HL Deb 06 February 1979 vol 398 cc593-606

Report of Amendments received.

Clause 21 [Registration]:

The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): moved Amendment No. 1: Page 2, line 27, leave out ("is") and insert ("has been").

The noble and learned Lord said: My Lords, the object of this Amendment is simply to make a grammatical improvement. It helps to make it clearer that in Clause 2(3) we are talking about the situation which obtains once an interest in land has been registered and is on the Register, as distinct from Clause 2(1), which deals with the first entry on to the Register of an interest in respect of which there has been no entry before. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 2: Page 2, line 29, after ("creation") insert ("or transfer").

The noble and learned Lord said: My Lords, the interests in land referred to in subsection (3)(a) may be transferred as well as created. The Amendment simply narrates that fact.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 3: Page 2, line 29, leave out ("related").

The noble and learned Lord said: My Lords, at the Committee stage the noble Lord, Lord Campbell of Croy, pointed out to us that this word was possibly superfluous and might be confusing. We agree and, as it is dispensable, we should like to dispense with it. I beg to move.

Lord CAMPBELL of CROY

My Lords, may I thank the noble and learned Lord. I am grateful for the response in acceding to a point which was raised at the Committee stage.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 4:

Page 3, line 6, at end insert— ("( ) In this section, "enactment" includes sections 17, 18 and 19 of this Act.").

The noble and learned Lord said: My Lords, Clause 2 as originally drafted was by amendment at Committee stage split into two clauses. As a result, the reference to the term "enactment" is now found only in Clause 3, which originally formed the latter part of Clause 2. Clause 2 therefore requires its own reference to "enactment" and the Amendment supplies this in appropriate terms for this clause. I beg to move.

On Question, Amendment agreed to.

Clause 3 [Effect of registration]:

3.13 p.m.

Lord CAMPBELL of CROY moved Amendment No. 5: Page 3, line 29, leave out ("is") and insert ("has been").

The noble Lord said: My Lords, this is an Amendment which is similar to Amend- ment No. 1, which has been moved by the noble and learned Lord. It seemed necessary as it is in the same sense as the Government's Amendment No. 1; the wording of the Bill is similar at this point. Unless the Government have some reason against it. I would have supposed that this Amendment should be made as Amendment No. 1 has been made.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 6: Page 3, leave out from beginning of line 30 to ("to") in line 31.

The noble and learned Lord said: My Lords, the Amendment, arising from a suggestion from the Law Society of Scotland, removes some unnecessarily restrictive words. There is, we are persuaded, no reason why an obligation to assign title deeds and searches should have no effect only when an obligation arises on any of the events referred to in Clause 2(1)(a) or (3) of the Bill. The intention is that any obligation of this nature, however arising, shall be of no effect when the necessary conditions as to registration are met. Accordingly, I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 7: Page 3, line 34, leave out ("cease to have") and insert ("be of no").

The noble and learned Lord said: My Lords, again this is simply a drafting Amendment which I hope expresses the intention of the clause more accurately; that is to say, the existing obligations shall have no further effect and any new obligations (which would otherwise be imported by Clause 16) shall have no effect ab initio.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 8: Page 3, line 41, leave out ("16").

The noble and learned Lord said: My Lords, I can deal with this Amendment quite shortly. Clause 3(5) before amendment contained the words "under any enactment or rule of law". This sub section relates to assignations of title deeds and searches, and before amendment it was necessary to include Section 16 as a relevant enactment. An obligation to assign title deeds and searches is, by the amendment to Clause 3(5), no longer restricted to obligations under any enactment or rule of law, so the reference to Section 16 in Clause 3(6) is no longer relevant. I beg to move.

On Question, Amendment agreed to.

Clause 4 [Applications for registration]:

3.16 p.m.

Lord McCLUSKEY moved Amendment No. 9:

Page 4, line 26, leave out from ("application") to ("on") in line 31 and insert (", after examination by the Keeper, is accepted by him, or (b) where the application is not accepted by him on the grounds that it does not comply with subsection (1) or (2)(a) or (d) above but, without being rejected by the Keeper or withdrawn by the applicant, is subsequently accepted by the Keeper").

