LAW OF PROPERTY BILL. [H.L.]

HL Deb 24 May 1921 vol 45 cc305-40

Order of the Day read for the Amendments to be received.

THE LORD CHANCELLOR (LORD BIRKENHEAD)

My Lords, in moving that this Report be now received, it may be of assistance to your Lordships, and to the further progress of business, if I state what has happened since the Bill was last before the House. Your Lordships will recollect that many members of the House, in dealing with a subject necessarily technical and unfamiliar, expressed apprehensions as to some of the provisions of the Bill. I promised that before the Report stage was reached I would take two courses, which I hoped might remove those apprehensions and give to those of your Lordships who took an interest in the subject opportunities for discussion with my own technical advisers. In the first place, I promised to circulate a Memorandum, drawn, so far as the nature of the subject permits, in popular language, explanatory of the main provisions of the Bill, and more particularly of those provisions with regard to which most obscurity seemed to prevail. The Memorandum took some little time to prepare. Printing in these days, as you know, is a somewhat lengthy operation, but by the exercise of diligence it was found possible to place it in your Lordships' hands before the House rose for the recess. I hope it will be proved that a perusal of it has saved time in the Chamber and removed many of the doubts and difficulties which were entertained.

I also promised to place at the disposal of those who were advising some of your Lordships the services of my own draftsman and experts, and I am glad to say that, as a consequence, there have been cont inuons meetings and discussions between these two sets of very learned persons, conducted in the fullest spirit of amity and with only one end in view—namely, to shape the provisions of the Bill with a single eye to the public interest. As a result, there will be found on the Paper a number of Amendments in my name. It is not necessary now to draw your attention to most of them. The overwhelming majority are drafting Amendments; and, once again, it is necessary to say that many of them are on highly technical matters which permit of discussion only among highly trained experts.

But three main questions emerge from the mass. They are all points which have received consideration and discussion since the earliest stages of the Bill. It is not surprising that they should have excited attention, and should continue to do so until the Bill becomes law. The first of these, though it is not the first in the order of arrangement in the Bill, relates to the method whereby it will be found possible, should the public demand exist for it and should other circumstances justify it, to have a permanent extension of the system of transfer by registration of title in place of the system of transfer by conveyancing without registration. On this I must repeat, in order to make the matter plain, that the Bill does not propose, and never did in fact propose, any immediate universal extension of land registration. Its proposals for extension have always been subject to three main qualifications. The first is that registration was to take place only when land passed on sale. No landlord who remains peacefully or inactively in possession of his land would ever need, or under the provisions of the Bill as they stand ever will need, to trouble himself in the matter at all. Secondly, the extension, such as was proposed, was, and is to be, gradual. It will only come into effect in the case of an area in pursuance of an Order made ad hoc with reference to that area, after inquiry and with the assent of Parliament. Thirdly, there was to be a considerable interval of time before any new system of extension came into operation.

I repeat these qualifications because there seems to be in the minds of some of your Lordships an idea that upon the passing of the Bill every one, or most, of your Lordships would have to go with your title deeds to the office of some highly salaried bureaucrat and go through an elaborate inquisition of investigation, culminating, maybe, in the payment of exorbitant fees. In the course of the progress of the Bill the three qualifications I have outlined have been closely adhered to, but they have been amplified in order to meet the susceptibilities of one or other school of critics. In particular, the original period of delay proposed was five years. The provision now in the Bill interposes a delay of some twelve years; that is to say, ten years from the date at which the Bill actually commences. I understand there are those amongst your Lordships who desire that the authority of Parliament should be still further strengthened.

The object with which I proposed the method contained in the original Bill was the avoidance, as far as possible, of any unnecessary encroachment upon Parliamentary time. But the question is one of expediency, and if it is the general opinion of the House that an Order for compulsory extension should come into force only upon affirmative Resolutions of both Houses of Parliament I am not prepared to dispute the point. It is not, in my judgment, one of principle. I observe that Amendments to this end are on the Paper in the names of Lord Salisbury and Lord Desborough. I am prepared to accept one or other of those Amendments, perhaps that of Lord Salisbury, subject to certain purely verbal modifications which I will suggest to the noble Marquess when he moves it.

The next point which was much discussed in the Committee stage concerned the costs connected with the extinguishment of manorial incidents. I think Lord Stuart. of Wortley, amongst other speakers, raised that question. Here, again, there is no question of principle at all. The difficulty, which is none the less real, arises from the fact that the sums of money involved in any particular case may be infinitesimally small while the cost may be, or appear to be, out of all proportion financially to the advantage gained by either side. In fact, there are, in many of these cases, advantages to both sides. The lord is at present entitled to receive in many cases some such payment as Ls. a year, the cost of the collection of which greatly exceeds the amount itself. At the same time he usually takes the view that he is bound to collect the payments. On the other hand, the tenant is bound to pay, and the land, whether considered in the tenant's hands or in the lord's hands, is fettered by a payment which it is equally harassing and unprofitable both to give and to receive.

It passes, I think, any ordinary resource to find a solution in these circumstances which is both fair between the parties and which possesses an appearance of symmetry. But we are all agreed as to what is desirable, and after the most prolonged consideration and discussion with those who have the care of the interests of the lords of the manor, I have put down an Amendment in which the cost is to fall upon the party which gains the greater advantage from the transaction, or upon both when the advantage accrues to both, the deciding authority in case of dispute being the Ministry of Agriculture. I will not conceal from the House that the party to whom the benefit will generally accrue will be the tenant. Though I have had the advantage of hearing the views of the gentlemen representing the lords of the manor, to whom I have already referred, I must not suggest that my Amendments embody a definite agreement with them. It is fully understood between myself and them that when the Bill reaches another place they are at liberty, if further reflection inclines them to take this course, to make further proposals in the protection of what they consider to be their own interests. I am, however, satisfied that the points of difference still remaining between them and myself are of an extremely- slender character, and I am most sanguine that a complete agreement will be reached without any considerable delay.

The third main point which was much discussed concerns Clause 102. That is the clause relating to common lands. In this case I have not been able to arrive at what I am entitled to describe as a complete agreement, but I do not think I am too sanguine in claiming that the three parties chiefly interested—that is to say, those who advise the lords of the manor, the Commons Preservation Society, and the advisers of the Government—are very nearly in agreement. The advisers of the Government in this matter occupy, as it were, a position between the other two analogous almost to that of an arbitrator. I notice that my noble friend Lord Dynevor has an Amendment on the Paper upon this subject. I would venture very respectfully to suggest to the noble Lord that great advantage might accrue if he would abstain from moving his Amendment upon this occasion, in the hope, which I am very confident will not prove vain, that before the Bill receives a Third Reacting in this House the agreement which he and I alike desire will be reached and may be embodied in a clause which will give it expression. In the meantime, 1 have put down some formal Amendments to Clause 102 which both improve the form of that clause and will, I hope, be instrumental in assisting the parties to reach the agreement which I have attempted to foreshadow.

Having made these observations, I do not propose to trouble the House again with a further speech upon each Amendment down in my name, while, of course, holding myself ready to afford any explanation in my power in cases where specific difficulties are felt. I shall move them formally, and it may be that noble Lords generally will find it possible to deal fairly briefly with any points which remain outstanding. I particularly hope that we shall find it possible to abstain from prolonged discussion of the clause concerning commons, merely because the matter is one of some difficulty and some delicacy, and I think we are so near to an agreement that it might perhaps, without any sacrifice or any risk, be allowed to await the Third Reading stage.

