CLAUSE 17.—(Prescription of obligations, etc.) (Hansard, 27 June 1924)

§ Mr. F. C. THOMSON
I beg to move, in page 18, line 7, to leave out from the word "years" to the word "in" line 13.
Hon. Members will recollect that this Clause provides for the reduction of the period for the negative prescription from 40 years to 20 years. What I propose is a very simple point. I propose to limit the reduction of the negative prescription to 20 years only to questions of heritable rights and titles. Hon. Members w ill recollect that prescription is both a method of establishing property and extinguishing property. The first is called positive prescription, and when it is for extinguishing property it is known as negative prescription. For the last 50 years the period of the positive prescription has been 20 years. If a man possesses land on an ex facie valid title for 20 years he gets an unchallengeable title. If, however, the plea of prescrip- 888 tion is filed against a minor the period is 30 years. By Clause 16 we reduce the period to 20 years without any allowance for minority, and we propose as regards Clause 17—and this is the purpose of my Amendment—in dealing with the negative prescription—that is a method of extinction of property—to limit the reduction from 40 to 20 years solely to heritable rights and titles, leaving personal rights and claims at 40 years as was previously the case. This matter was referred to in Committee, and I promised to introduce an Amendment on the lines suggested.

§ Sir H. CRAIK
I am surprised that hon. Members opposite, who think that nothing short of a separate Parliament for Scotland is necessary to deal with Scottish affairs, should be prepared quietly to accept this Amendment without even knowing what it means. I can only say that if hon. Members opposite understand from the speech of my hon. and learned Friend (Mr F. C. Thomas) what the Amendment means they have brains and trained intellects much superior to mine. Would hon. Members take the trouble to look at Clause 17. Do they think that in a few moments they can master the objects of this Clause or that in still fewer moments they can accept the drastic proposal and change which my hon. and learned Friend proposes It, is preposterous, and I am surprised that it should be left to a degenerate Southern-loving Scotsman like myself, in preference to hon. Members opposite, to protest against this drastic Amendment, altering what I assume from its learned phraseology and the great difficulty which I am sure my hon. Friend the Member for Edinburgh will shire with me in even remotely understanding this important Clause. I am surprised that they should consent to this drastic change without further discussion. I do not know whether my hon. and learned Friend will excuse me if I read a telegram which I have just received from his own constituents protesting against further proceeding with this Bill. It is signed by the Society of Advocates of Aberdeen, and reads: Unanimously reject the Conveyancing (Scotland)) Amendment Bill, which will only delay the introduction of consolidating and simplifying measure of reform. We 889 respectfully ask the immediate appointment of a Committee. Hon. Members, I presume, have understood all the intricacies of these 49 Clauses, an understanding to which I cannot aspire, but it appears that even their comprehension must be to some extent shared by the Society of Advocates of Aberdeen which my hon. and learned Friend, I understand, represent. They have come to a unanimous opinion against further proceeding with this Bill and I would like to ask if hon. Members opposite are prepared, lightly and with easy consciences, to accept this drastic Amendment without further investigation of a very difficult, complex and intricate subject.

§ Mr. T. JOHNSTON
I have considerable sympathy with the right hon. Gentleman who has just resumed his seat, and I sympathise with his difficulty in understanding the legal terms with which this Bill abounds. If he had, like the rest of his colleagues from Scotland, spent a great deal of time on the Scottish Grand Committee in going over these Clauses seriatim with such legal advice as we had at our disposal, it would not have been necessary for him to have troubled the House now.

§ Sir H. CRAIK
I was present at one of the meetings, and I think there was then a strong representation that we should not go on with this Bill.

§ Mr. JOHNSTON
I think the right hon. Gentleman's memory is at fault. I speak subject to correction, but I believe that at the meeting where he was present the Bill was not discussed. As a matter of fact the Chairman of the Scottish Grand Committee (Sir G. McCrae) confirms that view. Some hon. Members, I am afraid, are more concerned in obstructing the passage of a Bill further down the Order Paper to-day than with this particular Bill. Many of us here have no knowledge of law whatsoever, and do not want it, but we spent quite long enough in discussing these archaic terms in the Scottish Grand Committee, and I should like to enter my protest along with the protest of the right hon. Gentleman against this practice by which the Faculty of Advocates, and the legal profession generally, contrive to keep their trade union rights and privileges intact, by passing measures with archaic terminologies understood by no 890 one but themselves. This Bill may simplify procedure but it does not simplify the law.