The noble and learned Lord said: My Lords, this Amendment arises out of a useful discussion which we had at the Committee stage which followed other discussions which were taking place with the Law Society. When an application arrives at the Registry it is received by the Keeper and entered in the application record. After a delay which will usually be a few days but could extend to a longer period, the Keeper examines the application. At that stage he either accepts the application, rejects the application, or holds it for further evidence or information from the applicant, which when forthcoming will enable the Keeper to accept the application subsequently.

At any time before the completion of registration the applicant may withdraw the application. If the application is rejected by the Keeper or withdrawn by the applicant it cannot retain the date of its receipt as its date of registration. If the application is subsequently accepted by the Keeper without having been rejected or withdrawn it will retain its date of registration, being the date of receipt. I believe the Amendment clarifies the position accordingly as regards receipt, acceptance, rejection, withdrawal and subsequent acceptance. I am grateful to those, including the noble Lord, Lord Campbell of Croy, who have drawn our attention to the need for improvement in this regard. I beg to move.

Lord CAMPBELL of CROY

My Lords, we are grateful to the Government for having put down this Amendment which meets the point raised and discussed at the Committee stage. It appeared then that clarification was needed on what constituted immediate acceptance by the Keeper of an application for registration and we went over the question of what happened physically to a document when it was delivered to the Keeper's office. The noble and learned Lord has now agreed with the matters which we raised then. I suggest that the document would certainly have to be examined before being accepted, so I naturally welcome the words now proposed to be inserted in the Bill.

On the other hand, the applicant would expect a receipt for the document after he left it in an outer office, if he was delivering it by hand, and that might have been deemed to have been acceptance unless this had been clarified. We also welcome the distinction now being made in his Amendment between rejection by the Keeper and withdrawal which would appear to be an action by an applicant. I suggest that the drafting has been much improved by his and other Amendments of a similar kind which the noble and learned Lord is tabling. I suggest the House should agree to this Amendment.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 10: Page 4, line 34, leave out subsection (4).

The noble an learned Lord said: This Amendment is related to Amendment No. 12, and Amendment No. 29 is a consequential Amendment. It is perhaps rather more significant than the ones we have been dealing with hitherto. At the Committee stage, the Committee were not in general opposed to the principle that it would be appropriate to show in the Land Register those who have the title to land which extended to more than two hectares. This was thought not to be an improper public purpose of the Land Register. On the other hand, there were objections which were formulated by the noble Lord, Lord Campbell of Croy, and others, about the fact that the cost was going to fall upon the person who registered his land when the purpose was properly a public purpose. It was also thought—and I agreed with this at the time—that it might well be cheaper for the Keeper to do the necessary measurement rather than for the individual proprietors to do so.

Accordingly, it is now proposed—and this Amendment has the purpose of achieving this—to delete subsection (4) from Clause 4 and then, by Amendment No. 12, to put the obligation on to the Keeper. That means he will do the measurement that is required and he will have to incur the cost. Of course, the cost will then fall upon all those who use the Register in Scotland, and accordingly it will be spread on the public. I believe that these Amendments, taken together, will meet the objections hitherto stated, and I beg to move.

Lord CAMPBELL of CROY

My Lords, this is an Amendment which was moved by me at the Committee stage and so I am naturally very pleased to see that the Government have tabled and moved exactly the same one. The Government have concluded, from what the noble and learned Lord has said, that the Keeper can, over the period while the Register is being compiled, himself record the measurements to the necessary degree of accuracy which can in due course provide a picture of land ownership in Scotland. I will not repeat the arguments which I used at the Committee stage but I will remind your Lordships that the main point was that this Amendment will obviate unnecessary expenditure falling upon individuals in a haphazard way. I say "haphazard", because it could be simply a matter of mischance with an area that had never had to be precisely measured before even though it had changed hands. The Government, clearly, have looked at this carefully in the three weeks since the Committee stage and we are grateful to them for the Amendment.

On Question, Amendment agreed to.

