§ [SECOND READING.]
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
My Lords, after what has just been said I should feel, under ordinary circumstances, very uncomfortable in bringing up this Bill at this period of the session, but in point of fact, whatever criticisms may be made of other Ministers, I at least come out well, because I am bringing up this Bill after it has been printed for a long time, and, Further, with the mere intention of moving the Second Reading and not pressing the Bill further this session. For that course I have an excellent reason. We are dealing in this Bill and in the Real Property Bill with perhaps the most intricate subject to which legislation can be directed, a subject which requires all the consideration that can be given to it; and not only the best expert assistance, but the best expert criticisms when the measure has been placed before the public. It is with a view of placing the measure before your Lordships' House for full consideration, and through this House before the public for expert treatment, that I take this opportunity of asking your Lordships to consider the Bill. My plan is to leave this Bill after the present stage until early next session, and then to introduce it, I hope, effectively, and the Government then propose to proceed with both this Bill and the Real Property Bill. Although these Bills have been prepared with the utmost care which it was within my power to devote to them, and although I have had the best expert assistance, I am well aware that in a 1651 subject so intricate points will turn up which will require consideration, and therefore we and those who are interested in them approach the consideration of these measures with an open mind.
These Bills embody in the main the results of the work of a very remarkable Royal Commission, I think one of the most effective Royal Commissions that have sat in modern years—I mean the Royal Commission on the Transfer of Land, which was appointed in the summer of 1908 and over which the noble Viscount, Lord St. Aldwyn, presided. That Commission reported in January, 1911. My noble friend Lord Beauchamp was also a member, and there were associated with the two noble Lords to whom I have referred some of the most distinguished experts in the country. The result was a Report which for comprehensiveness and for the amount of investigation it represented has hardly a rival in recent years. That Report has been much discussed, and I think it has met with a remarkable degree of approval. It recommended various improvements of the existing machinery for land transfer, particularly with reference to the registration of transfers, and also it pointed out that it was impossible to make really effective progress in anything like a complete degree unless the title to land itself and the broad principles of the machinery of transfer as between buyer and seller were radically simplified. The Report indicated these points but without pronouncing upon them, and it has been left for us to take action on the Report and to carry out the suggestions, because what was said on this point did not amount to more than suggestions. These suggestions belong to the first of the two Bills on the Paper to-day, the Bill with which I am at this moment dealing, and perhaps it would be convenient that I should explain them.
Dealing with land in the way of simplifying its title and the machinery of its transfer is always a much more difficult thing than it looks. People say, "Why not make land like Stock, so that it can be transferred as simply as Stock?" The answer is that land is not like Stock; it is in its nature totally different. The owner of, say, £100 worth of Stock has no right to any specific thing. What he is entitled to is his dividends and his capital when the concern is wound up, and to a 1652 certain amount of control in the way of voting during the life of the company in which he holds his Stock. That is a right that lawyers call a right in action; it is not a right to a specific thing. But when you come to land, the situation is quite different. A man owns property with a mansion house on it, or it may be a house in town. That house may be his home; it may be the centre of a great deal of affection; he may have family associations connected with it; he may be, although it be the humblest of dwellings, unwilling to leave it because it is there that the traditions of his boyhood are centred. It may be that it is property on which he sets great store; it may be that it is a property which has altogether unique characteristics in his eyes. Its boundaries may be matters of great particularity; he may have rights over adjacent properties, and adjacent property owners may have rights of way and other rights over his property. The public also may have rights, and there may be all sorts of incidents of which account has to be taken in considering the nature of that property and the title to it. If you go back to the Land Laws of the Roman Empire and even of the Roman Republic you will find provisions just as minute, corresponding to the modern real property titles which exist to-day. That is one thing which differentiates land from Stock, and differentiates it most conclusively.
Then there is another thing. Land is a thing which a man very often likes to keep, and to leave to his wife for life and then to his children, when he is deprived of it by death. It may be that he does not desire to see it much changed. With Stock he has no such interest in the specific thing. Besides these two tendencies there is a third tendency which has made itself very manifest. In early days in this country land was the subject of the feudal system; and not only because of the tenure which existed under the feudal system, but also according to the principles of the Common Law, which were very rigid, the transfer of land was effected by solemn delivery of possession, and the effect of that delivery of possession was to vest the title in the person to whom the possession was delivered irrespective of whether the persons who handed over that possession had a title or not. There were, accordingly, what we call tortious thefts, and to provide for that state of 1653 things it was enacted that the person who bought the land, even with a bad title, got a title which the Courts at Common Law enforced. Then there was the controlling hand of those who occupied the Office which I now hold. The Chancellors of early days began in effect to deal with people's consciences according as they thought that persons had been acting honestly or not, and where notice was given that a man was getting possession of another man's land the Court of Chancery took hold of that man and said to him, "You are in the position of a trustee for the real owner." That had a disastrous effect on the title to land, and there has grown up a very complicated system, rendered more complicated by the fact that our forefathers would not willingly depart from the principles of the feudal system and of the Common Law. Consequently it was by a multiplicity of ingenious devices that conveyancers escaped from the often absurd consequences of the law. They invented a system of fines and the Statute of Uses and a multitude of other things on which I could dilate, the result being that until recently the law of real property had become still more complicated than it was even in the early days when the absurdities of which I have spoken existed. That is why the difficulty of the modern reformer is very great.
