§ 8.40 p.m.
§ Lord Renton
My Lords, I beg to move that this Bill be now read a second time. First, I congratulate my noble friend Lord Strathclyde upon his appointment as Minister of State. I knew his father and his grandfather and I served with them in another place. I know how proud and happy they would be about his achievements because he is one of the youngest Ministers of State ever to be appointed. He is only 33 years old but he is much more mature than that.
As the Bill's Long Title makes clear, its purpose is to abolish the rule of law relating to the sale of goods in market overt. It is a law which has applied for 800 years in England but not at all in Wales, Scotland, Northern Ireland or in Eire. The general rule of English law is that a buyer of goods acquires no better title to them than the seller had—nemo dat quod non habet. That is stated in the Section 21 of the Sale of Goods Act 1979. That re-enacted the equivalent section of the Sale of Goods Act 1893 which in its turn had codified the common law on sale of goods, including the market overt rule.
The thief has no title to goods that he steals and, therefore, no later buyer can obtain a good title apart from the exception created by the market overt rule. Section 22(1) of the 1979 Act states:Where goods are sold in market overt, according to the, usages of the market, the buyer acquires a good title to the goods, provided he buys them in good faith".The market overt rule applies to markets that have existed since before 1189 or were created by statute or by charter. For example, I believe that the ancient market of St. Ives, my former constituency, near Huntingdon was created in the 13th century by a Royal Charter granted for the purpose. The goods must be on 210 open display for them to be covered by market overt and the sale must not take place behind a curtain. The sale must take place after dawn and before sunset.
Ancient street markets and country fairs existing continuously for those 800 years are markets overt but shops are not, even those which displayed their goods openly in front of and outside the shop. There was an exception to that in the City of London with regard to shop fronts—goods displayed in front of the shop—but it has become obsolete and for the past 80 years, there has been no claim to market overt in the City of London. Therefore, we can ignore that factor.
I should mention that the rule of market overt does not apply to "car boot sales" or to those modern so-called "antique fairs" which are a fairly recent development of the past 20 or 30 years arid which is the expression used to refer to sales in village and church halls which are held mostly on Sunday afternoons. Therefore, neither car boot sales nor the so-called modern antique fairs invoke the market overt rule arid the Bill has no need to refer to them.
The rule applies these days mostly to the few ancient traditional street markets, of which perhaps the best known is Bermondsey market, which is held every Friday from dawn until mid-afternoon. It has become notorious as a place where stolen goods can be easily sold, especially silver and jewellery, as well as other antiques. Pictures are sometimes on Sale and sometimes there are valuable paintings by old masters. For example, the year before last two Gainsborough portraits and a Reynolds were stolen from Lincoln's Inn. One Gainsborough and one Reynolds were sold about six months ago in Bermondsey market. Each picture fetched less than £150. The buyer claimed that he had a good title to them because they were sold in market overt. He said that he did not know that they were stolen and thought that he gave reasonable value for them. They were each worth thousands of pounds.
Although I am a member of Lincoln's Inn and used to serve on its pictures committee, that is not why I am introducing the Bill. I should be doing so even if our pictures had not been stolen because, quite frankly, the market overt rule has become a thieves' charter. Something should be done about it and very soon.
Large quantities of valuable stolen goods are sold successfully in some street markets as a result. They are sold mostly for cash and records are rarely kept. Therefore the Bill is a necessary crime prevention measure.
So much for its purposes; its method is clear and simple. It repeals subsection (1) of Section 22 of the Sale of Goods Act 1979. I have considered carefully whether the Bill should contain any consequential amendments but on balance I do not find it necessary. I have consulted several learned friends in the legal profession and they agree with me. One of those whom I consulted is a former member of the Law Commission—a man of exceptional learning who is greatly respected.
I am glad to tell your Lordships that the Bill has wide support in the recognised antique dealing world, including the Society of Antiquaries and the Council for the Prevention of Art Theft, which is a representative 211 body on which various of the antique dealing bodies are represented. It is supported by the British Art Market Standing Committee, the chairman of which is his honour Judge Stephen Tumim, who is Her Majesty's Inspector of Prisons. It is supported by Sotheby's, Phillips and others. The police would like it. I am glad to say that it has the support of eminent lawyers, two of whom, noble and learned Lords, are to speak later in the debate.
