HL Deb 06 February 1979 vol 398 cc614-37

3.59 p.m.

Consideration on Report resumed.

The LORD CHANCELLOR

My Lords, we were dealing with Amendment No. 22.

Lord CAMPBELL of CROY

My Lords, I was about to wind up the short debate on Amendments 22 and 23 which I had moved, when the Private Notice Question and the Statement intervened. In his reply the noble and learned Lord, Lord McCluskey, has confirmed that there is still disagreement between the experts on conveyancing, about whether it is necessary to have Amendments like Nos. 22 and 23 in the Bill. He also told us that there was to be a further meeting on Thursday—that is in two days' time—and of course I should not wish to press this Amendment in the light of the further discussions that are taking place, particularly as, on having second thoughts and looking again at other parts of this Bill, the Government have been good enough to make a number of changes in response to suggestions made at earlier stages of the Bill.

I would just remind your Lordships that the intention of the Amendments is to remove any possible doubt as to the relevant part of Clause 9 being subject to the law of prescription. The noble and learned Lord, Lord Fraser of Tullybelton, has today expressed his own view that he is not completely happy with the Bill unamended in its present form, I hope that agreement one way or another will be reached among the experts before the Third Reading of the Bill. At the Third Reading there will be an opportunity for the Government or the Opposition to follow up the results of the discussions. So at the moment I simply reserve that position, and I beg leave to withdraw Amendment No. 22.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Clause 10 [Positive prescription in respect of registered interests in land.]

4.2 p.m.

Lord CAMPBELL of CROY moved Amendment No. 24: Page 8, line 34, leave out paragraph (b).

The noble Lord said: My Lords, I beg to move Amendment No. 24. Clause 10, which we are now considering, seeks to insert words into Section 1 of a 1973 Act, the Prescription and Limitation (Scotland) Act, and the Law Society of Scotland have suggested that the wording which is proposed in paragraph (b), which my Amendment would seek to delete, is unsound in the face of an attempted fraud by forgery. I have therefore tabled this as a probing Amendment to draw attention to a possible weakness in the present form of paragraph (b). It appears possible that if registration followed a forgery, the forger could obtain a title that could not be challenged, through prescriptive possession on that registration. This is clearly not intended in the Bill. It is something that has been observed as a possible weakness and therefore I felt I must draw the attention of the Government to it. I beg to move.

Lord McCLUSKEY

My Lords, I should explain that paragraph (a), which the Amendment does not seek to touch, provides, as an alternative to the recording of a deed in the Register of Sasines as a foundation for positive prescription, the registration of an interest in the Land Register. Paragraph (b), which the Amendment seeks to delete is, intended to make it clear that the reference in sub section (1) of the Act of 1973 to a deed which was invalid ex facie or was forged refers only to a deed recorded in the Register of Sasines. Deletion of paragraph (b) makes this less clear. It does not apply the reference to a deed which induced registration in the Land Register and it is not appropriate that it should do so.

But we recognise the Law Society's fear in relation to fraud and forgery. We do not think that the Bill as presently drafted would have the effect that they fear it may have, but, on the other hand, this is a matter which I discussed last week with the Law Society Committee and again it is one where we ought to be able to come to agreement. I think the House will appreciate that we have made a lot of progress towards reaching agreement, and this is one of the outstanding points which has not yet been resolved. I hope we can resolve this matter between us on Thursday, so that those who assist the noble Lord, Lord Campbell of Croy, and those who assist me can reach agreement, and we can then express our agreement in a short Amendment at Third Reading. We think it may be desirable to make an Amendment at Third Reading to clarify the position. I should like to reserve my position on that matter until the discussions take place.

Lord CAMPBELL of CROY

My Lords, my intention had not been to take the whole of paragraph (b) out, as I think I indicated in my opening remarks, but to draw attention to a possible weakness in the drafting of the paragraph. The only way of doing this at Report stage was to put down an Amendment of this kind. The noble and learned Lord, Lord McCluskey, has taken the point. I am glad to know that he proposes that he or his officials should discuss this matter further with those who are worried about it outside the House. I am also glad that he leaves the situation open for amendment at Third Reading. Accordingly, I beg leave to withdraw Amendment No. 24.

Amendment, by leave, withdrawn.

Clause 11 [Transitional provisions for Part I].

Lord McCLUSKEY moved Amendment No. 25: Page 9, line 4, leave out ("in that area").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 25. This Amendment is similar in purpose to an Amendment moved by the noble Lord, Lord Campbell of Croy, at Committee stage, and that Amendment was accepted by the Committee. That Amendment affected what is now Clause 11(1) and dealt with land completely outwith an operational area. Subsection (2) deals with the same point as subsection (1) when the land is partly within an operational area. It is a consequential Amendment to bring subsection (2) into line with subsection (1). I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 26: Page 9, line 7, leave out from ("which") to end of line 8 and insert ("the provisions of this Act relating to registration have come into operation.").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 26. This was discussed at Committee stage. It is simply a drafting improvement.