We are now approaching the concluding demands which I shall have to make upon your Lordships' House in connection with this very tangled and obscure subject. For nearly two years it has occupied a great deal of my time and attention, and I am very hopeful, in spite of the difficulties which industrial circumstances have interposed by making protracted claims upon the time of another place, that adequate time will be forthcoming in order that the Bill may be passed into law. Your Lordships will bear me out that on every stage in the passage of the Bill through this House, where the desire has been expressed that further time or consideration should be allowed, I have always been willing to afford the longest possible period that could be given. In every ease, I think, I have given the full period that has actually been asked.

I am satisfied that every representative body with whose views I have come into temporary collision at some point or other of these immensely complicated proposals has by now been in substance conciliated. I know of no organised body in the country which at this moment opposes this Bill. Indeed, every organised body of which I am aware, and which is entitled to speak with authority upon such a subject, has most fully, and in many cases repeatedly, discussed these matters with those who have advised me; and if I am not entitled to say in terms that in its existing stage, or as it leaves this House, the Bill will be an agreed Bill, I can, I think, claim that none of my predecessors has had the good fortune to send to another place a Bill dealing with proposals of this nature which commanded such general adherence, on a matter highly technical and difficult, from those especially qualified to express an opinion.

Moved, that this Report be now received.—(The Lord Chancellor.)

VISCOUNT HALDANE

My Lords, as one who has taken a deep interest in this subject I should like to express what I am sure many of your Lordships feel—namely, that your Lordships' House is under a deep debt to the noble and learned Lord on the Woolsack for the immense pains which he has taken in putting this Bill into proper shape, and for the energy, and also for the tact, which he has exhibited in negotiating its difficult passage. The subject is essentially an enormously intricate one, and it is vain to hope that the Bill is one which can be readily or fully appreciated by the lay public. Speaking for myself, after a long experience of conveyancing, I am satisfied that this Bill will result in great benefit to the owners of land, and at the same time in great benefit to the public.

I do not profess to say that I am wholly satisfied with all the concessions that my noble and learned friend has made. There are points on which my sense of strict logic has suffered, but I also recognise that the difficulties have been great, and I am quite prepared to accept what the noble and learned Lord has proposed, and to take the Bill in very much the shape in which he has now proposed it. As to Clause 102, which deals with waste land and commons and public rights over them, I think the course which the noble and learned Lord has suggested to the House is obviously the most convenient one. As I gather, he proposes to put this clause in the Bill in a somewhat amended form, but not as the final result. It will stand there for the purpose of being further considered, in order that we may see whether it cannot form the subject of an agreement, and if an agreement to alter it is reached that can take effect on the Third Reading. The course which the noble and learned Lord has taken seems to me the course best adapted to bring this very important measure through, and if the noble and learned Lord succeeds in carrying this Bill through Parliament, he will have established a reputation in advance of any Lord Chancellor who has ever occupied the Woolsack, in securing the passage of a measure for the reform of the law of real property of a magnitude and an improving influence such as have never before been witnessed.

THE MARQUESS OF SALISBURY

My Lords, I should like to associate myself with the noble Viscount in expressing our thanks to the noble and learned Lord on the Woolsack for the great courtesy and consideration with which he has treated us through the various stages of this Bill. He claimed no more than his due when he said that he has given us, at every stage of the Bill, all the time which it was in his power to give, and we are grateful to him for the Memorandum which he has circulated to us. I have read the whole of it, although I confess that I should be sorry to say how much I understood of it—I am afraid, extremely little—but I exercise the Christian virtue of faith, and feel confident that everything which the noble and learned Lord stated in that Memorandum was absolutely the fact.

As regards the statement which he has just made to us, he is perfectly right in saying that the great object which lie and the Government ought to put before themselves in passing this Bill is to pass it as a practically agreed Bill. I do not think it would be possible for Parliament to deal with a subject so complicated, and embracing such an enormous variety of different sub-departments of the subject as are contained in this voluminous measure, unless it were in the nature of an agreed Bill. I have every hope, as he has, that before your Lordships part with it on the Third Reading it will be in all respects, so far as this House is concerned, practically an agreed Bill.

I am very glad indeed that the noble and learned Lord has signified, on the question of whether compulsory registration is to come into force automatically, unless Parliament intervenes, after a certain number of years, or is not to come into force unless Parliament authorises it at the end of that period, that he is willing to accept the view which I am sure your Lordships will favour—namely, the latter alternative—because in the Memorandum—that part of it which I did understand—I think it appeared that he believes that at the end of the period people will be quite ready to accept registration as the normal method by which land should be transferred. Of course, those who advise us, or many of them, consider that the changes in the law of real property, which the rest of the Bill contains, will be so efficacious that it will then be found that the method of registration is no longer called for, and it will be simple enough to transfer land without the process of registration at all. That shows that what is required is not that registration should automatically take effect, but that it should not do so unless Parliament authorises it. That is the alternative which I have ventured to suggest in the Amendment which I have placed on the Paper, and with regard to which I am glad to hear the noble and learned Lord has a perfectly open mind.

Then, as regards Clause 102, as the noble and learned Lord very justly said, I believe there is every hope of complete agreement. I do not know that we shall be able altogether to avoid mentioning the matter at greater length when we come to consider the Bill in a few moments, because Lord Dynevor will probably have a statement to make, as to the reasons why he differs from the Government's Bill as it stands; but I do not imagine that my noble friend will desire to put his Amendment into the Bill, if it is understood on all sides that the matter is not going to be dealt with until the Third Reading. I do not quite know to what the noble and learned Lord refers as the formal Amendments to Clause 102, but if they are purely formal no question arises.

THE LORD CHANCELLOR

They are.

THE MARQUESS OF SALISBURY

I understood that he had alternative Amendments to propose, and it would be a pity to deal with them at this stage if the matter is to be left over for the Third Reading. I have every hope that upon the Third Reading your Lordships will be able to arrive at a definite, and I believe unanimous, conclusion. I am quite sure that the noble and learned Lord will feel that we have not been factious in the consideration which, as laymen, we have been able to give to this complicated Bill, and that if, as the result of our joint efforts, we are able to present to the House of Commons an agreed Bill, our time will not have been wasted.

THE LORD CHANCELLOR

In reply to the noble Marquess, I only wish to say that I consider that the Bill has been very substantially improved in one or two material particulars by suggestions made by laymen in this House.

On Question, Motion agreed to.

THE LORD CHANCELLOR

My Lords, all the Amendments in my name, front Clause 3 to Clause 101, are purely drafting. I have gone through them all with great care and answered all the reasons of various public bodies, notably the London County Council, and if it is to your Lordships' convenience I will put the Question that the Amendments on the Paper from Clause 3 to 101 inclusive be agreed to.

Clause 3:

Purchaser of legal estate not concerned with certain equitable interests or powers; and provisions for the protection. thereof

(3) All equitable interests and powers to which this section applies shall be, or be capable of being, protected by a trust for sale or a settlement in manner following:— (i) Where the legal estate affected is at the time when any- equitable interests or powers are created or arise subject to a trust for sale, the equitable interests and powers aforesaid shall, according to their priorities, have the like protection as if created or arising by means of a primary trust affecting the proceeds of sale and the income of the land until sale;

(4) This section applies to all equitable interests and powers affecting land, with the following exceptions, namely— (v) Equitable interests and powers which independently of this section are capable of being over-reached by trustees for sale or by the exercise of the powers conferred by the Settled Land Acts, as amended or by the settlement;

Amendments moved—

Page 4, line 1, leave out ("primary")

Page 4, line 42, after ("are") insert ("for the time being").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 26:

Charitable and public trusts.