The Attorney-General of the Isle of Man has written to me supporting the Bill. He says in his letter:It is gratifying to see the United Kingdom following in the footsteps of the Isle of Man".With your Lordships' help, I trust that we shall do so.
Although this is a valuable and necessary crime prevention measure which therefore engages the responsibility of the Home Office, the Government's reply to the debate will be given by my noble friend Lord Strathclyde on behalf of the Department of Trade and Industry because it is extremely interested in all aspects of the sale of goods. I understand that the department is reviewing the 1979 Act, including this question of market overt. I understand also that my noble friend may tell us what is to be done about it. I shall reserve any comment about that until I hear his reply.
Meanwhile, I should point out that this is an urgent crime prevention matter. It cannot wait indefinitely for a long and full inquiry leading to legislation perhaps next year or the year after. It must be attended to immediately. Accordingly, I beg to move.
Moved, That the Bill be now read a second time—(Lord Renton.)
§ 8.48 p.m.
§ Lord Oliver of Aylmerton
My Lords, I shall not take up a great deal of the time of the House because I believe that the arguments are so overwhelmingly one way that there really is little that needs to be said that has not been said already by the noble Lord, Lord Renton.
I urge the House to support this Bill which, in truth, is short and simple enough and may be thought to be many years overdue. We are concerned here with a legal anachronism that dates back certainly to 1332 and probably beyond. It is surprising that in this year of grace 1994 our law is still encumbered by what has become a senseless and antisocial medieval survival. In a medieval society, where a great deal of everyday commerce was conducted on customary fairs according to the customs then prevailing, the rule of market overt might have had some justification. Sir Edward Coke in his Institutes justified the rule on policy grounds, the supposed rationale being that it facilitated the replenishment and furnishing of goods of all kinds in fairs and markets which were necessary for the sustenance of a largely static population.
At a time when transport was both slow and rudimentary and people relied upon local markets for the buying and selling of goods, that might have had some little basis in good sense. The true owner of goods that had gone astray knew where to look for them; he looked in the local market because they could not travel 212 very far. If he was not alert enough to intercept them before an innocent purchaser obtained them in good faith there might have been some sense in protecting the purchaser's title. It is perhaps significant that in the case of the most easily transportable goods at that time—the horse, which could swiftly be taken away and sold somewhere other than in the local market—it was found necessary in the reign of Elizabeth I for the legislature to intervene and restrict the application of the doctrine in the Sale of Horses Act 1588.
In modern conditions, where the population is no longer dependent upon local markets for commerce and when goods of all kinds stolen at lunchtime may be several hundred miles away by sundown, I venture to submit that this rule can have no possible useful, social purpose. The only purpose that it serves is that of assisting thieves in the disposition of stolen goods. This rule of medieval markets has no legitimate place in our law. We should look at other common law jurisdictions. The noble Lord, Lord Renton, has already referred to the Isle of Man, Scotland, Wales and Ireland. I venture to cite Australia and New Zealand where this doctrine forms no part of their jurisprudence. I submit it is shaming that it still does here.
Abolition of the rule in England was suggested by a distinguished law reform committee nearly 30 years ago. It is high time that it went. I find it difficult to believe that any sensible argument can be advanced for its retention. I suggest that the only real question is whether it should await a more comprehensive revision of the Sale of Goods Act 1979 or whether this long-overdue reform should be carried out now in this short, simple, readily intelligible and discrete Bill now before the House. A review of the principal Act will inevitably be a lengthy and laborious process. In the meantime, stolen property is being and will be disposed of on a substantial scale in defeasance of the titles of the true owners under a doctrine for which there is no possible justification in good sense, public policy or common justice. How long must we put up with this? I urge the House to support the Bill.
§ 8.55 p.m.
§ Lord Crathorne
My Lords, my remarks will be in keeping with the length of the Bill. I add my support to my noble friend Lord Renton in his efforts to correct the anomaly of market overt. Having worked in the art market I have some experience of the problem. I have been involved through the Georgian Group with the organisation of two international art, antiques and architectural theft conferences. It was those that led to the setting up of the Council for the Prevention of Art Theft.
