§ Mr. Graham Page
I beg to move, in page 1, line 18, to leave out "not" and insert "with the necessary modifications "
Clause 3 provides:This Act shall not apply to any land the title of which has been registered under the provisions of the Land Registration Acts 1925 and 1936".In Committee, I questioned the reason for excluding registered land from the benefits to be brought about the Bill, and by this Amendment I endeavour to bring registered land within the compass of the Bill, with the necessary modifications.
If I understand the present position correctly in respect of registered land, when joint tenants purchase and seek to be entered as proprietors on the register they complete a cover form which the profession knows as Form A.4, on the back of which it is said:If the transfer or assent is to joint tenants it should be stated whether or not the survivor of them can give a valid receipt for capital money arising on a disposition of the land.There is a space for answering "Yes" or "No", and this answer is normally given by the solicitor acting for the joint tenants who are seeking to register their title.
If the answer is "Yes", in effect the solicitor is saying that the purchasers have purchased as joint tenants, that there is no severance of their interest, and that the survivor will be able to sell because he will be wholly beneficially entitled to the property both in law and in equity. If, on the other hand, the answer is "No ", a restriction is entered on the register in the following words:No disposition by one proprietor of the land (being the survivor of joint proprietors and not being a trust corporation) under which capital money arises is to be registered except under an order of the registrar or of the court.The question whether the survivor of joint tenants of registered land can give 819 a title to a purchaser of that land depends entirely upon the answer which the solicitor, acting for the joint tenants when they purchase, gives on form A.4.
At any time after that purchase one of the joint tenants may have severed the joint tenancy, and provision is then made for that fact to be entered on the register. But all this comes about merely by the exercise of a discretion by the registrar. He is given that discretion by virtue of section 58 (3) of the Land Registration Act, 1925, which says:In the case of joint proprietors the restriction may be to the effect that when the number of proprietors is reduced below a certain specified number no disposition shall be registered except under an order of the court, or of the registrar after inquiry into title, subject to appeal to the court; and, subject to general rules, such an entry under this subsection as may be prescribed shall be obligatory unless it is shown to the registrar's satisfaction that the joint proprietors are entitled for their own benefit, or can give valid receipts for capital money, or that one of them is a trust corporation.The whole thing depends upon the order of the registrar, from which one can appeal to the court—an order which is made by the registrar at his own discretion after he has investigated the title, as the subsection empowers him to do. But he does not investigate the title at all. All that he does is to accept the answer on Form A.4 as justifying the surviving joint tenant being able to sell or being unable to sell, according to the answer "Yes" or "No" on the form.
The registrar has dealt with this by his discretion over the years, and in the Bill we are saying that these benefits shall not apply to registered land. I have the fear that if we read Clause 3 into the preceding Clauses the registrar in, future may say, "Parliament has said that the sort of thing that I have been doing in the past is not to apply in the future ".
Clause 3 provides that the Bill shall not apply to registered land. Therefore, referring back to Clause 1, we might read it as follows:the survivor of two or more joint tenants shall not in favour of a purchaser of the legal estate be deemed to be solely and beneficially interestedor, in Clause 2, quoting from the Amendment already made,Section 1 of this Act shall not be deemed to have come into force on 1st January, 1926, so far as registered land is concerned.820 Clause 3 deliberately provides that the Bill shall not apply to registered land. As I understand it, the Clause has been introduced because the registrar, in his discretion, has in the past carried out just the sort of procedure which the Bill applies to unregistered land. If we now say that that sort of procedure is not to apply to registered land we may be destroying the beneficial effect of the exercise of the registrar's discretion that has taken place in the past.
§ Sir B. Janner
We have taken into consideration the points made by the hon. Member for Crosby (Mr. Graham Page) whose contributions, especially on legal matters, are so valuable. The matter has been thoroughly examined by the Law Society and myself, with counsel's advice. The hon. Member need have no fear that by inserting the Clause we shall in any way detract from what has been the position hitherto in respect of registered land. On the contrary, in a sense this provision is a compliment to the efficient way in which the position has been met in that regard.
I want to tell the House what the position is in respect of registered land. The insertion of this Clause was deemed necessary after very careful consideration. The procedure under the Land Registration Act, 1925, and under the rules, in our view made the extension of the provisions of the Bill to registered land unnecessary. We always try our best to reduce the verbiage in Acts. It is true many legal matters are complicated, and the use of a "but" may make all the difference in a document. Lawyers are often wrongly accused of using unnecessary verbiage, and this is an attempt to make the position less complicated.
