HL Deb 22 January 1948 vol 153 cc589-600

4.5 p.m.

Order of the Day for the Second Reading read.

Lord MORRISON

My Lords, in moving the Second Reading of this Bill, I had intended to commence my brief outline of the measure by saying that I thought it might prove non-contentious—until I remembered that I got myself into trouble just before the recess by making a somewhat similar remark about another small Scottish Bill. Noble Lords who were present then may remember that on that occasion, fortunately for me, I received unexpected help from a noble Earl on the Benches opposite, Lord Glasgow, who came to my rescue by announcing that, for the first time in his life, and I think he said probably the last, he intended to support the Labour Party. The Bill was passed and is now in another place. In presenting this present Bill I hope I have learned to be cautious. I commence therefore by modestly saying that I doubt if this Bill is non-contentious, but that I hope I am on safe ground in describing it as a small non-Party measure which I am sure will receive the careful consideration which it deserves.

The Bill is designed to effect reforms in the Registers and Records Department in Scotland. The Registers and Records Department is in charge of the Keeper of the Registers and Records of Scotland, an office created in 1928 when the Registers Department and the Record Office were brought under a single control. The Registers Department is concerned in the main with the registration of property transactions in Scotland and the Record Office with the custody of Scottish legal and historical records. The first main object of the Bill is to provide for the appointment of separate Keepers of the Registers and Records respectively. For many years prior to 1928 the two departments had been loosely united under the titular headship of the Deputy Clerk Register—an office which was allowed to lapse after the First World War. They were merged in 1928 under the new office of Keeper of the Registers and Records, and it was expected that this course would be conducive to efficiency and economy in the working of these departments. But the expectation has not been realized. The two offices exercise different functions for which different qualifications are required; and the experience of the last twenty years show clearly that the practical advantages lie in separation.

It is in line with the practice in almost all other countries that the Record Office should be a separate administrative unit, and the separation now proposed is recommended by the present Keeper of the Registers and Records, after many years' experience of the amalgamation, and by the Scottish Records Advisory Council, a Statutory body created in 1937. A subcommittee of the Standing Commission on Museums and Galleries, after inspection, has strongly endorsed this view, and this is what they say in their Report: The combination of the Register and Record Departments under a single Keeper does not spring from the nature of the work of the two Departments, which is quite different and calls for different qualifications and outlock.

LORD SALTOUN

Would the noble Lord say what the Report is and when it was published?

LORD MORRISON

The Report is a Report of a sub-committee of the Standing Commission on Museums and Galleries. I cannot give the noble Lord the date on which it was published but I will obtain it for him.

This proposal, to which effect is given in Clause 1 of the Bill, and which will create a separate Scottish Record Office, will be widely welcomed in Scotland. The second main object of the Bill is to carry out reforms in the Registers Department in the procedure for the registration of writs relating to property transactions in Scotland. Such reforms were proposed by a departmental committee in 1928, but at that time there were differences of opinion on the subject and further consideration of the proposals was deferred. The reforms are now endorsed by the Organization and Methods Division of the Treasury after inspection last year. The General Council of Solicitors in Scotland have been consulted and have raised no objections to the proposals. Effect is given to the main reforms in procedure in Clause 2 of the Bill, and Clause 3 provides, with the concurrence of the Lord President of the Court of Session, that subsidiary details should be regulated by Act of Sederunt. This provision will maintain the Courts traditional position in connexion with the Register.

It is proposed that the reforms should be introduced on a date to be appointed between January 1, 1949, and January 1, 1951, and when in full operation they should effect important savings in time and man-power in the registration of writs. Advantage is taken in Clause 4 of the Bill to provide that the regulations for the destruction of useless documents which have been transmitted to the Keeper of the Records may, by agreement, be applied also to the destruction of useless documents which, though not actually transmitted, are of a kind which could be sent to the Keeper. The remaining clauses are formal and do not call for comment. The proposed reorganization will allow the Registers Department and the Records Office to work as two contiguous but self-contained units and will modernize the procedure for registering writs. With these words I commend the Bill to your Lordships' House as a short but useful measure.

Moved, That this Bill be now read 2a.—(Lord Morrison).

4.9 p.m.

THE EARL OF SELKIRK

My Lords, the noble Lord said that he doubted whether this Bill is non-contentious. I have been trying to work out what he means by that statement. My own view is that the Bill is more an unnecessary Bill than a contentious one. I cannot see that it is really essential. I have only one or two remarks to make. One is that I am glad that the appointment of the Keeper of Registers and Records will be in the hands of the Lord President of the Council; and I hope that the status of the office will not be reduced. I think it is perhaps not inopportune now to pay a tribute to Dr. Angus, who has worked with such distinction.