26.—(1) All land vested or to be vested in trustees on charitable, ecclesiastical, or public trusts shall lm deemed to be settled land, and the trustees shall, in reference to the land, have all the powers which are by the Settled Land Acts conferred on a tenant for life and on the trustees of the settlement, and the instrument creating the trust shall be deemed the settlement, but, save where the trust is created by will after the commencement of this Act, a vesting instrument shall not be deemed necessary for giving effect to the settlement.

Amendment moved— Page 17, line 26, after ("trusts") insert ("or purposes").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 39:

Extension of section 10 of the Lands Clauses Consolidation Act, 1845, 8 9 Vict. c. 18.

39. The power conferred by section ten of the Lands Clauses Consolidation Act, 1845, to sell and convey land in consideration of an annual rent-charge shall extend to a tenant for life, in like manner in all respects as if he had been entitled to dispose of the settled land absolutely for his own benefit.

Amendment moved— Page 22, line 28, at end insert ("and accordingly section four of the Lands Clauses Act, 1860, shall not apply to such a sale")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 43:

Power to sell in consideration of a rentcharge, and extension of section 13 of the Act of 1882.

43.—(1) A sale of settled land, or of any easement, right, or privilege over or in relation to settled land, may be made in consideration wholly or partially of a perpetual rent or terminable rent consisting of principal and interest combined payable yearly or half yearly to be secured upon the land sold, or the land to which the easement, right, or privilege is to be annexed in enjoyment:

Provided that, in the case of a terminable rent, the conveyance shall distinguish the part attributable to principal and that attributable to interest; and the part attributable to principal shall he capital money arising under the Acts.

(2) The rent to be reserved on any such sale shall be the best rent that can reasonably be obtained, regard being had to any money paid as part of the consideration, or laid out, or to be laid out, for the benefit of the settled land, and generally to the Circumstances of the case, but a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable during any period not exceeding five years from the date of the conveyance.

(3) The provisions of subsections (3). (4), and (5) of section seven of the Settled Land Act, 1882, shall apply to this section as if those provisions were re-enacted in this section, with the substitution of "conveyance" for "lease," "purchaser" for "lessee," and "duplicate" for "counterpart."

(4) The words "for building purposes" in section nine of the Settled Land Act, 1890, are hereby repealed.

(5) In section thirteen of the Settled Land Act, 1882, "surrender" shall include a regrant, and "lease" (save as hereinafter provided) shall include a grant in fee simple, and "lease of settled land," and "lease" in subsection (2) of that section, shall include land granted in fee simple with or subject to a reservation thereout of a perpetual or terminable rent which is or forms part of settled land, and "surrendered," "lease surrendered," "leased," "lessee," and "fine," shall respectively include "regranted," "land regranted," "granted," "grantee," and "consideration in money."

(6) The regrant shall be made to the tenant for life of full age or statutory owner, and shall be deemed a vesting deed, and the statements and particulars required in the case of vesting deeds shall be inserted therein.

(7) In the application of section thirteen of the Settled Land Act, 1882 (as extended), to land granted in fee simple, the words "whether the grant was made under the Acts or not" shall be substituted for the words "whether made under this Act or not" in subsection (1) of that section, and the words "the Acts" shall be substituted for the words "this Act" in subsection (6) of that section.

Amendment moved—

Page 26, line 33, at end insert the following new subsection: ("(8) This section shall apply to the sale of glebe land under any statutory provision authorising the sale thereof as if the incumbent were a person having the powers of a tenant for life and the glebe land were settled land, and with such other modifications as may be necessary, and in particular with this modification that in the ease of a terminable rent so much thereof as does not represent principal shall be treated as purchase money arising from the sale of the land end be payable accordingly:

Provided that nothing in this subsection shall affect the necessity of obtaining any consent which is required under the statutory provision authorising the sale.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 64:

Application of capital money.

64.—(1) In addition to the modes authorised by section twenty-one of the Settled Land Act, 1882, capital money shall be deemed always to have been capable of being applied—

(iv) In discharge, with the leave of the court, of any instalment of a charge payable for the redemption of tithe rent-charge;

Amendment moved—

Page 45, lines 24 to 26, leave out paragraph (iv) and insert: ("(iv) In the purchase or discharge of an annuity charged under section four of the Tithe Act, 1916, on the settled land or any part thereof, or in the discharge of such part of any such annuity as does not represent interest; or").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 73:

Execution of instruments by or on behalf of corporations, and provisions as to corporations sole.

(6) Notwithstanding anything contained in this section any mode of execution or attestation authorised by law or by the statute, charter, memorandum or articles, deed of settlement or other instrument constituting the corporation or regulating the affairs thereof, shall be as effectual as if this section has not been passed.

Amendment moved— Page 56, line 26, after ("law") insert ("or by practice").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 90:

Power to discharge or modify restrictive covenants affecting freehold land.

90.—(1) The Authority hereinafter defined shall (without prejudice to the jurisdiction of the court) have power from time to time, on the application of any person interested in any free-hold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied—

1. (a) That by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Authority may deem material, the restriction ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land for public or private purposes without securing practical benefits to other persons or, as the case may be, would unless modified so impede such user; or
2. (b) That the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit. of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified, or that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.

Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction, unless the person entitled to the benefit of the restriction also suffers loss in consequence of the discharge or modification, nor in excess of such loss.

(3) The Authority may, before making any order under this section, direct such enquiries (if any) to be made of any local authority, or such notices (if any), whether by way of advertisement or otherwise, to be given to such of the persons who appear to be entitled to the benefit of the restriction intended to be discharged, modified, or dealt with as, having regard to any enquiries notices or other proceedings previously made, given or taken, the Authority may think fit.

Amendments moved—

Page 69, line 3, at end insert ("but this provision shall not affect any right to compensation, where by reason of the imposition of the restriction, the amount of the consideration paid for the acquisition of the land was reduced")

Page 69, line 14, leave out ("may") and insert ("shall").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 92:

Amendment of section 45 of the Conveyancing Act, 1881.

(3) Any person claiming to be interested n the fund in court, or who would have been interested in the rent had it not been redeemed, may apply to the court for an order giving directions for the payment, to the persons entitled to give a receipt for the same, of the fund in court or any part thereof, or of the income thereof, and it shall not be necessary to serve the owner of the land with notice of the proceedings.

(6) Section forty-five aforesaid (as amended by this section) does not apply to tithe rent-charge, or a corn rent, or to a rent reserved on a lease or tenancy, and subsections (5) and (6) of that section are hereby repealed.

Amendments moved—

Page 72, line 10, after ("land") insert ("or the Minister")

Page 72,lines 32 and 33, leave out ("or a corn rent") and insert ("or other payment redeemable under the Tithe Acts, 1836 to 1918")—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 93:

Apportionment of charges payable for redemption of tithe rentcharge, 17&18 Viet.c. 97.

93.—(1) An order of apportionment of a charge on land may be made by the Minister under sections ten to thirteen (inclusive) of the Inclosure Act, 1854, on the application of any person interested, according to the provisions of the Inclosure Acts, 1845 to 1882, in the land charged or any part thereof without the concurrence of any other person: Provided that the Minister may, in any such case, on the application of the person interested as aforesaid in the annuity, require as a condition of making the order that any apportioned part of the annuity which does not exceed the yearly sum of two pounds shall be redeemed forthwith.

(2) In section eleven of the Inclosure Act, 1854, the proviso to that section, and in section thirteen the words "so far as the same has been apportioned upon the lands of persons interested and making application as aforesaid" are hereby repealed.

Amendment moved— Page 73, line 14, leave out ("thirteen") and insert ("fourteen")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 96:

Covenants binding land.

(2) Every covenant running with the land entered into before the commencement of this Act shall take effect subject to the provisions of this Act, and accordingly the benefit or burden of every such covenant shall vest in or bind the persons who by virtue of this Act succeed to the title of the covenantee or the covenantor, as the case may be.

