HL Deb 10 July 1913 vol 14 cc858-66

*THE LORD CHANCELLOR (VISCOUNT HALDANE) rose to call attention to the Report of the Royal Commission on the Land Transfer Acts, and to introduce Bills relating to Real Property and to Conveyancing.

The noble and learned Viscount said: My Lords, I think it right, before asking permission to introduce these two Bills, to explain to your Lordships what their scope is. They relate to a subject which must be dealt with before any real progress in the reform of our land laws can be made, and they endeavour to deal with questions of reform which have long been waiting to be dealt with. While I say that, I wish to point out that great advances have been made in the last half century in dealing with the question of the transfer of land and title. After the great Reform Act of 1832 a series of Statutes was passed which swept away many archaic consequences of the principles on which our real property land laws were founded—consequences which, although the logical outcome of the principles on which they rested, made transfer extremely difficult.

I refer to the Fines and Recoveries Act which did away with the necessity of the cumbrous judicial machinery through which disentails were effected; to the Real Property Acts of the 'forties, which did a great deal towards simplifying the law; and to the Statutes which so conservative a legislator as Lord St. Leonards passed. Then there came a period at which still further change was sought for. Such was the insecurity of title that Lord Westbury in 1862 introduced the first of the Land Registry Acts, which was really a register rather of deeds than of title. That Act practically proved a dead letter. It was an optional Act, and its provisions were so difficult to work that it was practically inoperative. The next period was that in which the genius of Lord Cairns effected great reforms. He brought in the Land Transfer Act of 1875, which was a true Land Transfer Act and established a registry of title as distinguished from deeds. That Act, again, was an optional Act, and there were reasons why it was not taken much advantage of. One of these, I think, was the complication which still existed in regard to title, which made registration not very easy to effect. Then there came two Acts which effected a great simplification of title and assisted the case of cheap land transfer—I mean Lord Cairns's Conveyancing Act of 1831 and his Settled Land Act of 1882. The latter Act your Lordships know very well. It aimed at making the settlement restricted apply to the value of the land rather than to the land itself and at setting free the limited owner, not only to make improvements in his property, but to deal with it in a freer fashion than was possible before. But still the cause of land transfer stuck. Then in 1897 the noble and learned Earl (Lord Halsbury) introduced an Act which effected a considerable change. In the first place, it contained a provision under which the Act was almost immediately made compulsory as regards the London area. Then it introduced useful reforms into the system established under Lord Cairns's Act of 1875, and made other changes in the law, such as the appointment of a real representative who could deal with the property after the owner's death. I mention this to show that there was a great spirit of co-operation to make land more free and more easily dealt with.

But still it has been felt right through that something more ought to be done, and the whole question of land transfer was referred to a Royal Commission presided over by Lord St. Aldwyn, and the Report of that Commission was issued in the beginning of 1911. The Commission recommended that there should be still further changes in the Land Registry Acts—the Acts which dealt with registration of title—but they also laid stress on this, that until the general law was simplified, and conveyancing, apart from the register, made easier, you could not expect to get the full benefit of registration of title. Therefore the Report, which is a most valuable one and represents a great deal of very fine work, set out suggestions for certain reforms and entered into details about others which it recommended should be carried before the system of registration of title could be extended to the whole country. I have never taken the view that the objection of solicitors, which has undoubtedly been a potent objection, to the extension of the system of registration of title has been founded merely on self interest. The whole question of the title of land is a very difficult one, and when you have a large body of experts objecting to proposals for change there is generally a good deal in their objections, although they are very likely moved by conservative instincts, and may even be unduly weighed down by the burden of their own knowledge. Anyhow, the attitude of solicitors for a long time was, as the noble and learned Earl, Lord Halsbury, knows, very much against any attempt at change.

Since then great attention has been given by both branches of the legal profession to the question of land transfer, and I think that everywhere there has been a considerable advance in their attitude towards the subject. Solicitors recognise that their remuneration is founded upon a wrong principle altogether. It depends upon payment for technical and detailed work, instead of for the carrying through of transactions as a whole, and I think the belief of a great body of the legal profession is that if there were more transactions they would make more money, and that freedom to make these transactions and to carry them through is the foundation of greater prosperity for themselves. I know that a more liberal view is arising in the legal profession, and I have reason to think that it has made itself felt among solicitors. Bearing these things in mind, and being myself an old conveyancer, who for many years was steeped in this subject, and was fully conscious of the difficulties, I set myself, immediately after succeeding to my present office, to a close examination of the question, and I was fortunate in being able to secure the assistance of certain experts of a very high order. To begin with, Sir Philip Gregory, the well known Conveyancing Counsel to the Court, who was a member of Lord St. Aldwyn's Commission, has in a most public spirited fashion given me a large amount of his time, and has worked out the details for me with a committee, which consisted of several gentlemen of wide knowledge including Mr. J. W. Hills, the Unionist Member for Durham City, and Sir Charles Brickdale, the head of the Land Registry Office. Then I had the assistance of Mr. Cherry, who was closely associated with the late Mr. Wolstenholme, and of other experts, and as I presided over the committee myself I came into close relation with the investigations which have been going on. The result has been two Bills, formidable I am afraid in appearance but not so formidable as they look.

