LAND REGISTRATION (SCOTLAND) BILL [H.L.]

HL Deb 16 January 1979 vol 397 cc883-930

House again in Committee.

4.17 p.m.

Lord McCLUSKEY moved Amendment No. 8: Divide Clause 2 into two clauses, the first consisting of subsections (1) to (5), and the second consisting of subsections (5) to (9).

The noble and learned Lord said: As your Lordships will see, this is the Amendment to which I referred at an earlier stage. It is intended to make the large Clause 2 into two smaller clauses. I understand it is accepted by the House authorities that there is a misprint in the Amendment as printed in that (5), where it appears in the second line, should be (4) because the first new clause will consist of (1) to (4) inclusive and the second of (5) to (9) inclusive. The remarks I made earlier about ensuring that subsection (9) applies to both apply here.

The CHAIRMAN of COMMITTEES (Lord Aberdare)

The Question is that Clause 2 be divided into two clauses, the first consisting of subsections (1) to (4) and the second consisting of subsections (5) to (9).

On Question, Amendment agreed to.

Clause 3 [Applications for registration]:

4.18 p.m.

Lord McCLUSKEY had given notice of his intention to move Amendment No. 9: Page 4, line 10, leave out ("immediately") and insert ("in the first instance").

The noble and learned Lord said: With the leave of the Committee, I will speak at the same time to Amendment No. 10. As your Lordships will see, Amendments Nos. 9, 9A, 10 and 10A signify a shared dissatisfaction with the word "immediately", but a lack of agreement between myself and the noble Lord, Lord Campbell of Croy, about what should take its place. I go a stage further and say I am not satisfied that the words I propose to put in place of the word "immediately"—namely, "in the first instance"—do the job either.

The present position is that, while not satisfied with the word "immediately," I am not satisfied that the words "in the first instance" are right, and I would ask Lord Campbell to consider not pressing his Amendment either at this stage. We are thinking about all the alternatives. We hope to arrive at one that is better than any of those at present on view, and accordingly I do not propose to go through the unnecessary exercise of inserting words I think I shall have to take out. In those circumstances, with the leave of the Committee, I do not move Amendment No. 9.

Lord CAMPBELL of CROY moved Amendment No. 9A: Page 4, line 10, leave out ("immediately") and insert ("unreservedly").

The noble Lord said: While the Government are considering this matter it may be helpful if I make a suggestion or two. As the noble and learned Lord has said, we have both independently proposed that the word "immediately" should be deleted from the Bill, and my Amendment No. 9A, which I now move for the purpose of probing and discussion, would insert in its place the word "unreservedly". One of the shortcomings of the noble and learned Lord's Amendment No. 9 involves the meaning of the words "in the first instance", because the moment when a document is first handed over the counter at the building where the Keeper and his staff will work could be regarded as "in the first instance". Indeed, the person who hands in a document may well be given a receipt. I should expect him, even if he is only a messenger, not to depart without a receipt. It could be said, therefore, that it had been accepted "in the first instance", whereas what we really mean is "after examination".

Therefore, I ask the noble and learned Lord when he is considering an alternative, to consider not only the word "unreservedly" which I have suggested for insertion in two places, but also the possibility of inserting the words "after examination". The difficulty is that it could be a few days later before the Keeper or his staff can say whether or not they are prepared to accept the document which has been handed in. I recognise that there is a difficulty in drafting here. I believe that both sides of your Lordships' Committee are aiming at solving the same problem, but I agree with the noble and learned Lord that his first suggestion of "in the first instance" could raise difficulties, for the reason that I have given. I hope that the noble and learned Lord will consider that point, and I beg to move the Amendment in case he wishes to say anything on it.

Lord McCLUSKEY

Certainly that suggestion will be considered along with others which are currently being considered. Perhaps I should have made plain that the concept involved here is that, when the application is first received by the Keeper, it may be that there has simply been an omission to do something or to produce something to him and that therefore it does not fall to be accepted by him, though he does not intend to reject it provided that what is missing is produced, nor indeed does the applicant intend to withdraw it. Therefore, there may be a kind of limbo period when he hangs on to the application and the documents which accompany it but is waiting for something else to make the matter complete. It is that concept which lies behind this, and it is in order to give proper expression to it that we are looking at a better alternative. I am grateful to the noble Lord for his suggestion, which we shall certainly consider.

Lord CAMPBELL of CROY

In view of our agreement to try to seek the best words we can, and hoping that this will lead to an Amendment at Report stage, I beg leave to withdraw Amendment No. 9A.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 and 10A not moved.]

Lord CAMPBELL of CROY moved Amendment No. 11: Page 4, line 15, leave out ("withdrawn") and insert ("rejected by the Keeper or withdrawn by the applicant").

The noble Lord said: The Amendment would remove the word "withdrawn" and insert the words "rejected by the Keeper or withdrawn by the applicant". We think that there is a distinction between withdrawing something, that being a active step on the part of the applicant, and rejection, which appears to be an act by the Keeper. If the Amendment does not immediately commend itself to the Government, I would ask the noble and learned Lord if he would consult the Keeper about the Amendment, if he has not already done so, because we think that it is necessary to make clear that there can be a rejection or there can be a withdrawal. One would be by the Keeper, and the other would be by the applicant. I beg to move.

Lord McCLUSKEY

I can say that the Keeper has already been consulted on this point, and indeed had he not been consulted I do not think that we could have prevented him advising us on it. With his advice, we accept that there is a distinction of the kind that has been mentioned by the noble Lord. As I understand the situation, if the noble Lord does not pursue the Amendment, the Government will certainly consider an appropriate Amendment to clarify the matter, and that will be put down at Report stage.

Lord CAMPBELL of CROY

I am very grateful for those words and for the noble and learned Lord's intention to find a suitable Amendment. I shall be happy to leave this to the Government's draftsmen, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.26 p.m.

Lord CAMPBELL of CROY moved Amendment No. 12: Page 4, line 18, leave out subsection (4).

The noble Lord said: Several noble Lords referred to this matter in our Second Reading debate. The main point here is that there could in some cases be a quite unnecessary burden if an area has to be measured precisely and the information provided. Some cases could involve a number of areas spread over different parts of Scotland and separated one from another. At present there are pieces of land in Scotland which are transferred from one person to another and which have very strange descriptions. We hope that in about 30 years' time this Register will help make the picture much clearer. Certainly, there are areas which have never been measured precisely and where it would be an expensive, and we think unecessary, job to have to carry that out for registration.

The noble and learned Lord, Lord Fraser of Tullybelton—and I am very glad to see that he has been able to join us after judicial proceedings this afternoon—pointed out in the Second Reading debate that there appeared to be no sanction or remedy if the measurement submitted was wrong or inaccurate. There do not appear to be provisions in the Bill as now drafted to ensure that the purpose of this subsection would be carried out. Here again, I would ask the noble and learned Lord whether he has consulted the Keeper on this question, because I believe that the Keeper himself could provide the required information, either within a prescribed programme or as land is registered. The cost to the Keeper of providing this information is likely to be very small in relation to the overall costs of registration, and as the noble and learned Lord confirmed earlier this afternoon, it will take almost 30 years for a picture of the registration of the whole of Scotland to emerge, as well as to discover anything approaching the precise areas involved. I believe that the Keeper could carry out this task without great difficulty by use of instruments and maps in order to produce the information to the degree of accuracy required and without in all cases physical examination of the ground.

I should like to raise some other points, too. First, it has been pointed out to me that if, despite what I have said, the Government decide to keep something similar to this subsection in the Bill, servitudes, wayleaves, superiorities, and long leases should be excluded. In the case of superiorities, if they were not excluded, the result could give the impression at the end of about 30 years that Scotland was about twice the geographical size that it is.

The other point I should like to raise concerns the question of common grazings. Have the Government looked into the impact on them of this subsection? It would appear that, by chance, someone might be landed with the expense of measuring, or of having measured, some common grazings because they were over 2 hectares and he happened at the time to be the person who was involved with the registration. Those are two further points which arise on this subsection. I think the noble and learned Lord will realise that we do not expect him necessarily to agree to this Amendment today, because it is a complicated matter, but we do have doubts about it and we hope that the Government will look very seriously at this subsection. I beg to move.

Lord McCLUSKEY

As the noble Lord has indicated, this is a matter which was raised during the Second Reading debate; and, indeed, the noble and learned Lord, Lord Fraser of Tullybelton, specifically referred to it in the terms just mentioned. But, of course, on that occasion he acknowledged, and I would repeat briefly now, that there is the sanction that if the application did not disclose the area in a case where such disclosure was required, the Keeper could refuse to accept for registration. Indeed, that is a sanction of the general character which the Bill applies in relation to other matters.

I was asked whether the Government had consulted the Keeper. Of course, the answer to that is certainly, "Yes". Indeed, as the noble Lord, Lord Campbell of Croy, could no doubt confirm, the technical aspects of this matter were discussed by the representatives of the Law Society and myself at a meeting last week which the Keeper also attended. On that occasion, it was understood and accepted by the Government that the expense of this particular exercise would probably be less if it were done by the Keeper than if it were done by the individual applicant. On the other hand, the expense would not necessarily be large in relation either to the cost of maintaining the register generally or, indeed, to the cost of any particular application in relation to a large estate; and certainly it appears that the measurement could be done by means of instruments and maps, at least in a number of cases. It may be that physical inspection would be more likely to be necessary where the area was more nearly 2 hectares than in cases where it was very much larger.

