SECOND READING. (Hansard, 20 April 1893)

§ THE LORD CHANCELLOR (Lord HERSCHELL)
My Lords, this is not an ambitious measure. Indeed, it is said of it that it attempts too little; but I think I shall be able to show presently that it is likely to accomplish more, and will pass into law more than those who raise that objection, I think probably. I believe I shall be able to show that it is a step in the right direction, and one which will aid and not impede any further steps which it may be thought necessary to take. I do not propose to 736 argue the question of the amendment of the law relating to the transfer of land. It has been argued over and over again in this House. I believe, speaking generally, there is a common agreement that some amendment of the present system of land transfer, some law which is likely to bring about a better system than we have at present, is to be desired. We should all be agreed, I imagine, that what is to be sought for is that the transfer of land should be cheap, simple, and speedy, and that it should offer adequate security. I shall not need to detain your Lordships at any great length in explanation of this measure, because it is one which is already familiar to you. It is, in fact, a part of the Bill which was introduced by the late Government, as amended by the Select Committee to which that Bill was referred; and it would be convenient that I should state at once the difference, as regards the leading provision, between that Bill and the present one. That Bill proposed to render the registration of land compulsory after an Order in Council had been passed bringing it into operation in particular districts. It proposed to extend that compulsion not only to land disposed of by way of sale after the passing of the Act and the coming into operation of the Order, but also to render compulsory in the district to which the Order related the registration of all land which descended upon death. Great objection was taken, especially to the latter provision to which I have alluded. It was said that many owners would never require or desire to sell their land, and that it was hard to compel, merely because there was a devolution by means of death, the registration of land which might never go into the market or need to be transferred. I am not, myself, prepared to admit the validity of that argument; but I am not going to discuss that question at the pre-sent time, because it appears to me expedient to introduce to your Lordships a measure which would be likely to excite little or no hostility; and I admit that to render compulsory the registration of land merely because it devolves in case of death does stand on a different footing to rendering compulsory the registration of land when there is an actual operation of transfer by reason of a sale. Therefore, my Lords, there is this very great difference between that Bill and the present—I 737 mean in the direction of narrowing its operation: and I propose by this Bill only to extend the compulsion to cases of actual sale, and, having paid careful attention to the discussions which took place on the former Bill, I do not think there is any real opposition to that part of the proposal. That is the leading provision of the Bill. I will say a word or two about the others by-and-bye, but that substantially is the proposal which is made. Now it is sometimes asked, Why introduce compulsion at all in relation to this matter; why not leave the owner of land to register or not as he pleases? In answer to that I would, say in the first place, that I cannot assent to the proposition that this is a matter which merely affects the owners of land. It is a matter of public interest and concern that your system of land transfer should as far as possible have those merits to which I have called attention, because I think we are all agreed that it is desirable there should be no sort of obstacle to the ready transfer of land: that as far as possible it should he made as readily transferable as other subjects of property; and that it is to the public interest that any impediment which may be standing in the way of such transfer should be removed. I do not suppose there will be two opinions hero upon that proposition. But whether the matter is regarded as affecting the public or as affecting the landowner himself, I think I shall show that the extent to which compulsion is proposed by this Bill will tend to the introduction of a better system of land transfer without imposing any hardship whatsoever on any landowner. I ought to state that the only title which the owner is compelled to register is a possessory title. Of course, there are many who would desire to see that compulsion for an absolute title in every case. That I quite admit in the present state of the law and present difficulties with regard to title would inflict considerable hardship, and I do not think the subject has become ripe for treatment of that description without restrictions to which I do not think Parliament would at present consent. The advantage of the Bill is that it inaugurates a better system, and one which will be of advantage to all owners of land in the future. Your Lordships are aware that at the present time, on each fresh sale of land, 738 there has to be some investigation of title, and that, inasmuch as if no agreement is come to the purchaser can require a good title to be proved for 60 years back, the practice has always been to stipulate in the contract of sale that the purchaser shall only require proof of title to a limited extent. The purchase being made subject to that provision, that is all the title that need be shown, and, of course, it has to be carefully considered what title the vendor will be in a position absolutely to make out. When that has been determined, that condition is introduced; but, of course, each fresh sale is a fresh transaction. A sale and conveyance merely passes the estate by deed to the purchaser; and if he sells again—though, of course, I do not mean to say that