On Question, Amendment agreed to.

Clause 12 [Indemnity in respect of loss.]

Lord McCLUSKEY moved Amendment No. 27: Page 9, line 19, after ("any") insert ("land or charge certificate or").

The noble and learned Lord said: My Lords, Amendment No. 27 is associated with Amendment No. 28. I beg to move Amendment No. 27. Both of these are drafting Amendments. The word "information", I hope the noble Lord, Lord Campbell of Croy, will accept, is somewhat lacking in specification and not entirely appropriate to cover land or charge certificates issued by the Keeper. The word "manner" is less restrictive than the word "form", in the same clause, on the methods of issuing information which may be open to the Keeper under the rules. At this stage I beg to move Amendment No. 27.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 28: Page 9, line 20, leave out ("form") and insert ("manner").

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 29: Page 10, line 12, leave out ("disclosed under section 4(4)") and insert ("entered in the title sheet of an interest in that land under section 6(1)(a)").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 29. This is consequential on Amendments Nos. 10 and 12. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 30: Page 11, line 3, leave out ("particular") and insert ("information").

The noble and learned Lord said: My Lords, Amendment No. 30 relates to a discussion we had at Committee stage when the noble Lord, Lord Campbell of Croy, moved what was then Amendment No. 39. This proposed the replacement of the word "particular" with the word "information". We thought we might be able to do, better and we believe we now have done so, and Amendment No. 30. incorporates that improvement. I beg to move.

Lord CAMPBELL of CROY

My Lords, I am grateful to the noble and learned Lord for removing the word "particular", which did have disadvantages, and for considering the alternatives, some of which we suggested from this side of your Lordships' House in Committee. The Government consider that "information" is the best of the available words, and I would commend it to the House.

On Question. Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 31: Page 11, line 12, at end insert ("or to the description of the land in respect of which the feuduty, ground annual or rent is payable").

The noble and learned Lord said: My Lords, this Amendment is closely associated with Amendment No. 30. Although we believe that the word "information" is an improvement on the word being deleted, it is not now considered sufficiently precise to carry the whole meaning intended. This is that the Keeper should be liable for indemnity in respect of loss where such loss arises from an incorrect description of the land in respect of which the feuduty, ground annual or rent is payable. It has seemed best to spell this out by way of further amendment, and this is the purpose of Amendment No. 31. I beg to move.

On Question, Amendment agreed to.

Clause 15 [Simplification of deeds relating to registered interests]:

Lord McCLUSKEY moved Amendment No. 32: Page 12, line 40, leave out ("is") and insert ("has been").

The noble and learned Lord said: My Lords, this Amendment is to the same effect as two previous Amendments spoken to by myself and the noble Lord, Lord Campbell of Croy. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 33: Page 13, line 2, leave out ("Schedule D") and insert ("Schedules D and J").

The noble and learned Lord said: My Lords, Amendment No. 33 is intended simply to correct an error from the previous print and to make appropriate reference to Schedule I to the Conveyancing (Scotland) Act 1924. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 34:

Page 13, line 16, at end insert— ("(3) It shall not be necessary—

  1. (a) in connection with any deed granted by the uninfeft proprietor of a registered interest in land, to expede a notice of title;
  2. (b) in any deed relating to a registered interest in land, being a deed referred to in section 3 of the Conveyancing (Scotland) Act 1924 or section 12 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (dispositions etc. by persons uninfeft), to deduce title in accordance with the said section 3 or, as the case may be, the said section 12,
if evidence of sufficient midcouples or links between the uninfeft proprietor and the person last infeft are produced to the Keeper on registration in respect of that interest in land.").

The noble and learned Lord said: My Lords this is a point which was brought to our attention by the President of the Law Society, Mr. Andrews, and we are grateful to him for it. The Government are persuaded that the point is sound and accordingly it is incorporated in Amendment No. 34.

We are concerned here with an uninfeft proprietor. An uninfeft proprietor is one who has not completed his own title by linking it back through midcouples and links in title to the last infeft proprietor—that is to say, to the last title recorded in the Register of Sasines. Accordingly, provided the Keeper is satisfied that an uninfeft applicant has a good title to the interest that he is seeking to register in the Land Register, it is considered that the applicant should not be required to follow the procedure which has obtained hitherto as regards an uninfeft proprietor who seeks to record a title in the Register of Sasines. So he is not required to expede a notice of title or to deduce title in accordance with that section. He is not required to do that under the system of land registration. Accordingly, that is what the Amendment now seeks to achieve. I beg to move.

