MORTGAGES TO WHICH PART VIII APPLIES. (Hansard, 25 April 1968)

§ Mr. Graham Page

This Clause deals with controlled mortgages. It was in connection with this Clause that on Second Reading I mentioned those words of the draftsman about throwing in his hand. I do not think that I misquoted. I said that they were words which he used. I said that it appeared that he had thrown in his hand after drafting this Clause so that, in order to discover what a controlled mortgage was and is, one must refer back to the whole of the previous law.

The draftsman said to the Joint Committee that he was giving it a note to explain why I appear, as it were, to have thrown in my hand and said it means whatever it means now and that is as far as I can go". Later he pointed out to the Committee: In Clause 93(2) what I am saying is that if you wish to discover whether a mortgage is a controlled mortgage you must imagine that this Act has never been passed and therefore apply all the Acts from 1920 to 1939 and put those before a judge and get him to give a decision, because I am incapable, any more than the text book, of a satisfactory view on what the resolutions of some of the difficulties are". He was therefore admitting that the only method he could see of dealing with this complicated matter was to say, "We retain all the law. Look back at the old law and see what it is". He had to do that because the Government had not assisted him by tidying up these anoma- 642 lies or by adopting some procedure of consolidation by which these anomalies could have been tidied up. It would have been better to leave this Clause about mortgages, or the several Clauses and the Schedule, out of the consolidation than to perpetuate anomalies which have given those practising in this branch of the law tremendous difficulties over the years.