Market overt was created centuries ago for circumstances quite different from those obtaining today. The only use today of market overt is as a laundering service for thieves. They are the only people who will be sorry when market overt is done away with. My noble friend Lord Renton spoke of the case of the Gainsborough and Reynolds, but there are many others. I mention just one that concerns an 18th century bracket clock that was stolen from a country house in the Midlands. The next day it appeared in a car boot sale 213 and was bought by a dealer's runner who took it to a small stall in the weekly Birmingham market. There it was spotted by a clock dealer who bought it for cash. The police were very quick and efficient in that case, as indeed they often are, and tracked the clock down to that dealer. The dealer was persuaded by them to return it to the owner. A year later the owner decided that he wanted to sell the clock and sent it to a London auction house. The same dealer saw it in the auction catalogue in London, got in touch with the auction house and, having had a change of heart about giving it back, said that under the market overt rules it belonged to him. I think it is quite clear that he could have pushed that claim. However, an agreement was reached that when the sale went through there was a division of the proceeds between the owner and that dealer. That is extraordinarily unfair.
There are many cases that never come to court because of the near impossibility of proving that something has not been bought in good faith in these markets. It is not easy to know whether or not a deal is completed before or just after sunrise, which is critical in the context of market overt. The law relating to market overt is not a quaint and harmless survival from medieval times. It enables stolen goods to be disposed of so as to prevent the original owner from recovering them.
We have a well-developed sense of fair play in this country, and I hope that this manifestly fair and sensible Bill will he supported by the Government. I look forward to hearing what my noble friend the Secretary of State has to say.
§ 9 p.m.
§ Lord Ackner
My Lords, in days, indeed in years, gone by, when I and my noble and learned friend Lord Oliver were Lords of Appeal in Ordinary, often on a Thursday judgment day I enunciated a well-worn formula that I had read in advance the draft speech prepared by my noble and learned friend, that I agreed with it in its entirety and that I had nothing to add. That is a strong temptation. However, I shall add the following observations.
When the noble Lord, Lord Renton, invited my attention to the Bill, I had a sneaking recollection that when I was an officer of the Bar Council nearly 30 years ago we submitted a memorandum to a Law Reform Committee. With a little research, I found that it was the Law Reform Committee which in its 12th report in 1966 (Cmnd. 2958) on the subject matter of the Transfer of Title to Chattels dealt specifically with the market overt exception. In paragraph 31 of the report, the committee said:The present rule about market overt is capricious in its application and we think it should either be abolished or else extended so as to cover all retail sales at trade premises as well as sales by auction. Which solution is adopted plainly depends on whether it is thought better to protect property rights or to facilitate commercial transactions".The report continued to point out that:so far as market overt is concerned, there was a marked diversity of opinion in the evidence that [the committee] received. The Bar Council, the Law Society, the Chartered Auctioneers' and Estate Agents' Institute and the Association of British Chambers of Commerce all thought that the rule should be abolished, 214 principally on account of the anomalies to which it gives rise. The British Insurance Association and Lloyd's were satisfied that the rule does not present any practical difficulties to insurers, although both bodies were concerned that nothing should be done to facilitate the disposal of goods obtained by theft or fraud".Apparently, other witnesses,had no objection to the present rule but were not in favour of its extension, while yet others thought that it should be extended to cover all retail sales".The committee by a majority decided to recommend that it should protect all commercial transactions.