all that has been done in the course of the former sale has been thrown away—the same operation precisely has to be repeated. But when once laud is upon the register, even though all that is on the register is a possessory title, from that date the register will be all that need be inquired into for the future in order to see what transactions have taken place in relation to the land, Although I have not introduced in the present Bill the provisions inserted by my noble and learned Predecessor with the view of turning a possessory title into an absolute title by proceedings at a subsequent time, there can be no doubt that if land has been but a very limited number of years upon the register, it would be possible without any very lengthy inquiry, and without injustice, to turn the possessory title into an absolute title. That I have left to be dealt with by a subsequent measure. All I propose to do at present is to render compulsory hereafter the registration of transfers of land, and to make the register from that date the only document which will have to be looked at for the security of any person who is desirous of becoming the owner of land by transfer from another. Now, my Lords, objection has been raised to this measure, no doubt, by those of whom I desire to speak with the utmost respect—I mean solicitors, and especially by the Law Societies, and I should be quite disposed to listen to all representations they might make to me. They have addressed me with the view of my postponing the Second Reading of this Bill; but I received their communica- 739 tion so late that it would have been impossible for me, after the Bill has been for so long on the Orders of the House, to do so without the certainty of putting many of your Lordships who desired to be present to inconvenience. Therefore, I have been unable to comply with their request. They have communicated to me their leading objections, and I shall deal with them, I hope, fully. Your Lordships may have seen a very severe attack which has proceeded from the Incorporated Law Society upon what is termed officialism—the tendency of Parliament to take out of the hands of professional men work which has hitherto been done by them, and which the public desire should be done by them, and to transfer it to the hands of officials. With a good deal that is said in reference to officialism and its dangers I find myself in sympathy. I think it is in principle objectionable, and not a little dangerous, to agglomerate a great amount of work which can well be performed by professional people and others outside Public Departments within those Public Departments. But that argument is not applicable to this measure. The argument is put in these terms: that it is not expedient or in accordance with the feeling of the public that work which is performed satisfactorily by private individuals should be compulsorily handed over to an official Department. But this is not a case in which work which has been done by solicitors is to be handed to a Public Department. This is the inauguration of a system of public registration of land which it is impossible for solicitors, be they ever so willing and competent, to inaugurate and carry out for themselves. It is because it is thought to be in the public interest to have a simpler method of land transfer than at present that this measure is proposed, and certainly no part of this measure suggests the taking from solicitors work which they do at the present time. Then it is said: Why render this registration compulsory, when the public, by not having voluntarily registered during the years the Act of 1875 has been in operation, has shown that they do not desire this system of land registration, and it is said that, therefore, you would be forcing upon them something against their will. Why 740 is it that there has been so little registration? How many of the owners of land have considered the provisions of the Act of 1875, and have in cases of sale applied themselves to the question whether it would be desirable or not to register? I apprehend very few indeed, and what they did was to follow the practice which has prevailed. When one finds that, rightly or wrongly, solicitors do not take a favourable view of a system of laud registration, they are not very likely to voluntarily call the attention of their clients to the possibility of registry; and, indeed, they might consider that it was no part of their business, when they were told to complete a conveyance, to enter with their clients upon the question whether it was expedient to register the hind. The truth is that the matter is naturally left entirely to the solicitor to be dealt with, and this has been exactly my own experience in connection with the purchase of a small piece of land a few months ago. I certainly have no hostility to registration; on the contrary, I approve of it, but I handed the whole matter over to my solicitor without thinking of laud registration, or registration of the possessory title. At the same time, I should have been glad had a compulsory system of registration existed, so that in the natural course that land would have been brought upon the Register, and I shall now certainly put it there. When it is said that the facts with regard to registration show the public hostility to the scheme, one would have expected that if these objections existed, experience would have rather increased than diminished the hostility; but during the last four years more land has been put upon the register than in the previous 13 years after the passing of the Act, and therefore, so far from the public objecting to it, it is growing in public favour. In the first 13 years there were 136 registrations, in the last four years there have been 154, while the value of the land registered was £1,229,000 in the first 13 years and £1,441,000 in the last four years. It is, therefore, clear that in recent years registration has been growing in popular favour. The justification for a compulsory provision of this