Again, I am in principle sympathetic towards the suggestion—which we had also considered—that such matters as servitudes and the other matters mentioned by the noble Lord, Lord Campbell of Croy, do not necessarily need to be included here, although, of course, as the Bill stands, that would be the effect of the provision. Indeed, I think this is a matter which we must reconsider in the light of the criticisms which have been made and in the light of the absurdity to which the noble Lord, Lord Campbell of Croy, pointed—that is, that if in fact one starts to give areas in relation to servitudes, wayleaves and superiorities, one ends up with a Scotland substantially larger in these terms than in fact it is. We are basically concerned with disclosing title to the dominium utile in relation to the larger estates, "larger" meaning larger than 2 hectares.

However, in defence of the subsection as it stands I should say that its purpose is to make public the knowledge as to who has the title to larger areas of land, and I would submit that that is not an improper purpose in relation to what purports to be a land register. Indeed, if you have the time and patience, you can even at the present time go to the Register of Sasines and discover, perhaps not with precision but with reasonable precision, which are the large estates, and you can make a reasonable estimate of their extent. The effect of this provision would be that, as land came on to the Land Register and the estates over 2 hectares were designated as such as a result of this subsection, it would be possible, fairly instantly and no doubt through the use of the computer, to get a very clear picture as to what parts of Scotland contain titles in persons who have more than 2 hectares.

Now, it was said by the noble Lord that this subsection might create an unnecessary burden. I wonder if that is wholly true when you consider that many large estates that would be affected by this provision are in fact farms, and, of course, it would be an odd farmer who did not know fairly accurately what his own acreage was. I would think that most farmers, if not all, would know their own acreage. Indeed, when you come to consider the mechanics of this, the application is in relation to some change in the interest in land, and one would have thought that even in the case of estates in respect of which at the present time the acreage or the hectarage is not known, the likelihood is that when the estate is put upon the market and there are particulars of sale produced, then the particulars of sale themselves will disclose how many acres or how many hectares are comprised in the estate which is up for sale. Indeed, if the seller does not disclose it, the likelihood is that the purchaser will want to know it. So the likelihood is that, even in the case of those estates where the acreage is not already known, it will become known for the purposes of the transaction; and, accordingly, the burden is not likely to be very large.

To come back to a point which I touched on earlier, I suggest that there is a legitimate public interest here. Noble Lords who are familiar with this matter will recall that in Scotland in the last year or so, if not more, there has been considerable public interest in the fact that persons from abroad—different countries, both in Europe and elsewhere—have acquired land in Scotland. While there is nothing improper in that and nothing illegal about it, none the less it is a matter with which the public have been concerned, and it may be that in the future this provision would make it easier to know exactly what is the position.

Having said all that, I have some sympathy for the observations which have been made in relation, for example, to the expense, and I am certainly prepared to consider and discuss with my colleagues the matter of the expense and on whom it should fall. In effect, as a result of the present provision, the expense would appear to fall upon the applicant, and it may be that if it were much cheaper to make it fall upon the Keeper, then one should consider that alternative. Equally—and I think this is a point which arose on Second Reading—the subsection as it stands does not allow any tolerance, as it were. If the estate is exactly 2 hectares, there is an obligation to disclose that in the application, and it may be that the question of accuracy is one that we ought to look at again so that the marginal case is not too harshly dealt with; and, of course, I have already mentioned the question of servitudes, wayleaves, superiorities and common grazings, which are not really in the same degree and category as the ownership of the dominium utile. But subject to what I have said, to my anxiety to meet the legitimate criticisms and to my intention to bring these criticisms, with my own views, to the attention of my colleagues, I would ask the noble Lord, Lord Campbell of Croy, not to press this Amendment at this particular stage.

4.40 p.m.

Lord FRASER of TULLYBELTON

Before the noble and learned Lord sits down, I wonder whether I may bring him back to the question of sanctions. As I understand his answer, there is a complete sanction against the applicant who puts in no acreage at all, but there seemed to be no sanction against an inaccurate statement of acreage and no mention of how accurate it is supposed to be. Is there not a substantial risk that if people begin to put in inaccurate acreages just in order to get past the Keeper, the Register would be in a far worse condition with wrong statements in it than with none at all? That is one of the troubles in not having some sort of ruling about accuracy and some means to enforce it.

Lord McCLUSKEY

I am aware that what I am going to reply is not a complete answer to the noble and learned Lord, but in Clause 11(3)(e) on page 9 line 35 there is no entitlement to indemnity under this section in respect of loss where the loss arises as the result of such a failure. That is the only other provision to which I can direct attention, but it is not in the nature of a sanction. One does not want to take a Bill of this kind and put into it criminal sanctions or other severe penalties that would be suffered if some kind of mistake is made. One would have thought that in the cases which are marginal, one has on the one hand the applicant, who will usually know the acreage or hectarage, one has the Keeper who can make a reasonable guess at it and who from the Ordnance Survey might be able to make an accurate measurement of it; and one would have thought disputes, as it were, are not likely to arise. If the expense can be kept down and if the expenses are modest in relation to the transaction itself, there will not be a great incentive for people to try to deceive the Keeper and the Keeper will not be too readily deceived. One would hope that one would not have to get into the field of sanctions; but it is a matter, with all the others, that I will take into account.

The Earl of SELKIRK

We have had rather a peculiar answer from the Government in regard to this. This Bill deals with the registration of title. The noble and learned Lord has not given a single reason why this particular clause would be of value with that purpose in mind. He was frank, and we are always grateful for that, and he said it is a matter of legitimate public interest. That may well be so, but it has nothing to do with the registration of property. He said that the Keeper knows fairly well the size of the property. Why should not the Keeper make that available if anyone wants to know? If he were asked, "What is the property of Mr. So-and-so?", the Keeper would know that from his Register and the Government could legitimately reply in Parliament or elsewhere if this question were put. But it is only adding an additional burden.

My noble and learned friend said that it might be inaccurate. I do not think that at the present time size of property is normally registered in the Register of Sasines. I do not think so; I am not familiar with it, for it is many years since I did it. There could be a conflict between the march line of a property and the size. It is quite possible for this to happen. That would be of no advantage. What matters is where the lines of demarcation are clearly marked. That is important, but the size of the property has nothing to do with registration. It would be much simpler to omit this. In due course, if the Registrar refused to register because he did not accept the size of the property, this is going to be the only real title; and the owner of the property would be put into a ridiculously impossible position. I am glad that the noble and learned Lord is to go into this. The clause is quite unnecessary for the general purposes for which this Bill is designed and I think that it could be properly omitted.

Lord McCLUSKEY

My Lords, in answer to that, of course, there may be many older titles—indeed, there are—which do not contain any indication of the acreage or the area; but modern titles already often do so in practice. The acreage of almost all farms, for example, is known and that is disclosed. If one thinks of the builders' plots, then they almost invariably indicate the area. I have been given one example, of Messrs. Wimpey, who give the area to the third decimal place. It is not very unusual.

The noble Earl also said that we are talking about a Land Register and that this has nothing to do with a Land Register. I do not agree with that. In fact, the noble Earl will doubtless recall that the Land Register at this moment contains matter which is not strictly necessary. For example, it records the normal conveyance that is seen in the search and is on the Register; and that includes the price. It is there because it happens to be in the conveyancing document; but the price that was paid yesterday or 20 years ago is not particularly relevant to the question of title. One sees at the present time that the Land Register, or Register of Sasines, contains material which is not essential to a Land Register; but I am looking at it in another way. One may say that here we have the Land Register of Scotland; can we find how many large estates there are over a certain size and who has the title? It is not an illegitimate purpose of such a Register to contain that. If it can be done conveniently and cheaply this way, I should have thought it was reasonably sensible to try to do it.

Lord CAMPBELL of CROY

I am grateful to the noble and learned Lord for saying that he and his colleagues will look hard at this subsection again. Like my noble friend Lord Selkirk, I have been surprised that there should be this requirement in a Bill which the noble and learned Lord himself said earlier was going to be something for the lawyer, the solicitor, who specialises in conveyancing. When I was making a plea for the layman such as myself trying to find his way around this Bill, the noble and learned Lord said that on the whole the general public are not going to be looking at this; that it is something that the solicitors who are concentrating on conveyancing will soon familiarise themselves with.

May I say I do not myself object to the principle which the noble and learned Lord has given: that is to say, that while we are compiling a new Register, which is going to take about 30 years before it gets near to completion, we might also at the same time take the opportunity of trying to put together dimensions and, at the end of the day, get a picture of the size of various estates, plots of land or parcels of land, whatever they may be. But that will take at least 20 years, as I have indicated, to get even a first general impression, so that it does not really answer the present topical point which has been in the Scottish Press during the last year or so about certain Dutchmen coming over and buying some parts of Scotland which, in the end, turn out to be very small percentages of the Highlands or of other parts. This will not answer that point, for in 20 years' time we can be sure something different will be the topical point of the moment.

None the less, I see that this is a byproduct which could be achieved in due course. My point is that it ought not to require people to be put to the amount of trouble and expense that they could be as the subsection is now drawn. In answer to the noble and learned Lord, Lord Fraser of Tullybelton, the noble and learned Lord, Lord McCluskey, said that the Keeper would have to do a rough check, or even an accurate check, to see whether the information he was given was not something that had just been dreamed up and was completely inaccurate. If through his staff he is going to have to do some kind of instrument and map check, anyway, on anything sizable that is being registered, then my contention is that he could probably, with little extra cost, perform the whole function, if it is to be done. As I say, over a period of years a picture will emerge which is what the Government are aiming at and what after 20 years or more I think will be useful.

