| Previous Section | Home Page |
Column 1265
assessment of the amendment in the other place hit the nail on the head, and I commend it to the House.Lords amendment agreed to.
Lords amendments Nos. 61 to 63 agreed to.
Clause 16
Agreement void if it restricts operation of the Act
Lords amendment: No. 63, in page 8, line 41, leave out ("or modify") and insert (", modify or otherwise frustrate")
Mr. Thurnham: I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker: With this, it will be convenient to discuss also Lords amendments Nos. 64 to 67.
Mr. Thurnham: The amendments are technical, and they revise and refine the provisions of clause 16 as it left this House. The amendments are important, as they contain anti-avoidance provision to stop the reforms simply being circumvented. The amendments do not change the approach of the original provision or the approach recommended by the Law Commission, but refine the provisions so that they are properly effective. They will also prevent arguments to the effect that they outlaw certain other matters which the Act elsewhere envisages being permitted.
The Law Commission, aware of the boundless ingenuity of those in the property industry, recommended provision in general terms to catch any device aimed at subverting the Act. Subsection (1) contains the principal provision which is, in accordance with that recommendation, in general and all-embracing terms.
Amendments Nos. 63 and 64 amend the wording of subsection (1) to ensure that it is sufficiently all-embracing to catch various devices which might be attempted as ways of circumventing the Act. Amendment No. 65 deletes subsection (2) of clause 16 as it left the House. The subsection makes cross-reference to provisions which authorise and guarantee the agreements, and it is necessary to delete it to make way for a revised and refined provision to similar effect which is made by amendment No. 67.
Amendment No. 67 inserts a new subsection after subsection (3) which makes it clear that an agreement is not outlawed to the extent that it is an authorised guarantee agreement, but that anything in an authorised guarantee agreement which falls foul of subsection (4) of clause 12 as amended is void to the extent that it does so. Amendment No. 66 deletes subsection (3) of clause 16 as it left this House, and replaces it with a revised and refined version. The subsection was originally inserted to reflect concerns that it might be argued that absolute or qualified covenants against assignment amounted to provisions which would modify the operation of the Act as far as release on assignment is concerned, which would therefore be held to be void. The new subsection makes it clear that such a covenant against assignment is not void by reason of this clause, but goes on to make clearer than the original draft that any conditions which might be attached to consent or required to be fulfilled before
Column 1266
consent is given would not survive scrutiny under this clause if they were such as to subvert the operation of the Act.Mr. John M. Taylor: As my hon. Friend has said, the amendments are technical and I do not propose to detain the House for any length. However, there are two points on which it would assist the House if I offered a brief explanation, since questions have been asked in some quarters. First, it has been suggested in some quarters that subsection (1)--both in its original form and as amended--might render void any agreement between parties to a lease that certain covenants should be expressed to be of limited duration, such as--to take an obvious example--a time-limited undertaking.
This is argued on the basis that such limitation would modify the operation of the provisions providing for an assigner to be released on assignment. I wish to reiterate what was said in another place on this matter--that that will not be the case, since time-limited covenants, once the period has expired, will not be covenants which bind the assignor immediately before assignment. It is thus not possible to say that the limited duration in any way falls foul of clause 16.
The second point demonstrates the ingenuity to which my hon. Friend referred. It is suggested that an avoidance device for landlords might be to abuse the provisions concerning excluded assignments by insisting that tenants cannot assign but must instead sublet for a longer term than the tenant's own term. It is argued that this will take effect not as a sub- letting but as an assignment by operation of law so that the tenant will not be released and neither will any of his assignees.
The degree of lateral thinking in that suggestion is remarkable, but this is precisely the sort of device at which clause 16 is aimed. The point was in the minds of those who produced the provisions in question. Such a device would be a clear sham aimed at subverting the effect of the Act. I am sure that the courts will be quick to spot such shams as the Act is tested and to strike them down.
Lords amendment agreed to.
Lords amendments Nos. 64 to 72 agreed to.
Clause 19
Interpretation
Lords amendment: No. 73, in page 10, line 5, at end insert ("(unless the context otherwise requires)")
1.45 pm
Mr. Thurnham: I beg to move, That this House doth agree with the Lords in the said amendment.
Mr. Deputy Speaker: With this, it will be convenient to discuss also Lords amendments Nos. 76 to 78 and 80 to 84.
Mr. Thurnham: Again, these amendments are technical and in the main consequential on changes made earlier in the Bill. They amend clause 19 of the Bill as it left this House, which sets out definitions and provisions for interpretation of the Bill as a whole. A number of them fall to be revised and some additional ones are added.