sort is that it will not be compelling people who are unwilling to do it, but simply compelling that which, if their attention had 741 been called to it, they would desire should be brought about. Hardly any objection is raised on the score of the expense of this first registration, and the expense is so trifling that it cannot be said to be any hardship that the registration of laud transfers should be compulsory. In the case of small purchases, there is no reason why the purchaser should not have the benefit of a registered title without the transaction costing him 1d. more than if he took the conveyance in the former fashion without that advantage. Therefore, I maintain that the purchasers of small pieces of laud would gain something without burden to themselves. The evidence of those connected with Building Societies, who know what is the present state of things with regard to the conveyance of these small pieces of land, is of very great importance as bearing upon the question, because those persons would be likely to know whether the burden imposed by compulsory registration would be regarded as popular or unpopular; and at the last Election those interested in Building Societies were urged to make it a test question to candidates as to whether they would vote for the compulsory registration of land. When you find that is the case it seems rather absurd to suppose that there can be so strong a feeling against compulsion as is suggested. There can be no doubt that honestly and fairly conducted Building Societies—I regret that some Societies bearing that name have gone entirely outside the functions of Building Societies—have done real public; good in causing a greater distribution of land, and in increasing the number of holders of land. I remember some years ago when a gentleman who advocated somewhat advanced views as regards private property in land was in this country he went down to the North of England to lecture, but confessed that he made no impression upon the working people whom he addressed, as so many of them owned their own houses and the idea of making such property public was very distasteful to them. I think when we find Building Societies calling for legislation of this kind under the impression that it will improve their operations, that is a matter which is worthy of your Lordships' consideration. Then an objection is raised with regard to the possible publicity of the registration. Apprehensions are ex- 742 pressed lost the transactions should become public by means of registration, and it is suggested that the Lord Chancellor of the day might throw the whole Register open by a Rule made under the Act. Now, I really think the fears entertained in that respect are very chimerical, and I think that in this House, where the interest of landed proprietors cannot be said to be unrepresented, the Lord Chancellor of the day would very soon hear of it if he were to do so. There is nothing in that apprehension at all. But it will interest your Lordships if I tell you that, although a system of land transfer has been for a long time prevalent in Austria, it was only in comparatively recent years that it was extended to Hungary. The Minister of Justice told me in Vienna, when I was there some time ago, that there was great opposition among the Hungarian landed proprietors to the introduction of the system on the ground that they feared their affairs might become known; but that they were so impressed with its advantages when it came into work that their feelings with regard to it entirely changed, for they found it so much easier than before to obtain loans from their bankers when all that had to be done was to make an inquiry at the Registry. The increased facility to them of obtaining advances for even temporary purposes had really converted them all to an approval of the scheme. Besides the objections to which I have called your Lordships' attention, it is said that a registered proprietor would not be able as easily to raise a temporary loan from his banker as at present, when he may do it by a deposit of his deeds with a memorandum, and that after this the process would be more cumbrous and troublesome. I think that cannot be so. The only question really is whether the fee which would be required by the Registry in such a case would be more or not than it now costs to make an equitable transfer. That is entirely a question of the rate at which the fee should be fixed; and if it does not cost more than it does now, the whole objection falls to the ground. The only other objection, I think, is that it is said, when transfers of land are dealt with in a public office in this way, it is likely that they will not be so speedily carried out as at present. I admit, if that can be established as the necessary result 743 of such a scheme, the objection will have weight; but I am unable to see why it should be so. This Bill does not propose to at once render the system of land registration compulsory throughout the whole country. No doubt great delay would arise if you were to attempt so great a change as that; but it only proposes to bring the Act into operation by degrees in particular districts, and I am sure that when the Bill passes into law those connected with its administration will do wisely—and they will have every motive so to act—to proceed tentatively, and not to begin with an area so extensive as to be likely to jeopardise the success of the scheme. My Lords, I think I have now dealt with the main objections raised to the scheme by those who are opposed to it. The clauses to which I have called your Lordships' attention contain the substantial and important provisions of the Bill. The only other matters of which it will probably be necessary to call your attention—I do not think it desirable to go into details at the moment—are those relating to the devolution of land in case of death. Under the Bill of the former Government your Lordships will remember that not only was it provided that the land should devolve upon