Under Section 58 of the Land Registration Act, 1925, a procedure is introduced which enables the proprietor of registered land to place restrictions upon the transfer of that land. The restrictions which may be imposed are set out in that Section. Subsection (3) of that Section, however, carries the matter much further, and lays down that in the case of joint proprietors the restriction may be to the effect that when the number of proprietors is reduced below a certain specified number, no disposition will be registered without an order of the court, and such an entry is obligatory unless it is shown to the registrar's satisfaction, 821 inter alia, "that the joint proprietors are entitled for their own benefit ". The result of this subsection is that the surviving joint tenant cannot transfer unless he shows, to the registrar's satisfaction, that he and his now deceased joint owner held the property jointly and beneficially.
In the case of registered land no difficulty arises since probably, quite unwittingly, the Land Registration Act cured the lacuna in the Law of Property Act. But it cured it only in respect of registered land.
In practice, what happens is that when, either on a first registration or a transfer, a joint proprietorship arises, a restriction on disposition is placed upon the register unless either the joint proprietors or their solicitor make a declaration that the joint proprietors hold the property jointly and beneficially. If a change takes place and there is a severance so that they no longer hold jointly and beneficially, either or both of the joint proprietors can apply to the registrar to impose the necessary protective restriction.
The conclusion is that the extension to registered land is unnecessary, and secondly, that the Bill will have the effect of bringing the procedure for unregistered land very much closer to the registered land procedure. I hope that in these circumstances, the hon. Member for Crosby will reconsider his proposal and withdraw the Amendment.
§ Mr. Graham Page
If the last joint tenant has died, the personal representative of the deceased survivor of the joint tenants is concerned. Under the Bill, we are giving certain benefits in that event which do not seem to apply at present to registered land.
§ Sir B. Janner
I do not think that I am in agreement with the hon. Member in that respect. I think that those benefits do apply to registered land. In any event, if the hon. Member feels seriously about the point, there will be a further opportunity elsewhere of putting it forward. I am sure that the hon. Member knows the procedure.
§ The Solicitor-General
It is useful that my hon. Friend the Member for Crosby (Mr. Graham Page) raised this matter in Committee and put down his Amendment, because it required close examination. I assure him that I have 822 given close examination to the point which he has raised.
On reflection, I agree with the hon. Member for Leicester, North-West (Sir B. Janner) that the Amendment is unnecessary because, as has been pointed out, the difference between registered and unregistered land is such that the mischief which the Bill seeks to cure is not experienced in the case of registered land. There has had to be this complex, important Bill to deal with the position of unregistered land, because it does not have the advantage which registered land possesses.
My hon. Friend the Member for Crosby has recited Section 58(3) of the 1925 Act and I do not have to deal with that again. In effect, the position appears to me to be that the Amendment is unnecessary because registered land does not suffer from the difficulties which unregistered land has, and it is the intention of the Bill to put unregistered land in the same position as registered land in this respect.
The matter has been carefully considered. I know that the hon. Member for Leicester, North-West has considered it carefully. I therefore ask my hon. Friend whether he feels it necessary to persist in the Amendment.
§ Mr. Graham Page
I feel reassured by the words of the hon. Member for Leicester, North-West (Sir B. Janner) and of my light hon. and learned Friend the Solicitor-General, and I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 12.44 p.m.
§ Sir B. Janner
I beg to move, That the Bill be now read the Third time.
I should like, first, to thank again the Solicitor-General and hon. Members on both sides for the help which they have given with regard to the Bill. It deals with technicalities which are not easily understandable. It has been clearly demonstrated here this morning that a Bill of this nature could not possibly have been handled without the skill and the knowledge of lawyers and without the training that a lawyer has to undergo before he is allowed to practise.
Many people complain that fees are high. That may well be true. The Law Society has, for quite a time, been examining how legal procedure can be 823 simplified in various respects so that the fees for conveyancy shall be reduced, not that they are excessive at present in consequence of the amount of work involved and the "know-how" and knowledge that is entailed.
The situation in this case is that at the time when the whole of the property law was being revised, even lawyers of great experience overlooked difficulties which eventually were seen to arise. To understand the law, and particularly real property law, a student has to undergo five years of careful training, if he studies for the profession of solicitor, and a barrister has to study for many years so that he may become acquainted with the intricacies which are bound to arise in general and concerning immobile property in particular.
Everybody who wants to know about the position with regard to real property in any code of law, whatever it might be—and this has been the experience for centuries; it is not a matter of days—will realise that one cannot deal with the thousand and one complications which arise in respect of real property without having a large series of laws applying to these matters.