The report said:Those of us who are in favour of a change in the present law"—in the manner that I have just described—acknowledge the force of the arguments advanced by Lord Donovan"—a very senior member of that committee—in his Note of Reservation".Lord Donovan specifically supported the view of the Bar Council, the Law Society and the other institutions to which I have drawn attention. He made the following observations, which your Lordships may think are of some little relevance. He pointed out that:Lloyd's Underwriters, out of their wide experience",had observed,The injured innocence of the purchaser who discovers that he has bought goods under a transaction tainted by theft or fraud and is sued for damages for conversion is, it is feared, all too often tinged with lurking doubts which he had successfully stifled when the transactions took place".In regard to establishing that the person had acted in good faith, Lord Donovan pointed out that there would be many cases in which the purchaser,could assert that the unduly low price was due to clever and persistent bargaining on his part and to nothing else".He also pointed out that if the person thus raised,a prima facie case in his own favour",how was that case to be overthrown? He asked:How is the true owner at this stage of the case to establish that secretly the 'innocent' purchaser doubted the bona fides of the retailer but conveniently stifled his doubts?Finally, his Lordship said that the "justification for the recommendation" that it would "facilitate commercial transactions" would be,poor consolation for the true owner of some valuable picture or some heirloom which has been stolen from him and which he would be unable to get back, even though he could trace it into the hands of some purchaser and find out from whom he had bought it. The substitution of a right of action against the retailer"—who, of course, would not be protected—for money compensation … would be no real recompense".His Lordship further observed that,if the purpose of the recommendation is to protect innocent purchasers, one wonders on what ground the retailer who has purchased innocently is to be left vulnerable".I agree with the observations made by the noble Lord, Lord Renton. It is always a pleasure, and indeed a privilege, to support any initiative which he takes. This Bill is no exception.
§ 9.6 p.m.
§ Lord Derwent
My Lords, I rise to give the strongest possible support to my noble friend Lord Renton. I declare an interest as I am the chairman of the London and Provincial Antique Dealers' Association (LAPADA), which is the largest association of antique dealers in Britain, with over 700 registered professional antique dealers from every county in the country. I must 215 congratulate my noble friend on drafting a Bill which, as your Lordships would expect, is a model of clarity and brevity. One can only contrast it with the obfuscation of some other Bills with which your Lordships have to grapple.
In supporting the Bill, I do so not only with the backing of LAPADA, but also with that of the three leading regional antique dealers' associations—the Thames Valley, the Cotswold and the Bath and Bradford-upon-Avon Associations. Every honest antique dealer has been clamouring for years for the abolition of market overt. Not only does market overt give the trade a bad name, but antique shops are themselves now a prime target for thieves. It is obvious that raids on antique shops—and we have suffered a lot of ram-raiding recently—are only worth while if the thieves can dispose of and pass title to the stolen goods quickly before descriptions can be circulated. The law relating to market overt now serves as a common means by which stolen antiques are disposed of in such a way as to prevent the original owner recovering them.
My noble friend referred to Bermondsey market. The majority of dealers at Bermondsey are totally honest, but every month there is a regular stream of reported cases concerning stolen antiques sold in sections of the market. The goods change hands for cash and no receipts are given. The seller, who is often a dealer fronting for the thief, or is the thief himself, cannot be traced. The mere fact that market overt exists even enables clever defence counsel to claim that goods were bought in market overt. That claim may be difficult to disprove, even if untrue.
In mediaeval days, as the noble and learned Lord, Lord Oliver of Aylmerton, has pointed out, these markets essentially catered for a local clientele. Thieves were no doubt cautious about passing off stolen goods as the person robbed would also be at the market looking for his missing goods. Horses may indeed have been excluded from the goods which could be sold to prevent any stolen equine galloping off out of easy range. But today there are well worn paths from all over Britain down the motorways to accomplices who can acquire good title in market overt.
I, too, am aware that there is a wider debate in progress in Whitehall about the Sale of Goods Act as a whole; and internationally the British Government are indeed participating in Unidroit's efforts to solve the problems in private international law of obtaining compensation for bona fide purchasers of goods which turn out to be stolen. The Department of National Heritage is closely involved in these negotiations.
With the best will in the world—I am sure the Government have the best will in the world—such wide revision of the law will require considerable consultation and will take many months. Thereafter it is impossible to foretell when parliamentary time may be available to legislate. This Bill, however, is not concerned with these topics. As the noble and learned Lord, Lord Ackner, has pointed out, the Bill is concerned with whether a different law should apply in certain locations to that applying in the rest of the country. All this Bill does is to remove what is 216 considered by all those working on the Unidroit convention and by all those lawyers concerned with international cultural property to be an aberration permitting a thieves' paradise.
