Clause 2.—(RETROSPECTIVE AND TRANSITIONAL PROVISIONS.) (Hansard, 12 June 1964)

§ The Solicitor-General
I beg to move in page 1, line 12, to leave out from the beginning to "a" in line 15 and to insert: Section 1 of this Act shall be deemed to have come into force on 1st January 1926, and for the purposes of that section in its application to a conveyance executed before the passing of this Act ". This is in effect a drafting Amendment. My hon. Friend the Member for Crosby (Mr. Graham Page)—

§ Mr. Graham Page
On a point of order, Mr. Speaker. I do not know whether you have overlooked the fact that you did not put the Question "That Clause 1 stand part of the Bill."

§ Mr. Speaker
On consideration of a Bill, I not only do not put it but cannot.

§ The Solicitor-General
I was saying that my hon. Friend the Member for Crosby in Committee said that he was not sure whether the word "since" in the Clause includes the date mentioned or whether the date should be 31st December, 1925. He went on to say that many conveyances were deliberately made on 1st January, 1926, when the new law came into operation and he said that this might apply to many conveyances. What therefore he was saying—and if I may say so respectfully, correctly saying—was that it was not clear whether the expression "since 1st January, 1926" was apt to include a conveyance which had been executed on 1st January, 1926.
The Bill sets out: The provisions of this Act shall be deemed to have had effect since 1st January, 1926… In Committee my hon. Friend asked whether those words were apt to include a conveyance executed on 1st January, 1926. He also said that the expression: before the Act comes into force was somewhat inappropriate for a Bill which does not specify an actual commencing date. The form of words in the Amendment is intended to correct those minor difficulties without changing the sense or the effect of Clause 2.

§ Mr. Fletcher
The Solicitor-General said that this was a mere drafting Amendment and I have no doubt that it may well have been so intended. But in view of what has already taken place, and the Amendments that we have previously made, it seems to be far more than a drafting Amendment and to raise a quite serious point of substance.
First, the language of the Clause has been changed. Whereas in its original form it said: The provisions of this Act shall be deemed to have had effect since 1st January, 1926… it is now limited to providing: Section 1 of this Act shall be deemed to have come into force on 1st January, 1926 ". I think the House will observe that the whole structure of the Bill has been 815 changed by reason of the Amendment which we have introduced into Clause 1. These questions of retrospective legislation are always particularly difficult.
For the reasons which my hon. Friends have given in Committee, we are obviously trying to introduce certainty into the law with regard to the future. But it becomes much more complicated when we endeavour in a Bill to say that something that is going to apply to the future shall be deemed to have been the law since 1st January, 1926. The original intention of giving this retrospective effect to the operation of the Bill was to introduce some certainty into legal titles which may have been debatable or disputable. As I understand it, this Bill would not be necessary unless it were the fact that some people since 1926 have mistakenly or otherwise obtained titles to property which may well have been defective.
Therefore, I think it was very laudable intention to remove that doubt and to say that the law shall always be deemed to have been as we are now making it. That argument would be conclusive if Clause 1 had stood as originally drafted, because then there would not have been any doubt about the matter at all. But we have now introduced a proviso and, instead of saying that in all the circumstances the purchaser shall—omitting the unnecessary words—acquire a good title from a survivor, we are qualifying that and saying that in addition he will acquire a good title only provided certain things happen. When we come to attempt to give retrospective effect to a Clause with a proviso, it means that any future purchaser desirous of dealing with the title to the land in question will no longer be able to rely on the certainty that retrospective validity had been given to all titles. He will now be put on inquiry to see whether the proviso operated between 1926 and 1964. This vitiates the main object of giving certainty.
I shall give an example. In 1965, a person wishes to purchase land from someone who, since 1926, had acquired it from a survivor to a joint tenancy under a title which would have been defective apart from the Bill. He would have been in no possible doubt about the legal position had there been no 816 proviso to Clause 1. However, now that there is a proviso and the Clause is given retrospective operation, it means that some future purchaser of that property will not be sure whether his vendor had a good title or not, because the purchaser will have to go back and inquire whether, when his vendor bought the property, any of the circumstances set out in the proviso applied. This may be a relatively easy matter as regards branch (a) of the proviso, but with regard to branch (b) it will become much more complicated because the subsequent purchaser will then have to go back and ascertain whether, if, for example, his vendor bought the property in 1930, that vendor then had constructive notice of a receiving order in bankruptcy or a petition registered under the Land Charges Act. This will be a much more difficult and more complicated operation.
Although I have no doubt that the intention behind the Amendment is laudable, I think it right to observe that, whenever we embark upon purporting to give retrospective effect to new legislation, difficulties may well be encountered.

§ Dr. Alan Glyn
I thought that I was clear on this matter after my right hon. and learned Friend spoke, but I am not sure now. It seems that we are creating two types of case, according to what the hon. Member for Islington, East (Mr. Fletcher) has said. One type arises when the transfer has taken place between 1925 and now and the property is subsequently transferred to a new purchaser. The other arises in connection with purchases of property now, there being no question of these provisos operating earlier. I am completely muddled. It seems that, by putting the provisos in, we have created two categories, and I hope that my right hon. and learned Friend will seek the opportunity to explain the matter further.

§ Sir B. Janner
I do not think that there need be much worry about this point. The object of the Bill is to clear up a matter, which has caused and which could in future cause trouble, by requiring the appointment of another trustee in certain instances. What is intended by the retrospective proposal is that the position of those who have taken transfers which, at a later stage, might be thought not to have conferred a good title upon them shall also be 817 protected. In fact, anyone who had taken the trouble to seek advice on the matter would undoubtedly have been protected because, if there is an endorsement on the deed, he would know what had happened. If a receiving order had been made, the lawyer responsible for not examining the records would be in a rather bad situation. A question could arise only in the case of a layman who, in respect of a title to a joint tenancy, had overlooked a receiving order.
I cannot imagine that anyone would try to accept a title in which a joint tenancy was involved without seeking legal advice. With all due respect, to my hon. Friend the Member for Islington, East (Mr. Fletcher), I do not think that the point he raised arises. These provisions are intended to clarify the position and to remove unnecessary queries. They will do so and will give purchasers and their successors the satisfaction of knowing that they have a proper title. That is all.

§ The Solicitor-General
I said that this was a drafting Amendment because it does no more than put into other words the original intention of the promoter of the Bill. In Committee, my hon. Friend the Member for Crosby (Mr. Graham Page) pointed out that there might be doubt about the wording to give effect to Clause 2 in regard to past conveyances. On examination, it was agreed that that was a perfectly good point and that the matter should be spelt out very much more clearly than it had been originally.
Clause 1 relates to future cases, conveyances by survivors as beneficial owners being good enough to protect the purchaser against any trusts affecting the purchase money. Clause 2 deals with past cases. A statement by the vendor that he was solely and beneficially interested is good enough to clear the title. Those were the objects of the two Clauses. It was pointed out in Committee that the wording in relation to past conveyances did not with sufficient clarity include the 1st January, 1926, when very many conveyances were entered into, and, on reflection, I thought it right to advise the House that the Amendment should be made. I understand that the promoter of the 818 Bill agrees and I, therefore, commend the Amendments to the House.