When I first saw this subsection, no doubt like others who are not familiar with conveyancing, I thought that this was mainly a difficulty arising in moors and mountains, in the Highlands and near my home, for example, where I know that large tracts of land have simply been described by an area on one side of a watershed and down to a burn, or something like that; nobody has tried to find out what its measurements are. However, I have been told by Scottish solicitors in the past few weeks, while I have been considering this Bill, that they have been carrying out transactions of farms involving arable land where everybody knows that the acreage—no doubt to be called the hectarage in future—is a notional figure, and the farm has never been measured.

It might be called 250 acres, for example, but the landowner originally never knew what it was and the farmer who is coming in and buying it now is not interested either. He goes round and looks at the farm and sees what the marches are, looks at the land and is happy to take it at the price without necessarily checking whether it is exactly 250 acres, or whatever the notional figure is. I have in recent weeks been told that by conveyancing solicitors. This is not in the remote areas of Scotland, but still happens in areas where there is good farming land. I was surprised but was told that this still happens. So it could be a burden on somebody to have to go round and measure a farm accurately in those circumstances. It might cost £500 or £600 to do it accurately on the ground. That is an illustration of something which apparently still exists in Scotland of which I was certainly unaware. I realised that there were problems in the remoter areas or in the moors and mountains. It is, of course, quite possible at the moment to know what the really large estates are. In case any Members of the Committee do not know it, I can tell them who is the largest landowner in the whole of Great Britain—I have occupied that post. He is the Secretary of State for Scotland. It does not need a register for that to be known because that is in relation to the area of Scotland. A lot of that land is moor, mountain or croft. None the less, the Secretary of State for Scotland is not only the largest landowner in Great Britain but also the largest landowner in Scotland.

Over a period of years some of that land, which may not have been measured too accurately in the past, may have to come under this process if eventually all that land has to be registered, and presumably it will within 30 years. But I hope that the Government themselves will do something to spare any additional work by civil servants that might be necessary towards the end of that period if some of the moorland and mountain which is owned by the Secretary of State, which has not hitherto been properly measured, has to be subjected to this. I hope that the noble and learned Lord will take these matters away and, unless any other noble Lord wishes to intervene, I shall now beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Completion of registration]:

4.54 p.m.

Lord McCLUSKEY moved Amendment No. 13: Page 4, line 23, leave out ("of") and insert ("in respect of").

The noble and learned Lord said: Amendment No. 15 is in the same sense as Amendment No. 13 and I shall not speak to that separately. Both Amendments are for the avoidance of doubt. The present words "registration of an interest" might be held as excluding a registration which affects an interest but which is not a registration of the interest itself. The words in the Amendment ensure that the latter situation is covered. That is the purpose of this Amendment. I beg to move.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 14: Page 4, line 23, leave out ("heritable security").

The noble Lord said: I suggest that we consider Amendments Nos. 14 and 16 together. These Amendments, like the others we have considered earlier today on the question of definitions, are dependent upon Clause 26 and the definition at the top of page 19 of the Bill. In view of what the noble and learned Lord, Lord McCluskey, said earlier about the Government's intention to make changes in that definition, I do not think I need press that Amendment. I move it in case the noble and learned Lord has anything that he wishes to say on this point. I beg to move.

Lord McCLUSKEY

All I need say is that Amendment No. 14, like Amendment No. 16, is associated with Amendment No. 3 and other Amendments which we have discussed. Amendments Nos. 23, 25, 26, 27 and 31 are connected at least in part. Rather than speak on each occasion and repeat what I have already said, I shall merely indicate to the Committee that these are all Amendments which I envisage as being affected by what I have already said, to the effect that the Government are reconsidering the definition of interest in land, and that should have a bearing upon all these. The bearing is simply this: if one gets the definition right first time, it becomes unnecessary to add in these words on each occasion in order to clarify the particular section or subsection.

Lord CAMPBELL of CROY

I am grateful to the noble and learned Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord McCLUSKEY moved Amendment No. 15: Page 4, line 31, leave out ("of") and insert ("in respect of").

The noble and learned Lord said: I have already spoken to this Amendment. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 16 not moved.]

4.57 p.m.

Lord CAMPBELL of CROY moved Amendment No. 17: Page 4, line 44, leave out ("authentic") and insert ("a true copy").

The noble Lord said: This is a probing Amendment. It appears that the land certificate which the Bill provides for, and if the Henry Committee's proposals are to be followed, will certify that there is a facsimile or true copy of the title sheet. I have with me a specimen of a land certificate which is an example of what is being used in the pilot scheme which the Keeper has already been carrying out for some time. This specimen has on the front of it: This is to certify that this is a facsimile of the title sheet relative to the subjects within described". The "facsimile" might be better than "a true copy", but there is not much difference between the two. It seemed from the point of view of consistency that if "facsimile" is to be used or "a true copy", then this might be put into the Bill rather than the word "authentic". If there is any objection to this perhaps the noble and learned Lord can tell us. I beg to move.

Lord McCLUSKEY

This was a matter which the Law Society of Scotland conveyancing committee raised with me at the meeting last week. We agreed to consider it and I am happy to say we have done so. However, we think that the wording of the Bill as it stands is satisfactory. Perhaps I could explain. As the noble Lord has pointed out, Clause 4(2) states that the land certificate is a copy of the title sheet. In terms of that clause, the land certificate will bear the seal of the register and will be certified by the Keeper as authentic. It appears to us that to use the word "authentic" is rather better than to use the words "a true copy". This is partly because if one goes to Clause 5(5) which appears on page 6 of the Bill from line 12 onwards, one sees: The Keeper shall issue to any person applying"— I pause there because Clause 4(2)—the one with which we are now concerned—relates to what he gives to the applicant, and Clause 5(5) relates to what he gives to any person applying: … a copy, authenticated as the Keeper thinks fit, of any title sheet, part thereof, or of any document referred to in a title sheet; and such copy, which shall be known as an office copy, shall be accepted for all purposes as sufficient evidence of the contents of the original. If he issues a copy of this kind, the office copy, that must be a true copy and that would be the proper description. But when he goes to the extent of solemnly putting the seal on and saying that this is an authentic document which he issues to the applicant, we feel that the word "authentic", on reconsideration, is still better than the word proposed. Accordingly, I would ask the noble Lord, Lord Campbell, in the light of that, not to press this Amendment.

Lord CAMPBELL of CROY

I am glad that the Government have had time to consider this point, and certainly at this stage I shall do no more than thank the noble and learned Lord for his explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 [The title sheet]:

Lord CAMPBELL of CROY had given Notice of his intention to move Amendment No. 18: Page 5, line 16, leave out from ("land") to end of line 18.

The noble Lord said: This Amendment would be consequential and would have to be made if the Government agreed to delete subsection (4) of Clause 3. As we have discussed that, I do not think it is worth while taking it further now, and so I will not move this Amendment.

Lord CAMPBELL of CROY moved Amendment No. 19: Page 5, line 16, after ("land") insert ("including a reference to the ordnance map").

The noble Lord said: I beg to move Amendment No. 19. This proposes that the words "including a reference to the ordnance map" should be inserted. We feel this would be sensible because it would be consistent with paragraph (a) of subsection (2) of Clause 3, where the applicant is obliged to identify the land by reference to the ordnance map. Surely the Keeper should also enter in the title sheet a description of the land by reference to the ordnance map. I hope the Government will be able to accept this point.

Lord McCLUSKEY

I do accept what the noble Lord has suggested when he said that surely the Keeper must do the same. The Keeper accepts that. In fact, the Keeper, to whom I have spoken about this on a number of occasions, including this morning, cannot conceive of a situation in which he would not do so. For that reason we think that this Amendment is unnecessary. The cardinal principle of the proposed system of land registration contained in this Bill is that it should be map-based. Clause 3 (2) (a) directs the Keeper not to accept an application where the land to which it relates is not sufficiently described to enable him to identify it by reference to the ordnance map. This points inevitably to the fact that the Keeper will include such a reference in the title sheet. Certainly that is his intention, and it would be bizarre indeed for the Keeper, on some future occasion, to depart from that.

If I may add a small point, I do not think that the wording is perfect because it might have been better to say, if we were crossing the t's and dotting the i's, not including a reference to", but, including a description by reference to the ordnance map". I would rest on the fact that it is unnecessary to spell out that which is obvious from the whole concept of the system which the Bill enshrines.

Lord CAMPBELL of CROY

I hope the assurance given by the noble and learned Lord means that there would be no doubt and that the solicitors, who will be the people mainly concerned with operating this Bill when enacted, will be happy about it. At this stage I would beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord CAMPBELL of CROY moved Amendment No. 20: Page 6, line 18, leave out subsection (6).

The noble Lord said: I beg leave to move Amendment No. 20, which is a probing Amendment, because I am not suggesting that this subsection should be removed at this stage but I am asking for some explanation. On reading the clause carefully, it seems that the only application of this definition is to subsection (4) of the clause. I am sorry that again I have not had time to give the noble and learned Lord notice, in the way that I have usually been able to give notice to Ministers, but this is the first day after the Recess and all of us have been much pressed in getting Amendments in at all and in reading the Government Amendments. But if it is correct, would there by any drafting objection to making the definition paragraph (c) in subsection (4) and starting it within this subsection? I know it is normal practice for sections of Bills to have a definition at the end of the whole section, but in this case it is thought by solicitors who have been in touch with me that it would have been clearer if it could be tied to subsection (4) because then it would be clear that it is only to that subsection that the definition applies. But the assumption may be wrong and that is why I started by asking the noble and learned Lord the question.