Column 1267
Lords amendment No. 37 inserts a general provision which qualifies the entire list of definitions so that they do not apply if the context otherwise requires. That enables the definitions to be simpler and clearer.Lords amendment No. 76 clarifies the term "collateral agreement", which has an important place in the amendments which provide the framework for transmission of covenants to give effect to the Law Commission's recommendations. In particular, the amendment makes it clear that a collateral agreement may be entered into after the creation of the tenancy and need not be contemporaneous with it. Lords amendment No. 77 makes it clear that the term "covenant" is to encompass matters contained in collateral agreements, which is in accordance with the Law Commission scheme.
Lords amendment No. 78 provides, for the avoidance of doubt, a definition of "landlord" and "tenant" for the purposes of the whole Bill. Lords amendment No. 80 restores wording which was originally recommended by the Law Commission that had been excluded from the Bill as it left this House. The reinserted wording excludes a mortgage term from the definition of tenancy for the purposes of the Bill. That is because it remains possible for there to be a mortgage by demise, and because it is inappropriate for there to be any question of the Bill's provisions applying to any such mortgage. Lords amendments Nos. 81 and 82 deal with covenants to pay money such as a service charge in cases in which only part of a person's interest is assigned. A money covenant will not generally be attributable to one part or another of the property, so that it will be necessary for the assignor and assignee to agree an apportionment of liability. However, there are exceptional circumstances in which such a covenant is specifically attributable so that apportionment is not necessary. These are defined in subsection 3 of clause 19, which becomes clause 27 as now amended. The amendments provide new wording to make it clearer that subsection 3 deals with an exception and to make the application of the exception clearer.
Lords amendment No. 83 extends the definition of landlord and tenant for the purposes of the Bill to put beyond doubt a point which emerged during revision of the Bill and consideration of clause 10. It covers the possibility of joint landlords or tenants and makes it clear that any reference to the landlord or tenant means all those who jointly constitute the landlord or tenant, as the case may be. Clause 10 was intended to cover persons who had failed to secure release, their assignees and the like. It was not intended to cover joint tenants or landlords. The amendment ensures that clause 10 will, as intended, have no application as between joint tenants or landlords.
Lords amendment No. 84 covers certain cases such as sale via mortgagee, where the landlord's or tenant's interest changes hands, but does not do so by the landlord's or tenant's action or automatically by operation of law. Such a transfer is to be treated as an assignment by the landlord or tenant as appropriate, so that the assignor will be released and the assignee bound and so forth in accordance with the relevant provisions of the Act.
Mr. John M. Taylor: As my hon. Friend said, this group of amendments is technical, but I am grateful to
Column 1268
him for his explanation and do not think that I can add anything. Once again, I commend the amendments to the House.Lords amendment agreed to.
Lords amendments Nos. 74 to 84 agreed to.
Clause 21
Repeals and consequential amendments
Lords amendment: No. 85, in page 11, line 1, at beginning insert--
("(1ZA) The enactments specified in Schedule ( Consequential amendments ) are amended in accordance with that Schedule, the amendments being consequential on the provisions of this Act.")
Mr. Thurnham: I beg to move, That this House doth agree with the Lords in the said amendments.
Mr. Deputy Speaker: With this, it will be convenient to discuss also Lords amendments Nos. 86, 87 and 89.
Mr. Thurnham: This is the final group of amendments. Once more, they are technical amendments, some of which have already been touched on, so I shall be brief.
Clause 21, which becomes clause 30 as amended, provides for appeals and consequential amendments. It will, I think, come as no surprise to hear that the detailed revision of the Bill has resulted in there being more consequential amendments than before and in some rearrangement of those already in clause 21.
Amendment No. 85 paves the way for the rest. It provides for a new schedule of consequential amendments and amendment No. 86 deletes the consequential amendments in subsection (2) of clause 21, since those are moved to that schedule. Amendment No. 87 makes consequential changes to the references in subsection (3) of clause 21. Finally, amendment No. 89 introduces the new schedule of consequential amendments, which contains, in particular, consequential amendments to the Landlord and Tenant Act 1954 and the Trustee Act 1925, to which reference has already been made. I am grateful to the House for listening to me for such a long time. I hope that hon. Members will agree that it was worth it.
Mr. John M. Taylor: My hon. Friend's explanation of this final group of technical amendments has been as helpful as all his earlier explanations, and I am grateful for his hard work today. I commend these amendments and the Bill to the House.
As our work comes towards a conclusion I must say that I have been privileged to take part in bringing this legislation to the statute book and to ending the unfairness of the privity rule in landlord and tenant legislation. Many years ago--longer ago than I would care to confess--I studied the law of landlord and tenant as a young law student, although I never really mastered it, and encountered the operation of the doctrines of privity of contract and of estate. As a young man, I thought them profoundly unfair.