Amendment moved— Page 74, line 28, after ("shall") insert ("subject as aforesaid").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 98:

As to the rule as to perpetuities.

98.—(1) For removing doubts, it is hereby declared that the rule of law relating to perpetuities does not apply and shall not be deemed ever to have applied—

(d) To any exception or reservation on any disposition of land of any right of entry on or user of the surface of the land disposed of or of any easements, rights, or privileges over or under the same for the purpose of winning, working, converting, manufacturing, carrying away, and disposing of any mines and minerals excepted from such disposition, or any other mines and minerals.

Amendment moved—

Page 75, line 34, to page 76, line 2, leave out paragraph (d) and insert the following new paragraph: (" (d) To any grant, exception, or reservation of any right of entry on, or user of the surface of land or of any easements, rights, or privileges over or under land for the purpose of winning, working, inspecting, measuring, converting, manufacturing, carrying away, and disposing of mines and minerals; inspecting, grubbing up, felling and carrying away timber and other trees, and the tops and lops thereof; executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon; or constructing, laying down, altering, repairing, renewing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, electric wires or cables or other like works").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 101:

Mines and minerals in and under land which cannot be worked.

(3) Where any mines or minerals in or under any other land cannot be worked by reason of the conflicting interests of the owners thereof and of the owners of the surface or of adjoining minerals or other strata of minerals, it shall be lawful for any owner of the mines or minerals which cannot be worked by reason of such conflict of interests to acquire such adjoining minerals or strata of minerals or any rights therein and any right to let down the surface of the land and any right of way or other easement in over or under the land which may be necessary for more effectually winning and carrying away such minerals as aforesaid.

(4) Where two or more of the owners of adjoining mines and minerals, or of adjoining strata of minerals, which cannot be worked by reason of such conflict of interests as aforsaid, are desirous of acquiring the mines and minerals of the other or others, or of acquiring rights or easements in or over the mines or minerals of the other or others, or in, or over the land of the owner of the surface, the matter shall (in default of agreement) be referred to the Board of Trade, who shall, having regard to the question as to how the respective mines and minerals could be most conveniently worked and all the other circumstances of the case, determine which of the claimants shall be entitled to acquire the mines and minerals of the other or others, or such rights or easements in or over the mines and minerals of the other or others or in or over the surface as aforesaid, or whether two or more of them shall be entitled to acquire part of the mines and minerals of the other or others or rights or easements in or over the mines and minerals of the other or others, or in or over the surface, and, if so, to what extent and of what nature.

Amendments moved—

Page 77, line 30, after ("owners") in both places where that word occurs insert ("and lessses")

Page 77, line 30, after ("thereof") insert ("or any of them")

Page 77, line 31, after ("adjoining") insert ("or intermixed")

Page 77, line 34, after ("adjoining") insert ("or intermixed")

Page 77, line 40, after ("adjoining") insert ("or intermixed")

Page 77, line 41, after ("adjoining") insert ("or intermixed").

Page 78, line 3, after ("owner") insert ("or lessee").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 102:

Rights of the public over waste land and commons.

102.—(1) From and after the commencement of this Act members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which at the commencement of this Act is waste land of any manor or subject at all times to rights of common:

Provided that—

1. (a) such rights of access shall he subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw or regulation made there-under; and
2. (b) the Minister may on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land being injuriously affected, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and
3. (c) such rights of access shall not include any right to draw upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and
4. (d) the rights of access shall cease to apply to any land over which the commonable rights are extinguished under any statutory provision; and
5. (e) where, in relation to any land, it is proved to the satisfaction of the Minister that the public have been habitually excluded from access to the land, otherwise than upon highways over or across the land, absolutely or during any part of the year, the Minister shall issue a certificate to that effect, and, where such certificate is issued, the right of access to the land conferred by this section shall not be exerciseable during the whole or part of the year specified in the certificate.

(2) Where limitations or conditions are imposed by the Minister under this section they shall be published by such person and in such manner as the Minister shall direct.

(3) Any person who, without lawful authority, shall draw upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or shall camp or light any fire thereon, or who shall fail to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding forty shillings.

(4) The powers conferred on the Minister by this section may be exercised at any time after the passing of this Act, but no certificate as to the exclusion of the public from any land shall be issued unless such an application for the purpose has been made to the Minister before the first day of January nineteen hundred and twenty-four.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "waste land of any manor or subject at all times to rights of common," and insert "a metropolitan common within the meaning of the Metropolitan Commons Acts, 1866 to 1898, or a suburban common as defined by the Commons Act, 1876, and to any other land subject to rights of common to which this section may for the time being be applied." The noble and learned Lord said: The noble Marquess very reasonably said he hoped that I would not move any elaborate alternative to the proposals which are contained in the subject which is now being discussed. It is not my purpose, of course, to do so. This Amendment is, I think, agreed to by all parties, if the present form of the Bill survives. Its object is to confine the clause to metropolitan and suburban commons, except in so far as the lord of the manor deposits a deed declaring that the clause is to apply to other land. Of course, this and all Amendments under Clause 102 are without prejudice to the negotiations now in progress. In fact, this Amendment is inserted in deference to observations which were made on the Committee stage.

Amendment moved— Page 79, leave out lines 35 and 36, and insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to omit paragraph (e) of subsection (1) and insert:— or in any case where it is proved to the satisfaction of the Minister that those commonable rights have been otherwise extinguished and the Minister consents to the exemption of the land from the operation of this section; but the Minister in giving or withholding his consent shall have regard to the same considerations, and shall, if necessary, hold the same inquiries, as are directed by the Commons Act, 1876, to be taken into consideration and held by the Minister before forming an opinion whether the application under the Inclosure Acts, 1845 to 1862, shall be acceded to or not. ("(2) The lord of the manor or other person entitled to the soil of any land subject to rights of commons (not being a metropolitan or suburban common) may by deed, revocable or irrevocable, declare that this section shall apply to the land, and upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies.

The noble and learned Lord said: The first part of this Amendment is again one which was the subject of general agreement, giving power, as it does, to the Minister to except from the provisions of the clause land which would otherwise be proper to be enclosed under the Enclosure Acts. There again, I accepted a suggestion. The new subsection (2) gives the lord of the manor power to bring other land within the scope of the clause. He may desire to do this in order that he may obtain an Order from the Minister imposing limitations or additions on the exercise by the public of their rights of access. This Amendment is proposed, of course, without prejudice.

Amendment moved— Page 80, leave out lines 20 to 31, and insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to leave out subsection (4). The noble and learned Lord said: This Amendment is consequential on leaving out the existing paragraph (e) of subsection (1).

Amendment moved— Page 81, lines 1 to 6, leave out subsection (4).—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD DYNEVOR moved to leave out Clause 102 and insert the following new clause:— (1) From and after the commencement of this Act, no inclosure of any land which, at the commencement of this Act, is waste land of any manor, or is then subject at all times to rights of common, shall (save as hereinafter provided) be made without an order of the Minister, and in making such order he shall have regard to the same considerations, and shall, if necessary, hold the same inquiries as are directed by the Commons Act, 1876, to be taken into consideration and held by the Minister before forming an opinion whether or not an application under the Inclosure Acts shall be acceded to.

(2) Provided that where all rights of common over any land have been or are about to become extinguished, the council of the county or county borough in which the land is situate may, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, by resolution declare that it is in the public interest that the land in question or any part thereof should be made available for development, and thereupon the land specified in the resolution may be inclosed if and when the rights of common are extinguished.

(3) This section does not affect the restrictions on inclosure imposed by section twenty-one of the Commons Act, 1899, nor the power to make or amend any scheme under that Act.