Lord McCLUSKEY

The assumption is in fact correct. The provision in subsection (6) applies only to subsection (4). I would think that in fact there would be no great difficulty for the practitioner, but I indicated earlier that the concept of overriding interest is a novel one to the conveyancing practitioner in Scotland; and so he is bound to go at an early stage in his consideration of this Bill to the definition section, where he will find on page 19 that "overriding interest" is defined and the words there begin: Overriding interest means subject to Section 5(6)". His attention is instantly directed to subsection (6) here and therefore he will not miss it. But having said that and recognising that it applies only to subsection (4), I do not think there is any drafting objection to moving it. Subject to the draftsmen's advice in relation to that, I will undertake to consider doing what the consumer, in the form of the Law Society's conveyancers, would like.

The Earl of SELKIRK

May I ask why we see in four places in this Bill the information that short leases would be excluded? I should have thought the interpretation clause covered this quite sufficiently without these frequent references. There may be some good reason, but it seems redundant.

Lord McCLUSKEY

While I have been answering other points the noble Earl has been counting out the number of references to short leases. In fact, I do not know that there are any short leases, as such, mentioned: there are things which are not all long leases. I presume they figure in different parts of the Bill for different reasons, but I can check that.

Lord CAMPBELL of CROY

The noble and learned Lord again has been flexible enough to say that he will look at this. My Amendment was a probing one intended to draw attention to this definition subsection, and so at this stage I will beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Ranking of titles]:

5.9 p.m.

Lord McCLUSKEY moved Amendment No. 21: Page 6, line 21, after ("title") insert ("or any other provision as to ranking in, or having effect by virtue of, any enactment or rule of law,").

The noble and learned Lord said: The proposed Amendment recognises that it is possible for the ranking of deeds to be governed not only by title deed but by Statute or indeed by common law. The Amendment ensures that this may be achieved for the purposes of the Land Register: a ranking created in that way will be effective for the purpose of the Land Register, and this Amendment proposed by the Government arises from a suggestion made by the Law Society of Scotland. We are grateful to them for it, as for many others. I beg to move.

Lord CAMPBELL of CROY

I welcome this Amendment and I understand, as the noble and learned Lord has said, that it is welcome to the Law Society. I would only say at this stage that Amendments Nos. 22 to 31, which are in my name, are intended to be similar and consequential, but perhaps I shall deal with them as a group when we reach them.

On Question, Amendment agreed to.

5.11 p.m.

Lord CAMPBELL of CROY moved Amendment No. 22: Page 6, line 22, leave out ("titles to").

The noble Lord said: As I indicated just now, I think it will be convenient to consider Amendments Nos. 23 to 31 with this one. The point of all these Amendments is simply this. Although the Henry Report recommended that titles should be registered, the way in which this Bill is setting about it does not carry out that recommendation. What the Bill is doing is arranging for interests in land to be registered and not titles, and for that reason it has been pointed out that changes of this kind are necessary. The noble and learned Lord has already suggested the first one, which we have just made in Amendment No. 21.

Among these Amendments Nos. 22 to 31, the point about title is being changed, but, at the same time, there are references to heritable securities and, as the noble and learned Lord knows, these are again related to the change in the definition clause, Clause 26, which we know that the Government will make. So it may be that the Government are now in a position to accept some of these Amendments which refer to title, but may wish me not to move those that refer to heritable securities until they have thought out the whole question of definition. I shall wait to hear what the noble and learned Lord has to say, because if the Government prefer to do the redrafting I shall not move the Amendments, if I am satisfied that they have accepted the point. I beg to move.

Lord McCLUSKEY

May I just say, generally, that we believe we are, in fact, carrying out the Henry recommendations in this respect. Certainly, that is the intention. Although the Henry Committee did produce proposals in the form of draft clauses, I recall—but I cannot put my finger on it at the moment—that they made it plain that they were not attempting to do the draftsman's job for him.

We accept that this clause could be improved. As I see it, there is a double use of the term "title" in the clause as presently drafted. It is used in subsection (1) to mean the deed itself, so that it mentions "ranking in any title", whereas elsewhere it is used rather in the sense of entitlement. Recognising that there is a possible ambiguity, we believe that it must be reconsidered. Rather than accept these Amendments, which might well do the trick but might not, I should like to ask the noble Lord not to press any of them at this stage. We are certainly considering how to tackle this ambiguity, and hope to come forward with a form of words which satisfies the general scheme of the Bill, and, at the same time, meets the point of substance and removes any ambiguity. Subject to that, I would ask the noble Lord not to press these Amendments.

Lord CAMPBELL of CROY

Again, the noble and learned Lord has seen the main point that we are making. I should certainly be glad to leave to the Parliamentary draftsman and to himself the redrafting necessary in order to remove the ambiguity of the clause as it now stands. I therefore beg leave to withdraw Amendment No. 22.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 to 31 not moved.]

Clause 6, as amended, agreed to.

Clause 7 [Continuing effectiveness of recording in Register of Sasines]:

Lord CAMPBELL of CROY moved Amendment No. 32:

Page 6, line 36, leave out from ("by") to ("has") in line 38 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 Lord said: The purpose of this Amendment is to suggest to the Government that they may have gone further than Section 143 of the 1868 Act referred to. If a mistake is recorded under the Bill as it is now drafted, it appears that the actual deed could be taken back and altered. Indeed, another mistake could be made. Something could be rubbed out and something else put in, which was again wrong. We feel sure that that is not what is intended by the Government. We believe that what the Government are proposing is that a defect in recording can be corrected, and the wording proposed in this Amendment has that effect and protects the deed from being taken out and changed. That is the simple point. We believe that that is what the 1868 Act provides, and that it is the intention of the Government to continue that procedure and not to alter it. I beg to move.

Lord McCLUSKEY

The Government certainly accept that the diagnosis of the problem, to which the noble Lord, Lord Campbell of Croy, has just spoken, is correct and the Amendment is certainly acceptable in principle. The problem possibly starts with Section 143 of the 1868 Act, which is referred to in this subsection. That Section differentiates between an instrument and a deed, and an error re-presented for registration is confined to an instrument. But we believe that the Amendment will require to be looked at more closely by the draftsman. In particular, we are considering whether or not we may, as a consequence, have to define an "instrument". We may not, but it is one of the matters that arise. So that, again expressing my gratitude to the noble Lord, and indeed to the Law Society, I would ask him to withdraw at this stage, and we will undertake at Report stage to come forward with an Amendment which is intended to meet this point.

Lord CAMPBELL of CROY

In complicated matters of this kind, I would not expect the drafting of an Amendment written under my name to be perfect. Of course, it started with a more expert draftsman and it has gone through some changes. But the noble and learned Lord has accepted the principle of the Amendment, and I am glad to think that he will be looking at an alternative and at the need, if it arises, for the word "instrument" to be denned. In view of that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 [Rectification of the register]:

5.19 p.m.

Lord CAMPBELL of CROY moved Amendment No. 33: Page 7, line 16, after ("below") insert ("and subject also to section 1 of the Prescription and Limitation (Scotland) Act 1973 as amended by section 9 of this Act").

The noble Lord said: On Second Reading, we had a considerable amount of discussion of the question of prescription. I think that most noble Lords who spoke were worried that the effect of this Bill, as it is now drafted, might be to cause some doubts. The purpose of this Amendment is to make it absolutely clear that the provisions of sub-paragraph (iv) of paragraph (a) of subsection (2) of this clause are subject to the law of prescription. Unless something on these lines is put into the Bill, we believe that there could be considerable doubt. I shall not go into the question of prescription but, as noble Lords will know, it is the principle of 10 years' undisputed possession. It is a principle which is very important in Scotland and, indeed, in most countries of the world. I hope, therefore, that the Government will recognise that there is a need to remove any possible doubt on this point. I beg to move.

Lord McCLUSKEY

This is one of the matters upon which, despite a good deal of discussion between experts, agreement has not been reached. I am really an outsider. Although at the beginning of this debate the noble Lord, Lord Campbell of Croy, suggested that as a lawyer I would therefore know something about conveyancing, there was a flaw to his particular logic, for I come to the matter as almost as much of a layman as the noble Lord. However, I shall look at the matter in the way that the noble Lord has presented it.

He says that he wants to make it clear beyond doubt that sub-paragraph (iv), to which he has referred, of paragraph (a) of subsection (2) of this clause is subject to the law of prescription. The anxiety to which he is giving voice derives, I think, from the fear that the word "unjust" in line 35 somehow confers upon the Keeper of the Registers an uninhibited discretion to make up the law as he goes along; he will decide these matters as a kind of court of equity. But that is not so. When one bears in mind, if one looks at paragraph (b), that the court, or the Lands Tribunal of Scotland, as it may be, can give to the Keeper an order—and that relates to sub-paragraph (iv) as well—then it becomes plain, does it not, that neither the Keeper, nor the Lands Tribunal, nor the court, whichever court it may be, is free to ignore the law of prescription or, indeed, any other law that is applicable. So the use of the word "unjust" is not designed to confer upon the Keeper or anyone else a discretion to ignore the law. Their obligation is to apply the law. We do not think, therefore, that it is necessary to put in this particular reference. Indeed, one might go further and say that if one refers specifically to the law of prescription, that could be positively harmful. It would have the effect, we think, of making a title inviolate after prescription—which, apparently, is the intention—whereas such a title is itself subject to prescription under a competing title. So one would get an undesirable result.