§ Sir H. CRAIK
And the Society of Advocates of Aberdeen says it will not simplify even procedure.

§ Mr. JOHNSTON
Another hon. Member behind me also says the Bill is not going to simplify procedure.

§ Mr. PRINGLE
This is a craft union.

§ Mr. JOHNSTON
Then there are Clauses relating to notarial execution, and to terce and courtesy. I understand the ordinary meaning of the word "terse," namely, something abrupt and curt, as would be the remarks of the Chair to me if I did not stick closely to the Amendment; but why not use the word "authority," so that everyone could understand, instead of sticking to the word "terce"? I am only adding my protest to those of hon. Gentlemen opposite against a representative Assembly such as this being asked further to prolong an archaic system of terminology like this, which makes the law very difficult for the average man to understand. Unlike the right hon. Gentleman who has just sat down, I do not wish to obstruct the Measure in any way——

§ Sir H. CRAIK
Nor do I.

§ Mr. JOHNSTON
Then the right hon. Gentleman is in agreement with me on that point. This Bill has been very adequately discussed in Committee upstairs, and all parties came to the conclusion that it was in the general interest of Scotland that it should go through. I therefore propose to sit down and trust to the Bill going through.

§ Mr. REID
I cannot pretend to the universal knowledge which seems to prevail on the other side of the House, and am not even a Scottish lawyer. I know nothing of Scottish legal terminology, but we have heard what happened in Committee, and I think that one of the drawbacks of the system of sending Bills to Standing Committees is that it is very difficult for a Member who is not a Member of the Committee to follow what has been happening during the Committee stage. We have here a rather complicated Clause dealing with the existing law, which is somewhat ancient, and we who were not Members of the Committee 891 have not had the advantage of hearing the discussion on the existing law which we were asked to modify. The hon. and learned Member who moved this Amendment did not say very clearly what it meant, or, at any rate, gave us no explanation that was intelligible to a person without previous knowledge of the subject. Perhaps the hon. and learned Gentleman would be good enough to give us an explanation of what is enacted by the Acts of 1469, 1474, and 1617, the combined effect of which would seem to be rather complicated; and then either he or some Member of the Government might tell us exactly what change this Clause will make in the law, and what the effect of the Amendment will be on that change. Then I should feel, if I had to give a vote on the subject, that I could give it with some knowledge of what the situation is. I take it that it is the right of a Member of this House to be enabled to use his intelligence on the Bill that may be before him, and for that purpose to have the assistance of the Government. The Government have not a Scottish Law Officer in the House, but the Financial Secretary to the Treasury is a man with an immense knowledge of detail and an immense capacity for mastering new subjects, and I have not the slightest doubt that if he would get up he would be able to lay before us sufficient information to enable us to consider this question, which I understand is a pure question of law and not a party matter. I do think that we deserve much more assistance than we have had. Can we not have some assistance?

§ Mr. HARDIE
In bringing a Measure like this before the House, Scotch people have great difficulties, because it would be much better if the promoters of the Bill, who are engaged in law practice every day, had taken these terms from the language of the Scotch legal mind and given us, for instance, x25 or z5x4, or some terms like that for which we could have gone to the dictionary and got an equivalent. The difficulty is that there is no dictionary in the House, or even in the Museum, which can explain what these terms mean. I want to protest on this ground alone that it is unfair of any section of the community, lawyers, bankers or anyone else, to come forward with terms of language which cannot even be 892 translated by the aid of a dictionary. This Bill is supposed to facilitate the transfer and conveyance of property.

§ Mr. SPEAKER
We are not on the Bill yet. We are dealing with an Amendment.