In England, we are met with the question of common law, equity, the various interests that arise and the intricacies which are created by the desires of various people in relation to their holding of property, each of which interests has to be carefully studied by those who have to incorporate the wishes of the individual concerned in relation to his property in a document necessary to meet the situation.
Today, we are dealing with a technical Bill on a highly technical subject. I make no bones about it. It is law for the lawyers; but to every practising solicitor, it is vastly important. The number of those who own their own homes multiplies year by year and in many cases the conveyance is taken in the joint names of the husband and wife. That is an understandable, cosy, domestic arrangement, but to the solicitor who has to deal with the sale when one of the partners dies this domestic arrangement has created pitfalls for the unwary.
Under the Bill, these problems will have gone. As I have said before, this 824 is a lawyers' law. It might make no impact upon the man in the street—or perhaps I am wrong. Perhaps it will have some impact on, say, the man in the Clapham omnibus. Perhaps he will realise that so much has been said, not only in the national Press, but even in the confines of this House, about the simplicity of conveyancing of how it can be done by the office boy or by the town hall or according to the fashionable "do-it-yourself" principle when, sincere as those people may be, they are ill-informed. Conveyancing, as I have said, is, and always will be, a technical job for the specialist.
This Bill sweeps away a small part of the heap of dust of forty years. There is still much more that can be done, but fortunately a start has been made. The Law Society, which, incidentally, originally initiated this Bill, have, entirely on their own initiative, formed a working party composed of expert conveyancing practitioners to examine the whole of the law and procedure of land transfer. Perhaps as a result of their efforts all the dust which has been created by dealings the effect of which were not anticipated some forty years ago, perhaps a hundred years ago, will be swept away, and the extent of the work which now of necessity has to be done will be radically reduced, to the benefit of the public, to those whom my profession try to serve—the general public.
I think it would perhaps be a useful thing if some of the critics were to read the OFFICIAL REPORT of the debates which have taken place on the Bill to see whether they can then honestly say that in the circumstances which of necessity must prevail with regard to dealings in immovable property it is safe to hand the matter over to persons who are not professionally trained. In the olden days we used to see at fairgrounds a hefty fellow drawing teeth while a drum was being sounded to drown the groans of the poor fellow whose teeth were being taken out. That has gone. I dare say that in most of the cases he may have drawn the teeth all right without harm to the person concerned but in many others complications arose. I beg the hon. Gentleman's pardon?
§ Sir Douglas Glover (Ormskirk)
I was only going to say that solicitors are much more difficult to get rid of than teeth.
§ Sir B. Janner
Well, that is what I was talking about before. But no, I really think that the passing of jibes, although good-humoured, which have been passed across the Floor of the House in respect of the legal profession ought to be considered beforehand, because they do create a quite wrong impression.
However, I am grateful to the House for the manner in which they have assisted in relation to this Bill and all concerned. I have very much pleasure indeed in moving its Third Reading.
§ 12.52 p.m.
§ Mr. Graham Page
May I congratulate the hon. Member for Leicester, North-West (Sir B. Janner) upon piloting his Bill through all its stages? I suppose that at least three of us ought to have declared an interest about the Bill, at the very beginning of the debate, as being practising solicitors speaking on a Bill which will undoubtedly have the effect of simplifying conveyancing and, we hope, the ultimate effect to the benefit of the public, when further law reform has taken place, of reducing costs.
This is a law reform Bill. It did not originate in any Lord Chancellor's Department. It did not originate in any official law reform committee. It did not originate, if I may perhaps have a party political dig, with any high-powered law reform commissioners as suggested, I understand, by the policy of the party opposite. No, this Bill originated and was initiated, as I am sure the hon. Member will agree, by the Law Society—the solicitors' trade union, if you like. This is significant. The Law Society has set up a working party on the law and practice of conveyancing with the object of simplifying conveyancing and eventually making it cheaper to the public. Perhaps if we had more time for Private Members' Bills of this sort from—if I may say so—a practising solicitor who knows what he is talking about, who knows how to reform the law, then these reforms could be more rapidly brought about.
This Bill completely refutes the general idea which is, often perhaps teasingly, put about that solicitors want to make the law more complicated, that their whole object in life is to retain and even increase the mysteries of their craft. This really is a silly idea. Nothing could be further from the truth. If I 826 may make a personal reference for a moment, I have had the honour of piloting Private Members' Bills through the House, the whole object of which was to simplify the law. Indeed, the practising solicitor is always looking for reforms of that sort, and here in this Bill we have a reform of that sort brought about by a practising solicitor, and initiated by the Law Society, for the simplification of the law relating to joint ownership.