I should also draw your Lordships' attention to Clause 9 of the Bill which we believe does all that is required in applying Section 1 of the Prescription and Limitation (Scotland) Act 1973 to the scheme which we have here. There is also a technical defect, in that the last few words of the Amendment—"as amended by Section 9 of this Act"—are unnecessary, having regard to Section 20(2) of the Interpretation Act 1978. But I do not rest upon the technical point. We feel that it is quite unnecessary and could be positively harmful to put in these words. Although I am not confident that agreement will ever be reached upon this somewhat knotty point, on the best judgment that we can make the Bill is satisfactory as it is, and I would resist this Amendment.

Lord FRASER of TULLYBELTON

I am sorry to speak after the noble and learned Lord, but I had hoped that he would be more forthcoming about this. I should have thought that the danger arises from Section 8(1) which gives the power to rectify any inaccuracy. That is the general power. Then it is cut down in various ways by subsection (2). One starts off with the power to remedy any inaccuracy. I should have thought that one could found an argument on the fact that that overrode the ordinary law of prescription. I cannot say that I have been into the matter nearly so fully as the noble and learned Lord, but it seems to me to raise quite an element of doubt as to how this squares with the law of prescription and I should have thought that it might repay further attention.

Lord McCLUSKEY

I do not think that we have considered the matter in quite that way before. Having regard to the source of that observation, plainly it merits further consideration and it will be given further consideration in the light of the observations which the noble and learned Lord has made. I do not think that it relates to precisely the same concern that has hitherto been voiced by the Law Society, but that may be a better reason still for giving the matter further consideration. I hope that at the end of the day we shall all be agreed about this. Certainly we shall endeavour to look a little further at the matter.

Lord CAMPBELL of CROY

I think that we are all agreed on the objective. The noble and learned Lord has said that he and his advisers have considered the representations that have been made—that something ought to be put into the Bill on the lines of Amendment No. 33—but have not thought this to be necessary. None the less, ambiguity appears to exist. The noble and learned Lord, Lord Fraser of Tullybelton, has raised a further point, and I am grateful to the noble and learned Lord for saying that in the light of those observations he will consider the matter again.

At the beginning of today's proceedings I said that, as lawyer, the noble and learned Lord would be able to take over quite easily, and that he would be able to take following the noble Lord, Lord Kirkhill, in his stride. The noble and learned Lord has demonstrated today that he can do so. However, I have come to recognise in the last few weeks that the subject of conveyancing is very specialised and that the noble and learned Lord is an advocate who would not necessarily have come into contact with it on many occasions. I can only say that solicitors in Scotland who specialise in this subject are worried that if all doubt is to be removed on this point the Bill in its present form is not complete.

I do not think that I need to pursue the matter further at this stage because the noble and learned Lord has said that he will look at it again, although his first reaction to the representations of the Law Society did not make him feel that this was necessary. It is one of the important points in the Bill. As I have said, our aim is quite clear, and it is the same: it is to remove any doubt. It is just a question of how best this can be achieved and whether the Bill needs to be changed or to have any addition made to it in order to achieve that objective. Having said that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.29 p.m.

Lord McCLUSKEY moved Amendment No. 34: Page 7, line 18, leave out ("any") and insert ("the").

The noble and learned Lord said: This Amendment is linked with Amendment No. 36. At this stage, I beg to move Amendment No. 34, but Amendment No. 36 is the substantial Amendment. The effect of Amendment No. 36 is to define "the court". For the avoidance of doubt, "the court" is defined, for the purposes of the clause; and since the definition refers to "the court", the previous reference in line 18 to "any court" is consequently amended. "The court", having jurisdiction in questions of heritable right or title, is rather more restrictive than just speaking about "any court". Not every court has the same jurisdiction in relation to questions of heritable right or title. Therefore, at this stage I beg to move Amendment No. 34.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 35:

Page 7, line 20, at end insert— ("(1A) Subject to subsection (2)(b) below, the powers of the court and of the Lands Tribunal for Scotland to deal with questions of heritable right or title shall include power to make orders for the purposes of subsection (1) above.").

The noble and learned Lord said: This proposed Amendment provides that any court having jurisdiction in questions of heritable right or title or the Lands Tribunal for Scotland will have power to order the Keeper to rectify any inaccuracy in the Register under Clause 8(1) should rectification be required as a result of proceedings before the court or the Lands Tribunal. As at present drafted, such a power is inferred from Clause 8(1); the Amendment is provided merely for the avoidance of doubt. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 36:

Page 7, line 40, after ("section") insert—

1. ("(a)"the court"means any court having jurisdiction in questions of heritable right or title;
2. (b)")

The noble and learned Lord said: I have already spoken to this Amendment and I now formally beg to move.

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Positive prescription in respect of registered interests in land]:

On Question, Whether Clause 9 shall stand part of the Bill?

Lord CAMPBELL of CROY

If I may speak on Clause 9, again it has not been possible for me to give the noble and learned Lord notice and I do not expect him to be able to give an answer today, but I think this is the occasion for me to draw attention to a point. If one looks at paragraph (a) its effect is to add sub-paragraph (ii) of the 1973 Act, but to add it as an alternative; and the kind of shorthand amendment which I suggest may be necessary is, if one looks at the Bill on page 8, line 7, instead of the word "or" to insert "and/or".

I know that is not Parliamentary drafting but I think it is the best way of indicating how a possible change may be needed in the Bill. Could not the 10-year period of positive prescription be composed partly on a deed recorded in the Register of Sasines and partly on a deed registered in the Land Register, so adding up to ten years or more? If that is so, then redrafting does seem to be necessary to make it "and/or" and not simply an alternative. To spell it out, wording such as "and alternatively" or "in addition to" might be a longer way of putting it. So, not having an immediate drafting Amendment to put forward at this stage, I thought it would be better for me simply to try to explain this point on the Question, Whether Clause 9 shall stand part of the Bill? so that the Government might have time to consider this and to see whether something was necessary in order to cover this point; that is to say, that the 10-year period could be composed of two parts and not an alternative of one or the other.

Lord McCLUSKEY

I think ultimately this is a matter of the construction of the word "or" which may be read in certain contexts as meaning "and/or", as I should have thought it would be here. I certainly agree with the noble Lord that "and/or" is not elegant drafting but, having regard to what he has said, I think this is a matter that we can consider. If there were any doubt about "or" as meaning "and/or" no doubt a technique could be found for solving that in a slightly more elegant way. The point has been taken and will be considered along with many others.

Clause 9 agreed to.

Clause 10 [Transitional Provisions for Part I]:

5.35 p.m.

Lord CAMPBELL of CROY moved Amendment No. 37: Page 8, line 20, leave out ("in that operational area").

The noble Lord said: This Amendment would leave out, in line 20, the words "in that operational area". This is simply a matter of drafting but it also raises the question of meaning. If I may just explain, subsection (1) deals with an application related to land not in an operational area. It says later "then" —and that means at that time—provisions cannot then be enforced in a relevant operational area unless the meaning of the clause is that the Keeper notionally deals with the application as if it were in an existing operational area in another part of Scotland. If he does that than I can see that the words "in that operational area" would have a meaning, but as the subsection starts by saying that we are dealing with an application which is not in an operational area and then has the word "then", meaning "at that time", it is still not in an operational area, the appearance at the end of the subsection of the words "in that operational area" seem to be completely out of place. Indeed, they could be misleading and difficult to understand. I hope that the noble and learned Lord and his advisers will have realised what I was querying in tabling this Amendment and perhaps they have an answer. I beg to move.

Lord McCLUSKEY

I get the impression that this phrase in this subsection performs the same function as the human appendix does in relation to the human body: it is a survival which has no obvious value. I am grateful to the noble Lord for drawing attention to its superfluity. It is a useful drafting Amendment and I am happy to say that I accept it as it stands, and accordingly ask your Lordships to accept it.

Lord CAMPBELL of CROY

I should like to thank the noble and learned Lord for accepting the Amendment. His answer has made clear what the Government intend.

On Question, Amendment agreed to.

On Question, Whether Clause 10, as amended, shall stand part of the Bill?

Baroness WARD of NORTH TYNE-SIDE

I am quite prepared to support Clause 10 and I also know that we have passed Clause 9; but on looking at my Marshalled List I cannot find any Clause 9. I just see Clause 8 and then the words "By the Lord McCluskey". I do not really know whether that is Clause 9. Then we go on to Clause 10. What has happened to Clause 9?

Lord McCLUSKEY

I do not know whether it is appropriate for me to seek to answer that query, being a very junior Member of this House, but as I understand the situation the Marshalled List contains a list of Amendments and as there are no Amendments tabled to Clause 9 it is not listed there. But of course as one goes through the Bill one goes through it clause by clause seriatim, and whether or not there is an Amendment proposed to a particular clause the Committee must be asked to consider whether that clause shall stand part of the Bill. If that is an incorrect explanation I hope that the noble Lord, Lord Campbell of Croy, or some other noble Lord will correct me.

Baroness WARD of NORTH TYNE-SIDE

Am I to understand that at some time or other we shall see Clause 9 in the Bill?

Lord CAMPBELL of CROY

Perhaps I can help my noble friend. She should have not only the revised Marshalled List of Amendments but also a copy of the Bill, because we are all looking at Clause 9 of the Bill. Because there are no Amendments to it I simply spoke on the Question, Whether Clause 9 shall stand part of the Bill? In fact we are about to consider Clauses 12 and 13 which do not appear on the Marshalled List because there are no Amendments tabled to them.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford)

It may help the noble Baroness if I remind her that I have put Clause 9 to the Committee and it has been agreed to; the Question now is, whether Clause 10, as amended, shall be agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Indemnity in respect of loss]:

Lord CAMPBELL of CROY had given Notice of his intention to move Amendment No. 38: Page 9, line 35, leave out paragraph (e).