I will now tell your Lordships what these two Bills propose to do. I have divided this attempt at reform into two parts. The first is a Bill the main object of which is to carry out the reforms recommended by Lord St. Aldwyn's Commission, and some things besides. There has been a keen consciousness in both branches of the profession that the Settled Land Acts and the Conveyancing Acts have given rise more and more as experience developed to a number of difficulties; and a Bill—the Settled Land Bill 1912—was promoted by the Incorporated Law Society and the Bar Council, embodying reforms and covering a large number of the difficulties which experience had disclosed in the working of those Acts. The first of the two Bills which I propose to introduce deals with, I think, all the points that were comprised in that Bill, which was a very comprehensive one. The next part of the first Bill, as I have said, deals with the reforms which Lord St. Aldwyn's Commission recommended. While the first part will enlarge the powers of limited owners so as to give the tenant for life greater freedom to deal with the land and to make improvements, subject always to the safeguards provided in Lord Cairns's Settled Land Act, the reform recommended by Lord St. Aldwyn's Commission will carry still further the simplification of title, because, to take an illustration, one of the great reforms which the Commission recommends is the compulsory enfranchisement of copyholds. A specific part of the first Bill deals with that subject. Another recommendation in the Commission's Report which is dealt with is that with reference to the amendment of the Land Transfer Acts. Outside London it is not attempted to make the Act compulsory, but we effect changes, following on the lines of Lord Halsbury's Act, which will make the Act more workable, and which, with the reforms recommended by Lord St. Aldwyn's Commission in the general system of conveyancing, will make people much more disposed to adopt the Act, and I trust that at no distant date they will see the wisdom of adopting it all over the country.

In order to make this matter an easy one I have felt it necessary to deal still further with the question of title and with the system of conveyancing. For a long time there has been a general demand that the treatment of land should be assimilated to the treatment of Stock. That is easy to talk of but extremely difficult to effect, and the more one knows of the ways in which land is dealt with the more difficult the assimilation seems to be. But the idea occurred to me, as it has occurred previously to others—it is an idea of which I have been thinking for the past twenty years—that although you cannot make laud like Stock, you may make it as between buyer and seller very much like Stock as regards the mode of dealing with it. The idea was first worked out by the late Mr. Wolstenholme, who was one of the most eminent conveyancers of modern times. He, with Mr. Cherry, drew up a Bill on the subject, and we have in our Bill taken his work and adapted it to the circumstances of the time.

The substance of it is this, that if the Bill passes there will be two kinds of estates—proprietary estates and subordinate estates. The proprietary estate would be the only estate recognised as between vendor and purchaser, and the person dealing with a purchaser would have power to deal with that purchaser freely. That is a power which he has at present under Lord Cairns's Settled Land Act, but the protection which we give is a protection of a new kind. We introduce a registration of cautions, or inhibitions as they are called, for the protection of persons under settlement or with subordinate interests. As between buyer and seller a person who owns land will own it either in fee simple or for a term of years absolutely. But when the buyer comes to deal with the vendor he may find, on looking at the title, certain cautions indicating protection of interests. "Very well," he will say, "I cannot take it until you have cleared those inhibitions," and not until these are cleared to the satisfaction of the Registrar will the vendor be free to complete the title. I hold the view that people should be left to deal with their property as they think best so long as they do not tie up land. The position would be that a man could settle his land just as he does at the present time, but the settlements will be dealt with as if they created something resembling trusts by way of what are called subordinate interests. These interests will be secured by just the same sort of machinery as under the Settled Land Act, but the difference will be that the purchaser will not have the complications of the Settled Land Act to deal with; he will simply have to see that the cautions are removed. In that way the process will be similar to that when Stock is purchased. The buyer of Stock may find upon it a distringas, and before purchasing he asks the seller of the Stock to get the distringas removed. I have given your Lordships the barest outline of the machinery of the second Bill. Your Lordships will see that what I have aimed at is to give perfect security to persons interested under settlements. Indeed, I think that when we get the system of land registry which ought to grow from this there will be as complete security as any one could have. But even before that, even assuming the case of land which has not been put on the register, those interested under settlements will be adequately protected in the fashion I have described while everybody who has a proprietary interest will be as free to deal with a purchaser as if the land were Stock.