(4) Where members of the public (not having any lawful right of access) bare been permitted to enter on waste land of any manor or on land subject to rights of common, the Minister may, by order, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to commonable rights affecting the land, impose, so long as such permission is nut revoked, such limitations on and conditions as to the exercise of the permitted rights, as in the opinion of the Minister are expedient for preventing the land or any part thereof, or any estate or interest therein of a beneficial nature, from being injuriously affected, or for protecting any object of historical interest; and, so long as any such order is in force, no lawful rights of access or user shall be capable of being acquired by members of the public adversely affecting the title of the owners of the soil or of the cornmonable rights.

(5) Any person who, without lawful authority, shall draw upon any land to which this section applies any carriage, cart, caravan, truck or other vehicle, or shall camp or light any fire thereon, or who shall fail to observe any limitation or condition imposed by any order affecting such land, shall be liable on summary conviction to a fine not exceeding forty shillings."

The noble Lord said: My Lords, after what has fallen from the Lord Chancellor I wish formally to move, on behalf of the Land Union, the Amendment which stands in my name, which deals only with the question of commons and waste land. Your Lordships will notice that I have proposed to delete the whole of Clause 102 and to insert in its place a new clause, which is intended to meet certain difficulties and objections taken to the clause at present appearing in the Bill. I will endeavour as briefly as possible to explain the difference between the clause as it is drawn and my Amendment. The whole question, however, is a very difficult and technical one.

Clause 102 as drawn starts by giving the public right of access for air and exercise over, first of all, all waste lands of a manor, and, secondly, land which is at all times subject to right of common. Such right is, however, subject to any Act, scheme, Order and by-law for regulation of the land, but until an Act is passed or a scheme or Order or by-law is made the right is absolutely unrestricted except by paragraph (c). Paragraph (c) prohibits the bringing on to the land of caravans, carts, and other vehicles, and camping or lighting of fires. Under paragraph (b) the Minister, on the application of the lord or commoners, may impose limitations (1) on the right of access, and (2) as to the extent of land in the opinion of the Minister necessary for protecting any estate or beneficial right, and for protecting any object of historical interest. Subsection (3) imposes a penalty for infringement of by-laws made under a scheme, as well as for bringing on caravans or other vehicles, or camping or lighting fires.

Objection was taken to this wide provision regarding access mainly on the ground that such an extensive change in the law should not be introduced into a Bill for amending the law of property mainly as regards settlements and titles. In particular, the principle which starts by giving an absolute right of access—which is really a present to the public—is a very debatable one, and should not really have been dealt with in a Bill of this kind. The clause expressly provides that where the rights of the commoners cease under a statutory provision ipso facto the right of access shall cease.

It is also provided that, if it is proved to the Minister that the public have habitually been excluded, absolutely or during certain seasons, the right of access shall not be exercised during the period mentioned in the certificate of the Minister; but, by subsection (4), application for such a certificate must be made before January 1, 1924. It is true that the Minister may impose restrictions and limitations on the right, but it may be months or years before any such restrictions or limitations are made. In the meantime the most undesirable people would have the right to trample over the land, snare wild birds, damage the gorse, the fences, the hedges and the ditches; and if there is to be an extension of existing rights as to the management of commons under the Acts—the Act of 1866 (metropolitan), the Act of 1876 (suburban commons), and the Act of 1899—it should be drafted on rather different lines. There should be no immediate grant of practically absolute right of access.

I will shortly explain now what my new Amendment would do. It would, first of all, eliminate the pro-visions of Clause 102 as to the right of public access. Secondly, it tends to impose further restrictions on the right to enclose commons, except in cases where, in the opinion of a county council or the Minister, it is clearly desirable that a common should be enclosed. I think that this question of the provision of restrictions on enclosures is a very important one. We are all at one with the Bill in wanting to preserve the commons. My clause encourages the lords of the manor or others who are willing to permit access but are deterred by the fear that any permission might be taken to be an act of dedication or grant of public rights of way. And I propose to re-enact the penalty clause for unlawfully bringing a vehicle on to a common or for lighting fires thereon.

My noble and learned friend, the Lord Chancellor, has most kindly given very full facilities to various persons and bodies interested in this matter to meet and discuss the question in order to see whether an agreed clause could be inserted in the Bill. After discussion with the Lord Chancellor's advisers it was thought that the clause which stands on the Paper in my name would, in effect, carry out the desires of the various interests concerned. With this object the clause as drafted by the Lord Chancellor's advisers was placed upon the Paper by me. Since that was done, I understand it is thought that the clause in its present form, if passed by this House, would not meet with the complete approval of all the interests concerned. I also understand that the drafting is open to criticism. I would like to know therefore—and I am very grateful to the noble and learned Lord for what he has said on the question—whether, in the event of my not proceeding further with this clause at this stage of the Bill, he will give a further opportunity (as I gather lie is ready to do) for further discussion among the various interests concerned in this matter.

I am also very much obliged and grateful to him for saying that he would like to have the Bill agreed before the Third Reading, because I am sure it is the general desire that the Bill should be an agreed Bill. I do not think that the disagreeing parties are so very far from each other, and I believe that with a few more conversations we may yet come to agreement. As I have said, I am willing to withdraw my Amendment on those grounds. I am not certain, however, as to the position of the Amendment which appears very late on the Paper in the name of the noble and learned Lord on the Woolsack, and I am doubtful whether it fully meets our views. I should like to suggest to him, if I may, that he should withdraw it and let us have a clear and open field for the further discussions which must take place. Then, I hope, on Third Reading we may have an agreed Bill. May I also express the hope that if an agreement is arrived at, he will put down, and move on Third Reading, a clause to carry into effect the principles embodied in my clause which is now before the House? I shall be very glad to do all I possibly can to assist him in making the. Bill an agreed Bill.

Amendment moved— Page 79, line 31 to page 81, line 6, leave out Clause 102, and insert the said new clause.—(Lord Dynevor.)

THE LORD CHANCELLOR

My Lords, the noble Lord has, very reasonably, asked me that the facilities which are at least as much to the advantage of the Government as to my noble friend's Union should be continued. The answer is, of course, that I very readily put them all at his disposal and I hope he will be good enough to resume his discussions with the least possible delay. I have no hesitation in asking my noble friend to obtain the leave of your Lordships to withdraw the Amendment which he has formally moved, because, as I have already said, there is very little doubt that an agreement which will completely satisfy the noble Lord will be reached. I know that that is the opinion of other noble Lords on this matter.

As the noble Lord knows, the Land Union for which he speaks, entered upon our deliberations in this matter somewhat late in the day, but they have since contributed some valuable suggestions, and I think those contained in the proposals of the noble Lord are not the least valuable among them. He will probably be content if I say no more at this stage than that I will see that he is not in any possible way prejudiced by the course he has thought proper to take to-day. If it is not possible, as I hope it will be, to conclude these discussions within three or four days, the Third Reading stage must be postponed. The noble Lord shall have every opportunity of placing his proposals on the Paper, if they are in any way controversial, that will enable him to make any proper appeal to your Lordships on the matter, but I feel confident that the question will not arise at all.

VISCOUNT HALDANE

My Lords, I do not rise to take any exception to the course proposed, which seems to me to be a very reasonable one, but for the purpose of drawing your Lordships' attention to the fact that there are at least two points on the clause which the noble Lord has suggested which will give rise to very great controversy unless they are very carefully handled. One is the elimination, the striking out, of the proposal in the Lord Chancellor's clause to recognise that the public have certain rights which will have legal recognition on an enfranchisement. It is a fallacy to suppose that the public have nothing which can be called a right at the present time. True, it is not a legal right, but everybody who has had to do with commons knows that it is impossible to tell who the people of the commons are, whether they are the copyholders or whether they are people who are there by the leave or licence of the copyholders within their authority. The public has certain recognised practical rights and, if the noble Lord's clause passes, these will be extinguished. I need not say that will give rise to a tremendous amount of feeling all over the country.