The noble Lord said: This would have been a consequential Amendment to what we have already discussed under subsection (4) of Clause 3, so I shall not move it.

Lord CAMPBELL of CROY moved Amendment No. 39: Page 10, line 30, leave out ("particular") and insert ("condition").

The noble Lord said: I beg to move Amendment No. 39, which would seek to leave out the word "particular" and substitute the word "condition". The purpose of the Amendment is to make it clear that there should be no exclusion of indemnity in relation to a defect in the description of the land. The exclusion of indemnity relates only to matters such as feuing conditions or obligations. There could be a preferable word to "conditions"; for example, the word "obligation" might be preferable to "conditions" in the eyes of the Government, or the Government might think that "condition or obligation" could be put in together. The purpose of the Amendment is to draw attention to this and to point out that "particular" is not clear enough on its own and that there could be confusion about what is to be excluded. I beg to move.

Lord McCLUSKEY

I accept with gratitude the assistance of the noble Lord, Lord Campbell of Croy. He has put his finger upon a weakness in relation to the use of the word "particular"; we accept that that requires to come out and something put in to take its place. He indicated that he was not saying that the only possibility was "condition", and we are not ourselves sure that "condition" is the best alternative. We would certainly hope to improve upon "particular", because it has the weakness he has pointed out. Therefore, if the noble Lord will not press the Amendment at this stage I will undertake to come forward with an improvement upon "particular" which I hope will satisfy him.

Lord CAMPBELL of CROY

I am very grateful to the noble and learned Lord for taking this thought away and for his undertaking to look at the word "condition" or something similar. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Simplification of deeds relating to registered interests]:

5.43 p.m.

Lord McCLUSKEY moved Amendment No. 40: Page 12, line 25, after ("14.") insert ("(1)").

The noble and learned Lord said: This is purely a paving Amendment for the addition of the new subsection (2) to this clause which is proposed in Amendment No. 43. I think in order to explain the paving Amendment I should deal with what we would propose when we come to Amendment No. 43. This Amendment will make it unnecessary to refer to burdens, conditions, provisions or other matters affecting a registered interest in a deed referring to that interest if the title sheet of that interest already shows such burdens, conditions, provisions or other matters affecting a registered interest. The effect of this Amendment will be to shorten and simplify deeds which deal with registered land. The provisions which are disapplied all contain references to the manner in which burdens and so on may be referred to in a title deed. The Amendment states this point directly. Previously, it would have had to be implied from other provisions of the Bill.

The only other point I should note in relation to this Amendment, No. 43, which is the substantial one, is that at the beginning of it we have taken out "land" and referred to a deed. That is because the provisions referred to relate to deeds and not to land. This is a technical point which is being put right in association with the others. For the moment I confine myself to moving Amendment No. 40.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendments Nos. 41 and 42:

Page 12, line 28, after ("and") insert (", accordingly, section 13 of and Schedule G to the Titles to Land Consolidation (Scotland) Act 1868,"); Page 12, line 29, leave out ("section 8") and insert ("sections 8 and 24(2)").

The noble and learned Lord said: Amendments Nos. 41 and 42 go together and, with leave, I beg to move them en bloc. These Amendments add the provisions referred to to the list of those which lay down forms of description by reference, now rendered unnecessary for registered land. The additions made here come from what is now Part II of Schedule 3 which we propose to delete in fact by Amendment No. 72, but I will deal with that in due course. For the moment I beg to move Amendments Nos. 41 and 42.

On Question, Amendments agreed to.

Lord McCLUSKEY moved Amendment No. 43:

Page 12, line 31, leave out ("land") and insert ("a deed. (2) It shall not be necessary in any deed relating to a registered interest in land to insert or refer to any real burden, condition, provision or other matter affecting that interest if that real burden, condition, provision or other matter has been entered in the title sheet of that interest under section 5(1)(e) of this Act, and, accordingly, sections 10 and 146 of and Schedule D to the Titles to Land Consolidation (Scotland) Act 1868, in section 32 of the Conveyancing (Scotland) Act 1874, the words from the beginning to "shall be sufficient" and in section 9 of the Conveyancing (Scotland) Act 1924, the proviso to subsection (1) and subsections (3) and (4) (importation or burdens etc. by reference) shall not apply to such a deed.").

On Question, Amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Omission of certain clauses in deeds]:

Lord CAMPBELL of CROY moved Amendment No. 44: Page 12, line 42, after ("successors") insert ("at his or their expense").

The noble Lord said: I beg to move Amendment No. 44, which is one of three coming now on which I have been advised by the Law Society of Scotland that the object is to avoid long complicated conveyancing. If the words proposed here are inserted it will apparently avoid necessity for long insertions in conveyancing documents. This may at first sight seem surprising. This is inserting "at his or their expense" in Clause 15. I will leave this thought with the Government. It may be something which they may need to consider and discuss with conveyancing experts. But that is the purpose of the Amendment.

Lord McCLUSKEY

Amendment No. 44 I am certainly prepared to accept. I am not quite sure that I would do so for quite the reasons the noble Lord has put forward. If I may draw attention to Clause 15(2), it states quite specifically that title deeds and searches relating to land granted in feu should be made forthcoming at the grantee's expense. The same principle should apply to the conveyance of an interest in land which is what we are dealing with in subsection (1) of Clause 15. Accordingly it is desirable to put into sub-paragraph (ii) of paragraph (a) of subsection (1) of Clause 15 the same words as appear in subsection (2). Accordingly we are prepared to accept this Amendment. We are grateful to the noble Lord for suggesting it. I have nothing further to say.

Lord CAMPBELL of CROY

Nor have I, except to thank the noble and learned Lord very much for accepting it.

On Question, Amendment agreed to.

Clause 15, as amended, agreed to.

Clauses 16 and 17 agreed to.

Clause 18 [Agreement as to common boundary]:

Lord CAMPBELL of CROY moved Amendment No. 45: Page 14, line 22, at end insert ("or any other person having an interest.").

The noble Lord said: I beg to move Amendment No. 45, which would insert the words "or any other person having an interest". The purpose of this is to make it clear that the rectification of a discrepancy in a boundary is automatically binding not only on the proprietors on each side of the common boundary but also on all other persons having an interest—for example, superiors and heritable creditors. The purpose is to avoid bringing in creditors or others when in fact it is only a discrepancy—when it is not a quarrel or an argument. Therefore, the purpose of the Amendment is to simplify the Bill and again simplify procedures when the Bill is put into effect later. I beg to move.

Lord McCLUSKEY

Before I state my attitude towards this Amendment, I should indicate that it seems to me that the noble Lord is here using the word "or" to mean "and/or", but that may be unfair. We certainly accept the principle behind the Amendment. Indeed, this was one of the matters to which the Law Society of Scotland drew our attention. We accept it in principle and, as with all the other matters, in order to try to get the drafting correct once and for all, as it were, we should like to consider the matter and put down an Amendment for Report stage. On that basis only I ask the noble Lord not to press this particular Amendment.

Lord CAMPBELL of CROY

Of course, on that assurance I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Tenants-at-will]:

5.52 p.m.

Lord McCLUSKEY moved Amendment No. 46:

Page 15, line 42, at end insert— ("(6A) Where the landlord is the proprietor of the dominium plenum of the tenancy land, the interest which the tenant-at-will is entitled to acquire under this section shall be that of the proprietor of the dominium utile of the land.").

The noble and learned Lord said: I beg to move Amendment No. 46. I should explain that the purpose of the Amendment as drafted was to reduce the unintentionally wide scope of Clause 19 which entitles a tenant-at-will to acquire his landlord's interest in tenancy land. As Clause 19(1) is drafted, the tenant might be entitled not only to the title to the land itself, but to the superiority over it. That would go beyond the intention of Clause 19(1) which is to give a tenant a registrable title to the house or buildings occupied by him. It would have particularly undesirable effects in the case of land over which the Crown was landlord of the tenancy land, since the sovereign in feudal theory holds the ultimate superiority of all land held on feudal tenure, and feudal tenure applies in the areas of Scotland where tenancies-at-will exist.

However, we have been looking at this matter ourselves very critically and in particular at the concept of dominium plenum which is mentioned in the new subsection which is proposed. In the light of that consideration which we continue to give, we are not proposing to move the Amendment at this stage. We are not certain that we have achieved what we want to achieve. Therefore, I do not intend at the moment to withdraw the Amendment because I should like to give noble Lords who wish to speak on this subject the opportunity to do so. However, I do not intend to press the Amendment at this stage.

Lord CAMPBELL of CROY

I am grateful to the noble and learned Lord for the fact that he is considering this Amendment carefully and would not wish to put it to the Committee at this stage. I am also glad that he did not move it immediately because it gives me an opportunity to add various points. I am told that this is an extremely technical conveyancing point. However, the question which has been raised is that the effect of the Amendment appears to be concerned with a feu title. Is that the intention? I certainly am in no position to interpret the Amendment and all that I can do is to pass that point on to the Government. Is it intended that there should be a feu title? I leave it now to the experts to reconsider the wording of the amendment and to decide whether it is necessary. No doubt the noble and learned Lord will come back during the Report stage if he wishes to make an alteration to this part of the Bill.