In the last fifty years great progress has been made. I think the greatest progress that was made by any one Minister was that made by Lord Cairns when he introduced in his Settled Land Act the principle that land for the future should be settled but settled only as to its value. The broad principle of Lord Cairns's Act was that the person who had estate in land, it might be only for life, or it might be only an equitable estate through trustees, could turn it into money so long as the money was protected and settled. That was a great and beneficial reform. It had borne fruit, and has been developed by subsequent Chancellors. My noble and learned friend Lord Halsbury himself made very valuable additions to the development of that principle, and to-day the law has been very much simplified even from what it was when Lord Cairns dealt with it in 1882. That is what makes it possible to make an advance to-day. I think your Lordships all feel that land ought to be more simply and more cheaply transferable than it is at the present time, and that the 1654 various fetters which hamper those who own land, whether it is settled or whether it is not settled, should be struck off. The question is how that can best be done. How far is it possible, not to make land like Stock, because you will never make land like Stock, but to make the machinery for the transfer of land as between the seller and the buyer resemble the machinery by which Stock is sold by one person to another. To that extent, if you confine what you are doing to the relation of seller and buyer, I think it is possible to make a very great simplification in the process of conveyancing, and it is with the simplification of these processes that the first of the two Bills before the House this evening—the Conveyancing Bill—proposes to deal.
The principle of this Bill is not an invention of mine; it was devised by a very eminent conveyancer, the late Mr. Wolstenholme, and is embodied in a form introduced by the late Lord Davey, who introduced a Bill which was read a second time in this House in the year 1897. We have taken the principle of that Bill and remodelled it, and constructed a Bill which aims at making land, as between buyer and seller, as closely resemble Stock as we can manage without endeavouring to accomplish the impossible. What we do is this. Up till now a purchaser's great difficulty is that when he contracts to buy a piece of land and investigates the title before he pays the price and takes the conveyance, he finds himself affected with notice of every kind of equitable estate, and he cannot pay his money because he cannot get a clean title. These estates are the estates of people who have a subordinate interest in the land, it may be in remainder expectant on the determination of the life interest of the person who has the land, or it may be by way of trust on behalf of other persons who have subordinate interests under the title. What we propose is that there shall always be somebody who shall be able to make a clean title to the buyer, subject to this, that the subordinate interests must be carefully protected. They will be protected in two ways—first, as Lord Cairns provided; and, secondly, by a new safeguard, a system of cautions, which will be put upon a proper register provided for the purpose, and will be put on the register by those who have subordinate interests, and by the trustees where there are trustees. In that way everybody will be protected.
1655 When anybody proposes to buy land, the first thing he will do will be to inquire at the Registry whether they have any cautions recorded. Finding certain cautions he says to the vendor, "I will pay my money but you must produce a certificate from the Registrar that the persons interested in these cautions have had their interests satisfied and are prepared to take them off." A purchaser will have nothing to do with the machinery by which the cautions are registered; all he is concerned to do is to get his title clear of the cautions in the way I have indicated and then he will have a clean title. The way that is accomplished is this. We modify estates in land by saying that estates in land are for the future to consist of two kinds—proprietary estates, the only kind recognised between seller and buyer; and subordinate estates, estates under trusts. For the future a man will be able to settle his land exactly as he does at the present time. We do not take away any power that he possesses to-day, only he will not be able to settle his land by carving up the legal fee simple. He will be able to settle estates, but the estates which he creates will take effect exactly as they would if there were trustees appointed under a settlement. The persons interested will be protected as well as they are at the present time, because not only will the Settled Land Act protect them but they will have an entry on the register of these cautions wherever there is an estate of the kind I have mentioned. When a man settles his estate the business of the trustees or solicitors will be to put the cautions on the register as part of the settlement, and the purchaser will find them there when he inquires into the abstract of title. All he will have to do will be to say to the person who has the proprietary estate, "You must give me a certificate that these cautions are swept away, and you must give me a conveyance from yourself."
A man, we will say, wishes to settle his land on his marriage on himself for life and afterwards to his widow and then to his eldest son and his other children in successive entail. The proprietary estate will be in the tenant for life as between himself and the buyer. He will be the absolute owner subject to these cautions of which I have spoken or the trustees of the settlement, if there are trustees of the settlement. In addition to Lord Cairns's 1656 Act you have the further protection of the cautions being put on where there are trustees of the settlement. But the great point is that when any one goes to deal in land he will deal with the person who is the absolute owner. That will apply not only to the freehold interest in land, the only freehold interest in land being the freehold interest of the person absolutely entitled to it, but it will refer also to the person who has not a freehold interest but an interest for a term of years. The proprietory estate can only be either for an estate in fee simple or for a term of years, so that the purchaser will always have somebody with a single and simple title, and those interested will be protected in the way I have indicated. In addition to that there will be what are called paramount interests in an estate. An estate may be settled subject to an existing jointure or rent charge, which very often happens, and of course it would not be right to enable the person entitled under the settlement to over-reach that. If this general change is made the effect of it will be shortly this, that settlements will be quite secure. By provisions which come into both Bills there will always be somebody of full age holding the deed, because where there is an infant the trustees of the settlement are to be capable of exercising his powers. That is quite right, for one of the most embarrassing things conveyancers have to deal with is when they find that the land is vested in an infant. There will always be somebody to deal on behalf of the infant under proper safeguards.