With due respect to my noble friend the Minister, it is something of an anomaly that because the abolition of market overt requires an amendment to the Sale of Goods Act it falls within the ambit of the Department of Trade and Industry which does not have prime responsibility either for crime prevention or law enforcement or protection of the national heritage, although I am sure the department appreciates the importance of all these subjects. But art and antique theft has now become big business. It is international in scope and it is, according to the police, closely linked to the international drugs trade. If the Government seriously wish to reduce crime not in two years' time but now, they will back the Bill and facilitate time for its consideration in another place. If they are not serious about this, they will argue for delay.
It is very seldom that any government have the opportunity to support a measure like this one, which will have the immediate result of reducing crime but which does not at the same time call for more resources, either human or financial. As no one wishes to preserve market overt as such it is also non-controversial and therefore, if given a fair wind, will not require much parliamentary time.
Whenever I visit the dealers in my association the question of increasing art-related crime comes at the very top of their agenda. They feel that their livelihoods are threatened by market overt. Ministers have been vocal about their plans for reducing crime and for helping victims. In every constituency in the country honest antique dealers are waiting to see whether they mean what they say. I strongly commend the Bill and express the great hope that the Government will facilitate its passage not only here but also in another place.
§ 9.12 p.m.
§ Lord Bridges
My Lords, I too wish to support this Bill. I am not a lawyer nor any kind of jurist, nor am I involved in the art trade, but I am concerned about the practical effects of the law on market overt as it now stands. Although I have not encountered this difficulty myself, I have known quite a number of people who have seen in a shop, or listed in an auctioneer's catalogue, an article belonging to them which had been stolen from them some time previously. They have failed in their attempt to recover the article by legal means because the principle of market overt has been invoked and it is impossible in these circumstances to counter it.
The use of Bermondsey market has already been mentioned and there can be little doubt that much of this trade goes on there. I therefore agree that the time has come to end this historical anomaly, and I support the Bill because I believe it does so in a precise, effective and economical way.
From the inquiries I have made it appears that in the past there has been a balance of argument on the subject among those involved in jurisprudence. On the one hand 217 there are those who emphasise the right of an owner to recover his stolen property, and on the other there are those who emphasise another aspect, namely the need to protect the legitimate rights of those who have bought an article in good faith.
I can understand those arguments but I submit that the question now needs to be resolved on a more urgent basis in view of the volume of crime which is taking place, particularly the increase in robbery, regrettably often armed robbery. It is therefore desirable to lay much greater emphasis on the first of the arguments which have occupied the jurists. A measure which will make it possible for the owners of property to recover their property is surely one which we should encourage. We should also note that in doing that we would make it more difficult for stolen property to be disposed of in the first instance.
There are some wider problems in this area, some of which have been mentioned. We have to recognise that if it succeeds this Bill will do little to curb some of the faster growing forms of theft. From a study of the statistics it is evident that those involve thefts from vehicles in particular. Stolen goods from that source appear to change hands very readily in garage sales. A number of questions on that subject have been put to the Government in this House in recent months. The problem of garage sales has to be handled separately. It is a different matter. We recognise its existence, but I do not believe that the abolition of market overt should be delayed on account of that quite separate anxiety.
Another aspect which is worth mentioning is the international dimension It is now extremely easy for goods to be stolen from addresses in this country and carried abroad in a car, truck or container. Once the articles are sold abroad it is very difficult for them to be recovered by their rightful owner in this country. That is partly because of the complexity of the matter, but also because of the inclusion in many foreign civil codes of provisions which protect the rights of the bona fide purchaser, particularly after some years of ownership. I submit that that is also a separate difficulty which we should recognise, but we should not allow it to prevent us from proceeding with this Bill.
It is true, as has been mentioned, that the international problem may be covered by the negotiation of the Unidroit Convention. However, the conclusion of that convention will take some time. It needs also to be accompanied by the modification in due course of the continental civil codes which I mentioned, which I hope may occur in the course of time.