I then practised for more than 20 years as a provincial high street solicitor and used to warn those of my clients who were about to sign commercial leases, frequently for lock-up shops, of the operation of this rule. I used to
Column 1269
reflect with them on how unfair I thought it was but they must know about it and accept its operation with their eyes open and with every care and vigilance.Having seen the rule as a student and worked with it as a practitioner of the law, I find myself at the Dispatch Box as a legislator, or a junior member of the Government, preparing to give the rule of privity the coup de grace. I hope that the House will forgive me if I take a certain pleasure in being in this place at this time doing this thing.
Some of those with an interest in the commencement date of these provisions may be within earshot. The commencement date is no trivial matter because a whole industry with its advising professions will have to come to terms with this change in the law. Many learned articles will have to be written, read and disputed, seminars held and lectures given before the profession and the industries involved--the property, pension and retail industries-- come to terms with one of the most important changes in English property law since 1925. This country's commerce is very much about property law and always has been. In 1925 great changes took place under the auspices of that remarkable man, Lord Birkenhead.
I am about to take the lid off the jar and say when I think that commencement might be. It is a matter for the Lord Chancellor who has an order-making power in this regard, but I believe that the commencement date will be 1 January 1996, which, fittingly, will be the 70th anniversary of the Birkenhead legislation.
Mr. Thurnham: I thank you, Mr. Deputy Speaker, and through you I thank Madam Speaker, for the opportunity to bring this Bill to the House and, I hope, to the statute book.
Today is a red letter day and 1 January 1996 will obviously be the most important day on which many small businesses and shop keepers will be released from the fear that their landlords may pursue them for many years afterwards. I am grateful to have had the opportunity to bring a Bill, which was not lucky in the ballot, to a successful conclusion.
Lords amendment agreed to .
Lords amendments Nos. 86 to 89 agreed to .
Column 1270
Civil Rights (Disabled Persons) Bill
As amended (in the Standing Committee), considered.
1.56 pm
Mr. Harry Barnes (Derbyshire, North-East): On a point of order, Mr. Deputy Speaker. May I refer you to the statement that Madam Speaker made on 24 January when the Government were introducing the Disability Discrimination Bill. She pointed out that there was a problem about whether the Civil Rights (Disabled Persons) Bill and the Disability Discrimination Bill covered similar ground and said that, if so, there would be difficulties in allowing the second Bill to proceed. It was ruled that the Bills were sufficiently dissimilar to allow the second Bill, the Civil Rights (Disabled Persons) Bill, to proceed.
May I refer you, Mr. Deputy Speaker, to page 469 of "Erskine May" on new clauses? On the possibility of clauses being ruled out because they clash with clauses in a different Bill, it says:
"Similarly a new clause offered at the consideration stage of one bill was ruled out of order when it substantially repeated the provisions of another bill of the same session, the consideration stage of which had been adjourned."
New clause 1, which we are about to deal with, is sufficiently similar to clause 7 of the Disability Discrimination Bill to create that problem. Furthermore, other new clauses that we shall discuss in the first batch deal with the Secretary of State taking over the role of the disability rights commission. Those are in line with the Government's Bill, which is now before the other place. The problem crops up in later clauses, too. Should not a number of the clauses currently before us be removed on the ground that they form part of the Disability Discrimination Bill?
Mr. Deputy Speaker (Sir Geoffrey Lofthouse): Madam Speaker has selected the new clauses and amendments for debate. I have no doubt that in doing so she took careful account of the sort of problems that the hon. Gentleman has mentioned. We shall now proceed with the Bill.
New clause 1
Exemption for small businesses
`.--(1) Nothing in Part III applies in relation to an employer who has fewer than 20 employees.
(2) The Secretary of State may by order amend subsection (1) by substituting a different number (not greater than 20) for the number for the time being specified there.'.-- [Mr. Burt.]
Brought up, and read the First time.
The Minister for Social Security and Disabled People (Mr. Alistair Burt): I beg to move, That the clause be read a Second time
Mr. Deputy Speaker: With this, it will be convenient to discuss the following: New clause 2-- Codes of practice prepared by the Secretary of State --
`.--(1) The Secretary of State may issue Codes of Practice containing such practical guidance as he considers appropriate with a view to--
(a) eliminating discrimination against disabled persons in the field of employment; or
(b) encouraging good practice in relation to the employment of disabled persons.
Column 1271
(2) The Secretary of State may from time to time revise the whole or any part of a Code and re-issue it.(3) Without prejudice to subsection (1), a Code may include practical guidance as to--
(a) the circumstances in which it would be reasonable, having regard in particular to the costs involved, for an employer to be expected to make accommodation in favour of a disabled person; or (b) what steps it is reasonably practicable for employers to take for the purpose of preventing their employees from doing, in the course of their employment, anything which is made unlawful by this Act.
(4) A failure on the part of any person to observe any provision of a Code does not of itself make that person liable to any proceedings.