Then we aim at putting the land as seldom as possible in the hands of trustees. Experience shows that trustees very rarely take the same interest in land as the owner himself does. If a man has only a life estate and it is tied up in his trustees and left to his trustees to act, it cannot be expected that they will show the same interest in the property as the absolute owner himself would. Therefore we have added the principle in this Bill, and in the other Bill also, of conferring powers of dealing as fully as possible upon the person in possession of the land, it may be only of a life estate, as distinguished from the trustees who up till comparatively recently it has been the custom to endow with powers. Lord Cairns's Act made a distinct step forward in that direction. Then there will be shorter abstracts of title. Another matter is this. Hitherto 1657 the Crown has always insisted on having specially secured claims for Death Duties. We propose that the Crown should be protected just in the same way as anybody else by the cautions, so that the purchaser will be sure of getting a clean title as regards the Death Ditties. That saves a great deal of expense in investigating abstracts and greatly simplifies the question of title. The same with regard to bankruptcy. As your Lordships know, Lord Halsbury, by the Act he carried through in 1897, made laud on trust to be dealt with according to the terms of the settlement pass to a legal representative or go to the heir in the proper course of administration. We have adopted that, and you will always have somebody who will be able to deal with it on the death, and it will not be tied up with the difficulty of an infant heir, as very often occurs.
If we had only proceeded so far we should have greatly simplified title, but we should not have secured it. There was a case about three weeks ago, since this Bill was printed, which shows the insecurity of title to land even now. There was a property which belonged to a gentleman who died in 1899, apparently intestate. His widow sold part of the property as administratrix. She lived till 1911, and after her death the will of the original testator was found, and the unfortunate purchaser who had bought from the supposed administratrix who was displaced by the will subsequently found that he had got no title and he was deprived of the property and lost a great deal of his money. That case was fiercely litigated, and the result of it represents the law as it now stands. A thing of that kind can be best dealt with by a register of title such as is proposed by the Bill. Such a register formed the subject of part of the Report of Lord St. Aldwyn's Commission, and until that is done, or until certain other changes are made which I think we may make even in the law as it stands at present, to obviate such a system, there will always be these risks in connection with the transfer of land.
That brings me to one or two other changes which we make, and to some which we do not make. I wish to speak of those for a moment before I pass to the reforms which we make carrying out the Report of the Royal Commission. Some people have said, "Why have you not abolished the Statute of Uses?" We 1658 have cut down the operation of the Statute of Uses in the ordinary course very much, but we have not abolished it altogether. When I was a junior at the Bar, conveyancing for a good many years—I suppose everybody gets steeped in these things when they are much accustomed to them—I got very conservative instincts about this thing, and I ceased to be affected by the demands made for the abolition of the Statute. The Statute of Uses is one of the most convenient things in the world if it is kept within proper restraint. A noble Lord might say to me, "Why do you carry a walking stick? I learnt to walk without one"; and I might reply, "If I were to begin again to walk without the use of a walking stick I might learn to do without it, but having arrived at my present age and always having been accustomed to carrying one I find that a walking stick is a most convenient aid to getting over the ground." And I suppose having been so much accustomed to the Statute of Uses I, as a conveyancer, found that Statute most convenient. We have not repealed it, but we have confined its operations within narrow limits. We have swept away all those executory limitations and uses, and we have kept it only so far as it is a convenient method of creating rent charges and things for which there is no machinery in the Statutes.
Then again people say, "Why do you not abolish tenures?" Tenures were important 200 years ago or less and they are comparatively unimportant now, but they belong to the history of the land, and as they have really reduced themselves to almost nothing at all we do not abolish them. Then it is said, "Why not abolish estates tail?" That is a very convenient way of dealing with land. I remember the case of a member of your Lordships' House whose fortune was a considerable one in money and who wished to make a settlement in tail. The distinguished conveyancing counsel whom he consulted said, "I could draw up a series of limitations by way of trust which would tie up the money for a period, but they will get you into complications such as will be sure to lead to litigation or to the settlement coming to an end, and you cannot unless you invest your money in land make the proper limitations you want." He said, "I do not want to buy land," and the conveyancer took a sheet of paper, "This will be enough; if you transfer your money 1659 to be invested in securities nominally to be held on trust to be sold and invested in land, but not actually to be so invested; then you can make the limitations exactly as if the land has been bought, and you can entail the money which is held in trust to be invested in land." That is the way the difficulty was got over. I only mention these things to show that what we really want to do is to get rid of the evils of the Statute of Uses and not to do away with the Statute itself, which contains many convenient instruments if properly dealt with. We give the owners in entail of property power to leave it by will, and also power to make entail and disentail without going to the cost of enrolling the deed. Those are very convenient provisions, and save a certain amount of expense.