The second point is that the clause proposes to introduce county and borough councils as the authority which will authorise the extinguishment of common rights. County and borough councils have never been concerned in such matters up to now, and it is wholly outside their scope. There is no reason to suppose that they would be either very keen guardians of a difficult subject, or would welcome an addition to their duties. Moreover, this is quite inconsistent with the policy of the Commons Act of 1876. For 45 years the practice has been to scan very closely, through the instrumentality of the Minister, what is done when enfranchisement takes place. In the interests of the public this provision has been insisted upon during the whole of that period. Now it is proposed to substitute something for it. I do not rise to argue these questions, or to say that there may not be a great deal to be argued from the other side; but I thought it would not be right that this question should be passed over as a slight matter on which your Lordships could readily come to a decision.

LORD PHILLIMORE

My Lords, if I rightly understand the Amendments to Clause 102 which the Lord Chancellor has put on the Paper, it seems to me that they ought to meet the desires of the noble Lord, Lord Dynevor, and those for whom he speaks. I say "if I rightly understand," because I should like to be corrected if I do not understand them. As I apprehend the effect of the alteration which the noble and learned Lord on the Woolsack suggests to Clause 102 is that the general right of the public to move about upon commons is confined to the metropolitan commons, the suburban commons and to those commons as to which the lord of the manor may agree by deed, with a view, as I understood the noble and learned Lord on the Woolsack to say, that it might make it more easy for him to get certain other communal land enclosed.

With regard to all other lands they remain under the existing law. That is to say that while they remain unenclosed the public have no right upon them, though it is practically impossible to keep the public off them, and they are not to be enclosed without the Minister giving his consent and without having regard to the considerations of which he is directed by the Commons Act of 1876 to take account. The result, as I apprehend, will be that no commons will be enclosed unless there is a very strong case for enclosure, and no mischief is done to the public, or only so much is enclosed as will leave enough for the public, or there is a quid pro quo under that second subsection which is printed on page 6 of the marshalled list of Amendments. If I am right in that view, it seems to rue that the noble Lord, Lord Dynevor, ought to rest highly content with the proposal of the noble and learned Lord on the Woolsack, which, as I took some little part in this matter on a previous occasion, I should like to say would meet with my entire assent and consent.

LORD PARMOOR

My Lords, I should like to say one word with reference to the proposal of Lord Dynevor, if I understand it rightly. I am very much opposed to anything like the enclosure of commons. I expressed that opinion on a former occasion. Do I understand that by subsection (2) of Lord Dynevor's proposal commons may be enclosed through the action of the council of the county or county borough in which the land is situate, "who by resolution may declare that it is in the public interest that the land in question or any part thereof shall be made available for development?"

Personally, I should be much opposed to a proposal of that kind, although the Lord Chancellor's proposal, if I may say so with submission, preserves the existing limitations and the existing protection against undue enclosure of our common spaces.

THE MARQUESS OF SALISBURY

My Lords, I venture to deprecate going into detail upon the proposal at this stage. It would have been perfectly right if it had seemed good to your Lordships to do so, but the learned Lord Chancellor, acting in what I think was the general view of our Lordships, was careful not to explain in any detail the points involved. It would be very unfortunate, I think if we were to have a one-sided discussion on the subject at the present time. When the proper moment comes a very strong case may be made out for subsection (2) of Lord Dynevor's Amendment, but I am not going to discuss it now. I should be very sorry if an opinion were expressed adverse to it, and if your Lordships made up your minds on the subject before the case had been discussed.

LORD PARMOOR

In agreeing to that, I should like to ask who are the parties who are to settle this clause? I think the parties chiefly interested are the members of the public themselves.

THE MARQUESS OF SALISBURY

Certainly; of course they are.

LORD PARMOOR

I am only putting a caveat that the public will have to see that clauses of this kind are properly adjusted.

Amendment, by leave, withdrawn.

Clause 120:

Power for the High Court to authorise dealings with trust property.

120.—(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, shall in the opinion of the High Court be expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any), or by law, the court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and -conditions (if any), as the court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2) The court may, from time to time, rescind or vary any order made under this section, or may make any new or further order.

(3) An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

(4) This section does not apply to trustees of a settlement within the meaning of the Settled Land Acts.

THE LORD CHANCELLOR

The Amendments to this clause and also to Clauses 126, 134 and 135 are drafting or consequential, and, therefore, I assume it is agreeable to your Lordships that I should move them together.

Amendment moved— Page 96, line 27, at end insert the following new subsection:

("(5) Where any chattels belong to persons in undivided shares the persons interested in a moiety or upwards may apply to the High Court for an order for division of the chattels or any of them, according to a valuation or otherwise, and the Court may make such order and give any consequential directions as it thinks fit.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 126:

Endorsement of assurances of enfranchised land by stewards.

126.— (1) So long as the manorial incidents saved by the last preceding section remain unextinguished as respects any enfranchised land, an assurance of that fond, or of any interest therein, shall on the expiration of six months from the date of its execution, or of such extended period as the court may either before or after the expiration of those six months for any special reasons allow, become void so far as regards the grant or conveyance of a legal estate, unless the assurance has been produced to the steward of the manor.

Amendment moved— Page 100, line 19, after ("as") insert ("any of'').—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 134:

Provisions for the protection of Royal Parks and Gardens.

134. As regards the manors of Hampton Court, in the county of Middlesex, and Richmond, in the county of Surrey, and every or any other manor vested, at the commencement of this Act, in His Majesty in right of the Crown or of the Duchy of Lancaster, and lands adjoining or separated only by a road or boundary wall from any royal park or garden the following provisions for the protection of the amenities of royal parks, gardens, and palaces shall have effect:—

(2) The Commissioners shall be entitled by deed under their corporate seal (to be enrolled on the court rolls of the manor within six months after execution and to be registered, in respect of restrictions, as a land charge under the Land Charges Registration and Searches Act, 1888, as amended) to impose upon any enfranchised land such conditions, stipulations, and restrictions relating to—

1. (a) The maintenance, repair, and reinstatement by the Commissioners of the boundary wall of a royal park or garden so far as adjoining the land or comprised in any building thereon;
2. (b) The character, height, and elevation towards the park, or garden of any future building erected on the land or any alteration of any existing building as shall in the opinion of the Commissioners be reasonable necessary for the protection of the amenities of the adjoining or neighbouring royal park or garden.

Amendment moved— Page 108, line 13, after ("by") insert ("or by the direction of").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 135:

Extinguishment of manorial incidents.

135.—(1) The manorial incidents affecting enfranchised land saved by Part V of this Act, and all manorial incidents of a like nature affecting any other land shall by virtue of this Act be extinguished in respect of the land thereby affected, but subject to the payment of such compensation (if any) as is payable under the provisions of this Part of this Act, upon the happening of any of the following events:—

1. (a) where an agreement in writing between the lord and the tenant of the land, or other persons authorised to effect agreements in this behalf, as to the compensation for the extinguishment is made within five years after the commencement of this Act, then upon the execution of the agreement;
2. (b) where a notice requiring the ascertainment of such compensation is served by the lord on the tenant or by the tenant on the lord within five years after the commencement of this Act, then upon service of the notice;
3. (c) where no such agreement has been made or notice served before the expiration of five years after the commencement of this Act, then upon the expiration of those five years:

Provided that—

1. (i) the extinguishment of manorial incidents so effected shall not extend to or affect the right to enforce any manorial incident which has become due or enforceable before the date of the extinguishment:
332
2. (ii) if in any manor there are not less than one thousand tenants holding land affected by manorial incidents, the Minister may, on the application of the lord or of not less than two-thirds of the tenants, by order (to be published in the Gazette) extend the said period of five years in the cases of any such manor and were any such order is made the references in this Part of this Act to the said period of five years shall be construed as if the extended period had been substituted therefore.