I have described the two Bills and I will now state what I propose to do. The Bills are so intricate and complicated in their details that I do not think it would be right to press them beyond a certain point at present. What I propose, if your Lordships give leave for their introduction, is to have them printed with a full explanatory Memorandum and let them lie for a few weeks on the Table of the House, and then, if the House thinks fit to approve of the principles of them by giving them a Second Reading, I do not propose to proceed further with them this year. I shall then leave them to be scrutinised by experts and by the public, and I hope that in a year's time we may get them into such a shape that they will not be regarded as controversial measures to any large extent. I am encouraged in that hope by the attitude which the Incorporated Law Society as representing the solicitors has adopted. I have thought it right in constructing these Bills to take experts into my confidence, and I have been in close confidential communication with the Council of the Incorporated Law Society and also with some of the most distinguished conveyancers; and the result is that the attitude of the Law Society has given me hope that the Bills will commend themselves to them though doubtless they may wish to overhaul them very carefully, and it is, of course, desirable that they should. But if, it may be after improvements have been suggested, these proposals go through, next year I shall desire then to take a further step and bring in a Consolidation Bill, so that we should have in one volume a Code of the modern statutory law relating to land. Such a volume would obviate not only the necessity of referring to a series of Acts, but it would get rid of a great many intricacies which arise from these Acts appearing in a detached form, it would enable every one to know the system under which he held his land, and it would facilitate the work of legal practitioners.

I am not sanguine enough to imagine that the whole of the conundrums have been satisfactorily solved. I am sure that in the light of criticism points will turn out to have been overlooked or to have been dealt with in a fashion that is not the best. But what I have to say is that these Bills represent an enormous amount of work. They have been constructed by some of the most able conveyancers of the day and fashioned by those most competent to judge, including representatives of solicitors themselves; and I am not without hope that when they are examined they will be regarded as measures which will conduce to the public good.


My Lords, it is, of course, impossible to express any very decided or clear opinion at the moment upon the two measures which the Lord Chancellor is introducing to-day dealing with this complicated subject. I will only say that so far as I am concerned I heartily welcome the efforts that he is making for the purpose of achieving that which I believe all persons who have dealt with this subject have looked forward to as the goal which they should reach—namely, the simplification of title and the reduction of expense of the transfer of land. It is impossible not to sympathise to some extent with the attitude of solicitors on this subject. I do not myself think that it is very unreasonable that they should be aggrieved at the withdrawal from them of a very large part of what is their practice. If the law insists upon sixty years' title or anything like it, so that the person who has to investigate for the purpose of finding out the security of title has to go through all the events and all the genealogies of sixty years, then the person who is employed to do it must be paid for it. I remember one old lady who made a complaint of a solicitor. She informed me that she had really told him everything. She said she had been the whole day explaining all the circumstances of her tenure and what it was that she wanted done, and then she seemed to think it unreasonable that the solicitor should want to be paid for something which she evidently thought so enjoyable in itself that it should be its own reward. That attitude is assumed by a good many people towards solicitors. It is the law which is to blame in great measure, and it is obvious that there is need for great reform. I can say no more at present. But I heartily welcome the attempt of the Lord Chancellor to put an end to the present abuse. I have myself introduced seven Bills on the subject, beginning with the year 1887; but in great measure our efforts to attain the goal I speak of have been checked by the interference of those who thought that their interests were not being sufficiently considered in the abolition of the complication of title. You can get £1,000,000 transferred in Consols or anything of that kind with a very small comparative expense, but if you have a small piece of land to deal with you find that the expense is inordinate and out of all proportion to the value of the land itself. I hope the Lord Chancellor will succeed in what he is endeavouring to do, and I repeat I heartily welcome his efforts.


I am gratified at the way in which the noble and learned Earl has received these Bills. The subject is not one over which there is Party controversy, and the noble and learned Earl has done much himself in this direction. I think it will be very satisfactory to the public to know that both Parties are at work in trying to solve this problem. I now ask your Lordships' leave to introduce these two Bills.