ABOLITION OF DEPOSIT OR FILING OF INSTRUMENTS CREATING POWERS OF ATTORNEY (Hansard, 30 April 1971)

§ Mr. Martin McLaren (Bristol, North-West)
I beg to move, That this House doth agree with the Lords in the said Amendment.
This is little more than a drafting Amendment. An important provision of the Bill is contained in Clause 2 which abolishes the depositing and filing of powers of attorney in the Central Office of the Supreme Court. All that this Amendment does, for greater certainty, is to state the statutory provisions under which such depositing and filing has hitherto been done.

§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle)
May I apologise in that neither my right hon. and learned Friend the Attorney-General nor my hon. and learned Friend the Solicitor-General are able to be present today. I will try to explain briefly the effect of the various Lords Amendments. My hon. Friend is to be congratulated on carrying this Bill through the House at an earlier stage. He succeeded in getting it through all its stages in this House on the nod in the space of about 10 seconds one Friday afternoon. No explanation has therefore been given to this House of the contents of the Bill. Nevertheless, the House is grateful to my hon. Friend for steering the Bill through its stages and the Government join with the legal profession in welcoming the Bill. Although the Bill has never been dealt with in detail, it would be wrong for me at this stage to give a general explanation of its purpose.

§ Sir Gerald Nabarro (Worcestershire, South)
Hear, hear.

§ Mr. Carlisle
I would be out of order if I did so. However, I feel that I should say that the Government agree with my hon. Friend as to the need for this Amendment to Clause 2. Although it is as he says a minor Amendment aimed at removing any possible doubt, it is relevant to the whole purpose of the Clause.
The Bill is a result of the recommendation of the Law Commission, which has become aware that the law relating to powers of attorney was in a state of disrepair requiring review and overhaul. The law requires that the document creating a power of attorney should be executed under seal.
Dealing with Clause 2, in the past it has always been necessary to file a power of attorney in the Central Office of the Supreme Court or the Land Registry. When I say that it has always been necessary I should add that there are certain circumstances where it has been mandatory to file that power. In cases other than those where it is mandatory there has always been the discretionary power to file the power of attorney with the Central Office or the Land Registry. At Land Registry the power of attorney dealt with registered land; the Central Office of the Supreme Court dealt with other cases, in particular where power of attorney dealt with transactions in land where there was more than one transaction or where it dealt with power of attorney concerning a trustee.
The Law Commission concluded that it should no longer be necessary to file these powers of attorney because the only real advantage of the rather cumbrous system which existed was that, under the Act of 1940, office copies of power of attorney which have been filed in the Central Office or the Land Registry, are sufficient evidence of the contents of the power. This may be an important matter when a person needs to prove the validity of his power, for it frequently happens that the power of attorney is a necessary part of the document of title of a number of different transactions, in general under the same powers.
As the House will know by other Clauses of the Bill, it is now possible to 872 prove the existence of the power of attorney by means other than those required in the past and therefore the necessity to file the power at the Supreme Court became, in the view of the Law Commission, unnecessary. Clause 2 says: As from the commencement of this Act no instrument creating a power of attorney, and no copy of any such instrument, shall be deposited or filed at the central office of the Supreme Court or at the Land Registry. The Amendment relates to Section 25 of the Trustee Act, 1925, which required mandatorily the filing of the power of attorney at the Central Office of the Supreme Court where a trustee was concerned; to Section 125 of the Law of Property Act, 1925, which required the mandatory filing of a power of attorney at the Supreme Court where the power of attorney related to a sale and transaction in land where there was to be more than one transaction; and to Section 219 of the Supreme Court of Judicature (Consolidation) Act, 1925, which dealt with discretionary powers to file a power of attorney.
It is felt that without these words it could be said that the provision was not adequately clear as it stood. The Amendment limits the effect of Clause 2 more expressly to its precise purpose in relation to the statutory provisions under which depositing and filing is now done, but which hereafter are clearly abolished and specifically abolished by the reference in this Amendment to Clause 2.
I think that although it is intended merely to clear up any possible doubt as to the effect of Clause 2, it is much better to have stated clearly the Sections which are referred to and which no longer apply as a result of the Bill, and Her Majesty's Government welcome the Amendment moved in another place and hope that it will be acceptable to this House.

§ Mr. S. C. Silkin (Dulwich)
I rise to do one or two things. The first is to echo the congratulations paid by the hon. and learned Gentleman the Under-Secretary of State to the hon. Member for Bristol, North-West (Mr. McLaren) and add to that, if I may, my own congratulations that, in the space of ten seconds which the hon. Gentleman occupied in this House on the previous occasion, he was not subjected 873 to the procedure of the calling of a count and we were thereby not prevented from having the benefit of the speech of the hon and learned Gentleman the Under-Secretary of State. The hon. and learned Gentleman has explained very clearly, and at somewhat greater length than the noble and learned Lord who moved this Amendment in the other place, what it is about, and I therefore see no reason for opposing it.