Lord CAMPBELL of CROY

My Lords, the House will have observed that the immediately following Amendment standing in my name—Amendment No. 35 is an alternative and would add words of a similar type in the same place in the Bill. I would only say that the drafting of my Amendment No. 35 has had the benefit of the expertise of the Law Society who raised this point originally, and that is the way in which the Society would have preferred to have made this point in the Bill. From what the noble and learned Lord said, it sounds as though the Government, who have had a chance to consider both the drafts, prefer Amendment No. 34, However, if for some reason the noble and learned Lord or his advisers have not had an opportunity of considering the alternatives, it might be possible to leave this matter over to a later stage. However, perhaps the noble and learned Lord is happy to make a selection now having looked at both Amendments carefully. Perhaps I could give way to him?

Lord McCLUSKEY

My Lords, I think that there are two points contained in Amendment No. 35 and one is the matter with which I have already been dealing—the matter of deduction of title. I think that we are satisfied that our Amendment is the correct one.

The other point is in relation to an obligation or a right of relief. We accept that special provision should be made for assignations of obligations and rights of relief so we accept that the second point contained is one to which we ought to respond. As I have said on previous occasions in connection with the drafting, we would prefer to look at the drafting afresh ourselves, but we would expect to come back on Third Reading with an Amendment which would incorporate the second point. I hope then that we shall have met both points.

Lord CAMPBELL of CROY

My Lords, I am grateful for that intervention by the noble and learned Lord which has enabled him during this Report stage to answer the point that I raised. It amounts to his preferring Amendment No. 34, but accepting that there is also a point of principle in Amendment No. 35 which may develop into an Amendment on Third Reading. Therefore, in the light of that I do not propose to move Amendment No. 35 when we reach it.

On Question, Amendment agreed to.

[Amendment No. 35 not moved.]

Clause 16 [Omission of certain clauses in deeds]:

4.14 p.m.

Lord CAMPBELL of CROY moved Amendment No. 36: Page 13, line 30, at end insert— ("(b) import an assignation to the grantee by the grantor of").

The noble Lord said: My Lords, I beg to move Amendment No. 36 and I suggest that we also discuss Amendment No. 37 as the two Amendments are related. I am advised that all deeds coming within the ambit of Clause 16 should import an assignation. As the Bill is at present drafted it appears that deeds under Paragraph (a)(iii) only will impose an obligation on the grantor to assign his right. Therefore, Amendment No. 36 which I am now moving, and Amendment No. 37, seek to widen the clause to the extent required.

Lord McCLUSKEY

My Lords, the Government accept that Amendments Nos. 36 and 37 do more accurately describe what is required; namely, an importation of assignation rather than the imposition on the grantor of an obligation to assign. Therefore, we are happy to accept these two Amendments.

Lord CAMPBELL of CROY

My Lords, I thank the noble and learned Lord for accepting them.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 37: Page 13, line 31, leave out ("(iii) to assign").

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 38: Page 14, line 19, at end insert ("and, in the case of a grant of land in feu, of all feuduties payable by the grantor to his superiors from and after the date of entry.").

The noble Lord said: My Lords, I beg to move Amendment No. 38. The purpose of Clause 16, as I understand it, is to shorten the form of existing deeds. I am advised that in a grant of feu the standard obligation of relief clause includes relief from all over-feuduties. I am sorry to use a technical term but that is what it is called, over-feuduties. Unless an Amendment of this type is accepted subsection (3)(b) will, I am told, not be used in feu grants because an obligation of relief clause will have to be inserted. Therefore, the intention of Amendment No. 38 is to simplify and carry out the purpose of the clause.

Lord McCLUSKEY

My Lords, I hope that the noble Lord, Lord Campbell of Croy, will forgive me for saying that, however unclear his explanation may appear to be, it could not possibly have been more clearly put and that derives I think from the difficulty of the subject matter. The Government are happy to recommend the acceptance of this Amendment to the House for the reasons which the noble Lord has advanced.

On Question, Amendment agreed to.

Clause 17 [Deeds of declaration of conditions]:

Lord McCLUSKEY moved Amendments No. 39 and 40:

Page 14, line 22, at end insert ("(a)")

Page 14, line 23, leave out ("in accordance with this Act") and issert ("(b) on the obligation being registered,")

The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 39 and 40 en bloc. Amendment No. 39 is simply a paving Amendment for Amendment No. 40, and the purpose of Amendment No. 40 is to clarify the meaning of the words: in accordance with this Act".

To discover this from the clause as presently drafted, it is necessary to refer to Clause 28(2) (which construes a reference to the recording of a deed in the Register of Sasines as a reference to registration) as read with Clause 2(1) (which describes those interests which are registrable). The Amendment shortcuts that process by setting out what had to be deduced from the words deleted by the Amendment. Accordingly, Amendment No. 39 is a simplifying Amendment which is associated with Amendment No. 40. I beg to move.

On Question, Amendments agreed to.

Clause 18 [Variations and discharges of land obligations]:

Lord McCLUSKEY moved Amendments No. 41 and 42:

Page 14, line 31, after ("any") insert ("(a)")

Page 14, line 33, after ("discharged") insert ("(b) registered variation or discharge of a land obligation").