Clause 6 [The title sheet]:

Lord McCLUSKEY moved Amendment No. 11: Page 5, line 34, leave out from ("land") to end of line 36 and insert ("which shall consist of or include a description of it based on the Ordnance Map,").

The noble and learned Lord said: My Lords, I beg to move this Amendment. In principle it is the same as an Amendment (No. 19) which was moved by the noble Lord, Lord Campbell of Croy, at Committee stage. That Amendment was not pressed and was in fact opposed by me rather more vehemently than I opposed most of the others. But, having regard to the value of second thoughts, we have now looked at this again. We acknowledge that it is an acceptable and useful Amendment for the avoidance of doubt and, in the conciliatory mood we are in as regards this Bill, I am happy to move this Amendment, which achieves the purpose which the noble Lord sought.

Lord CAMPBELL of CROY

My Lords, again I am grateful to the noble and learned Lord for having accepted this Amendment and again it indicates the virtue of time being given for second thoughts. I myself always believe in trying to give the Government as much time as possible to have such second thoughts, and in this case that has been successful.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 12: Page 5, line 36, at end insert ("and, where the interest is that of the proprietor of the dominium utile or the lessee under a long lease and the land appears to the Keeper to extend to 2 hectares or more, its area as calculated by the Keeper;").

The noble and learned Lord said: My Lords, we have already spoken about the substance of this. This is the Amendment which has the purpose of confining the disclosure of two hectares or more in a title sheet when the interest in the land is that of a feuar or a long leaseholder. These are the category of proprietors who are normally described as "landowners". The second purpose is to place on the Keeper, and not on the applicant, the duty of identifying land affected by this provision and of calculating its area; so this is really a substantial Amendment in relation to the duty of the Keeper. On this occasion I should like to express my gratitude to the noble Lord, Lord Campbell of Croy, for his help in relation to this and various other matters which I have been referring to and which I shall continue to refer to during the course of the Report stage. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 13:

Page 6, line 26, at end insert— ("In this subsection "overriding interest" does not include the interest of a lessee under a lease which is not a long lease.").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 13. It is associated with the next Amendment, No. 14. These are both made in response to a point made by the noble Lord, Lord Campbell of Croy, at the Committee stage; namely, that the only application of the definition of "over-riding interest" was to subsection (4) of the clause. The first Amendment therefore ties the definition to subsection (4). Amendment No. 14 is consequential and, by removing subsection (6), removes the now superfluous definition from its existing position. I beg to move.

Lord CAMPBELL of CROY

My Lords, I should like particularly to thank the noble and learned Lord for having accepted the suggestion I made at the Committee stage. I recognise that it is not strictly necessary but I think it will help those who are going to have to work with this Bill when it is enacted later; and so, as I say, I am grateful to the noble and learned Lord.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 14: Page 6, line 33, leave out subsection (6).

The noble and learned Lord said: My Lords, as I said earlier, this Amendment is consequential. I beg to move.

On Question, Amendment agreed to.

Clause 7 [Ranking of titles]:

Lord McCLUSKEY moved Amendment No. 15: Page 6, line 36, leave out ("title") and insert ("deed").

The noble and learned Lord said: My Lords, the references to "title" or "titles" in this clause in every case mean "title to an interest in land", except in the case of the reference replaced by the Amendment. This reference is to an actual document and the Amendment, I hope, makes that clear. I beg to move.

On Question, Amendment agreed to.

3.27 p.m.

Lord CAMPBELL of CROY moved Amendment No. 16: Page 6, leave out lines 42 and 43.

The noble Lord said: My Lords, I beg to move this Amendment and in doing so I would suggest that Amendments Nos. 17 and 18 should be discussed with it, as they all go together. The Bill as now drafted deals with a situation in subsection (3) where two registrations are received on the same day. Subsection (4) governs ranking between deeds in the Land Register and the Register of Sasines.

Amendment No. 16 and the other ones which I would wish to move would add provision for another situation: that is where registration in the Land Register and in the Register of Sasines is on the same day. This therefore makes provision complete, as we see it, for all the possibilities likely to occur. If the Government accept the wording of the Amendments, and if they accept Amendment No. 16, I am advised it will not be necessary for me to move Amendment No. 17 because that will automatically be carried out in the reprinting of the Bill.