With regard to the second part of the Bill, which deals with the registration of writs, I think it is perhaps premature to introduce such a measure at this time. We have the very complicated Town and Country Planning Act, which is going fundamentally to affect the whole of land tenure and the registration thereof. I should have thought it would be wiser to wait until the effects of that Act were more fully and properly appreciated. I see that the Secretary of State is empowered, as I think he has been before, to pay such remuneration as the Treasury may agree towards maintaining the Scottish records; and I think I am correct in saying that the annual sum expended at the present time is £200. I would commend to the Secretary of State for Scotland that he should consider increasing that amount when this reorganization takes place, because the sum is really inadequate to deal with the volume of records which, if worth keeping, are worth keeping properly.

4.11 p.m.

EARL STANHOPE

My Lords, I wish to say a few words on this Bill in support of His Majesty's Government. In the first place, I think this is a measure which is long overdue. I was Chairman of the Standing Commission on Museums and Galleries, but not of the sub-committee which went into the details of the Bill. The present Keeper has quite exceptional qualifications for the dual post, and the authorities of Scotland, after consideration, came to the conclusion that it was extremely improbable now that they would find any other individual with qualifications suitable for the dual post. The sub-committee of the Standing Commission found that the records really were completely behind so far as their arrangement, their indexing and the rest of it, is concerned and they were nowhere near the standard which prevails in England. Quite rightly, I think, Scotland felt that something should be done about the matter, and done as soon as possible, and that there should be an historian with qualifications for that post similar to the Keeper of the Public Records in England. Therefore, it was thought desirable to divide the post into two. The Registers are entirety different from such things as we know them on this side of the Border, and I would not attempt to put my toe over the line in regard to Scottish law, which is a long way outside my depth. I understand that the Registers are in constant use in the Courts and, therefore, an entirely different set-up is required from that necessary for Public Records. I have only one criticism to make of the proposal which is now being brought forward, and it is that as the Report of the sub-committee of the Standing Commission (which I think, by the way, was never published) was made some time ago, so far from this Bill being brought in too soon, I think it is a good deal overdue.

4.13 p.m.

LORD SALTOUN

My Lords, I am told that the great William Pitt the Younger, when he had very bad business to transact in Parliament, would shake his head over it and say, "It is a very bad case, a very bad case; we must apply our majority to this." His Majesty's Government, when they have a very bad case, shake their heads over it and say, "We must apply Lord Morrison to this," because he has had so very many difficult Bills and this, I think, is the most difficult. I hope your Lordships will not allow the great kindness we all feel for the noble Lord to prevent you from giving really serious consideration to the measure which is now proposed. We can do so with more freedom as the noble Lord who introduced it has said that it is a nonparty measure. I think it certainly is. The question is not one of our Party or of your Party, but of what is the best thing to do. I hope, therefore, that the noble Lord will not feel that we are arguing on Party lines if, as a House, we express our feelings strongly about this Bill.

I do not propose to controvert anything that the noble Earl, Lord Stanhope, said about the measure. His remarks concern only Clause 1. But Clauses 2 and 3 are the important part of Bill, and they must be very seriously considered by your Lordships. In the first place, the noble Lord, Lord Morrison, is misinformed, I think, as to the extent of the opposition to this Bill in Scotland. I think he is under the impression that there are only a few people called searchers whose pockets are going to be injured by the Bill, and who are opposing its passage. That is really not the case. It is perfectly true that those searchers and every law agent in Scotland who is in touch with those searchers will be injured by the Bill, and it would be a pity, I think. to do anything unnecessarily which will injure a body of men who have done magnificent work in the past and have contributed to the security and efficiency of Scottish business. This Bill is strongly opposed by the Scottish Law Agents' Society which represents the Scottish law agents in every town in Scotland and whose leaders are the leading practitioners of law in Scotland. The Society of Solicitors to the Supreme Court has reported against the Bill. The Society of Writers to the Signet has not reported, but that may be largely because there has not been proper time for them to do so; they have not been sufficiently well aware of what was in prospect.