The noble and learned Lord said: My Lords, I beg to move Amendments No. 41 find 42 en bloc. These Amendments are similar in principle to the Government Amendments to Clause 17. The purpose of the second Amendment is to set out the implications of the clause for the purpose of the Land Register. As in Clause 17, it is necessary to refer to Clause 28(2), as read with Clause 2(1). The Amendment renders that unnecessary. I beg to move.

On Question, Amendments agreed to.

Clause 19 [Agreement as to common boundary]:

Lord McCLUSKEY moved Amendments Nos. 43 and 44:

Page 15, line 6, at end insert ("and on all other persons having an interest in the land or, as the case may be, the lands.").

Page 15, line 13, at end insert ("and on all other persons having an interest in the land or, as the case may be, the lands.").

The noble and learned Lord said: My Lords, in moving Amendment No. 43 I am happy to acknowledge the assistance that we have received from both the Law Society and from the noble Lord, Lord Campbell of Croy. These Amendments ensure that an agreement in terms of the clause shall be binding not only on the singular successors of adjoining pro prietors, but on anyone else having an interest in the lands concerned. Typically this would be the holder of a standard security over the lands concerned. I beg to move Amendments Nos. 43 and 44 en bloc.

Lord CAMPBELL of CROY

My Lords, I rise simply to thank the noble and learned Lord for again having taken a point that was raised during the Committee stage.

On Question, Amendments agreed to.

Clause 20 [Tenants-at-will.]

Lord McCLUSKEY moved Amendment No. 45:

Page 16, line 22, at end insert— ("(7) A heritable creditor whose security is over the tenancy land or land which includes the tenancy land, on there being tendered to him the amount mentioned in paragraph (i) of subsection (3) above (as read with subsection (4) above) and his reasonable expenses, shall discharge or, as the case may be, restrict the security so as to disburden the tenancy land.").

The noble and learned Lord said: My Lords, Clause 20 (6) imposes an obligation on the landlord to convey his interest in the tenancy land to his tenant-at-will free of all heritable securities. There is, however, no corresponding obligation on a heritable creditor to discharge or restrict his security so as to disburden the tenancy land. Amendment No. 45 makes good that omission. I beg to move Amendment No. 45.

On Question, Amendment agreed to.

4.20 p.m.

Lord McCLUSKEY moved Amendment No. 46:

Page 16, line 22, at end insert— ("(8) In subsections (5) and (6) above, references to the conveying of the landlord's interest in tenancy land shall be construed in accordance with section 21(10) of this Act.")

The noble and learned Lord said: My Lords, in moving Amendment No. 46, I should refer at the same time to Amendment No. 49. The purpose of Amendment No. 46 is to apply to subsections (5) and (6) the definition of "conveyance" to be contained in new Clause 21(10). If the House approves, that is carried into the Bill by Amendment No. 49. Amendment No. 49 ensures that any reference to a "conveyance" in Clauses 20 and 21 shall be held to cover, first of all, a feudal title, secondly, a non-feudal title—that is to say a straightforward disposition—and, thirdly, an assignation of a lease, as appropriate. At this stage I beg to move Amendment No. 46.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 47;

Page 16, line 22, at end insert— ("(7) In this section and in section 21 of, and Schedule 1 to this Act, "tenant-at-will" means a person:—

  1. (a) who not being—
    1. (i) a tenant under a lease
    2. (ii) a kindly tenant; or
    3. (iii) a tenant or occupier by virtue of any enactment
    is by custom and usage the occupier (actual or constructive) of land not exceeding one decare in area used principally for residential purposes or purposes ancillary thereto on which there is a building or buildings erected by him or his predecessors or acquired for value by him or them
  2. (b) who is under an obligation to pay a ground rent to the owner of the land in respect of the said land but not in respect of any buildings erected thereon; and
  3. (c) whose right of occupancy of the land is without ish;

(8) In any case falling within subsection ( ) above where

  1. (a) there is no dwellinghouse on the tenancy land but there is another building or buildings; and
  2. (b) in all other respects the provisions contained in paragraphs (a) to (c) are complied with
the tenant-at-will will be able to avail himself of the provisions of this and the immediately following section, subject to the proviso that the landlord shall be entitled to receive compensation in terms of subsection (3)(a) of this section only.

(9) Any dispute arising under subsections (7) or (8) above shall be referred to the Lands Tribunal for Scotland who may make such order as they deem appropriate.").

The noble Lord said: My Lords, I beg to move Amendment No. 47. This is a rather different kind of Amendment because it is an attempt—and I think the first one in legislation—to define a "tenant-at-will". During the previous discussions in your Lordships' House the Government made clear that no one had yet apparently been able to produce a satisfactory definition of a "tenant-at will" or a "tenancy-at-will". They more or less issued a challenge—at least that is how I saw it—to anyone to do so if he could.