Lord McCLUSKEY

I certainly intend to come back. As your Lordships will see, as it stands the second line of Clause 19(1) includes the words "as such". Those words were included to make it plain that what the tenant-at-will was entitled to was the interest of his landlord as a landlord. That, of course, related only to the dominium utile. The purpose of the new clause was to make it clear that he was not entitled to acquire any superiority that the landlord might, in fact, own or have an interest in. However, we are not convinced that we have gone about it the right way and we shall come back to it. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 19 shall stand part of the Bill?

Lord CAMPBELL of CROY

I am rather more slow on my pins today than normal, but I wish to raise some points on the question of whether the clause shall stand part. The clause deals with the strange form of tenancy-at-will which is concentrated, I think, in the North-East of Scotland. It emerged during the Second Reading debate that there was a need for a definition of tenancy-at-will or tenant-at-will, but that no satisfactory one had yet been found by either the Government or anyone else. Therefore, I ask the Government whether they are still seeking a definition or is it proving an impossible task. Secondly, subsection (6) appears to need some addition to cover the situation where there are mortgagees and they are not willing. In that event it appears that the subsection will not operate because there is no provision to provide for it.

Thirdly, I understand that the Crown or the Government are parties themselves to tenancies-at-will, again, presumably most, if not all, in the North-East of Scotland. I understand that they are still being created. If that is so, are the Government, on behalf of the taxpayers, completely happy about the formula for compensation in Clause 19 of the Bill—for example, the first 24 lines on page 15? It will indeed be the taxpayers who are involved where the Government are concerned. Again, I am sorry that I have not been able to give the noble and learned Lord notice of these matters, but they are ones which he may be able to deal with before the Report stage and perhaps give us a final answer at the Report stage.

The Earl of SELKIRK

I should like to ask a question. I have not the faintest idea what is meant by "tenant-at-will". Is it the intention in Clause 19 to create a feudal title or is it not? I do not know from what is proposed whether that is so. If it is, it will probably require greater examination. I do not know what is at stake here or whether this is a major change or merely an adjustment. However, I would be extremely grateful if the noble and learned Lord could tell us.

Lord McCLUSKEY

First, in relation to the matter of definition, it is certainly true that we have been unable so far to formulate a definition of a tenant-at-will. Indeed, the Law Society of Scotland's conveyancing committee who are expert—and there are none more expert—have not so far been able to suggest a definition. They said, and it has been said before, that it may well be that we are in the category of the elephant that is easier to recognise than to describe or define. However, the situation is that following the discussions we had with them last week they are deferring to experts in the North-East of Scotland who deal with these matters from time to time and are hoping for some further assistance from that quarter. It may be that we shall be able to advance not so much to a definition as at least to some provision of this kind, namely, that "tenant-at-will shall include", and then name certain characteristics which are thought to be appropriate in relation to that matter.

However, at present we are in the position that, although we ourselves are considering the matter again, we are hoping to get some further assistance from the Law Society. How long that might take to emerge I do not know because there may be difficulties in it obtaining advice from its own members. I would accept the noble Lord's offer to return to the point about subsection (6) on Report. As he indicated, it is certainly true that the Crown is still creating tenancies-at-will. As I understand it, the Crown is happy with the formula for compensation, but these are all points that we might take when we come to study what the noble Lord has said.

As regards the query raised by the noble Earl, Lord Selkirk, the difficulty here is that at the moment there is no definition of a "tenant-at-will". In a way it is a very odd concept because it rather involves a person who has acquired, or who seems to have acquired, a right to the building, the house or whatever it may be, but not to the land on which it stands, which rather seems to defy one of the basic principles of Scottish law that the building goes with the land. But when we are talking about building here we are not necessarily in all cases talking about bricks and mortar; we might be talking simply about a small shed or something of that kind. Therefore, we are looking at this again. We are conscious of the fact that we have not necessarily arrived at the best solution and we hope to do so. At the present time I cannot say whether we shall manage that in time for the Report stage or whether it might be a matter that has to be dealt with later.

Clause 19 agreed to.

Clauses 20 to 24 agreed to.

Clause 25 [Rules]:

6.2 p.m.

Lord CAMPBELL of CROY moved Amendment No. 47: Page 18, line 19, after ("any") insert ("deed or any").

The noble Lord said: I beg to move Amendment No. 47. Again, this is an Amendment which I am advised will simplify the procedure for solicitors and their clients. It would avoid the use of archaic long formulae. The effect of the Amendment would be to enable the rules to provide for the form of conveyance to be used under registration of title. Therefore, I hope that this simple Amendment inserting the words "deed or any" will commend itself to the Government. I beg to move.

Lord McCLUSKEY

The Government accept this in principle. Indeed, initially it was thought that the words "other document" might be good enough to cover what was intended here, but that may well not be so. Therefore, we accept this in principle. For the reasons which I have already outlined in connection with other Amendments, again we should like to look at the drafting. Subject to that, I would ask the noble Lord not to press the Amendment at this stage. The Government will table an Amendment on Report which I believe will cover the point and I hope satisfy the noble Lord.

Lord CAMPBELL of CROY

Of course I am very grateful to the noble and learned Lord for that undertaking. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Interpretation etc.]:

6.4 p.m.

Lord CAMPBELL of CROY moved Amendment No. 48: Page 19, leave out lines 1 and 2.

The noble Lord said: I beg leave to move Amendment No. 48 which would omit this definition. I suggest that it would be convenient for the Committee to discuss at the same time Amendment No. 49, which is an alternative Amendment. Part of the discussion has already taken place earlier today, when the Government undertook to reconsider the definitions affecting "interest in land" and a "heritable security". Therefore, I shall not rehearse that part of Amendment No. 49 which concerns itself with a heritable security.

However, I should like to say a few words about the long lease addition which I have included in Amendment No. 49. The present definition does not make it clear that it includes a heritable security. But in the Bill it is intended that only long leases should be registrable. A lease which is not a long lease should, we believe, be excluded from the definition "interest in land". For example, I am told that, under the terms of the Bill as it now stands, a short lease of a house, even a furnished let for six months, could be treated as an interest in land. I am sure that that is not what the Government intend. I am told that the Henry Committee warned that a definition might have that effect unless care was taken to deal with the long lease situation.

Therefore, at this stage I am addressing myself to Amendment No. 49, and the exclusion of a lease which is not a long lease. Amendment No. 48 and the reference to "heritable security" have already been discussed in earlier debates.

Lord McCLUSKEY

I think that I need add nothing in relation to the first part of Amendment No. 49, or Amendment No. 48; we have already dealt with that. On the second part, I am grateful to the noble Lord. We acknowledge that there may be some room for doubt and we see this provision as an avoidance-of-doubt provision, to ensure that leases which are not long leases are not registrable under the Bill. Indeed, one would not want to see that because, as the noble Lord has indicated, they would be too numerous and often too informal in constitution because one can have a verbal lease for a period of less than a year. Therefore, again, we accept this part of the Amendment in principle. As I have already indicated, we shall, I hope, return to this matter on Report with our final version of the definition "interest in land". This matter would then be considered and, I hope, embraced in that. On that basis only I invite the noble Lord not to press either of these Amendments at this stage.

Lord CAMPBELL of CROY

In view of what the noble and learned Lord has said, I beg leave to withdraw Amendment No. 48.

Amendment, by leave, withdrawn.

[Amendment No. 49 not moved.]

Lord McCLUSKEY moved Amendment No. 50: Page 19, line 7, leave out from ("Act") to end of line 8 and insert ("in relation to any interest in land, the right or interest over it of—")

The noble and learned Lord said: Amendment No. 50 is associated with Amendment No. 51. I beg to move Amendment No. 50. These Amendments together are intended to clear up any doubts as to the true character of an overriding interest. This is essentially a right over an interest in land or, in other words, a right which does not appear in a title sheet but one which none the less affects the interest contained in the title sheet. The present drafting of lines 34 and 35 of the clause might suggest that an over- riding interest could be a right in land rather than a burden over land. The Amendment avoids this possibility.

At this stage I should like to return to something raised earlier by the noble Earl, Lord Selkirk, just before the House considered certain Statements, when we were looking at an earlier Amendment and an earlier clause. The overriding interest is, of course, referred to in the clause with which we are now dealing and is defined there. In the course of his remarks the noble Earl referred to servitudes. As he sees, both types of servitude—the public one, as it were, and the other referred to in paragraph (d)—appear on page 19. Of course, it may well be that a particular servitude is created, although there is no writing at all and nothing indeed to register, as the noble Earl will know. One may create the servitude by prescription and it may be that in that case it is possible to register the servitude by the usual form of deed. But in the case referred to in paragraph (g), comprising part of the definition of "overriding interest", it may not be possible to register it at all. I think that merely amplifies the answers I sought to give in relation to the noble Earl when I dealt with this matter earlier.

The Earl of SELKIRK

I am sure it is my fault for not studying the reports of Professor Henry or the Reid Report, but I confess that I do not find this overriding interest a simple concept to get right. I should like to draw particular attention to the second Amendment which the noble and learned Lord has here, which I do not understand. The Amendment would read that an overriding interest in the second clause is not registrable—at least not in the ordinary way. Then we have the definition here of what "overriding interest" is. An overriding interest can be a real interest, and in Clause 5 we are told that where this comes to the attention of the registrar it will in fact be registered. Then you go through a number of things which are overriding interests which apparently need not be registered. They can always be registered if it is in the discretion of the registrar.

The second Amendment gives an exception, a limitation. Having given the list of matters which are overriding interests it goes on: but does not include any subsisting burden or condition enforceable against the interest in land and entered in its title sheet". I do not quite understand those last words, "and entered in its title sheet". Does the nature of the burden change when it is entered in the title sheet? I cannot for the life of me see how it could change.