Now I come to that part of the two Bills which is covered, and it is really the greater part, by the Report of the noble Viscount's Royal Commission. Part I of the Real Property Bill deals with a number of long required improvements. Many of them were suggested in the Report and the others were embodied in a Bill which was introduced in the year 1912 giving effect to that part of the Report of the noble Viscount's Commission. That Bill was agreed on by the Law Society representing the solicitors, and by the Bar Council. Many of these provisions were considered at an earlier stage by a Select Committee of this House presided over by Lord Davey and were approved by that Committee. Your Lordships will find one or two very convenient provisions. For instance, under the Settled Land Act as it stands now a limited owner, a life tenant, may mortgage the estate in order to raise money to pay off charges, but he has no power to raise money to make improvements. We give him that power. We give him the power of a tenant for life under Lord Cairns's Act, extending the powers of making improvements. We extend the category of authorised improvements which he can make—there is a list of them in the Bill. I will not dwell upon them, but they are useful provisions dealing with the installation of electric light and other things which are proper to be done. Then we somewhat more emancipate married women. We think it absurd that they should have to go to Commissioners to make a conveyance, and we put them on the same footing as ordinary people in respect of their property.
1660 Part II of the Real Property Bill also carries out the Report of the Royal Commission, and I think here we follow that Report more closely. The Bill proposes to do away with copyhold, a form of tenure which I think has nothing to recommend it. The Commission proposed to do away with copyhold; we have done that, and copyhold will be turned into freehold subject to all rights. Besides that, we abolish all special customs as to descent and special tenures. Then we take perpetually renewable leaseholds, of which there are a great many, and we convert those in all cases into a term of 2,000 years, practically a fee simple subject to the incidents which would naturally attach to them. Then Part III provides for the extinguishment of manorial incidents where copyhold land has been converted. If the lords and tenants of copyhold land choose to take action within five years for extinguishment they get certain advantages, such as being excused the payment of stamp duties and office fees to the Board of Agriculture. If they choose to delay they will have to do things at their own expense but they will have to do them in the end. The result is that everybody will be compensated and nothing will be taken from anybody which he is entitled to at the present time.
Part IV deals with a number of amendments of the general law recommended by the Royal Commission. I ought to tell your Lordships what these amendments are. They are fully set out on pages 5 and 6 of the White Paper (No. 119). To some of them I have already referred. The necessity for the enrolment of disentailing assurances is abolished. A tenant in tail in possession is enabled to dispose of property by his will. And then there are various useful provisions such as this. If at present a man mortgages his property and pays the mortgage off he has to pay the cost of a formal conveyance of the property by the mortgagee to himself. We now say that the receipt for the mortgage money is to have the effect of re-vesting the property in him just as in the case of building society mortgages at the present time. Then there is a useful provision which enables the Court—we give this power only to the Court, to be exercised in its discretion—to discharge or modify restrictive covenants which have become obsolete and which no longer are of any 1661 importance. That also was recommended by Viscount St. Aldwyn's Commission. There is one point with regard to which I have been a little more conservative than the noble Viscount. He recommended twenty years for the period of title. We think that at present it is safer to take thirty. There will be life estates outstanding, and we have taken thirty years instead of forty as at present for the period for which title is to be shown in the absence of special contract.
Then I pass to Part V. That repeals and re-enacts with amendments Part I of the Land Transfer Act of 1897. It reenacts with improvements Lord Halsbury's amendment of that Act, and deals with things such as real property vesting on the death of its owner in his personal representative, according to the Report of the Commission. Finally, Part VI deals with various amendments of the Land Transfer Acts regulating the registration of land in accordance with the recommendations of the Royal Commission. A question has been raised as to whether the Land Transfer Act ought not to be extended. Your Lordships know what a storm of opposition the proposal for the compulsory extension of the Land Transfer Act has awakened. I have great faith in the Land Transfer Act and its principles, and if we get it to work well in the place where it is compulsory, the administrative county of London, and amend it and leave it optional in the whole of the country people will take advantage of it, I think, in increasing numbers. We have enabled them to get absolute titles more cheaply than at the present time, and the machinery of the registration of title is very much simplified. There is only one thing we have not done. We have neither directly nor indirectly tried to apply any compulsion in extending the area within which registration is compulsory. We think that the best way, the only way of making progress is to make land transfer under the Registration of Titles Act as perfect as you can and then leave it to the common sense of the people to make use of the Act for their properties outside London, and in that way we will find a desire on all hands for an extension of the system throughout the country. After a great deal of consideration I have come to the conclusion that that is the most likely way of getting an advance—not by driving people but by persuading them; and I hope that these reforms will 1662 persuade them that land transfer is by far the most effective system when it is carried out under the provisions of the Registration of Titles Act.
I have told your Lordships the substance of these two Bills. The field is a very complicated and difficult one. As I have said, I have consulted those people who were able to give me the very best expert assistance. I had the advantage of the help of members of the Royal Commission, who gave me great assistance in the preparations of the Bills; indeed, the whole of the drafting was carried out by a committee presided over by a distinguished conveyancer, Sir Philip Gregory, who was a member of Viscount St. Aldwyn's Commission. I have also had the assistance of both sides in politics. Mr. J. W. Hills, the Unionist Member for Durham City, who is also a solicitor, has given me great assistance in this matter. The result has been that I think I may say that the Incorporated Law Society and the general body of solicitors are more favourable to this measure of reform than they have been to any measure of reform of a similar kind up to this time. The Bar Council have also communicated with me to the effect that they are in favour of it.