Thus, although we cannot solve all of the problems connected with the most serious thefts of property which occur in this country and the circulation of the goods abroad, we can nevertheless do something which is practical and useful. This is one of those subjects where the introduction of a useful measure may be considered untimely by some because it might be affected by some wider and more comprehensive measure which is being considered. As has already been suggested in this brief debate, discussions may be taking place within the Government about broader legislation on the law of title. However, I greatly hope that if such discussions lead to the advancement of legislation in 218 due course that that will not be used as an argument for blocking this Bill. It is a modest measure of limited scope, but we need it. I hope that the Government will speed its passage both in this House arid in the other place.
§ 9.18 p.m.
The Viscount of Falkland
My Lords, I rise to support the Bill, mainly because I am the only person on these Benches who is not a lawyer who understands what it is about. That is because my late father was burgled in 1980 when 21 miniatures were stolen. Over the intervening years I have recovered six of those miniatures. Eight of them have re-emerged. I was unable to recover two of them because of market overt. I was advised by the police and others close to me, including my solicitors, that any further efforts on my part to pursue those two miniatures would have involved me in costs which would probably have exceeded their value. I am extremely grateful to have those objects back. I am somewhat concerned by the story of the noble Lord, Lord Crathorne. I only hope that those vendors—the items appeared at auction—who read Hansard (if indeed they do) change their minds. I hope that the reading of Hansard has not stretched that far. Even so, they would find it very hard to get them back from me.
Because of the success of an anti-theft device with which I was involved with the automotive industry, I had some discussion with the major auction houses about the use of electronic transponders on certain goods—antiques and pieces of fine art. It is a technology that I believe will become more common in future. However, the chief security officer of Christie's told me that, notwithstanding those advances in technology, the most important change which could take place in his view was the abolition of the market overt which he described in exactly the same terms as the noble Lord, Lord Renton, in so admirably introducing the Bill. The chief security officer said, "It is a thieves' charter and gives us the most enormous headache". He described, perhaps not so eloquently as other noble Lords, the historical origins of market overt. It was quite clear to me then that there was no logical reason why the rule should have continued beyond the stage when electric light was invented and probably the invention of the internal combustion engine. That historical origin has been well explained by other noble and noble and learned Lords tonight.
To echo other speakers, the provision is well overdue. It will be of enormous relief to police officers, antique dealers, the auction houses and people such as myself who have suffered either directly or indirectly from burglaries and from the difficulties in regaining goods to which people believe that they have good title. I congratulate the noble Lord, Lord Renton, on introducing the Bill. Having spoken to the chief security officer at Christie's it had been my intention to ask a Question for Oral Answer in the House. The Bill saves me the trouble of doing so, in particular since few people would have understood what I was talking about. The noble Lord has explained the Bill admirably; every noble and noble and learned Lord in this Chamber has understood it perfectly. I see from the expression on the 219 face of the noble Lord on the Front Bench that he appreciates the arguments that have been put before him. I hope that that will be reflected in a favourable response from him and that we shall soon see the rule of market overt obliterated from English law.
§ 9.23 p.m.
§ Lord Peston
My Lords, perhaps I may first associate myself with the remarks of the noble Lord, Lord Renton, in congratulating the noble Lord, Lord Strathclyde, on his promotion to Minister of State. His rise in your Lordships' House has been, to say the least, spectacular but well deserved, although I think that he will wish, as we all do, that it had occurred in happier circumstances.
I wish to be as supportive of the Bill as I can. One of the pleasures of being a Member of your Lordships' House is that one's education never ceases. I had never heard of market overt until I was told that it was a subject with which I had to deal. I find it all quite fascinating. Speaking as one of the most conservative Members of your Lordships' House, I immediately took the view that a principle that had lasted from 600 to 800 years should not be abandoned too easily; there might be a point to it. However, I took advice. Certainly my advisers have been entirely in agreement with what the noble Lord, Lord Renton, said. If I had had any doubts, then listening to the noble and learned Lords, Lord Oliver and Lord Ackner, I am firmly convinced that this is something which ought to happen.
It is a simple matter. My advisers have told me, and other noble Lords have repeated, that there is a strong case for changing the Sale of Goods Act in many ways. We shall come to that in due course. But it would be a most unattractive position for the Minister to take not to give this measure his full support because there is a lot more that we shall do some day in the future. Thus I support the Bill, and if, as I hope, the Government give the Bill a fair wind, I am confident that the Opposition will in no way oppose it. On the contrary, they will do all they can to help it through as quickly as possible to the statute book.