During the three weeks' interval since the Committee stage, there have been meetings and consultations with solicitors, particularly in the North East of Scotland where most of the tenancies-at-will are to be found. That is to say, there have been discussions with the solicitors who have been concerned with conveyancing with this very special kind of tenancy. As a result, this definition has been formulated I felt that it should at least see the light of day and therefore tabled it. It is a determined attempt to achieve what I understand the Government were hoping might be possible; namely, a definition which could go into the Bill.

I am also advised that the solicitors concerned would themselves see merit in having a definition of a "tenant-at-will" in the Bill, if it is possible to obtain a satisfactory one. I recognise that the Government may now need time to consider the terms of this Amendment so I would ask them to regard it as a first draft. If it has merit and if a refined version proves to be acceptable, then it could be put forward at the later stage of Third Reading or, of course, at some stage in another place where the Bill still has to pass.

I should point out that the Amendment on the Marshalled List contains an unusual word as regards legislation, though it is not uncommon in leases in Scotland—namely, the word "ish". That is a technical word, but I thought that I had better point it out in case any noble Lords thought it was a misprint. The general meaning is the opposite of "entry"; that is to say, "departure", "giving up" or "going out". I should also mention that the word "decare", which appears in the Amendment, means one-tenth of a hectare.

Finally, I want to explain the reference in subsection (8) which is now blank. It is intended to be the immediately preceding subsection, so that would be subsection (7). I believe that all who have been concerned in trying to define this extremely difficult subject will at least congratulate those who have been able to put forward this draft and suggest that it be considered. However, I recognise that so far this has proved to be an extremely difficult matter. Even though the noble and learned Lord may not have had time fully to consider this Amendment with his advisers, I hope that none the less he will continue to pursue this definition.

Lord McCLUSKEY

My Lords, I the entertained by the thought that when am Law Society of Scotland first commented upon this particular Bill it issued a statement about it in which it said, among other things, that the Bill was framed in language that people might find difficult to understand. Therefore I am rather pleased to see that when it comes forward with a definition which it has prepared itself after due consultations, all one requires to know—if one can follow the rest of it—in order to understand it is what a "kindly" tenant is, what a "decare" is and what an "ish" is. So maybe the Society will learn a little humility from the attempt, however successful, when it comes to criticise the drafting of others.

Having got that off my chest, I would simply say that we recognise that this definition contains much useful material and we believe that it takes us quite a long way towards solving the problem which we had hitherto rather avoided, on the principle that one would always be able to recognise a tenant-at-will when one saw one. However, that does not seem to satisfy those who practise in the North East where there are tenants-at-will. I am happy to say that this is a matter which we would expect to resolve at the Thursday meeting. On that understanding, it may be that having publicised this definition and ventilated the matter, the noble Lord, Lord Campbell of Croy will not press the Amendment at this stage.

Lord FRASER of TULLYBELTON

My Lords, I simply want to say that it is very desirable to have an attempt to legislate on this matter. In the course of my practice, so far as I can remember I have never come across a tenant-at-will in any form, either on the Bench or in the practice. To my way of thinking kindly tenants are rather commoner and do not present any particular difficulty. The tenant-at-will does, and this is a useful attempt at a definition.

Lord KINROSS

My Lords, I too, have never had any practice which concerned a tenancy-at-will but then I do not practice in the North East of Scotland where this kind of thing prevails. Will the noble and learned Lord, Lord McCluskey, give an assurance that in the Bill there will be a definition of a "tenant-at-will"? If there is not such a definition, I believe that we shall reach a state of chaos. It will not be good enough to have a document issued as guidelines because, as we know, guidelines can be varied and fall between extreme limits, as the guidelines in recent wage negotiations have done. Therefore, in order to understand this part of the Bill it is essential that there should be some definition of a "tenant-at-will".

Lord McCLUSKEY

My Lords, with leave, if I may respond to that particular question, I cannot give an assurance that there will be a definition. I believe that we may well come to agreement as to a definition, but it is better to have no definition than to have a bad one in the Bill. In a previous Bill where the term was used, no definition was given. That Bill gave certain housing improvement grant rights to tenants-at-will and that has actually worked, despite the fact that there was no definition. So it has worked upon the principle that those who were tenants-at-will were seen to be so when they preclaimed themselves to be. However, I hope to reach a definition and, if we do, it will appear at Third Reading.

Lord CAMPBELL of CROY

My Lords, I am grateful to the noble and learned Lord, Lord McCluskey, for under taking to consider this further. I am sure that the solicitors who have been involved with tenants-at-will will also be grateful when they hear that the Governmentare continuing to consider this elusive definition and will try to find a suitable and satisfactory one.