Amendments moved—

Page 110, line 2, leave out ("five") and insert ("ten")

Page 110, line 8, leave out ("five") and insert ("ten")

Page 110, line 11, leave out ("five") and insert ("ten")

Page 110, line 20, leave out ("five") and insert ("ten")

Page 110, line 29, leave out ("five") and insert ("ten").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 136:

Facilities for extinguishing manorial incidents and compensation rent-charges.

138.—(1) For facilitating the extinguishment of manorial incidents under this Part of this Act whether effected under the Copyhold Act, 1894, as applied by this Part of this Act, or independently of that Act, the following provisions shall have effect, and shall, if the extinguishment is effected under the Copyhold Act, 1894, as so applied, have effect as amendments of that Act:—

(i) The lord and the tenant respectively shall furnish to the other and to the Minister any information in his possession winch the other or the Minister may reasonably require with a view to ascertaining what would be the proper amount of compensation:

(v) Unless the compensation for the extinguishment of the manorial incidents is within thirty days after the ascertainment thereof paid in a gross sum, the compensation shall (unless the parties otherwise agree) be paid by twenty equal annual instalments, the first instalment to be paid on the first day of January next after the ascertainment of the amount of the compensation, with interest at five and a half per cent. per annum on the amount of the compensation from the date of the extinguishment of the manorial incidents, and a further instalment, with interest at the like rate on so much of the compensation as for the time being remains unpaid, shall be paid on every subsequent first day of January until the a hole compensation shall be fully paid, and so long as any of the said instalments and interest or either of them remain payable, the payment of the compensation shall be secured by a terminable rentcharge issuing out of the land to which the manorial incidents attached equal to the said instalments and interest, payable on the same days but accruing from day to day, and varying with the amount from time to time payable:

Provided that if the land affected is settled land, and there is sufficient capital money whereout the compensation may be discharged, or if the land affected is held on trust for sale and there is sufficient personal estate (not being chattels real) settled on the same trusts as the proceeds of sale whereout the compensation may be discharged, or if the compensation does not exceed five pounds, the compensation shall (unless the court on the application of any person interested otherwise directs) be paid in a gross sum (not by instalments), and in the former cases (subject to any order of the court to the contrary) shall be paid out of such capital money or personal estate, and in any such case may, subject as aforesaid, be recovered by the lord or other person entitled to give a receipt therefor as a debt due to him from the tenant or the trustees of the capital money or personal estate, as the case may be, with interest thereon from the date of the extinguishment at the rate of five and a half per cent. per annum:

(vi) Where any land subject to any manorial incidents is intermixed with, or held or occupied together with, other land, and the land subject to the manorial incidents cannot be identified by the description thereof on the rolls of the manor, or otherwise, it shall be lawful for the Minister on the application in writing of the lord or the tenant by order to declare what part of the land so intermixed, or held or occupied together, shall be, or be deemed to be, the land subject to the manorial incidents in question, and to determine and declare the situation and boundaries thereof, and on such order being made, the land described in such order shall be or be deemed to be the land subject to the manorial incidents in question:

(vii) Where manorial incidents have been extinguished within five years after the commencement of this Act by agreement or by notice, the agreement, award, compensation charge, or certificate shall not be chargeable with any stamp duty, and the Minister shall not require the payment by either party of any office fees or other expenses of the Ministry, except in the case of an application to the Minister which the Minister considers to have been unnecessary or unreasonable:

(ix) If the notice requiring the ascertainment of the amount of compensation is given by the lord to the tenant or by the tenant to the lord within five years after the commencement of this Act, the party giving the notice shall, except so far as otherwise provided by this Part of this Act, bear the expenses incurred by the other party in respect of the proceedings for extinguishment, unless the Minister considers that his conduct has been unreasonable, or that he has unreasonably refused a proposal made by the party giving the notice, in which case the Minister may disallow the payment of the whole or any part of the expenses incurred as the Minister may consider just:

Provided that the lord and the tenant may, notwithstanding that a notice has been served, at any time within five years after the commencement of this Act and before the amount of t he compensation has been ascertained pursuant to such notice, agree (subject to discharging any costs incurred in relation to the notice) to extinguish the manorial incidents by a compensation agreement:

Amendment moved— Page 115, line 19, after ("possession") insert (", including any plan or map of the land affected").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved in the proviso to subsection (1) (v) to substitute "twenty pounds" for "five pounds." The noble and learned Lord said: The object of this Amendment is to provide that if the amount of the compensation for the extinguishment of the manorial incidents does not exceed £20 it must be paid, unless otherwise decided by the Court, in a lump sum. This Amendment has the approval of those who appear to act for the tenants as well as the lords and my noble friend, Lord Stuart of Wortley, speaking on behalf of the Ecclesiastical Commissioners, says that it has their approval.

Amendment moved— Page 117, line 6, leave out ("five") and insert ("twenty").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendments moved—

Page 117, line 23 after ("identified") insert ("on the ordnance survey map,")

Page 117, line 35, at end insert ("and such land shall, if the lord or tenant so desire, be defined by reference to the ordnance survey map")

Page 117, line 37, leave out ("five") and insert ("ten").

Page 118, line 20, leave out ("five") and insert ("ten").

Page 118, line 34, leave out ("five") and insert ("ten").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 137:

Provisions where manorial incidents are extinguished on expiration of five years after the commencement of Act.

137.—Where in respect of any enfranchised land or in respect of any other land liable to any heriot, quitrent, chief rent, free rent, or other manorial incident, the manorial incidents affecting the land are by virtue of this Act extinguished upon the expiration of five years from the commencement of this Act by reason of no compensation agreement having been made or notice given to ascertain the compensation before the expiration of that period, the following provisions shall have effect:—

1. (a) At any time after the expiration of the said five years and before the expiration of ten years from the commencement of this Act the lord or the tenant may apply to the Minister to determine the amount of compensation to be paid by the tenant to the lord for the extinguishment of the said manorial incidents and upon such application being made the Minister shall proceed to determine and award the amount of the compensation in accordance with the Copyhold Act, 1894, as modified and applied by this Part of this Act in like manner as if the lord and the tenant had in accordance with Part I of that Act agreed in writing that the amount of compensation should be determined by a single valuer appointed by the Minister: Provided that in assessing the compensation no amount shall be allowed in respect of any rent, fine, relief, heriot or fee which apart from this Part of this Act would have accrued due and become payable, between the expiration of the said period of five years and the date of the application:
2. (b) The annual terminable rentcharge (if any) payable as compensation shall commence from the date of the application (to be mentioned in the award), and the lord shall not be entitled to any interest in respect of the period between the date of the expiration of the said period of five years and the date of the application:
3. (c) If no such application has been made before the expiration of the said period of ten years, no compensation shall be payable in respect of the extinguishment of manorial incidents:
4. (d) The costs and expenses of determining the compensation in any case to which this section applies shall, notwith- 336 standing anything contained in this Part of this Act, and in default of agreement be borne by the lord and the tenant or either of them as the Minister may determine, and the Minister in so determining shall have regard to the advantage derived from the extinguishment by the lord and tenant respectively.

Amendments moved—

Page 120, line 35, leave out ("five") and insert ("ten").

Page 120, line 40, leave out ("five") and insert ("ten").