§ 9.25 p.m.
§ The Minister of State, Department of Trade and Industry (Lord Strathclyde)
My Lords, I am grateful for the opportunity given by my noble friend Lord Renton to take part in the important debate on this subject. I thank him warmly for the congratulations he gave to me in the preface to his speech and I thank the noble Lord, Lord Peston, for his congratulations. I also join him in admitting that I too had little or no knowledge of "market overt" before the debate came to pass.
It has been an interesting debate and one which has illuminated one of the stranger corners of English law. It says something for the continuity and profound historical roots of that law that we should today be discussing a legal principle in which the first leading case, if my advisers are to be believed—and to some extent that was confirmed by my noble friend Lord Renton—dates from the reign of Edward I. But the fact 220 that a law is ancient does not entitle it to any special respect if the reasons which brought it into being are no longer good. I would be the first to agree with my noble friend that the original justification for the rule of market overt has long ceased to hold.
As the noble and learned Lord, Lord Oliver of Aylmerton, remarked, the rule of market overt grew up in the Middle Ages at a time when most goods were bought and sold at the local market and neither goods nor people were normally mobile. It followed that, if goods were stolen or mislaid, they were likely sooner or later to turn up in the market, because there was no other means of disposing of them. It seemed a reasonable duty to place upon the original owner of the goods that he should search for them in that market, and a reasonable protection for buyers that one who bought in good faith from that market should get good title.
The world has moved on since then. Goods are no longer normally bought and sold from open market stalls, and with the advent of the motor car and other means of transport they have become highly mobile. Indeed, it may be worth noting, if I may be permitted another historical aside, that horses as goods, which were themselves mobile, were excluded from the rule of market overt in the 16th century. I very much accept the argument that, if we were sufficiently alive to changing circumstances to update the rule of market overt in the 16th century, then we should not be shy of doing so again in the late part of the 20th century.
So far, I have been agreeing with my noble friend. However, I have to say that his Bill begs a question. We are all agreed that the law of market overt needs to be reformed. What has not been settled is in which direction. Should it, in short, be abolished or extended? We have heard the argument for its abolition. I do not necessarily disagree with that argument, but it is only one argument and I hope the House will bear with me while I mention the contrary one. The noble Lord, Lord Bridges, weighed up the opposition view in his speech.
When goods have been stolen by a rogue who then disappears a loss is created. Somebody must bear that loss. There are only two possibilities: it must be either the original owner or the purchaser. It is not self-evident that, if he has bought in good faith, it should necessarily be the latter. Indeed, the argument has been advanced that it should be the former because, in practice, he is the more likely to be covered by insurance and therefore the better able to bear the loss. Finally, there is the argument that to have a general rule that the innocent purchaser gets good title would facilitate the certainty of commercial transactions.
The noble and learned Lord, Lord Ackner, recognised that these arguments were considered with great care by the Law Reform Committee in its report on transfer of title published in 1966. I understand that, with one dissenting voice, albeit a powerful one—namely, that of Lord Donovan—the committee concluded that the interests of the innocent purchaser should take precedence and that the rule of market overt should be extended to all purchases from normal retail premises or at auction. The committee recommended accordingly. That recommendation did not find favour 221 with the government of the day, very much for the reasons that we have heard about this evening. But that is not to say that it should be rejected out of hand.
In the event, no action was taken on the Law Reform Committee's report, and for some years the issue slumbered. It was raised again in Professor Diamond's report on security interests in property, published in 1989, and in their response to that report the Government said that they would be giving the question of transfer of title further consideration. I fear that the wheels of Whitehall ground a little slowly, and it was not until April of last year that it was announced in another place that the Government proposed to publish a consultation paper on the question of transfer of title, of which of course the rule of market overt forms a part. I can confirm that the consultation paper will be published very shortly—it is hoped before the end of this month.