But, as I said in opening, we are not going to do anything until the Spring, so I invite your Lordships to set to work on these things, and if you find points of criticism we shall be glad to consider them. What is very satisfactory is that I have found on all hands a real desire to make a great change in the direction of simplifying the title to land and cheapening its transfer. I think everybody is convinced that whatever other reforms we make in connection with land they will only be hampered and hindered unless we deal with this necessary preliminary. What I have described to your Lordships may seem complicated, but it is as simple as I have known how to make it. In dealing with much of it one is in the region of the obscure and the uncertain, but I am pretty sure of this, that if these two measures should be fortunate enough to become law and to fulfil our expectations, they will do a good deal to simplify the present state of the law. They have been drawn with no desire to adopt any Party or partisan lines or to disregard the interests of any particular class. As I have said, I move the Bills formally only to-day in order to 1663 make discussion possible. It would not be right, of course, to ask your Lordships to approve the broad principles of these complicated measures at this time of the session and with so little consideration; but I thought that this discussion would probably be the best introduction to that mature consideration of these far-reaching proposals which is requisite if they are to receive general acceptance.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ VISCOUNT ST. ALDWYN
My Lords, it would be impertinent far a mere layman like myself to attempt to enter in any detail upon a criticism of the able and lucid exposition which the noble and learned Viscount has just given to your Lordships of the provisions of these two Bills. I should not indeed venture to address your Lordships on the subject at all were it not that, as the noble and learned Viscount said, for two years I served as Chairman of the Royal Commission which investigated the working of the Land Transfer Acts, and these two Bills comprise very many of the suggestions which we made. I think perhaps I may venture to express the obligation which I am sure is felt by all who sit on this side of the House to the noble and learned Viscount for the manner in which he has dealt with this subject. For myself, at any rate, I am quite sure that I am voicing what will be felt by every member who served on that laborious Royal Commission when I say that it is a great deal to have our labours praised in the manner in which they have been praised to-day by so high a legal authority as the noble and learned Viscount. But what is even more gratifying is that so large a portion of our recommendations should have been accepted and embodied in these Bills. I am quite sure that the course pursued by the noble and learned Viscount in introducing and fully explaining his measures this session and then leaving them, without taking any stage of them here, to be considered by your Lordships and by the country will be by far the best way of bringing these Bills, as I hope they may be brought, into a shape in which they may become law.
I will not attempt to dwell upon the many recommendations which the Royal Commission made on the working of the Land Transfer Acts, or on the extent to 1664 which they have been embodied in these Bills. They have been very largely but not entirely embodied, and when we come to discuss the Bills in Committee there may be points upon which I may venture to submit suggestions to the noble and learned Viscount. I may say at once that I regret that he has been more conservative than we were on the question of the length of title required in an open contract. We fully considered that matter, and we thought, having regard to the practice of conveyancers and the growing desire to shorten titles, that it was perfectly safe to recommend that the present term of forty years should be reduced to twenty years. The noble and learned Viscount has not ventured to go as far as we went, but I hope when we come to discuss the point in Committee that it may be possible to convince him that twenty years would be safe enough.
The noble and learned Viscount has adopted what is known as the scheme of Mr. Wolstenholme in the Conveyancing Bill, and he has described in the Memorandum which he has placed before your Lordships how the Bill based on that scheme will reduce to a minimum the investigation and reinvestigation of titles by reducing the number of instruments to be included in the abstract and simplifying and shortening the instruments to be produced to a purchaser. He said that it will shorten and simplify the methods of conveyancing and dispose of some of the difficulties felt by the Royal Commission with regard to the registration of settled land, and that it will incidentally approximate the title to land to the title to Stock. I will not attempt to discuss how far the Bill carries out that description, because my authority on such a matter is not one that I could expect your Lordships to accept. But I will venture to quote an authority which your Lordships, I think, would do well to consider—I refer to Sir Fortescue Brickdale, the Registrar of the Land Registry. Sir Fortescue Brickdale described to the Royal Commission Mr. Wolstenholme's scheme, and not only described it but criticised it, and his criticism of the scheme was this. He said that it was only really directed against complications in title due to settlements, that it did not abolish abstracts of title, and that old deeds would still have to be looked up, abstr actsmade and verified, requisitions and replies continued; so 1665 that the chief causes of expense and delay would remain, and even in the simplest cases a layman would need legal aid. That, of course, was said with regard to the comparison between Mr. Wolstenholme's scheme and the law relating to land registry. But the noble and learned Viscount himself described Mr. Wolstenholme's scheme as an amendment merely of what he called the legal machinery of conveyancing. I very much wish that the noble and learned Viscount had gone further and struck at what, to my mind, is the root of all the complications to which he alluded—that is, the Statute of Uses. The noble and learned Viscount gave us some reasons why he had not felt able to do that. He said that the Statute of Uses was a walking stick for conveyancers. He spoke as an old conveyancer, but I confess I was not very much impressed by that argument. It certainly was a Tory argument; because, after all, if the conveyancing system is so complicated and difficult as he described it himself, and as I must say it was described by many witnesses before the Royal Commission, surely it is hardly worth while to maintain the Statute of Uses merely as a walking stick to that system.