As the noble Lord said, the Bill is founded upon a Report made in 1928. That was called the Fleming Report, and it was so contrary to the experience and knowledge of every member of the legal profession that it was tacitly abandoned. It is true that a revised Report was made in, I believe, the year 1932, but the Government did not act even on that Report, and it has lain dormant for the sixteen years that have since intervened. I should like, in passing, to say that I think your Lordships should be very careful about legislating in conformity with Reports that have been practically withdrawn, then allowed to lie dormant, and then, a decade or more than a decade later, produced to your Lordships as authority for legislation. That is the way in which bad and unsatisfactory laws are produced. It is true that in January, 1947, there was a Report made which I have not seen and which very few people have seen. It was prepared by the Organization and Methods Division of the Treasury. I am told that that Organization and Methods Division consists of a gentleman and a lady, who paid a visit to the Register House and asked a few perfunctory questions. I understand that the lady is a B.L.—I do not know what "B.L." stands for; I think it should be V.L. or M.L., not B.L.; but, in any case, whatever her qualifications and whatever his qualifications, a few questions on a short visit are not enough to establish a case.

I will give your Lordships some idea of what actually happens. Every heritable burden and every title in Scotland is, and has been, I think, from time immemorial, registered in the Register House. The brief which I have before me talks about Acts of 1603 and 1693, but, as a matter of fact, the practice of the registration of deeds is very, very ancient in Scotland. May I say, largely for the benefit of the noble Lord, Lord Pakenham, if he is interested in these things, that in Scotland we used the notary rather than the seal. We use the Continental practice as our method of establishing authenticity of documents. When a deed is sent for registration it is noted in a presentment book. The hour, as well as the date of the presentment of the deed, is noted, with a short description of the deed sufficient to identify it. If no objection to the deed is made it is entered in what is called the minute book—a book written in pen and ink and kept in order—with the hour at which it was presented. The minute book, of course, is indexed. If you or I or anybody buys property in Scotland, he is entitled to have that property delivered free of burden; and it is and has been from time immemorial, the universal practice for the seller to produce what is called a "search." He produces a search made by a searcher who goes to the Register House and searches the minute book, and who goes as far back as is necessary to establish that there are no heritable (which in Scotland means real) burdens upon that property and that it is free of encumbrances.

It is proposed in the present Bill, in Clause 2 (1) (a), to abolish the minute book and to keep only the presentment book. That sounds all very well, but I should be sorry to see such a step taken, because a large number of writs are sent for registration which are never, in fact, registered. There may be some flaw in the writ, or there may be some fault in the description—for example, in the bond or something—and then that writ is withdrawn from presentment and is never registered. It may come back in an altered form, or there may have been some more vital fault and it may never come back. The presentment book, therefore, is merely a rough day book, and it affords only the data from which the minute book, which is the really important book, is made up.

The importance of the minute book lies in this: that the validity of deeds is dependent upon their order in the minute book; an earlier deed claims precedence over a later deed, and that is a very great security. The officials of the Register House make their own searches, and that is a great convenience for them; but normal legal practice is to have a private searcher who goes back through the minute book and establishes quite clearly the fact that there are no burdens there. There is an important point here, that that private searcher is liable for the truth of that search. If anything is discovered—if there is some burden or other which he has not discovered, and which inures against the seller or purchaser—he is liable. Under this Bill the Treasury are to take over this responsibility, but, as I understand it, they are not going to take over the responsibility with anything like the completeness that the present very efficient searchers take it over, and that will inure greatly to the disadvantage of business.

It has been stated that the object of doing away with the minute book, and merely recording these searches, is the great saving that it would make in labour and trouble. I am not convinced of that, and I am also strongly of opinion that the saving of trouble will be secured by diminution of security. I did ask, in a private conversation, the extent to which this saving would go, and how many people would be saved by reducing the minute book. I could obtain no clear answer. The only answer I received was that it was the opinion of the Fleming Committee: But when, as a matter of business, I am considering savings in a business I work it out in man-power, and I do get some idea of the extent of those savings. Therefore, I think this should be reconsidered.

There is another important point in regard to Clause 3, which gives the Court of Session permission to prescribe the form of writs. Nobody is better aware than I of the great saving and advantage that has come in business in Scotland by having photographic reproduction of writs. It is a very great advantage indeed, and we are all perfectly aware of it. When photographic reproduction is impossible the registration takes very much longer, and typing and manuscript has to be used instead. Therefore, this Bill does propose to give the Court of Session power to prescribe the form of writ to be recorded, the size of the paper (and of the margins thereof), and to enable the satisfactory reproduction by photography. In my view that is going much too far. We are all perfectly aware of the advantage of these processes, but I would point out to your Lordships that almost anything can become a writ, and one cannot always be sure of having writs in a form that makes them suitable for photography.