§ Sir VICTOR WARRENDER
I did not intend to take part in the Debate, but having heard the remarks of the hon. Member for Stirling (Mr. Johnston), I feel they cannot be allowed to pass without some comment from these benches. Like most of his party, he was complaining that the time had come when we should drop the old terms of law, in the same way as they sometimes argue we should drop the old institutions of the country. He says terms are used in this Bill which no ordinary person can comprehend. But he is hardly consistent, because he does not object to his party calling itself a Labour party when its correct designation would be Socialist party. It seems to me, therefore, if he was to be a little more consistent in his affairs at home he would carry a little more weight when he came and made his complaints in this House. It seems to me to be absolutely wrong that we should be discussing what I understand is a very complicated and a very necessary Bill without a single representative of the Scottish Office on the Front Bench.

§ Mr. T. JOHNSTON
It is not our Bill. It is yours.

§ Sir V. WARRENDER
We want to have the Bill explained, and we want to know what the Government opinion is. I know it is not your Bill, but that is no reason why a representative of the Scottish Office should not be sitting on that bench.

§ Mr. SPEAKER
We are now considering an Amendment to Clause 17.

Mr. STORRY-DEANS
Although I do not understand the terminology of the Scottish law, as do hon. and learned Friends from the of her side of the border, I think there is objection to this Bill. If there is one thing, however, that could reconcile me to voting for the Bill it would be the fact that it proposes to abolish certain outlandish words which ought to be abolished. I understand that the proposal in the Bill was to substitute 893 a period of 20 years for the period of 40 years with respect to prescription, but the right hon. Member for South Aberdeen (Mr. F. C. Thomson) is proposing an Amendment, which I understand the Government are prepared to accept, leaving the period of prescription at 40 years.

§ Mr. SPEAKER
The hon. and learned Member is quite mistaken. He has not read the Amendment.

§ Mr. WESTWOOD
This point was practically agreed upon when we discussed the matter in the Scottish Grand Committee. In supporting the Amendment I raise my protest against the action of hon. Members opposite. We had agreed upon this Bill, and yet we find that the bitterest opposition is coming from hon. Members opposite when a bargain has been made.

§ Mr. F. C. THOMSON
I beg to move, in page 18, line 24, at end, to insert (2) The provisions of this Section shall have no application to and shall not be construed so as to alter or affect the existing law relating to the period of disuse necessary to involve the extinction of any servitude or of any public right of way or other public right. This Amendment means that the reduction in the prescription from 40 to 20 years proposed in Clause 17 will have no application, and that the existing law, namely that 40 years' disuse is necessary before the extinction of any certitude or any right of way, will apply.

§ Mr. S. ROBERTS
I desire to enter a very mild protest against a Bill of this size and complexity being put through the House at this time on Friday afternoon, with a very thin attendance. Probably, with the exception of the learned Author of the Bill itself, there is not a single Member who knows what is in the 894 Bill. That is not an insult to the intelligence of any Member, because if any Member, except the learned Author, does know what is in the Bill he must be a Member of tremendous energy and legal knowledge. The hon. Member for Stirling and the hon. Member who spoke last, both referred to the careful discussion that had taken place in the Scottish Grand Committee with regard to this Bill of 69 pages of closely printed complex matter. I have made inquiry and find that all this careful discussion occupied no more than one day. [HON. MEMBERS: "Two days!"] This complicated Bill, prepared so admirably by my hon. Friend, no doubt does make a considerable difference to the laws of Scotland. As, unfortunately, there are no Scottish Law Officers in the House the Secretary to the Treasury should tell us whether the Scottish Law Officers have gone through this Bill carefully, realising that it is a Private Member's Bill. I understand that it has been introduced by the Society of Advocates. T believe that, in Scotland, what unfortunately we call the lower branch of the profession in this country, are called Writers to the Signet. T would like to know what the Writers to the Signet have to say about this Bill.

§ Mr. THOMSON
They all approve of it.

§ Mr. ROBERTS
Because last Session we had a very voluminous English Bill, which was supported by the late Lord Chancellor and many distinguished barristers, but it put an appalling burden on the solicitors of this country, because they had to learn all their Conveyancing Law over again. I doubt if the Writers to the Signet, many of whom are old men, will appreciate having to sit down with their grey hairs and begin to study——

§ Mr. A. YOUNG
This Bill has been promoted by the several societies.