Then, again, the noble and learned Viscount told us that tenures must be continued, merely because they belonged to the history of the land—an even more antediluvian argument, if I may venture to say so—and the system of entail is also to be continued, simplified to some extent I gather, but still continued under the very complicated system of settlements by way of uses. I should like to read to your Lordships what was said to the Royal Commission by a very high authority, a very able lawyer, as I am sure will be recognised by the noble and learned Viscount—I refer to Mr. Cyprian Williams. He urged that the principles of the law of real property should be assimilated to those of personal property by abolishing the feudal tenure of land and the system of estates in fee simple, fee tail, and otherwise, which is founded on feudal tenure, and by making freehold land the subject of a right of ownership exactly similar to the ownership of chattels or of terms of years in land. That proposal has since been embodied in a Bill, which was, I think, last year before the House of Commons, brought in by Mr. W. J. Hills, 1666 the Member for Durham City, whom the noble and learned Viscount has consulted on this matter. I have a vivid recollection, and I am sure the noble Earl opposite will sympathise with me in this, of the evidence given to the Royal Commission by many very able conveyancers from Lincoln's Inn. I felt, when I heard them describe all the complications and windings of that remarkable system, that I had before me something like a number of very able and very successful spiders who minister to the excessive desire of many men to control the disposition of their property many years after they have been deprived of it by death, and who, ensconced in the crevices of Lincoln's Inn, weave webs in which flies in the shape of landowners are voluntarily enmeshed, and from which they can never escape except by even more skilful and acute legal aid than that which has placed them within those webs. I wish the noble and learned Viscount had had the courage of Mr. Cyprian Williams and proposed to abolish the Statute of Uses and the complicated system of conveyance by way of uses.
The Royal Commission did to some extent consider this matter. They did not feel able to recommend what I have just said, because they thought that it involved considerations which went beyond their order of reference. But what they did say was this. They said they were satisfied that the cheap and easy working of the existing system of registry of title is gravely impeded by causes arising from the differences between the law of real property and the law of personal property, especially through complicated settlements by way of uses; and they recorded their opinion—and this was the unanimous opinion of the Commission—that the complete establishment of a system of land transfer satisfactory to the public and fulfilling the expectations of the authors of the Land Transfer Acts would be materially aided by the assimilation of the law of real property to that of personal property. I do not think that I need say anything more on that subject, but I do hope that the noble and learned Viscount and His Majesty's Government will give some further consideration to the matter before next year.
Now I come to the part of these proposals dealing with the amendment 1667 of the Land Transfer Acts. The noble and learned Viscount did not say anything about a matter which to my mind is of very great importance in hindering the working of those Acts. He explained to your Lordships the decision of the Government not to propose to extend the compulsory working of those Acts beyond the county of London, but to amend them as proposed in these Bills before the question of extending them was considered, and he expressed a very strong hope that, so amended, they might commend themselves more than they do at present to the great majority of landowners in the country. I hope it may be so, but I am quite sure that one of the main causes which have hitherto prevented landowners availing themselves of the Land Transfer Acts is the cost of doing so. That will be in some measure remedied by the proposals of the Bills to grant an absolute title as cheaply as a possessory title and more easily than it has been granted in the past.
But there is also a matter which does require consideration on which the noble and learned Viscount said nothing at all—that is the question of fees to the Land Registry Office. There is a clause in this Bill under which it will be possible for the Lord Chancellor, with the assent of the Treasury, to spread the fees payable by a landowner for registering his title to his land over a series of years, but the fees ought to be reduced as well. The principle of the Act of 1897 was that the system should pay its way without any charge on the taxpayers. That was all very well as long as the system was voluntary, because a man need not register his title unless he liked, but if he chose to do so he must pay the fees demanded. That did deter an extension of the system. But directly you make it compulsory you ought to be more liberal with regard to the fees; for this reason, that the only justification for compelling a man to register the title to his land when he does not want to do so is that it is for the public good, and if it is for the public good surely the public ought to bear some part of the expense of it. But what has been done is absolutely contrary to this. By the Fee Order, as it is called, of 1908, passed when the present Government were in office, the fees were largely increased on large estates and even on estates of no more than £1,000 in 1668 capital value, in order to enable much lower fees to be charged in registering very small properties, and, secondly, to pay for the expenses of the Land Registry Office.
The expenses of the Land Registry Office are mainly of two kinds—first for mapping, which I will venture to say ought to fall on the taxpayers, because it ought to be the business of the public in England, as it is in Germany, to have a proper ordnance map of the country sufficient to be used in transactions of this kind by a Public Office. The other main part of the expense of the Office has been the repayment of the sum borrowed for erecting the registry building and purchasing the land on which it was built. It is the fact that that land cost no less than £155,000, and that sum has to be paid, according to the present system, by instalments in less than forty years. I do think that is extremely unfair on the present generation of landholders as compared with future generations, and that the term ought to be extended to either sixty or eighty years in order to make those annual repayments less and thus enable the fees to be reduced, or else, as recommended by the Royal Commission, the Office should only be charged with a fair rent for the building and for repairs and maintenance, which again would come, I suppose, to not much more than half of the nearly £10,000 a year which is now charged on account of the building. These are points to which I hope the noble and learned Viscount will call the attention of the Chancellor of the Exchequer.