As he indicated, the noble and learned Lord has certainly had his opportunity to respond to the Law Society of Scotland about its original criticism of the Bill in saying that in its attempts to formulate definitions it has produced some rather unusual words. I would point out that although a tenant-at-will is a fairly rare person, as those qualified in law in Scotland who have spoken in this debate have indicated, the word "ish" is not very rare because it appears in leases of different kinds in Scotland. It is a Scots legal term, but an unusual one, and that is why I thought I ought to draw attention to it in the Amendment. In the light of the noble and learned Lord's undertaking to continue to consider this matter, and knowing that further discussions will be taking place with those who will have to deal with the Bill when it is enacted later, where tenancies-at-will are concerned, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 [Provisions supplementary to Section 20.]

4.31 p.m.

Lord McCLUSKEY moved Amendment No. 48: Page 18, line 6, leave out ("this section") and insert ("section 20 of this Act").

The noble and learned Lord said: My Lords, this is simply a drafting Amendment to rectify an incorrect reference to "this section". It is to be changed to "Section 20". I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 49:

Page 18, line 6, at end insert— ("(10) In this section and in section 20(5) and (6) of this Act, references to the conveying of the landlord's interest in the tenancy land shall be construed as references to a grant by him of a feu of that land or a transfer by him of it, and, in this section, "conveyance" shall be construed accordingly.").

The noble and learned Lord said: My Lords, I have already addressed the House on this Amendment. I beg to move.

Lord CAMPBELL of CROY

My Lords, I would just say that this appears to be an alternative. It is a starred Amendment so it has only appeared today, but it appears to be an alternative to Amendment No. 50 standing in my name. Therefore, this would be the appropriate moment for me to say that I think the Government Amendment meets the same point, and if the Government would prefer it I would accept this rather than my Amendment No. 50.

Lord McCLUSKEY

My Lords, I am grateful for what the noble Lord has said. I think his judgment in that is correct.

On Question, Amendment agreed to.

[Amendment No. 50 not moved.]

4.32 p.m.

Lord McCLUSKEY moved Amendment No. 51: After Clause 21, insert the following new clause:

Provisions supplementary to section 20: heritable creditors.

(".—(1) The provisions of this section shall have effect where a heritable security over tenancy land or over land which includes tenancy land falls to be discharged or restricted under section 20(7) of this Act.

(2) The heritable creditor shall be entitled for his interest to apply, and to be a party to an application, under section 21(1) of this Act.

(3) The Lands Tribunal for Scotland, if they are satisfied that the heritable creditor is unknown or cannot be found, may, on the application of the tenant-at-will or his landlord or both, make an order fixing the amount required to discharge or restrict the heritable security so as to disburden the tenancy land.

(4) If the heritable creditor—

  1. (a) fails to disburden the tenancy land in accordance with section 20(7) of this Act, or
  2. (b) is unknown or cannot be found, the tenant-at-will or the landlord or both may apply to the sheriff for an order dispensing with the execution by the heritable creditor of the deed of discharge or restriction in favour of the landlord and directing the sheriff clerk to execute the deed instead of the heritable creditor and on making such an order the sheriff may require the landlord to consign in court any amount or expenses which the landlord requires to pay for the purposes of section 20(3)(i), (4) and (5) of this Act to the heritable creditor or, as the case may be, any amount specified in an order under subsection (3) above.

(5) Where, in pursuance of an order made by the sheriff under this section, a deed of discharge or restriction is executed by the sheriff clerk on behalf of the heritable creditor, such deed shall have the like force and effect as if it had been executed by such heritable creditor.

(6) The sheriff may, on the application of any party, order the investment, payment or distribution of any amount consigned in court under subsection (4) above, and in so doing the sheriff shall have regard to the respective interest of any parties appearing to have a claim on such amount.

(7) Nothing in section 5 of the Sheriff Courts (Scotland) Act 1907 shall entitle any party to an application to the sheriff under this section to require it to be remitted to the Court of Session on the grounds that it relates to a question of heritable right or title.

(8) A heritable creditor shall have power to execute a valid deed of discharge or restriction in pursuance of this section notwithstanding that he may be under any such disability as is mentioned in section 7 of the Lands Clauses Consolidation (Scotland) Act 1845.").

The noble and learned Lord said: My Lords, this is rather a long Amendment, but it is consequential on the new Clause 20(7) which obliges a heritable creditor to discharge or restrict his security over tenancy land when the tenant-at-will acquires it. We gave consideration to a translation provision which would be shorter in order to make appropriate references to the application of Clauses 20 and 21 to heritable creditors, but it was considered preferable after that attempt to spell these out in a separate clause for reasons of clarity. It will be recognised that the new clause simply adapts as necessary the appropriate provisions of Clauses 20 and 21. I beg to move.

On Question, Amendment agreed to.

Clause 22 [Fees]:

Lord McCLUSKEY moved Amendment No. 52: Page 18, line 19, leave out ("necessary") and insert ("reasonably sufficient").