I hope therefore that my noble friend, and other noble Lords who have spoken, will understand now why I have some reluctance in supporting this Bill. To repeat, that market overt is a medieval anachronism which has outlived its original purpose is common ground between us. But abolition is not the only option. There is a serious argument that the rule should be extended to retain and adapt the principle to the trading realities of the twentieth century. I am not saying that the Government agree with this argument. But it deserves a hearing. I sense that it would be wrong, at a moment when an in-depth review of the law regarding transfer of title is about to be launched, that any particular part of that review should be pre-empted.
I do not wish to be churlish to the united voices that we have heard in the House this evening. I simply voice a caution about moving hastily on this matter. I must say to my noble friend Lord Renton that I am unable to give support to this Bill until I have seen the results of that consultation. However, as is our custom, I have no intention of delaying the Bill's passage through this House.
§ 9.34 p.m.
§ Lord Renton
My Lords, I am glad to hear my noble friend's last remarks. But, frankly, I am quite shocked by his suggestion, after all that we have heard, that consultation is needed by his department. It needs no further consultation than to read the speeches that have been made in this House tonight. Perhaps I may say how grateful I am to every noble Lord, and every noble and learned Lord, who has spoken. Every single one of them has strengthened the case for the Bill. No consultation that might take place could weaken those arguments.
The noble and learned Lord, Lord Oliver, reminded us that Australia and New Zealand do not need a market overt rule, and never had one. He pointed out that there is no longer any useful service to be performed by it. My noble friend Lord Crathorne pointed out that the abolition has the support of the Georgian Group, yet another antiques body which is respected. The noble and learned Lord, Lord Ackner, referred at some length and with great learning to the work of the Law Reform Committee in 1966, and my noble friend Lord Strathclyde followed that up. But I must point out that 222 that report and the minority comments, though of great value, by Lord Donovan, date from 30 years ago. There has been a great increase I n thefts since then. The matter has become even more urgent. Even so long ago, as the noble and learned Lord, Lord Ackner, pointed out, abolition of the market overt rule had the support of the Bar Council, the Law Society and the British chambers of commerce.
My noble friend Lord Derwent added to the list of various respected bodies concerned with this matter by referring to the Antique Dealers' Association. He said that the rule creates a "thieves' paradise". He made a good point not made by anybody else; I certainly had not thought of it. He said that if the rule were abolished, no more government resources would be needed. One can carry that argument further. It would reduce the government resources needed. It would lighten the task of the police and create less of a burden for them. Money would be saved by the police.
The noble Lord, Lord Bridges, pointed to the urgency of the matter and reminded us that the existence of the market overt rule has even facilitated and encouraged armed robberies. He also referred to the international factor, about which I must confess I am somewhat ignorant. But quite frankly I do not think it affects the need for this Bill, and neither does the noble Lord.
The noble Viscount, Lord Falkland, gave a most telling example of the theft of 21 miniatures from the collection of his famous family and mentioned his difficulty in obtaining possession of some of them, even those that have come to light. If I may say so, it was a very telling example.
I should like to thank the noble Lord, Lord Peston, for making clear that he, and presumably therefore his party, support the Bill. He was very good to say that they would do nothing to impede its passage through either House.
I come back to what my noble friend Lord Strathclyde said. I am grateful to him for making his position clear. But it is a position that I personally cannot accept, and I do not believe that any of your Lordships will do so. I hope that he will challenge that position in the circles in government in which he moves. He said that reform was needed but asked how it was to be done. There is only one issue. Do we abolish the market overt rule or do we not? There is only one way to do it and that is by this short and simple Bill.
My noble friend spoke of a consultation paper. What would a consultation paper do? It would presumably produce the answers that together we have produced tonight—the evidence, the legal arguments and so on. That could be the only result of a consultation paper. 1 am also worried about the timing. There is every prospect that the Bill could be passed through your Lordships' House within a fortnight or by the end of this month. Then the other place would have a reasonable time to consider it and, I hope, get it through before the end of the financial year. But if there is to be a consultation paper, what would happen to that timetable? I am very worried.
This is a government of whom I am a keen supporter, as my noble friend knows. I honestly advise the Government that the DTI is being over-zealous, 223 over-cautious and wrong in deciding that this matter shall be delayed by a consultation paper. I commend the Bill to the House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.