Anyone who has listened to the debates on this Bill, in Committee and again today, would agree that the law needed simplifying. I think that any listener would agree, too, that this is a branch of the law which is too full of pitfalls and potholes to be left to the amateur draftsman, the sea lawyer, the barrack room barrister. There has been a lot of stupid, uninformed criticism lately about solicitors' conveyancing costs. The criticism comes from those who do not know and have never tried to find out the work which is involved in conveyancing or the knowledge which is necessary. This Bill deals with a typical example of when professional knowledge is required, a conveyance to joint tenants, a conveyance from the survivor of joint tenants. It touches, too, on the problem of severance, tenancies in common, and so on.
Perhaps it may be asked, why do lawyers want all these complications about the Ownership of just an ordinary house or just an ordinary bit of land? Why do lawyers want all this complication? It is not the lawyers who want it. It is the public who want it. Here in this Bill we are dealing mainly with two very normal ways of holding property, one social and one commercial. One circumstance in which this Bill will have the most effect is where property is vested in a husband and wife. That is, as I say, a social instance of benefit brought about by this Bill in the very normal way of holding property, jointly by a husband and wife. The other, the commercial aspect of this, is the holding of property by partners as part of partnership property. These are two instances in which the Bill will have the greatest benefit in simplifying conveyancing.
Is the lawyer to say to the public, "You shall not hold property like this, 827 because if you do it increases the one hundred and one things I have to look at while investigating the title and therefore you will never get a reduction in conveyancing costs "? Is that what he is to say? Indeed, I could perhaps have said the one thousand and one things he has to investigate when considering titles to property, acting for either the vendor or the purchaser. We shall not reduce the costs of conveyancing unless we can reduce investigation of titles, and that is exactly what this Bill tries to do, even though it is in a narrow field at present.
As the law on conveyancing stands at present, I think the House will agree that the solicitor earns the £41 a week which is the average earnings of a solicitor after eight years from his entry upon his career, and after spending five years of those eight earning nothing as an articled clerk. This £41 a week compares very favourably, from the public's point of view, with the £53 a week of a doctor of similar years' standing and the comparable civil servant with £45 a week. These figures were given in the Financial Times in November last. It is interesting to note that, despite the very great increase in the last ten years in the work of investigation of title on any one conveyance, an increase by reason of the many new ways in which local authorities can place encumberances on individuals' property, solicitors' incomes have risen less than 50 per cent. in that period compared with a rise of nearly 100 per cent. for comparable civil servants, 100 per cent. for accountants and 150 per cent. for university lecturers and general medical practitioners.
Within the moderate reward that conveyancing solicitors get for their services one could increase their production of conveyances and thereby reduce the cost of each conveyance by saying, for example, that no piece of land should be owned by more than one person, that one should not have more than one interest in any piece of land, and that there should be no joint tenancies in land and no leases, mortgages or settlements. But surely, although that might reduce the work involved in conveyancing and, therefore, reduce the cost to the public, it would be wrong to deprive a husband and wife of the right to hold property jointly, partners of the right to hold 828 partnership property, and so on. So what we must do is continually to try to smooth out the complications which arise as by-products of those methods of owning and holding property. That is what the Bill does in a narrow field. It simplifies the results of joint ownership and makes it easier and less complicated to transfer the title of property when the joint ownership has ceased.
Again I congratulate the hon. Member for Leicester, North-West on bringing forward the Bill. I am sure that it will be beneficial not merely to the administration of the law but to the public in the most important transaction which lawyers have to undertake, the transfer of the homes of the people.
§ 1.3 p.m.
§ Sir D. Glover
I should not have had the courage to rise and address the House on the technicalities of the Bill, but, having listened to the hon. Member for Leicester, North-West (Sir B. Janner) and my hon. Friend the Member for Crosby (Mr. Graham Page), who was honest enough to say that the Bill was produced by the Law Society which was the trade union of solicitors, I thought that the two hon. Members were giving notice of a claim to the British public for an increase in their remuneration.
§ Sir D. Glover
If the hon. Gentleman will allow me to make my speech in my own way, my hon. Friend said that it would be a decrease as a result of the Bill, but at the same time he made it clear that there was a feeling among solicitors that, as their remuneration had gone up only 50 per cent. in recent years compared with the remuneration of other professions, they were grossly underpaid. I felt full of sympathy for my hon. Friend when he quoted the figures for civil servants, doctors and so on. If solicitors want an increase, I will try to justify it to my constitutents, though in most cases my constituents feel that our legal profession does pretty well for the work it does.