the personal representative in case of death, but the law of inheritance was altered. So that it was not merely a matter of machinery, but it was coupled with that substantial change that the old law of inheritance ceased to be. Under this Bill the change is merely one of machinery in the devolution of estates upon what is called a real representative for the sole purpose which, it seems to me, is essential to any scheme of land registration. But that will not in the slightest degree alter the beneficial interest—the interest which will pass to the beneficial owner or devisee—and it is expressly provided that this measure shall not make any difference as regards Probate or Succession Duty. It is said that it will assist the Government in rendering land liable to probate if it thinks fit to impose such a scheme. I confess I cannot see any substance in such an objection as that. Such a tax could only be imposed by a Bill passed into law for that purpose; and if a proposal of that kind were made, what difficulty would there be in providing any machinery that might be 744 necessary for the purpose of carrying it out? How it can be supposed that the presence of a few lines in this Act of Parliament would make it more easy or less easy for any Government to carry out such a scheme I fail to see. I do not often make promises, but I think I can promise your Lordships that the imposition of such an increased tax upon the devolution of landed property will not be hastened a single day by the acceptance of this Bill, and that the giving effect to such a proposal will not be delayed a single day by its rejection. I really think, therefore, that this objection is one of those which are taken for the purpose of creating alarm by those who disagree with the changes suggested. My Lords, the Bill will have to be considered in Committee, and all I ask you to do to-night is to give your assent to the SECOND READING. I believe that although this, as I have said, is not an ambitious measure, and will not produce at first any very large effect, yet it will tend to inaugurate changes which will be beneficial at large, and that the land which will come upon the Register will, before many years have elapsed, be dealt with with a facility and simplicity with which it is impossible to deal with land at present.

*THE EARL OF MORLEY
said, there was hardly any question which affected the landed interest more than that of registration of transfers of land. He believed it to be more important than all the Allotment and Small Holding Acts which their Lordships or the other House could pass, admitting that it was important that the largest possible number of persons should have some landed interest in this country. He was firmly convinced that the main obstruction to the distribution of land was due to the legal difficulties with which its transfer was beset. He, like others of their Lordships, no doubt had often been desirous of parting with small bits of land—perhaps an acre, or two or three acres—but had been deterred from doing so by the legal expenses in which he would be involved, because in every single case of course, whether large or small, he would be obliged equally to incur the expense of proving a long title. The object of this Bill—and he wished that it went further—was to render by degrees unnecessary the cost of the constant repeti- 745 tion of proof of title. It was only natural that objections to such a proposal should come from solicitors. Human nature was human nature, and if this land registration was worth anything at all the advantage of it was to simplify and cheapen the transfer of land. Was it not perfectly clear that it was not to the interest of solicitors and of the Incorporated Law Society that they should support such a measure, and that they should render this registration as little general and as little popular as possible? It was all very well to talk of independence, but they knew that almost all their estates were tied up by every sort of legal device with which it was impossible for them to deal without legal advice; and he was bound to say it seemed to be too often the case that solicitors were inclined to tie up estates in knots, which may, and probably will, afterwards have to be untied. So that their discouragement to the registration of land transfers was one of the obstructions which must be recognised in accounting for the fact that registration had not so far been more popular. In a case of his own, without any legal advice, he had himself registered an estate worth £45,000 at a cost of £51 10s. in a couple of months, and had obtained an indefeasible title to it upon a small piece of paper. Subsequently, he had sold an acre and a-half of the land for £250, and the transference of title had only cost the purchaser £1 15s. He admitted that the title was not a difficult one, and that other cases might be more difficult, but that was not an argument against the Bill.

§ THE MARQUESS OF SALISBURY
May I ask whether the transactions to which the noble Earl refers were in fee-simple or in trust?

*THE EARL OF MORLEY
said, they were in foe-simple, and quite admitted that in cases of trust the matter would be much more difficult and would be impossible to be carried through without the best legal advice. But that was not an argument against the Bill, especially as the Bill only dealt with the possessory title; though after that had once been obtained all subsequent complications were done away with, and an absolute title would grow up after the lapse of a very few years. He made these remarks in the interest of those who owned and cultivated land, and of the country at large, 746 because it was of the utmost importance that the transfer and conveyance of land should be rendered more simple and cheap than at present. The noble and learned Lord had certainly not gone further in the present Bill than the circumstances of the case allowed him; and he hoped this was merely the beginning of a complete alteration in the conveyance of land.