Lord McCLUSKEY

My Lords, I am happy to say that the Government would ask the House to accept this Amendment and those related to it. We accept that the point outlined by the noble Lord, Lord Campbell of Croy, is a sound one and we were able to discuss it most helpfully with the Conveyancing Committee of the Law Society last week. We are grateful to him and to them for suggesting this change and I would commend it to the House.

On Question, Amendment agreed to.

[Amendment No. 17 not moved.]

Lord CAMPBELL of CROY moved Amendment No. 18:

Page 7, line 3, at end insert— ("(4) Where the date of registration or recording of the titles to two or more interests in land is the same, the titles to those interests shall rank equally").

On Question, Amendment agreed to.

Clause 8 [Continuing effectiveness of recording in Register of Sasines]:

Lord McCLUSKEY moved Amendment No. 19:

Page 7, line 10, leave out from ("by") to ("has") in line 12 and insert—

  1. ("(i) an instrument which, having been recorded before the commencement of this Act in the Register of Sasines with an error or defect; or
  2. (ii) a deed which, having been recorded before the commencement of this Act in the Register of Sasines with an error or defect in the recording,").

The noble and learned Lord said: My Lords, in moving this Amendment, may I draw attention to the fact that Amendment No. 20 is connected with it. As presently drafted, these subsections of Clause 8 might mean that any deed which has been recorded in the Register of Sasines with an error or defect may be re-presented after correction and recorded of new under Section 143 of the Titles to Land Consolidation (Scotland) Act 1868.

The relevant provisions of Section 143 are, in fact, less sweeping and are contained in the Amendments. Only where the writ presented is an "instrument", as defined in the 1868 Act, can an error or defect in the writ itself be corrected and the writ recorded of new. The definition covers only a particular class of deeds. A deed which is not an "instrument", as defined in the Act, may be re-recorded only if the error lay in the actual recording procedure, and not in the substance of the deed. My Lords, I beg to move.

Lord CAMPBELL of CROY

My Lords, again I have cause to be grateful to the noble and learned Lord for having considered this point since the Committee stage, because Amendment No. 19 was moved by me then and Amendment No. 20, which brings in the 1868 Act, is clearly supplementary to it. The noble and learned Lord has explained the need for this Amendment, so I need not go over it again, but commend it to the House.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 20:

Page 7, line 16, at end insert— ("In this paragraph, "instrument" has the same meaning as in section 3 of the said Act of 1868.").

The noble and learned Lord said: My Lords, this is the associated Amendment. I beg to move.

On Question, Amendment agreed to.

Clause 9 [Rectification of the register]:

3.31 p.m.

Lord McCLUSKEY moved Amendment No. 21: Page 7, line 32, leave out ("(2)") and insert ("(3)").

The noble and learned Lord said: My Lords, at the Committee stage the present subsection (2) of Clause 9 was added, and this is simply a drafting Amendment to replace an incorrect reference to a subsection. I beg to move.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 22: Page 7, line 32, after ("(2)") insert ("and (3)").

The noble Lord said: My Lords, this is a paving Amendment for the substantive Amendment, No. 23. Therefore, with the permission of your Lordships, I should like to speak to both Amendments. I have tabled Amendment No. 23 again, because the Government undertook to reconsider it, particularly in the light of a point raised at the Committee stage by the noble and learned Lord, Lord Fraser of Tullybelton. The intention behind the main Amendment No. 23, is to remove any possible ambiguity in making clear that the relevant part of Clause 9, which is subparagraph (iv) of subsection (3)(a), is subject to the law of prescription. At the Committee stage, the Government agreed that the point was correct, but they thought than an Amendment of this kind was not necessary, because they felt that there should be no ambiguity arising.