I must be honest and say that my opinion of the legal profession has risen enormously through listening to the debate. The hon. Member for Leicester, North-West and my hon. Friend the Member for Crosby have made me more 829 clearly aware than I was of the intricacies of conveyancing and of the problems with which they are confronted with joint ownership and so on. I think that the Bill, as far as I understand it, is a very useful Measure, and I think that hon. Members should be congratulated upon bringing it forward.
The hon. Member for Leicester, North-West and I have travelled in foreign parts. I do not know whether the conveyancing problem is as complicated in this country as it is in some other parts of the world. We were together in one place where we discovered not only that the olive trees were in joint ownership but that in many cases ten people owned one olive tree and ten other people owned the fruit on it. I do not know quite what sort of legal document might be produced under those conditions and how much one would charge, because the value of the tree itself is comparatively small. This shows that, as my hon. Friend said, a great deal of the complication and the legal activities arise from what we foolish ordinary members of the public have done in the past in creating a situation in which it must be a complicated legal matter to make ownership clear and concise.
On the technicalities of the Bill, I am perhaps very courageous in rising to speak on the Third Reading. The hon. Member for Leicester, North-West mentioned that he hoped that the people on the Clapham bus would take an interest in our proceedings as a result of the Bill. My hon. Friend the Member for Clapham (Dr. Alan Glyn), as a layman, tried to join in our proceedings, but I think that the hon. Member for Leicester, Northwest and my hon. Friend the Member for Crosby have killed him off, because he departed before we reached the Third Reading. [Interruption.] Is this a private war or can we all join in?
§ Mr. James MacColl (Widnes)
I was just saying to my hon. Friend the Member for Leicester, North-West (Sir B. Janner) that I do not think the hon. Member for Clapham (Dr. Alan Glyn) is a layman.
§ Sir D. Glover
Barristers deal with things on a much higher plane. As a barrister, my hon. Friend appears to have withdrawn from the fight. That shows that I have even more courage than I thought I had in the first place in entering this forbidden garden of legal practice. For a layman to speak on a Bill of this sort takes a great deal of courage.
Seriously, I regard the Bill as a useful Measure. I join in the thanks offered to the hon. Member for Leicester, North-West and my hon. Friend the Member for Crosby, and I hope that they will appreciate that the things that I have said about their profession were said in good heart and that really I hold them in very high regard.
§ 1.8 p.m.
§ The Solicitor-General
I welcomed the Bill when it came to Standing Committee C, and I do so again. I congratulate the hon. Member for Leicester, North-West (Sir B. Janner) upon having introduced it and upon having piloted it through to this stage. I do not know whether when he first spoke in the Standing Committee he thought that he would have a difficult or an easy task, but I do know that he has piloted the Bill with considerable skill.
I am sure that the hon. Member will pay tribute to my hon. Friend the Member for Crosby (Mr. Graham Page) and to his hon. Friend the Member for Deptford (Mr. Silkin), because I am sure that this is a much better Bill now than when the hon. Member first rose to speak in the Standing Committee.
§ The Solicitor General
I do not know whether when he rose to speak in the Standing Committee the hon. Member for Leicester, North-West thought that he would have to discuss olive trees or perhaps even, though he raised this subject himself, the beating of a drum while someone's teeth were pulled. But it perhaps reveals the expertise which is present in the House of Commons that we can have in discussion of a matter such as this the assistance of practising solicitors in this branch of the law in which they are particularly expert.
Although this is, and has been, a complex and complicated discussion, never- 831 theless, as pointed out by my hon. Friend the Member for Crosby, this is a matter which seriously affects many people throughout the country. If one has a complex and sophisticated society, one is bound to have a complex and sophisticated system of law. Many people ask for simplicity, and complain that there are too many difficulties in trying to understand legislation, but that is necessarily so when one has a society organised such as ours is. In a dictatorship where there is no law, or in a primitive society where there is only a primitive law, things are different, but with our system we must have a complex and sophisticated system of law.
The hon. Member for Leicester, North-West has done a service by introducing the Bill, and with the assistance of my hon. Friend the Member for Crosby, and his hon. Friend the Member for Dept-ford, I have no doubt that this Measure will be of the greatest value to practising solicitors, and ultimately, and indeed most importantly, to those who seek their services. I congratulate the hon. Gentleman.
§ Sir B. Janner
The right hon. and learned Gentleman has made one important omission, but of course he could not say this himself. I thank the right hon. and learned Gentleman for the extremely helpful way in which he and his Department have assisted in this matter.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.