§ *THE EARL OF SELBORNE
had been for many years a strong advocate for a measure in this direction, and had never seen any reason to change his mind on the subject. In his opinion, some form of general registration was necessary, and there could be no doubt that, without compulsion in some shape or other, no system for that purpose, such as was aimed at by this Bill for the public benefit, would ever be carried out. So long as the compulsion was not carried out to its full extent, and the Bill was only partially operative in different parts of the country, two systems would be going on together, and the difficulties attaching to registration in competition with the other system would not be got rid of. Without denying that, for financial and other reasons it might be necessary to give the Bill a gradual operation, he could not help thinking that its success must mainly depend upon making that gradual progress as rapid as possible. With regard to the rest of the Bill, he was not at all convinced that it. was necessary for the purposes of a measure of this kind to make real estate devolve upon executors for the purpose of transmission. In the measure introduced by the late Government, as it left the Standing Committee, the clauses which had that operation were, no doubt, safeguarded in a manner which would practically go far to relieve executors from the difficulties and responsibilities which such a change in the law would bring about: and those safeguards wore repeated in the present Bill. If he rightly read the present Bill the devolution of real estate upon executors was proposed independently of registration. If no clauses were introduced safeguarding that operation people would not easily accept the office of executors in the future, having the responsibilities attaching to large real estate cast upon them without any substantial means of properly fulfilling the duties involved. 747 In his opinion it was unwise that real estates should for any considerable length of time be in the hands of persons who could not perform the duties of such property—duties that occurred from day to clay—and he thought executors should not, for any practical purpose, be placed under those responsibilities. He feared there might be cases, when estates were heavily embarrassed, or when the beneficial ownership was matter of dispute, which the safeguards to which he had referred would he inadequate to reach. He hoped that part of the Bill would be very carefully considered in Committee. If executors were to be burdened in those cases with the responsibilities without having the means of performing the duties of property very serious evil would be produced, and he had never been convinced that there was any practical necessity for it.

§ *LORD ASHBOURNE
said, it was obvious this Bill, the object of which had been so clearly explained by the noble and learned Lord on the Woolsack, was a measure of great importance; but it was equally plain that when it came to be considered at another stage many of the clauses would be carefully discussed and examined. It had been desired for a very long time that a cheap, expeditious, and simple system of land transfer should be established. He was rather afraid it might be supposed, from the short and pointed remarks of the noble Earl the Chairman of Committees, that this Bill would introduce a kind of legal millennium. The noble Earl might possibly have given ground for exaggerated hopes in that direction. The dread of the family solicitor might be carried too far, and it would he found necessary, even if the Bill became law, on many occasions still to have recourse to legal advice. No doubt the Bill was founded upon, and to a large extent corresponded with, the measure proposed by Lord Halsbury; but some care and trouble would still be necessary in carrying out the operations which it proposed. He inferred from the remarks of the noble and learned Lord that he was willing time should be given to enable Amendments to be placed upon the Notice Paper for consideration by those who took an interest in the subject.

§ THE LORD CHANCELLOR
said, he had been asked by the Incorporated 748 Law Society to receive a deputation on the subject, and he certainly desired to be duly informed of their views, and to obtain every possible assistance from them before proceeding with the next stage of the Bill. With regard to the point raised by the noble and learned Lord the Earl of Selborne), he was aware that there was a difference of opinion between them as to whether devolution to what had been called a real representative was necessary to a system of registration. Conveyancers thought it necessary, and he himself was of opinion that it would be difficult to carry out the scheme without it. Many eminent conveyancers had advocated, quite apart from the subject of land transfer, the advantages of having real representatives; but he quite agreed with the noble Lord that there should be safeguards for the executor or administrator in regard to getting rid of any burden or liability in respect of laud. The clause as it stood was the result of the deliberations of the Select Committee upon the subject, and had been put in its present form with the assistance of his noble and learned Friend; but it might, perhaps, be strengthened, and he would be happy to accept any suggestions in that direction.