§ Mr. ROBERTS
I know that it has been agreed to by the Scottish Committee, but we are still a United Kingdom. We have some right to say that these proposals should not be passed in this way without our being told that they have been thoroughly discussed. We should be definitely informed whether the opinion of the Scottish Law Officers have been obtained, and whether the Bill has the unanimous support of both branches of the legal profession in Scotland.

§ Mr. WESTWOOD
I trust that we shall get this Bill through as speedily as possible. At the same time I must protest against this being called a simple Bill to simplify the law of Scotland. It is a simple Bill which contains 49 Clauses and nine Schedules. One of the first works that will have to be undertaken for the purpose of making more simple the conveyance of land in Scotland will be to pass another Bill to simplify this simple Bill. I trust that in such a Bill there will be two Clauses instead of 49—one which will repeal all previous Acts of Parliament dealing with land which is public property, though owned by private individuals, and another Clause which will convey to the people of Scotland the land which belonged to their forefathers and was stolen from them.

§ Sir H. CRAIK
I am perplexed at the attitude of some hon. Members opposite. I was at the first Committee meeting at which this Bill was considered. There was a unanimous opinion that the Committee was not ready to consider the Bill. The difficulties were stated in strong language by the very people who are now advocating the quick passing of the Bill. By the dexterity of the hon. Baronet who was in charge of the Committee, the difficulties, I understand, were smoothed out. The curious point is that those hon. Members who in one sentence tell us that they find the Bill wrong from beginning to end, saying that it perpetuates a bad system of land tenure, tell us in the next sentence that they wish the Bill to be passed speedily into law. What is their objection to the Bill now? If their contention is that greater simplicity should be introduced in the law why did not they try to introduce it when the Bill was in Committee? Why do they come here now and refuse an opportunity of discussing the Bill further, and yet in the next sentence tell us that the whole Bill is wrong? An hon. Member has asked what is the opinion of the Writers to the Signet, who are the solicitors of Scotland I have received a telegram from the Society of Advocates in Aberdeen. They are unanimously against the Bill and they ask that a Committee should be appointed to inquire into it.

§ Mr. H. JOHNSTONE
I am prepared to speak on this Bill until one minute past Four o'clock, but I shall sit 896 down before then if some hon. Member will explain to me some of the terms in the Bill. The Bill throws an interesting light on the hideous customs of Scotland, and I should be very grateful if somebody would explain some of the terms which it contains, such as "Kenning" and "terce." I am merely asking for information, and if any hon. Member will give me that information I am willing to allow the Bill to go through without further continent. On the other hand, if my curiosity is not satisfied I have here ample material for a speech which might, last a year. The hon. Member for Penistone (Mr. Pringle) tells me he once got a prize in conveyancing, and I invite him to inform the House of the meaning of these terms. If he does so, knowing his great interest in the passing of the Bill, I will resume my seat.

§ The FINANCIAL SECRETARY to the TREASURY (Mr. William Graham)
I will only detain the House very briefly in replying to the points put by the hon. Member for Hereford (Mr. S. Roberts). He asks what is the attitude of the Government towards the Bill. The Government warmly support all the provisions of the Bill and are very anxious indeed that it should pass into law. The Bill was first introduced in 1920, but for various reasons no progress was made, so that it may be said it has now been four years before the House. The experience of the past 50 or 60 years makes it plain that the Bill is urgently required. Under the existing system, the burden upon smaller properties is disproportionately heavy, and the passage of the Bill will enure to the benefit of large numbers of smaller propertied people in Scotland. For these reasons I earnestly desire the House to give the Bill its Third Reading.