Page 120, line 41, leave out ("ten") and insert ("fifteen").

Page 121, line 16, leave out ("five") and insert ("ten").

Page 120, line 23, leave out ("five") and insert ("ten").

Page 120, line 26, leave out ("ten") and insert ("fifteen").—(The Lord Chancellor.)

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved, in paragraph (d), to leave out "as the Minister may determine, and the Minister in so determining shun have regard to the advantage derived from the extinguishment by the lord and tenant respectively" and insert "or by both in such proportions, as the Minister may determine to be just according, as nearly as may be, to the advantages derived from the extinguishment by the lord and tenant respectively or by either of them." The noble and learned Lord said: This Amendment is intended to preserve the present law under which the tenant normally pays because he is, as a rule, the person who benefits. All parties admit that the person who benefits ought to pay the cost of ascertaining the amount of the compensation money. Under the existing law the person who gives the notice to enfranchise has to pay. I think that I am right in saying that this Amendment has the approval of Lord Phillimore, who has interested himself in this matter, and I beg to move.

Amendment moved— Page 121, line 34, leave out from ("them") to the end of line 37 and insert ("or by both in such proportions as the Minister may determine to be just according, as nearly as may be, to the advantages derived from the extinguishment by the lord and tenant respectively or by either of them").—(The Lord Chancellor.)

LORD PHILLIMORE

I rise only to say that I am extremely grateful to the Lord Chancellor and to his advisers for the way in which they have considered my humble efforts on this clause. The words, as they now stand, seem to me to be perfectly satisfactory.

LORD DYNEVOR

I should like to express my gratitude to my noble and learned friend on the Woolsack for having brought forward this Amendment. I was rather glad to hear what fell from him this afternoon, that, generally speaking, the advantage lay rather with the copyholder. He also added that any further proposal could be made in another place. I do not wish to delay your Lordships, but only to express my gratitude to my noble and learned friend for the Amendment.

On Question, Amendment agreed to.

Clause 151 (Construction and as to a lunatic's real estate).

THE LORD CHANCELLOR moved, at the end of the clause, to insert the following new subsection: ("(3) Where an infant dies after the commencement of this Act without having been married, and independently of this subsection he would, at his death, have been equitably entitled under a settlement (including a will or an intestacy) to an estate in fee simple or absolute interest in freehold land, or in any property settled to devolve therewith or as freehold land, such infant shall be deemed to have had an estate tail or entailed interest, and the settlement shall be construed accordingly.")

The noble and learned Lord said: The object of this Amendment is to prevent freehold land and any property settled with it passing on the intestacy of an unmarried infant under the new code. If the infant marries then under the Infants Settlement Act the Court has either before or after the marriage power to settle the infant's property, and the Court may be trusted to do the right thing. Hence, in that case there is no reason why tae new code should not, in default of a settlement, apply. But, as Lord Jersey pointed out, an infant who dies unmarried cannot dispose of the property. Under the old law his father would, speaking generally, have been his heir-at-law. Failing him, the eldest brother of the infant would have taken, and failing brothers, the sisters would have taken equally. Under the new code the beneficial interest would, on the death of the infant, have gone to the parents equally or to the surviving parent, or, failing parents, to the brothers and sisters equally. This Amendment does not create an exception. It merely allows the property, on the death of the infant, to go back to the settlor. My noble friend, Lord Jersey—who is unable to be present, but to whom I have sent a copy of the Amendment and a full explanation of its object and scope—approves of the Amendment, and accepts it as meeting the point which he raised.

Amendment moved— Page 133, line 33, at end insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 155:

Effect of assent or conveyance by personal representative.

(2) An assent to the vesting of a legal estate shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given; and an assent not in writing or not in favour of a mimed person shall not he effectual to pass a legal estate.

Amendment moved— Page 139, line 1, after ("given") insert ("and shall operate to vest in that person the legal estate to which it relates").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 158:

Appointment of special or additional personal representatives in the case of settled land.

158.—(1) Where settled land becomes, under Part I. of this Act, vested in a personal representative upon trust to convey the same to or assent to the same vesting in the tenant for life of full age or statutory owner in order to give effect to a settlement created before the death of the deceased and not by his will, such representative may, either before or after probate or letters of administration have been granted, disclaim his office in regard only to such settled laud without disclaiming the same in regard to other property.

(2) Whether such disclaimer is made or not the trustees of the settlement, or any person beneficially interested thereunder, may apply to the Chancery Division of the High Court for an order appointing a special or additional personal representative in respect of the settled land; and a special or additional personal representative, when appointed under the order, shall be in the same position as if probate or administration had originally been granted to him alone or to him jointly with the original personal representative, as the case may be, limited to the settled land, but without prejudice to the previous acts and dealings (if any) of the personal representative originally constituted.

(3) The court may make such order as aforesaid subject to such security, if any, being given by or on behalf of the special or additional personal representative, as the court may direct, and may appoint the trustees of the settlement affecting the settled land or any other persons to be the special or additional personal representatives; and an office copy of the order when made shall be furnished to the Principal Probate Registry for entry, and a memorandum of the order shall be endorsed on the probate or letters of administration.

Amendments moved—

Page 143, line 13, after ("representative") insert ("not being a trustee of the settlement")

Page 143, line 30, after ("alone") insert ("in place of the original personal representative")

Page 143, lines 38 to 41, leave out ("may appoint the trustees of the settlement affecting the settled land or any other persons to be the special or additional personal representatives") and insert ("shall, unless the court considers that special considerations apply, appoint such persons as may be necessary to secure that the representatives to act in respect of the settled land shall be the same persons as are the trustees of the settlement").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 180:

Compulsory registration on sale.

(5) At any time after the expiration of ten years from the commencement of this Act, but not earlier, an order may be made under the said section without complying with the provisions of subsections (6) (7) and (9) thereof, but subject to and in accordance with the following provisions: (viii) If before the expiration of that period either House presents an address to His Majesty against the draft or any part thereof the Order shall not be made, but without prejudice to the making of a new draft order: (ix) Not more than one such Order shall be made within the period of eleven years from the commencement of this Act: (x) The first Order shall not affect more than one county with any county borough surrounded by or contiguous to such county: (xi) Any proceedings preliminary to the making of the Order may be taken before the expiration of the said period of ten years.

THE MARQUESS OF SALISBURY had on the Paper an Amendment, in subsection (5), to leave out paragraph (viii) and insert the following new paragraph:

(viii) Unless before the expiration of that period both Houses present an Address to His Majesty praying that the Order (with or without Amendment) may be made, the Order shall not be made, but without prejudice to the making of a new draft Order.

The noble Marquess said: I do not desire to trouble your Lordships with any further remarks. I have already stated the object of this Amendment, and I understand the noble and learned Lord on the Woolsack accepts it in principle, though he is not satisfied as to its form.

THE LORD CHANCELLOR

As I indicated just now, I accept this Amendment in principle. I would, however, ask the noble Marquess to move it in the following form—In line 20, leave out from the first "Parliament" to the end of line 26, and insert: (viii) "The Order shall not be made unless both Houses by Resolution approve the Draft, either without modification or with modifications to which both Houses agree; but upon such approval being given the Order may be made in the form in which the Draft has been approved."

THE MARQUESS OF SALISBURY

I will move it in that form.

Amendment moved—

Page 173, line 20, leave out from the first ("Parliament") to the end of line 26, and insert— (viii) The Order shall not be made unless both Houses by Resolution approve the Draft, either without modification or with modifications to which both Houses agree; but upon such approval being given the Order may be made in the form in which the Draft has been approved."—(The Marquess of Salisbury.)

On Question, Amendment agreed to.