I must inform your Lordships that, up to today, this has been a matter upon which the Law Society of Scotland have taken a different view from that of the Government, and that they attach impor- tance to ensuring that there is no possible doubt in the final form of the Bill. Since the Government have not put down an Amendment today, the only way of raising the matter was for me to put down my Amendments again, and we shall be interested to hear what are the latest views of the Government. This is a matter to which the Law Society of Scotland attach some importance, and naturally they, as well as we on this side of the House, will be interested to hear what are the Government's latest conclusions, the important point being that there should be no doubt whatever that the law of prescription does apply here. My Lords, I beg to move.

Lord FRASER of TULLYBELTON

My Lords, I have had some communication with the noble and learned Lord, Lord McCluskey, about this matter. He has been good enough to write to me with his views, which I appreciate, but I am still inclined to agree with the Law Society of Scotland that there is just an element of doubt as to whether the law of prescription is clearly preserved by this subsection. I would therefore support the Amendment. I am personally quite open to persuasion that it is unnecessary, and it may be unnecessary, but there is a risk and the Law Society are anxious about it. I see in the recommendations of the Henry Committee, which dealt with this matter, that they also particularly mentioned the law of prescription as being preserved and unaffected by this. But I cannot see any harm in the Amendment, and my present view is that it would be better to make the change.

Lord KINROSS

My Lords, before speaking in support of this Amendment, I should like, with your Lordships' permission, to say that I was unable to attend the Second Reading or the Committee stage of this Bill, the latter through illness, although as a member of the Law Society of Scotland I should have liked very much to do so. However, I fear that my contribution would have been minimal, because conveyancing was never my strong suit. In my case, however, this did not matter greatly, because for some 45 years Professor George Henry, the chairman of the committee which made the latest report that has given rise to this Bill, and I have been associated together in the same firm, for 33 of them as partners; and who better to turn to for help in conveyancing matters?

But that is not all, because Mr. Denys Andrews, who is himself an expert conveyancer and is presently the President of the Law Society of Scotland, is also a partner of mine and has taken a great deal of interest in this Bill. He has been the leader of the team and has attended many meetings with the noble and learned Lord, Lord McCluskey, whose knowledge of conveyancing is not so limited as he modestly made out during the earlier stages of this Bill.

Turning now to this Amendment, I subscribe to the view which has been expressed by the noble and learned Lord, Lord Fraser of Tullybelton, that it is by no means clear that the rules as to prescription apply and I feel that the insertion of this Amendment would make the position doubly clear. If members of the Law Society, who are conveyancers, do not think that it is plain, how are the lay members of the public to understand it? Therefore, I ask that the Government accept this Amendment either at this stage or, perhaps, at a later stage.

Lord McCLUSKEY

My Lords, we are certainly at one on this point that there should be no doubt, and to that end discussions have been taking place for a long period of time. I am not prepared to sit as a kind of judge in this field, and the discussions are to continue. Indeed, this matter is one of three which are on the agenda for a meeting on Thursday, when I hope that men of good will and expert conveyancers on all sides will be able to come to an agreement about the matter, and that I shall be able to come to the House and satisfy all and sundry.

Amendment No. 22, to which we are speaking, is simply, as the noble Lord, Lord Campbell of Croy, has said, a paving Amendment in relation to the main one, No. 23. We see it at the moment, although this is still a matter upon which we are not yet finally decided, as an Amendment proceeding upon an assumption that we will not accept; namely, that the Lands Tribunal, the Keeper and the Court are somehow relieved from being bound by the law of prescription by what is contained in this Bill. We see that there is a possibility of some harm here— and the noble and learned Lord, Lord Fraser of Tullybelton, mentioned the possibility of harm—because this Amendment would have the effect of making a title inviolate after prescription, whereas such a title is itself subject to prescription under a competing title.

Were this Amendment to be accepted in principle, and we made reference to the law of prescription, that would, perhaps, apply to a large number of Acts on the Statute Book—the Succession (Scotland) Act 1964, the Bankruptcy Acts, the Companies Acts and many more. However, that is still a statement of a not finally decided position. Therefore, may I ask the noble Lord not to press his Amendments Nos. 22 and 23 at this stage but to withdraw them. I hope that when we come to Third Reading we shall be in agreement and that then we shall be able to take this as a short Amendment.