which to some extent meets the point I raised, which, though a small one, may be of great importance to people who are accused of a criminal offence. I am sorry that they have not dealt with the other point about an individual who by fraud, fear or intimidation obtains the tenant's consent to recovery of possession. This is something which may cause trouble, and I was anxious that it should be covered, but the Government have not dealt with it.

As I understand it, if a landlord by fraud, fear or intimidation obtains the consent of the tenant, he will not have committed any criminal offence. He will not have enforced his right to possession. He will have gone into possession by consent, and no criminal offence will have been committed. The tenant will not be able to recover possession, and the sole remedy remaining to him will be an action for intimidation or fraud against the landlord. Although I see the difficulties, I am sorry that this matter has not been covered.

The Amendment to the Government's Amendment arises in this way. Under the Bill, it is not a criminal offence to seek to enforce one's right to possession against anyone if he is not both occupier and resident. If a person is not both occupier and resident, he is not an occupier for the purposes of the Bill. There will not be many, but there may well be cases of a person being resident but not in occupation because he is resident in the premises as agent for another person. The occupation is in a third party, someone who has two houses, who allows the person who was formerly the tenant to remain in possession of his premises. The former tenant is resident in the premises but is not himself the occupier of them. The likelihood of such cases is not great, but, for neatness and completeness, it would have been desirable to make plain that the special defence here to be provided ought to bite in both instances, both where someone is the occupier but not resident and where someone is resident but not the occupier.

Photo of Mr James MacColl Mr James MacColl , Widnes

If I may have the leave of the House to speak again on the main Question—I suppose that I may speak as of right on the Amendment—perhaps I may cover both of them.

First, on the point about residence, it was the right hon. and learned Gentleman who introduced residence into the discussion. We were anxious to be helpful and we accepted the point which he made. We do not want to confuse the whole interpretation of the Bill by getting involved in highly metaphysical arguments about when one can reside without occupying or occupy without residing.

We are here dealing with the landlord who goes into a house to see whether the tenant is still there or has flitted. This is plain common sense. The test is whether he is residing there or not. If we must have the difficulty of having the two words in, I think that the best course is to stick to the test of whether or not he is residing there. Therefore, I hope that the right hon. and learned Gentleman will think that we have dealt with the main point and be willing not to press his Amendment.

The right hon. and learned Gentleman regretted that we had not dealt with his other point about obtaining consent by force or fraud. I remember moving a most impressive new Clause on the Housing Bill last year which, unfortunately, was out of order—

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

How did the hon. Gentleman manage to move it if it was out of order?

Photo of Mr James MacColl Mr James MacColl , Widnes

The right hon. Gentleman will discover that I am very adroit at it. I only hope that I have no more experience of having to do it for many years. It was an impressive piece of drafting, although it was out of order on that Bill.

We shall look at the whole problem when we review the rent Acts as a whole, but my immediate view is that, if the court were to have before it someone who, in fact, had obtained consent from a tenant by threats or by fraud, it would brush aside questions about consent and would deal with the matter on its merits. Not long ago, I came across the case of a landlord who, so it was alleged—this was only one side of the story—had got the tenant to sign a document said to be an agreement for another house but which was a consent to withdraw an application to the rent tribunal. As I say, if that kind of fraud were to go on, I think that the court would brush aside questions about consent and deal with the case on its merits. A broad criminal charge of this sort— to enforce … his right to recover possession"— would cover any question of fraud or intimidation. If not, and if we find that something more is required, we shall be very happy to introduce it later.

I hope that the House will accept our Amendment and that the right hon. and learned Gentleman will feel that it will improve the Bill and he need not press his Amendment to it.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

I do not wish to press my Amendment, and I beg to ask leave to withdraw it.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. On Report, every hon. and right hon. Member must ask the leave of the House before he may speak again unless he is speaking to a new matter.

Photo of Sir John Hobson Sir John Hobson , Warwick and Leamington

On a point of order, Mr. Deputy-Speaker. Is it right that the mover of an Amendment must ask leave to ask the permission of the House to withdraw it? That is all I was doing.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Yes, when we are at the Report stage.

Photo of Mr Archibald Manuel Mr Archibald Manuel , Central Ayrshire

I want more clarification of the Amendment which has been moved by the Parliamentary Secretary.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. We still have before us the Amendment to the proposed Amendment.

Photo of Mr Archibald Manuel Mr Archibald Manuel , Central Ayrshire

Has it not been withdrawn, Mr. Deputy-Speaker?

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Is it the pleasure of the House that the Amendment to the proposed Amendment be withdrawn?

Hon. Members:

Aye.

Amendment to the proposed Amendment, by leave, withdrawn.

5.30 p.m.

Photo of Mr Archibald Manuel Mr Archibald Manuel , Central Ayrshire

I would like some clarification of the Government Amendment. We must recognise differences that exist between Scotland and England—for instance, as between the sheriff court and the county court. Would it be a defence, under this provision, to prove that the owner had believed, or had reasonable cause to believe, that the occupier had ceased to reside in his premises if the owner happened to catch the occupier out when the latter was on a lengthy holiday? I would be happy to learn that this would not be considered sufficient defence. People do go for fairly lengthy holidays, even from rented property, and I hope that families in such a situation would not have to fear that, on their return, they would be without a home.

Photo of Mr James MacColl Mr James MacColl , Widnes

By leave of the House, perhaps I may reply to my hon. Friend. The key words are "reasonable cause to believe" and, surely, if the court felt that the landlord had waited round the corner until the tenant disappeared with his bags to go on holiday and had then shot in to get possession of the house, the landlord would get a rough time. I do not think there is danger of such a situation arising. Of course, if the tenant went away for, say, six months' holiday —although hon. Members often do not understand that there are people who get six months' holiday—that might well be thought a reasonable ground for believing that the tenant had gone.

Photo of Mr Eric Lubbock Mr Eric Lubbock , Orpington

There are cases where people go hop-picking or potato-picking for periods longer than the normal annual holiday of two or three weeks.

Photo of Mr James MacColl Mr James MacColl , Widnes

Anyone who knows hop-pickers also knows that they go out to the fields at a certain time of year. If an owner marched into a house to get possession while the tenant was hop-picking I do not think he would get a very good reception in court, I think that the courts can be trusted to interpret reasonable behaviour. One cannot define it. One must leave it to the sense of the courts. That is what the courts are for.

Proposed words there inserted in the Bill.

Photo of Mr Richard Crossman Mr Richard Crossman , Coventry East

I beg to move Amendment No. 6, in page 2, line 25, to leave out "section" and to insert "Act".

This is a drafting Amendment related to a later Amendment which I shall move.

Amendment agreed to.