(5) A Code is admissible in evidence in any proceedings under this Act before an industrial tribunal, a county court or a sheriff court.
(6) If any provision of a Code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question. (7) In this section and section (Further provision about Codes issued under section (Codes of practice prepared by the Secretary of State)) "Code" means a Code issued by the Secretary of State under this section and includes a Code which has been revised and re-issued.'.
New clause 3-- Further provision about Codes issued under section (Codes of practice prepared by the Secretary of State) --
`.--(1) In preparing a draft of any Code under section (Codes of practice prepared by the Secretary of State) , the Secretary of State shall consult such organisations representing the interests of employers or of disabled persons in, or seeking, employment as he considers appropriate.
(2) Where the Secretary of State proposes to issue a Code, he shall publish a draft of it, consider any representations that are made to him about the draft and, if he thinks it appropriate, modify his proposals in the light of any of those representations. (3) If the Secretary of State decides to proceed with a proposed Code, he shall lay a draft of it before each House of Parliament. (4) If, within the 40-day period, either House resolves not to approve the draft, the Secretary of State shall take no further steps in relation to the proposed Code.
(5) If no such resolution is made within the 40-day period, the Secretary of State shall issue the Code in the form of his draft. (6) The Code shall come into force on such date as the Secretary of State may appoint by order.
(7) Subsection (4) does not prevent a new draft of the proposed Code from being laid before Parliament.
(8) The Secretary of State may by order revoke a Code.
(9) In this section "40-day period", in relation to the draft of a proposed Code, means--
(a) if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days, and
(b) in any other case, the period of 40 days beginning with the day on which the draft is laid before each House,
no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.'.
New clause 6-- Appointment by Secretary of State of advisers -- `.--(1) The Secretary of State may appoint such persons as he thinks fit to advise or assist him in connection with matters relating to the employment of disabled persons.
(2) Persons may be appointed by the Secretary of State to act generally or in relation to a particular area or locality. (3) The Secretary of State may pay to any person appointed under this section such allowances and compensation for loss of earnings as he considers appropriate.
Column 1272
(4) The approval of the Treasury is required for any payment under this section.(5) In subsection (1) "employment" includes self-employment. (6) The Secretary of State may by order repeal section 17 of the Disabled Persons (Employment) Act 1944 (national advisory council and local advisory committees).'.
New clause 7-- Amendment of Disabled Persons (Employment) Act 1944 --
`.--(1) Section 15 of the Disabled Persons (Employment) Act 1944 (which gives the Secretary of State power to make arrangements for the provision of supported employment) is amended as set out in subsections (2) to (5).
(2) In subsection (1)--
(a) for "persons registered as handicapped by disablement" substitute "disabled persons";
(b) for "their disablement" substitute "their disability"; and (c) for "are not subject to disablement" substitute "do not have a disability".
(3) In subsection (2), for the words from "any of one or more companies" to "so required and prohibited" substitute "any company, association or body".
(4) After subsection (2) insert--
"(2A) The only kind of company which the Minister himself may form in exercising his powers under this section is a company which is-- (a) required by its constitution to apply its profits, if any, or other income in promoting its objects; and
(b) prohibited by its constitution from paying any dividend to its members."
(5) After subsection (5) insert--
"(5A) For the purposes of this section--
(a) a person is a disabled person if he is a disabled person for the purposes of the Civil Rights (Disabled Persons) Act 1995; and (b) "disability" has the same meaning as in that Act."
(6) The provisions of section 16 (preference to be given under section 15 of that Act to ex-service men and women) shall become subsection (1) of that section and at the end insert--
"and whose disability is due to that service.
(2) For the purposes of subsection (1) of this section, a disabled person's disability shall be treated as due to service of a particular kind only in such circumstances as may be prescribed." (7) The following provisions of the Act of 1944 shall cease to have effect--
(a) section 1 (definition of "disabled person");
(b) sections 6 to 8 (the register of disabled persons); (c) sections 9 to 11 (obligations on employers with substantial staffs to employ a quota of registered persons);
(d) section 12 (the designated employment scheme for persons registered as handicapped by disablement);
(e) section 13 (interpretation of provisions repealed by this Act);
(f) section 14 (records to be kept by employers);
(g) section 19 (proceedings in relation to offences); and (h) section 21 (application of Act as respects place of employment, and nationality).
(8) Any provision of subordinate legislation in which "disabled person" is defined by reference to the Act of 1944 shall be construed as if that expression had the same meaning as in this Act. (9) Subsection (8) does not prevent the further amendment of any such provision by subordinate legislation.'.
New clause 8-- Government appointments outside Part III -- `.--(1) Subject to regulations under subsection (3), this section applies to any appointment made by a Minister of the Crown or government department to an office or post where Part III does not apply in relation to the appointment.
| Next Section
| Home Page |