|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Goodhart: I am not happy with the explanation given by the noble Baroness for the rejection of Amendment No. 62. It seems to me that there is a problem. We have here a claim which the registered proprietor is not entitled to dispute. The registrar may think that the validity of the claim has been proved to his satisfaction. However, surely that is not a decision which should be taken without the possibility of a hearing.
The situation is now entirely new. There is a possibility for unilateral notices as well as agreed notices. A unilateral notice is as good as an agreed notice subject only to the possibility that it might be cancelled as a result of the proprietor making a case against it. If it is as clear as that, the proprietor will not make a case. It is only where there is a dispute that the proprietor is likely to challenge a unilateral notice.
Secondly, Members of the Committee will know that if the agreed notice is wrong, the proprietor can seek rectification of the register. Therefore, there is an available remedy. We are not depriving the proprietor of that remedy by virtue of these rules. The rules will give the flexibility that we need. The registrar is already discharging duties in that regard. We think that the system will work well.
Baroness Buscombe: I thank the Minister for her full response to each of the three amendments. I should like the opportunity to read Hansard and consider carefully her comments. Perhaps I may comment briefly in support of the response given by the noble Lord, Lord Goodhart, to Amendment No. 62, about which there is concern. One of the reasons why we feel strongly about this point is that it has to be considered in the light of the fact that the cases to which we refer will be prescribed by rules which will not receive further parliamentary scrutiny. That is a matter of concern. We believe that it makes for disproportionate interference with the proprietor's rights.
The noble Baroness said: Amendment No. 63 is designed to ensure that the proprietor knows not only that an application has been made but also what its consequences may be so that he can take an informed decision as to what, if anything, to do about it. The effect is similar to that of the protection given to an applicant by Clause 36(2). I beg to move.
Baroness Scotland of Asthal: Clause 35(1) sets out the requirement for notice to be served on the registered proprietor, and any other person named in the rules, of the entry of a unilateral notice on to the register, as mentioned by the noble Baroness. However, the proposed amendment seeks to lay down in the Bill detailed issues which need to be addressed in the notice.
Briefly, the two pieces of information referred to are, first, that the entry of a notice does not guarantee the validity of the interest to which it relates and, secondly, there is a right to apply for the cancellation of the notice at any time.
I fully understand why the amendment has been proposed and why these issues should be addressed and the notice served on the proprietor and other interested parties. I see the force in that. But this level of detail is included in notices under the current system and will continue to be set out in the new notices drafted in support of the Bill. There is no indication that this level of detail has to date caused any difficulty or confusion. It is a replication of what is currently good practice.
However, there is a more fundamental issue to be considered. The framework of this legislation, unlike the 1925 Act, strikes a clear balance between the legal principles that overarch the land registration system, which should be contained in primary legislation, and the more detailed supportive provisions which are more appropriately left to secondary legislation where they can be updated more readily. We have touched on that aspect on a number of occasions tonight.
The general rule-making provision which addresses the detail of the form, content and service of notices is set out in paragraph (5) of Schedule 10. The rules made using those powers will be subject to the scrutiny of the Land Registration Rule Committee. It is in that forum that the exact details of what should be said to make the recipient of the notice understand what is at issue should be decided.
There is one further issue. The primary legislation will be used by the Land Registry and the rule committee as the guiding force behind the rule-drafting exercise. It is perhaps wrong to signal to them that these two issues are of particular significance. I am sure that noble Lords will agree that there are other issues of equal weight that should also appear on the face of the notice and which perhaps may differ from the circumstances in which the application for cancellation is made.
As drafted, the clause signals to the rules draftsmen that it is for them to consider what is needed in all the circumstances and for that to be agreed with the members of the rules committee. As I have said before, we totally accept that the rules committee will have an important role. We are mindful of the need for enhanced scrutiny. As I said at the beginning of the debate, we shall table amendments on Report which will address some of those concerns. We understand the basis of such concerns.
Baroness Buscombe: I thank the Minister for her response. We should like to consider her comments. I am reassured to learn that amendments will be tabled on Report regarding the rules. We are also reassured to hear that the Government appreciate our concern that detailed provisions will be subject to secondary legislation which is by negative resolution. That is a continuing concern. We look forward to discussing related points on Report. On that basis, I beg leave to withdraw the amendment.
The noble Baroness said: The amendment is designed to make clear that the registrar's powers are to be exercised in such a way as to give effect to the parties' rights under the general law. I respectfully refer the Minister to paragraph 6.37 of the report. I beg to move.
Baroness Scotland of Asthal: I regret to say that I must resist the amendment. Clause 41 deals with the effect of a restriction, which is to prevent an entry being made in respect of a disposition covered by the restriction without the terms of the restriction being complied with.
Restrictions come in many forms and may affect only a very specific type of disposition such as the need for the first chargees' consent to the entry of a second charge. It can also be very wide and catch any dispositions at all made by the proprietor of the land.
The amendment seeks to limit the circumstances in which the registrar can make an order disapplying or modifying the restriction to cases where this will give effect to the rights of the persons affected thereby. A restriction is of relevance only to an application for registration of a disposition if the disposition is caught by it, thereby requiring certain conditions to be fulfilled. An application is made to the registrar for an order disapplying the restriction or modifying its effect if for some reason those conditions cannot or should not be fulfilled. A common example is where the consent of a limited company is required and that company has been dissolved.
The provision is intended to deal with the obstacle of completing a specific application without changing the restriction on the register or its effect for the future. In reality, therefore, a request for an order under this subsection will be made only of the person requesting it is affected at the time by the restriction in some way. This is endorsed by subsection (3) which limits the identity of the persons who can request an order to those who have a sufficient interest in the restriction.
The provision is necessary for the proper operation of the register and in the circumstances I have described the additional words suggested by the amendment are not needed. I therefore invite the noble Baroness to withdraw the amendment.
Baroness Buscombe: I thank the Minister for her response. I am sorry that she was unable to respond more positively, although I take on board and understand the points she made. On that basis, I beg leave to withdraw the amendment.