If you have a valid burden on the land, whether it is entered on the title sheet may be a matter of proof, but it would not alter the nature and strength of the burden. I do not understand why those words come in. Is there any change in the nature of the liability of the landowner once it is entered on the sheet? I should not have thought that there was. As I read it, it appears that any subsisting burden or condition enforceable against the interests on the land, left at that stage, becomes an overriding interest and need not be entered. I am giving the noble and learned Lord my limited understanding of what these words mean. I have not studied the report as fully as I should have done, and I must apologise for that, but reading this through it does not make clear to me what the Government have in mind in proposing this Amendment.

Lord McCLUSKEY

I shall have to read that to be sure that I understand it. In essence, if you have an overriding interest which, as the noble Earl said, may have the character of a real right, and if it gets on to the register or, in this scheme, gets into the title sheet, then it seems to have all the characteristics of, and to be virtually indistinguishable from, a burden. When one looks at the wording proposed in the second Amendment "subsisting burden or condition", and then going on to the later words, "entered in its title sheet", of course the entry of a burden in the title sheet is essential in order to make the burden real. It is not a real burden unless it is published in the register, or published in the land register, as the case will be. I do not know whether that is a sufficient answer. I should like an opportunity to study more carefully what the noble Earl has said, and I undertake to do so before coming back to this matter.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 51: Page 19, line 34, leave out from ("any") to end of line 35 and insert ("subsisting burden or condition enforceable against the interest in land and entered in its title sheet").

On Question, Amendment agreed to.

On Question, Whether Clause 26, as amended, shall stand part of the Bill?

6.13 p.m.

Lord CAMPBELL of CROY

I should like to raise one question about Clause 26. Again I do not expect the noble and learned Lord necessarily to be able to give the answer now, but it would be useful if we could have it before Report stage. If one looks at line 5 on page 19 one sees that there is the present definition of "long lease". It means, a probative lease exceeding 20 years". The question I should like to ask is whether that definition is intended to cover the following case—a 10-year lease with the option to renew for at least another 10 years, so adding up to 20 or more years. That is an example. It is important to know whether the definition is intended to cover a case like that before we reach Report stage, so that there is an opportunity of amending, if necessary.

Lord McCLUSKEY

I am grateful to the noble Lord both for drawing my attention to that particular case which, on the face of it, does not appear to be readily embraced by these words, and also for his giving me the chance to consider it between now and Report. I shall certainly do that and come back to this.

Clause 26, as amended, agreed to.

Clause 27 [Amendment and repeal of enactments]:

Lord McCLUSKEY moved Amendments Nos. 52, 53 and 54:

Page 20, line 12, leave out ("Part I of")

Page 20, line 12, leave out from beginning of line 15 to ("the recording") in line 17.

Page 20, line 12, leave out lines 19 and 20.

The noble and learned Lord said: Amendment No. 52 is associated with Amendments Nos. 53 and 54, and indeed with the proposed Amendments to Schedule 3, which we are seeking to rearrange and simplify. At this stage it is sufficient to say that Clause 27(2) translates references in existing enactments to the Register of Sasines or to the recording of a deed therein to the land register. Certain references would, however, be inappropriate for a system of registration of title and should not be so translated. These are dealt with in Clause 27(3) as read with Schedule 3. I shall come back to the reasons for altering Schedule 3, but that is the explanation of these Amendments. I would beg to move Amendment No. 52 and, with leave, Amendments Nos. 53 and 54 at the same time.

On Question, Amendments agreed to.

Clause 27, as amended, agreed to.

Clause 28 agreed to.

Schedule 1 agreed to.

Schedule 2 [Amendment of Enactments]:

6.18 p.m.

Lord McCLUSKEY moved Amendments Nos. 55, 56 and 57:

Page 21, line 23, at end insert—

("The Titles to Land Consolidation (Scotland) Act 1868

1A. In section 142 of the Titles to Land Consolidation (Scotland) Act 1868, for the words "day, and hour" substitute "and day".")

Page 21, line 23, leave out lines 32 to 34.

Page 22, line 7, at end insert—

("The Housing (Scotland) Act 1974

4A. In section 9 of the Housing (Scotland) Act 1974 (conditions of improvement grants), in subsection (9)—

1. (a) in paragraph (i), after "tenant-at-will" insert "or was a tenant-at-will who, since applying, has acquired his landlord's interest in the tenancy";
2. (b) in paragraph (ii), after "was" insert", and continues to be,".

4B. In paragraph 7 of Schedule 2 to the said Act of 1974 (consequences of breach of conditions under section 9)—

1. (a) in sub-paragraph (a), after "tenant-at- will" insert "or was a tenant-at-will who, since applying, has acquired his landlord's interest in the tenancy,";
2. (b) in sub-paragraph (b), after "was" insert", and continues to be,".").

The noble and learned Lord said: Amendments Nos. 55, 56, and 57 are all to Schedule 2, which derives its validity from Clause 27(1) of the Bill. The Amendment which is first proposed here, No. 55, to the 1868 Act reflects the policy behind Clause 6(3), which is that two interests in land registered on the same day shall rank equally. A deed registered earlier on the same day will not obtain a prior ranking to one registered later on that day. That is what is achieved here.

The deletion of lines 32 to 34, which I would propose by Amendment No. 56, to which I might speak at the same time, removes an unnecessary reference to the Conveyancing and Feudal Reform (Scotland) Act 1970. The provision is already covered by the translation provisions of Clause 27(2).

The third Amendment—namely, that to the Housing (Scotland) Act—ensures that information as to the conditions imposed when an improvement grant is made or was made before the tenancy has been converted to a feudal title will enter the Register of Sasines, or the Land Register as the case may be, when the feudalised title is recorded or registered, and that a notice of cesser of these conditions will also enter the appropriate register. This brings the ex tenant-at-will into line with other proprietors in this respect.

On Question, Amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Enactments referred to in section 27(3)]:

6.21 p.m.

Lord McCLUSKEY moved Amendments Nos. 58 to 72 en bloc:

Page 22, leave out lines 9 and 10.

Page 22, leave out line 13, at end insert—

("The Real Rights Act 1693 The whole Act,")

Page 22,line 30, at end insert— ("(dd) In section 19, the proviso.") leave out line 33 and insert— ("(a) Sections 9 and 10") leave out line 34 and insert— ("(b) Sections 12 and 13")

Page 22, leave out line 40, at end insert— ("(j) Section 146 (k) Schedule D (l) Schedule G.")

Page 22, leave out line 42 and insert— ("(a) In section 32, from the beginning to "shall be sufficient (b) Section 53 (c) Section 61.")

Page 23, line 7, leave out ("(2)")

Page 23, line 8, leave out ("(4)") and insert ("(3)")

Page 23, line 12, leave out ("(5)") and insert ("(2) and (5)").

Page 23, line 15, at end insert— ("( ) Section 1(1) except the words from "and any writ" to "appropriate burgh register of sasines".")

Page 23, line 18, at end insert— ("11A. The Conveyancing Amendment (Scotland) Act 1938 Section 6(1) and (2).")

Page 23, line 25, at end insert ("Section 28(3)")

Page 23, line 25, at end insert— ("14A. The Prescription and Limitation (Scotland) Act 1973 Section 1.")

Page 23, leave out lines 26 to 42.

The noble and learned Lord said: All these Amendments to Schedule 3 are made necessary as a result of the incorporation of Part II with Part I to make an undivided Schedule. The enactments in Schedule 3 could have been repealed but for the necessity to keep the Register of Sasines running in parallel with the Land Register during the transitional period of something of the order of 20 years. Those enactments fall into two categories: first, those which should not be available for use in connection with any deed in a transaction destined for the Land Register, and that is Part I; and those which are still required for deeds accompanying an application for first registration but not thereafter, and that is Part II. The provision in Clause 27(3)(a) that the direction in Clause 27(2) should not apply to enactments in Part I of Schedule 3 was effective in making those enactments unavailable for deeds registered in the Land Register.

The terms in which the enactments in Part II are couched are such that the restriction of the application of Clause 27(2) did not have the desired effect and—this is the crucial point—specific provision has therefore been made for those enactments by expanding Clause 14. It is still necessary that references to the Register of Sasines in the enactments in Part II should not be construed as references to the Land Register. I apologise for the complication of that explanation. I believe that those who study these matters carefully will find it intelligible.

On Question, Amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals]:

6.24 p.m.

Lord McCLUSKEY moved Amendment No. 73: Page 24, leave out lines 6 to 24.

The noble and learned Lord said: This is the last Amendment. This Amendment recognises that since the implied clauses in deeds which are provided for in Clause 15 may be specially qualified where necessary, the relevant sections of the Titles to Land Consolidation (Scotland) Act 1868 may still have to be used and should not be repealed, and that is what we seek to achieve here.

Lord CAMPBELL of CROY

I would only comment that that takes out almost the whole of Schedule 4. Am I right in thinking that Schedule 4 will consist of perhaps only one and a half lines? If so, is it really worth having that Schedule if this is a matter of editing?

Lord McCLUSKEY

It is necessary to have it because it is a Schedule of a slightly different character from the other Schedules and the noble Lord will be aware of the old Scottish expression, "There's guid gear in sma' bulk". We are left with a small Schedule but a valuable and treasured one for them.

The Earl of SELKIRK

We should note that the 1693 Act needs only one word altered in it.

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

House resumed: Bill reported with Amendments.