There is yet another matter to which I hope the Lord Chancellor will call the attention of Ids colleague. The noble and learned Viscount said, I think quite rightly, that everybody desires to make land more simply and more easily transferable. That is the object of the Land Transfer Acts and the object of the noble and learned Viscount and his colleagues in introducing these Bills. We all of us desire it, and I may add that no body of men in this country have shown their desire for it more than this House. Time after time Bills for this purpose have been brought forward by successive Lord Chancellors and have been passed in this House, but have been stopped in the House of Commons owing to the influence of the legal profession upon 1669 their representatives there. Therefore I was glad to see the other day that even the Chancellor of the Exchequer, when referring to this subject, for once in a way did not blame your Lordships' House for any difficulty in the transfer of land, but he admitted that it was due to what he described as the chicanery of the profession of which he is himself a member. I suppose the Chancellor of the Exchequer sympathises with the noble and learned Viscount and all his colleagues in the Government with regard to the legislation which we are now considering. But what has he done to promote it? It would really hardly be believed were it not the fact that even while the ex-Lord Chancellor, Lord Loreburn, was considering this question, even after he had appointed the Royal Commission to investigate it, and when he was himself considering, as I know he was, the introduction of a Bill to carry out their recommendations, the Chancellor of the Exchequer by the Budget of 1909–10 was working in exactly the opposite direction to make the tranfer of land less cheap and more difficult.
What did the Chancellor of the Exchequer do? He doubled the Stamp Duty on land transfers. Not only that, but by introducing the Increment Value Duty he compelled every single transfer of land to be sent to the Land Valuation Department of the Inland Revenue Office to be checked there to see whether Increment Value Duty was payable before it could be carried through. That has entailed immense trouble and expense to everybody who has attempted to sell land, and since that Act became law it has been estimated that, whereas no more than two out of every thousand transfers of land have been proved to be liable to Increment Value Duty, which has only produced £20,000 in the last year, the cost of sending all these transfers to the Land Valuation Department to be considered has been more than ten times as much as this £20,000 to the landowners who have sold their land. I do hope that the Lord Chancellor will persuade the Chancellor of the Exchequer to make his practice in these matters consistent with the policy of the rest of his colleagues, and that the consideration, which he suggests to the country and to the legal profession, of these Bills during the coming year will also extend to the Chancellor of the Exchequer, so that when the Bills are introduced again we may be 1670 told that in the matter of fees, and I hope also in the matter of these excessive and increased duties, something will be done by the Treasury which will be in accordance with, and not opposed to, the policy of the noble and learned Viscount on the Woolsack.
THE MARQUESS OF CREWE
My Lords, I have no intention of engaging in any argument on the subject-matter of these two Bills which my noble and learned friend has explained so lucidly to the House. I rise to do little more than express the pleasure which we feel at the very handsome and obviously genuine compliment which the noble Viscount, Lord St. Aldwyn, paid to my noble and learned friend for what I venture to call the great national work which he is performing in framing and introducing these two important measures. In introducing the Bills my noble and learned friend expressed his appreciation, in turn, of the service which the noble Viscount himself had rendered by presiding over the inquiry into this intensely intricate subject. I am not going to attempt to follow the noble Viscount into the various friendly criticisms which he made of what he considered some of the omissions from my noble and learned friend's scheme. He characterised our conveyancing system much in the terms in which a great novelist characterised the Chancery system of sixty years ago, and I can almost imagine the noble Viscount devoting the forthcoming holiday to writing a story comparable with "Bleak House" of what the effect might be on an unhappy landowning family who became victims to our system of conveyancing.
So far as the question of land transfer is concerned I have no doubt whatever that my noble and learned friend will give close consideration to one point which the noble Viscount mentioned—namely, that of the expenses charged in respect of land registration. Nobody can deny the force of the criticisms which the noble Viscount levelled at the scale of fees which are chargeable, although he will, of course, recognise that, like all other questions of remissions of charge, we come to a point which excites the susceptibility of the Treasury. One matter on which the noble Viscount touched has become almost a common form in the past in various discussions which have taken place—I refer 1671 to the supposed almost indomitable resistance which the solicitors' profession might be expected to offer to any simplification or cheapening of transactions connected with the title to land or its transfer. That has been the lion in the path of almost all the would-be reformers in the past. But I think we may be encouraged by what my noble and learned friend stated, both when introducing these Bills and to-night, as to signs of a possible change of attitude on the part of the profession. If one comes to consider it, it might be argued, I think, by the Law Society or by the solicitors' profession that even from the most purely selfish point of view there might be compensation for the diminution in the actual value of much of the business which solicitors do by a great increase in the volume of business done. Individual transactions, it is assumed, will be less profitable, but may solicitors not reasonably hope that there may be a multiplication of transactions, which, taking the profession as a whole, may produce a not inadequate compensation? Of course there will be cases—I think it must be generally admitted—where solicitors, or firms of solicitors, will find their profits perhaps largely diminished by the disappearance of, or at any rate the great shrinkage in, those enormously expensive cases of which we all have had personal knowledge or have heard. But on the other hand there must be other solicitors, not possibly the same individuals, who will gain largely by the number of small transactions which it is hoped may be the result of legislation such as this.