§ Sir W. MITCHELL-THOMSON
I thank the hon. Gentleman for what he has been good enough say and as this is the last time, I hope, the House will see this Bill I desire to say just a few words. No one can say what its fortunes may be in another place, but I sincerely hope we shall not see it here again. In the circumstances it is only right to take the opportunity of congratulating the hon. and learned Member in charge of the Bill on the successful passage of the Bill—as I hope it will be passed in a few moments. The Financial Secretary rightly said it had been a long 897 time on the stocks. More or less by accident the Bill has only the names of members of my own Party on the back, and it is only right and fair to say openly that the Measure is due to the labours of men of all parties and all political creeds in Scotland. It originated in the labours of a committee appointed 12 or 13 years ago by the late Lord-Advocate Ure and in reply to the hon. Member for Hereford (Mr. Roberts) I may say that all varieties of legal opinion were represented on that Committee. If the Bill has suffered from anything it has suffered from too many legal experts and not too few. It is quite true that it contains what an hon. Member has described as archaic terms, but the archaisms are all good, broad, Scots, and if ever there was a Bill redolent of the soil, it is this Bill. English law depends very largely on old Norman-French, but Scottish law is strictly Scottish in its character. I only desire to say these few words, in the fire place, to make clear that there was no question of any party attempting to derive political capital out of the passage of the Bill, because that is not our intention; secondly, to thank the hon. Gentleman opposite for what he has been good enough to say; and, thirdly, to congratulate my hon. and learned Friend on the successful result of his labours.

Mr. STORRY-DEANS
Here is a Bill which, by its title, is merely a Bill to improve conveyancing. As I understand the term "conveyancing," it means the method by which property is transferred from one person to another. I find in this Bill one or two things which are matters which are not merely improvements or alterations in conveyancing, but which are alterations in the substantive law of the country, and it do not think it is right that such matters should be introduced into alternations in conveyancing Bill. You have Clause 17, which cuts down the period of prescription in Scotland from 40 years to 20. Prescription, as a matter of title, means two things. Negatively it means that you bar somebody else to a title, and positively it means that you convey a title to somebody else. Do I understand my right hon. Friend to say that this is merely a conveyancing matter, or is this a real, substantial, and substantive alteration of the law of Scotland on the question of prescription? If it is, I think it 898 has been slipped into a Bill in which it has no right to be. If you are going to halve the period of prescription, it should not be slipped into such a Bill. Supposing England had a Conveyancing Bill, and you halved the period of the Statute of Limitations, and said that debts should only be recoverable for three years instead of within six years, that would not be the proper sort of thing to slip into a Conveyancing Bill, and, with all respect to my hon. and learned Friend, who has no doubt bestowed enormous labour upon this Bill—and I, too, would like to congratulate him on it—I think he ought to give some explanation to the House as to how such an important substantive alteration of the law has been put into a Bill that is merely a Conveyancing Bill. I suppose that I am one of the few men, outside the Scottish lawyers, who have ever taken the trouble to read Scottish law, but I have read a little of itߞI will not say how little—and I have read enough to understand this Clause. I think I am the only man in the House, except my hon. and learned Friend, who does, and I might also except my hon. Friend the Member for Penistone (Mr. Pringle), but there it is, and I think some explanation is due to the House on this matter.

§ Mr. F. C. THOMSON
In answer to my hon. and learned Friend the Member for the Park Division of Sheffield (Mr. Story-Deans), who is rather dismayed at there being any provision dealing with prescription in this Bill, let me tell him that this Bill amends the Conveyancing (Scotland) Act of 1874, which dealt with prescription, so that, in making this further amendment of the law of prescription, we are really amending, and substantially re-enacting as Clause 16, a Section of the earlier Conveyancing Act. My hon. and learned Friend, who is an expert and skilful lawyer, knows that conveyancing and prescription overlap and that it is very hard to say where one ends and the other begins, and I have an excellent precedent in the Act of 1874 for dealing in these two Clauses with the question of prescription. I do not wish to say anything more, except to point out that this Bill has been most carefully considered over a period of years, and I do not believe that there are many Bills presented to this House of which the various Clauses have been canvassed and gone 899 over with such great care. Let me just say that some of these words may appear archaic, but they can all be found in Jamieson's Scottish dictionary. I shall, therefore, ask the House now to give the Bill a Third Reading.

§ Mr. PRINGLE
Will the Financial Secretary to the Treasury answer a question? Does he deny the rumour which has been spread that the Labour party are going to circulate this Bill as a leaflet?