EFFECT OF GENERAL POWER OF ATTORNEY IN SPECIFIED FORM (Hansard, 30 April 1971)

§ Mr. McLaren
I beg to move, That this House doth agree with the Lords in the said Amendment.
This Amendment has been proposed at the insistence of the Law Society and relates to the form of a power of attorney made under the Bill. Its effect is merely that, for greater clarity and certainty, the power should be expressed in terms to be made under the provisions of the Bill.

§ Mr. Carlisle
Not only was this Amendment proposed by the Law Society, but I understand that it was moved in another place by the noble Lord, Lord Janner, who has had many years' practical experience as a solicitor. It is, as the hon. Gentleman said, a fairly minor matter. In another place the Government thought it right to take a neutral position because the matter had been considered by the Law Commission. The provision was passed in another place and the Government, having heard what was said, felt that it would probably assist in making clear the necessary ingredients of the power of attorney.
As the House knows, the provision deals with that part of the law in which one person appoints another by a formal power to act in his place in either one or a series of transactions, or to manage his affairs generally. It is important that it should be seen that this important power is properly constituted and that there can be as little room for argument as possible whether a proper power of attorney has been given.
As the Bill states in Clause 9, the general power of attorney is to be in the form set out in Schedule 1 … or in a form to the like effect … 879 The words "to the like effect" are not the clearest of words from the aspect of legal precision. This Amendment will mean that in future the power will either have to be in the form set out in the Schedule or it must be expressed to be made under the power itself, or the form of general power will have to be expressed as made under the Bill.
The Law Commission said in its report that the essential requirement is that the form used should contain a specific reference to the statutory provision and considered whether to include some such expression in the Bill, as the Amendment now proposes. However, on the whole the Commission decided against this course because they thought it tended towards a greater degree of formality. Since a power of attorney sometimes has to be executed at short notice, the Law Commission felt that it would be unfortunate if proper identification of this Bill in precise terms became a formal requirement rather than, for example, to have a power which says, "I grant this general power of attorney under the Act of Parliament in that behalf" or words to that effect. The view in the other place was that it was right that, if the words were not exactly in accordance with those set out in the Schedule, they should be expressed to be made under this legislation. Although this is contrary to the recommendation of the Law Commission, the Government accepted the view of the House of Lords. Therefore, the Government welcome the Amendment and commend it to the House.

§ Mr. S. C. Silkin
I am sure the House will be grateful to the noble Lord, Lord Janner, who in this case, as in the case of so many Private Members' Bills, has given very careful scrutiny to its contents and whose Amendment this was in another place.
When dealing with a formal document such as a power of attorney, which would normally be exercised with professional advice, there is no harm in an express reference to the Act of Parliament under which it is made, though I am not certain that the words under the Act of Parliament in that behalf would not be sufficient even if this Amendment were passed. However, this is a useful improvement, which I support.