I am glad to know that the course which my noble and learned friend has taken with regard to these Bills has met with the approval of noble Lords opposite. In his view—and it is one which I share—it would not be reasonable, at this period of the session, and in the absence of so many noble Lords who might and probably would desire to take some part in the discussion on the Second Reading, to carry these Bills through that stage to-day, and more particularly we should not like to do so in the absence of the noble and learned Earl, Lord Halsbury, whose name is so closely and honourably connected with former attempts to solve these questions. But so far as the actual business is concerned my noble and learned friend loses nothing by postponing the further consideration until the spring of next year. I quite 1672 share his hope that good use will be made of the interval by those who are competent to form opinions on the subject, and I have no doubt that when my noble and learned friend next year brings in his Bills he will meet with a great deal of instructive criticism, most of it, I should hope, of an amicable kind, which will assist him in turning these great and important reforms into the shape of a Statute.
§ THE LORD CHANCELLOR
It is only a few words that I wish to say in reply. First I desire to express my gratification at the mode in which your Lordships have been pleased to receive these Bills. Whatever comes of it I feel very strongly that this is really the only way to make progress in a subject of much complication and difficulty. My noble friend Lord St. Aldwyn suggested that I was a little too conservative for his taste in this matter, and that a little less caution might be more desirable, but in the latter part of his speech he said it was proved that this House is much more of a reforming House in the matter of land transfer than is the other House. In the other House the persons concerned communicate with their local Members, and the local Members are not interested enough in the subject, to desire to press the matter on. Perhaps he will understand from that how it is that I, who have a good deal of experience of the other House, think it wise to go in a cautious and somewhat conservative spirit in this matter. It is not the Members in the other House that I fear, but those who advise them and communicate with them, and who have not the practical and personal interest in the problem that many of your Lordships have.
Experience shows that we cannot hope to make progress in this matter unless we carry with us the great body of those who are engaged in the profession of dealing with the transfer of land. The history of this question is strewn with the wrecks of Bills brought in with the best of intention and spirit and in the most progressive mode, only to come to an end because there was not enough interest and encouragement to carry them on. That is one reason why I have proceeded in a cautious spirit in this direction, desiring to carry as many people with me as I can. I think that the noble Viscount is really much more radical than I am on the question 1673 of land transfer. He says, "Why do you not abolish the Statute of Uses?" I do not want to abolish the Statute of Uses, but I want to get away from its evil consequences. The illustration he gave brought out the point. I said that none of these temptations will be possible if the Conveyancing Bill which we are now discussing passes into law. It will no longer be possible to limit an estate by means of use or to create an entail by means of use. All the evil consequences of the Statute of Uses will be abolished, except its legitimate function as an instrument to create a term of years for a rent charge. Practically that will be the only function it will have. There will remain the power to create separate interests by way of trust. If Mr. Cyprian Williams's Bill had passed and all tenure had been swept away, then settlements by way of trust, which are just as difficult and just as embarrassing, would have been created under the new régime as under the old, and they would have been worse, and all sorts of things would have been devised by the ingenuity of conveyancers which would have evaded the provisions for freedom which the noble Viscount and all of us wish to see. I think that the more the noble Viscount studies this Bill the more he will find that the Statute of Uses is clipped and confined in its operations to the most simple and legitimate tasks—namely, that of facilitating the operation of conveyancing which the rigid and ancient provisions of the Common Law have rendered very difficult.
Then as regards tenures, when you have got rid of copyhold you have practically got rid of everything which is objectionable nowadays in tenures. The noble Viscount, of course, does not want to carry it to the extent of leases, but he does want to get rid of copyhold. How mischievous it would be to go rashly among these ancient institutions of the law, which, although having their drawbacks, also have their advantages in that they give you a clear principle on which to proceed. The noble Viscount also referred to Sir Fortescue Brickdale's criticism. I quite admit that you will never get rid of abstracts unless you register the title. I think these changes with freedom of title between the owner and the person to whom he is selling will pave the way to registration of title more than anything else you can do, but I grant that all you can do without 1674 registration of title is to simplify abstracts and investigation. You never can get rid of them.
As regards finance, I entirely agree with my noble friend the Leader of the House in what he said. I think that one ought to be very considerate as regards the cost of land transfer. I have that in view, and, as the noble Viscount has pointed out, there are provisions in this matter which give room of elasticity. As regards the stamps on the transfer, he will appreciate that the State is not prone to giving back what it has once got in these days, and the reduction of the Stamp Duty on conveyances would be a very dubious process. But as regards cheapening the cost of registry and the amount of contribution proposed, I think there is a great deal in what the noble Viscount says, and I will bear it in mind. I have only again to thank your Lordships for the way in which you have received these Bills, and to ask leave to withdraw the Motion for Second Reading.
§ Motion, by leave of the House, withdrawn: Then Bill (by leave of the House) withdrawn.