Let us take a very simple case. Let us take the case of a bond upon a house. I grant a bond upon my house and get the money. When I sign the bond, the money is handed to me, and the bond is sent for registration. Suppose that it is not registered, that it is rejected by the Keeper of the Register, what happens? What is the position? It does not say in this Bill that the writ is invalid, it says merely that it cannot be registered.

The writ is, of course, perfectly valid; it is a contract to pay money, and yet it may not be registered. Supposing that writ is in existence, it may take priority over a registered writ which is in the minute book, if the minute book remains, and in the presentment book and the official search if it does not remain. In a competition I do not know which of the writs would be preferred. So there we should have a serious situation. I think this Bill goes very far, in that respect, and in its present form should certainly not go through your Lordships' House.

I have shown your Lordships that the whole of the legal profession in Scotland, so far as we have been able to obtain its opinion, is opposed to this measure. The noble Lord, Lord Morrison, appears to have been misinformed about that. At any rate, that is to the best of my information. I have shown your Lordships strong reasons for drastic amendment of the Bill, but I submit that, though it should be amended, the amendment should take place after consultation with those legal bodies who know most about this matter—that is, the Society of Writers to the Signet, the Society of Solicitors to the Supreme Court and the Scottish Law Agents' Society. I regard that as very important. I will not ask your Lordships this afternoon to reject this measure, but I will ask my noble friend who speaks for the Government to arrange that there may be a considerable interval before we have the Committee stage so that when that stage does arrive he will be in a position to put forward Government Amendments which will have the support of the legal profession in Scotland. A prolonged interval will also give us the opportunity of consulting with our clients, and getting from them Amendments which they would wish to have made.

4.30 p.m.

LORD MORRISON

My Lords, I am sure that your Lordships would not wish me to go into lengthy details at this stage on this small measure. May I say, very briefly, how delighted I am personally to see the noble Earl, Lord Selkirk, back in his place after his visit abroad. This Chamber does not seem like your Lordships' House when Scottish affairs are being discussed and he is away. I am very glad he has now returned. I had thought that perhaps he might have come back bearded like the pard and swearing strange oaths, but this is not a Bill which gives him a fair opportunity. I have no doubt, however, that further Scottish Bills will be brought forward liter on. I am indebted to the noble Earl, Lord Stanhope, for his commendation of the Bill, and I entirely agree with him so far as my knowledge of this measure goes. It is difficult if not impossible to find a suitable candidate for the dual post of which he spoke. It has been put to me that the kind of person required is a con- veyancing lawyer and a historical scholar, and that is a combination which is not easy to obtain.

The only serious opposition to the Bill has come from the noble Lord, Lord Saltoun. As I have already said, I do not think that he would expect that I should go into detail in answering his points, particularly as in the later stages of the Bill in your Lordships' House there will be opportunities for these matters to be developed. In addition, the Bill, after it leaves your Lordships' House, will still have to run the gauntlet of all its stages in another place. The noble Lord interrupted me—quite legitimately—when I was speaking about the Report of the subcommittee of the Standing Commission on Museums and Galleries. It was an informal Report and it was made to the Treasury and the Secretary of State, and was not published.

The noble Earl, Lord Selkirk, seemed a little afraid that the proposals in the Town and Country Planning Act would cause complications. I am informed that the proposals in this Bill will not be affected at all by the Town and Country Planning Act. I hope Lord Saltoun will forgive me if I do not attempt to answer in detail all his questions. There is, however, one which I should like to answer. He has quoted a statement which I also saw in a Scottish newspaper. I believe it is on record that even in Scottish newspapers mis-statements sometimes appear. That is very rare, of course. The statement to which I refer was to the effect that the Organization and Records Department of the Treasury had sent a lady to Edinburgh. I believe that is entirely incorrect. The lady, I am told, is employed on the staff in Edinburgh, and has been for many years. She was not sent there from London as was stated in a prominent Scottish newspaper the other day.

Perhaps I may be allowed to thank noble Lords who have taken part in this brief discussion. We know that at this moment most of your Lordships are not particularly interested in Scotland but have a greater interest in other business to which the House is about to proceed. It was therefore well that the discussion on this measure should be brief. In regard to Lord Saltoun's request for a longer interval than usual before the Committee stage of this Bill is reached, may I say that I am not myself responsible for those matters, but I will endeavour to ensure that arrangements are made for a period of a fortnight to elapse instead of a week, which is the usual interval before the Committee stage is reached. I hope that that will give the noble Lord the time which he requires.

Lord SALTOUN

I am very much obliged to the noble Lord.

On Question, Bill read 2a, and committed to a Committee of the Whole House.