Clause 10.—(EFFECT OF GENERAL VESTING DECLARATION.) (Hansard, 25 January 1967)

§ Mr. Speaker
With this we can take Amendment No. 30, in Schedule 3, in page 100, line 48, at end insert: 11A. As respects Scotland, where by virtue of paragraph 6(a), 7, 9 or 11 of this Schedule a general vesting declaration is to have effect in relation to a different area of land than that originally comprised in the declaration, the Commission shall alter accordingly the description of the land affected by the declaration.

§ Dr. Dickson Mabon
I beg to move, That this House doth agree with the Lords in the said Amendment.
These linked Amendments carry out an undertaking which I gave on Report in response to various points put again by the hon. Gentleman the Member for Banff (Mr. Baker). I anticipated then that we would have to amend Clause 10 and Schedule 3, and hence the reason for the Amendment in this form. The supplementary provisions as to the vesting declaration in Schedule 3 provide, among other things, that if a declaration comprises part only of a building or area of land, then the owner can serve a notice of objection to severance of the property, 1578 whereupon the Land Commission must withdraw the notice to treat in respect of his land or agree to take the whole or refer the matter to the Lands Tribunal in England or for a temporary period. I understand in Scotland the case would be before an official arbiter.
We all agreed that the defect was that there was no provision for amending the description of the land contained in the declaration if as a result of the notice of objection to severance, a different area of land was taken, or for stopping the declaration going on the record if objections resulted in no land being taken at all. I therefore undertook that we would try to amend this in another place and this has been done. I hope that it commends itself very much to the Opposition.

§ Mr. Baker
As I pointed out before Report when the hon. Gentleman was kind enough to accept an Amendment in principle about the statutory obligation for registering a vesting declaration willy-nilly in the General Register of Sasines, the general vesting declaration by virtue of which notice to treat had been given it can be dealt with only in three ways. It can either be scrapped, it can be varied or it can be extended under paragraph 6 of Schedule 3 and registration must go on in spite of paragraph 6 of Schedule 3. The inevitable result is that the registration gives a title to the Land Commission. If the heritable proprietor lodges an objection he is saying in effect—I am going to develop this point in a moment—that the Land Commission must take the whole of the land and not part. Thereupon the general vesting declaration can be varied, according to paragraph 6(b) of Schedule 3, serve notice on him that the general vesting declaration shall have effect in relation to his interest in the land proposed to he severed, as if the whole of that land had been comprised in the declaration". Schedule 3 with the new paragraph 11(a) does not cover the point which I am trying to make. I do not understand the Amendment now before us, and it seems that it would have been better had the Government accepted my original Amendment on Report. I agree that the Amendment is designed to rectify the somewhat ridiculous situation wherein a general vesting declaration could be withdrawn or varied. Nevertheless, as I said, 1579 the general vesting declaration went on to the General Register of Sasines automatically and it gave the Land Commission a title as specified by paragraph 4 of Schedule 3, If a general vesting declaration under this Act comprises part only of a house or building…any person who is able to sell the whole…may by notice served on the Commission…require them to purchase his interest in the whole". The Lords Amendment appears only to deal with variation under paragraph 11 of Schedule 3 after reference has been made to the Lands Tribunal under paragraph 6(c), refer the notice of objection to severance to the Lands Tribunal and notify him"— the vendor— that it has been so referred". The Amendment makes no provision for a variation which has taken place at the hands of the Land Commission under paragraph 6(b) of Schedule 3, which links up with paragraph 4(1). That is where 6(b) arises, since the Land Commission can and must accept the title.
I raise only this somewhat minor point, but I hope that the Minister of State will clarify the position, particularly as part only of the land is in question.

Earl of Dalkeith (Edinburgh, North)
As my first word, I congratulate the Minister of State on his appointment. This is the first chance I have had to do so.
Can the hon. Gentleman explain why he did not see fit to accept the original Amendment proposed by my hon. Friend the Member for Banff (Mr. Baker), and in what respects he considers that his present Amendment is better?

§ Mr. Speaker
Order. The Minister may discuss why he has accepted this one. He may not discuss why he has not accepted the other one. We have only the one Amendment before us.

Earl of Dalkeith
Will he, then, explain in greater detail in what respects he thinks that this Amendment is superior?

§ Dr. Dickson Mabon
What the hon. Member for Banff (Mr. Baker) said is perfectly fair, but he must also read paragraph 9 of the Schedule which specifically takes up paragraph 6(b). I do not 1580 quarrel with the way he has linked paragraph 4 with paragraph 6(b), but he must take them together and complete the jigsaw—

§ Mr. Lubbock
The puzzle.

§ Dr. Mabon
No, the jigsaw—to give a perfectly fair picture.
Will hon. Members refresh their memory by referring to column 1207 of the OFFICIAL REPORT of our proceedings on Report on 26th October? I agreed then that there was a defect. We had naturally, taken advice on it after seeing the Amendment which the hon. Gentleman had tabled. We took the advice of the Lord Advocate and the Solicitor-General, and the advice was that in order to deal with the defect we would have to do two things. I do not like quoting my own words, but this was the advice which I received in a letter from the Lord Advocate, and it is worth repeating now: It is necessary to deal with the case in which the objection is upheld and also the case in which the objection is rejected. What is required is that the recording of the declaration"— this relates only to Scotland because there is no equivalent in the English law to the process of recording— should follow the determination by the arbiter of the objection, and in the case where he decides that severance is not to be permitted and the Commission proceed to acquire a larger area than that which they had originally proposed to amquire, a description of the whole area will be substituted for the description first contemplated."—[OFFICIAL REPORT, 26th October 1966; Vol. 734, c. 1207.] I admit that between the hon. Gentleman and me there was a misunderstanding about whether or not, when one did this the second time, one identified the individual parts of the new area, but I think that we have got it clear that what will happen when this process is gone through is that the area of land, whether it be the original area plus a bit of some other part or not, will be so described in the recording. I think that this is the point which the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) I—quite understand why he is not here—was pressing upon us. We have taken it as far as we reasonably can.
Their Lordships were kind enough to deal with these matters quite expeditiously, without criticism, so that we 1581 did not have to deal with the point put to us by the noble Lord the Member for Edinburgh, North (Earl of Dalkeith), whose good wishes I much appreciate. We did not have to argue that matter. Nevertheless, I have thought about it. The hon. Member for Banff was kind enough to give me notice of the question, and I have since taken further advice. Even apart from its having come at this late stage so that there is little that we can do about it, it is clear to us on all the evidence and advice we have taken, that the matter is now in order. I hope that the House will agree that we have done the best in the circumstances.