The noble and learned Lord said: My Lords, the Amendment seeks to insert words which appear in Section 25 of the Land Registers (Scotland) Act which is being replaced by Clause 22. The word "necessary" which is at present in the Bill would impose an impossible rigidity on the fixing of fees. It would or might rule out a level of fees which created even a small surplus over the expenses of the Department. The proposed Amendment introduces a necessary element of flexibility. I beg to move.

On Question, Amendment agreed to.

Clause 24 [Appeals]:

Lord McCLUSKEY had given Notice of his intention to move Amendment No. 53: Page 18, line 30, after ("any") insert ("alternative".

The noble and learned Lord said: My Lords, I should indicate that I do not intend to move this Amendment. It was intended in fact to avoid doubt. The purpose of Clause 24(2) is to preserve an appellant's existing right of recourse to the courts, notwithstanding that Clause 24(1) nominates the Lands Tribunal as the forum for appeals arising from anything done or omitted to be done by the Keeper under the Bill. It is not, however, intended that an appeal can be taken to a court of first instance if the same matter has already been dealt with by the Lands Tribunal.

The Amendment was intended, as it were, to cut off recourse to the ordinary courts if the appellant had chosen to go to the Lands Tribunal and the Lands Tribunal had dealt with the matter. But looking at it particularly carefully today we were not satisfied that it works, so I propose, with leave, not to press this Amendment at this stage but to come back with, I hope, a small Amendment at Third Reading. If no noble Lord wishes to speak I shall not move this Amendment.

[Amendment No. 53 not moved.]

Clause 26 [Rules]:

Lord McCLUSKEY moved Amendment No. 54:

Page 19, line 9, at end insert— ("( ) prescribing the form of deeds relating to registered interests in land;")

The noble and learned Lord said: My Lords, this is simply for the avoidance of doubt. It is not certain that the important category of deeds described in the Amendment is covered in the existing paragraphs of Clause 26, which contain matters regarding which the Secretary of State may make rules. I beg to move.

On Question, Amendment agreed to.

Clause 27 [Interpretation etc.]:

4.36 p.m.

Lord McCLUSKEY moved Amendment No. 55: Page 19, line 27, leave out from ("any") to end of line 28 and insert ("estate, interest, servitude or other heritable right in or over land, including a heritable security but excluding a lease which is not a long lease;")

The noble and learned Lord said: My Lords, I think that this is one of the last of the important matters that stand over, in effect, from the earlier discussions. Amendment No. 55 is designed in part to meet criticism from the Law Society of Scotland and from the noble Lord, Lord Campbell of Croy, that the present definition in the Bill of "interest in land" did not appear to cover heritable securities. The definition is therefore expanded to include specific reference to "heritable security". In addition the definition excludes short leases from the "interest in land" for the purposes of the Bill. Such leases cannot at present be recorded in the Register of Sasines, and the position will be the same as regards the Land Register. It is helpful to have this made clear in the definition. I beg to move.

Lord CAMPBELL of CROY

My Lords, as the noble and learned Lord has said, this is one of the most important matters which has come up since the Bill was first introduced. We are therefore glad to see that the Government have accepted the advice that has been offered and have produced an Amendment for a definition on the lines suggested.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 56:

Page 19, line 30, at end insert— (" "land" includes buildings and other structures and land covered with water;")

The noble and learned Lord said: My Lords, this Amendment seeks to introduce a definition of "land" for the first time in the Bill. The Bill is in the main concerned with interests in land but there are also references to land as a physical entity—for example, in Clause 19(1). The new definition of "interests in land" makes this additional definition necessary. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 57: Page 19, line 31, after ("lease") insert ("(a)")

The noble and learned Lord said: My Lords, Amendment No. 57 is in the happy position of standing in the names of both the noble Lord, Lord Campbell of Croy, and myself. Amendment No. 57 is associated with later Amendments Nos. 58 and 59. Amendment No. 58 was proposed by the Government in response to a point raised by the noble Lord, Lord Campbell of Croy, at Committee stage. He asked whether a 10-year lease with the option to renew for at least another 10 years, so adding up to 20 years, or more, would be covered by the definition in the Bill of a long lease.

This, when we looked at it, was not beyond doubt, although the intention certainly was that this type of lease should be so covered. Amendment No. 58 therefore was intended to ensure this. It was in fact modelled on the definition of a long lease in Section 8(4) of the Land Tenure Reform (Scotland) Act 1974. However, when this was studied by the Law Society Conveyancing Committee they brought to our attention at the meeting that I attended with them last week that the words "or the grantee" were in, and they argued against their being in. When one looks at Amendment No. 59 in the name of the noble Lord, Lord Campbell of Croy, one observes that these words are not included. We consider that that is preferable to the Amendment which stands in my name. No 58. Accordingly, when we come to that I will ask the House not to accept Amendment No. 58 but to prefer Amendment No. 59. In the meantime, I beg to move Amendment No. 57.

Lord CAMPBELL of CROY

My Lords, I agree with the noble and learned Lord that it would be convenient to discuss Amendments Nos. 58 and 59 at this moment because our common Amendment No. 57 is simply an introductory Amendment to one of these alternatives. The noble and learned Lord has recorded how the Government did respond—and I thank him for doing so—to the query about leases which would add up to 20 years or more; and he has also recorded the difference that has occurred between the drafting of the Government's Amendment and the variation preferred by the Law Society. I am glad that he finds as a convenient way of choosing between the alternatives to accept Amendment No. 59, and I agree this would be satisfactory. I hope it will close this subject at this stage rather than needing further amendment on Third Reading.

On Question, Amendment agreed to.

[Amendment No. 58 not moved.]

Lord CAMPBELL of CROY moved Amendment No. 59:

Page 19, line 31, at end insert ("or (b) which is subject to any provision whereby any person holding the interest of the grantor is under a future obligation, if so requested by the grantee, to renew the lease so that the total duration could (in terms of the lease, as renewed, and without any subsequent agreement, express or implied, between the persons holding the interests of the grantor and the grantee) extend for more than 7 years;").

The noble Lord said: My Lords, I beg to move this Amendment, it being the one preferred by the Government.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 60: Page 20, line 9, leave out ("over the interest").

The noble and learned Lord said: My Lords, this is simply a drafting Amendment which removes words which are superfluous in view of the reference to "interest over it" in Clause 27(1).

On Question, Amendment agreed to.

Clause 28 [Amendment and repeal of enactments]:

Lord McCLUSKEY moved Amendment No. 61: Page 20, line 33, leave out (", including sections 17 and 18 of this Act,").

The noble and learned Lord said: My Lords, this is purely consequential on the earlier Amendments, Nos. 39 and 42. I beg to move.

On Question, Amendment agreed to.

Schedule 1 [Form of notice to be given by a tenant-at-will who wishes to acquire his landlord's interest as such in the tenancy]:

Lord McCLUSKEY moved Amendment No. 62: Page 22, line 8, leave out ("grant him a conveyance of") and insert ("make over to him").

The noble and learned Lord said: This is also consequential, my Lords, this time on the Amendments to Clauses 20 and 21, which clarified the use of the words "conveying" and "conveyance" in those provisions. Amendment No. 62 also has the merit that it puts into the form words which are simpler to understand, namely, "make over to him".

On Question, Amendment agreed to.

Schedule 2 [Amendment of enactments]:

Lord McCLUSKEY moved Amendment No. 63: Page 23, line 2, after ("28") insert ("of the Conveyancing and Feudal Reform (Scotland) Act 1970").

The noble and learned Lord said: My Lords, this is purely a drafting Amendment to insert the title of the measure to which Section 28 applies.

On Question, Amendment agreed to.

Schedule 4 [Repeals]:

Lord McCLUSKEY moved Amendments Nos. 64 and 65:

Page 25, line 15, at end insert—

("1693 c. 22. The Real Rights Act 1693. The words "and priority".").
Page 25, line 17, at end insert—
("1868 c. 64. The Land Registers (Scotland) Act 1868. In section 6, the words "stamp the words "by post" ", the words "and thereafter" and the words "transmitted by post" where secondly occurring.
1868 v. 101. The Titles to Land Consolidation (Scotland) Act 1868. In section 142, the words "transmitted by post in terms of the Land Writs Registration (Scotland) Act "1868".").

The noble and learned Lord said: My Lords, the parts of the Acts repealed be these Amendments all contain provisions as to the ranking of titles to land which are at variance with Clause 7 which deals with the ranking of titles. I think I need say no more in relation to either.

The Earl of SELKIRK

My Lords, as we leave the Report stage, perhaps the noble and learned Lord would be good enough to give us some idea of how the operational areas will be brought into play. Where will the registration start and, roughly speaking, at what speed does he think it might proceed? It would be of interest to know that. I would not expect him to answer that today; perhaps he will give us the information on Third Reading. I would add that it is particularly agreeable to find a Bill which has almost entirely been agreed and extensively amended, and we are grateful to the noble and learned Lord for that.

Lord McCLUSKEY

I shall certainly be happy to deal with that matter, my Lords. I think it has already been given some publicity, but it would be convenient at least to give a short description of what the intentions are in relation to bringing the measure into operation in the different areas of Scotland over the next decade or more.

Lord CAMPBELL of CROY

My Lords, as we part with the last two Amendments, I wish to add to what my noble friend Lord Selkirk said about the thanks that are due to the noble and learned Lord, Lord McCluskey, the Solicitor-General for Scotland, for the great attention he has clearly given to the Bill in the last three weeks and for being able to agree so many of the points at this stage.

On Question, Amendments agreed to.