1 Administration of Justice Act 1985
This Act (like its predecessors of the same name) is an assortment of legislative changes to the legal system. Among other things, it enlarges the disciplinary powers of the Law Society, so that it may now deal with the provision of inadequate professional services by a solicitor (in effect, with professional negligence). In addition to ordering the solicitor to refund, remit or waived all (or some part) of his costs, the Law Society may now order him to rectify any error and/or to take such other action in the interests of his client at the expense of the solicitor or his firm.
Among the miscellaneous reforms brought about by the Act are the more flexible powers of the High Court to appoint a new personal representative if (for example) the original personal representative finds that the duties of winding up an estate are unexpectedly onerous and therefore wishes to retire (a not uncommon problem). There is also a more generous approach to the problem of “deposit takers”, who may be served with “garnishee” proceedings, ie ordered to freeze an account and to pay all (or some part) of the money to a judgment-creditor of the depositor. The depositor is now entitled to deduct an amount in respect of his administrative and clerical expenses from the deposit, even if this reduces the amount received by the judgment-creditor (section 52). A similar sympathy is shown towards litigants who are caused financial loss when a judge, master or registrar hearing a case dies (or becomes incapacitated), thus necessitating a rehearing of the matter. For the first time there is a statutory right to claim compensation from the Lord Chancellor — albeit that he has a discretion whether or not to reimburse the additional costs occasioned by the death or incapacity (section 53).
A minor change is made to the law of limitations by section 57 — the limitation period for defamation is reduced from six years to three years from the time on which “the cause of action accrued” (viz publication) or (with leave of the High Court) it will be one year from the date of a delayed discovery by the plaintiff of “all the facts relevant to the cause of action”.
The main importance of this Act, however, is that it is the chosen vehicle to introduce “licensed conveyancing” into the English legal system. Section 12 creates “the Council for Licensed Conveyancers” which (by section 13) is given the power to make rules relating to the “education and training of those seeking to practise as licensed conveyancers”. Little further can be added until those rules are made, and the appropriate syllabuses published in definitive form. Section 32 gives the council a wide power to recognise conveyancing services provided by other bodies (eg banks and building societies). The proper function of these bodies in a transaction which may involve a conflict of interest will require further legislation, and so section 32 remains a prototype. Section 13 extends the common law concept of “legal professional privilege” to communications between a client and his licensed conveyancer (“as if the licensed conveyancer…had at all material times been acting as the client’s solicitor”). So soon as licensed conveyancers become an established profession, section 11(4) will exempt them from section 22 of the Solicitors Act 1974 — the statutory basis for the present monopoly of professional conveyancing by solicitors. To some extent this monopoly is strengthened by section 6, which makes it clear that a solicitor may employ a non-solicitor to carry out conveyancing transactions, and further makes it clear that such persons do not themselves commit a criminal offence by carrying out such transactions. The section “posts” into the Solicitors Act 1974 a new section (section 2A) which ratifies this (almost universal) practice of solicitors, provided that the unqualified person is acting “at the direction and under the supervision of” a solicitor.
2 Agricultural Holdings Act 1984
According to Lord Northfield (Hansard, HL, vol 447, col 1056), this Act results from a “sordid deal in some smoke-filled room” — between the Country Landowners Association and the National Farmers Union. The landowners’ beneficial part of this bargain is section 2 (the abolition — in most cases — of the right of statutory succession to an agricultural holding). The price of that bargain is section 1 (less rent). The right of statutory succession is abolished (with some exceptions) for all tenancies created after July 12 1984. The change to the rent review provisions of the Agricultural Holdings Act 1948 have been likened to “a kind of Toleration Act, making honest men of arbitrators at a stroke, by providing a formula to give legislative cover to what has become the current practice…the revision of a formula which, if it were to be rigorously applied, would lead to an unacceptable increase” (J Muir Watt in Current Law Statutes Annotated).
There are also some logically consequential (and other unexceptional) amendments to the law of notices to quit in agricultural holdings. Section 8 transfers certain functions (including the appointment of an arbitrator) from the Minister of Agriculture to the president of the RICS. (Specialists are referred to Mr Watt’s commentary, which is of quite exceptional literary merit and recondite to a high degree.) The Act has now been consolidated with the Agricultural Holdings Act 1948 and later agricultural holdings legislation into the Agricultural Holdings Act 1986, which received the Royal Assent on March 18 and comes into force on July 1 1986.
3 Building Act 1984
This Act consolidates provisions from 40 Public Acts of Parliament, two local Acts, and three statutory instruments “concerning building and buildings and related matters”. The corresponding part of the Housing and Building Control Act 1984 (sections 39 to 59) is therefore repealed. The reason for this (apparent) duplication of legislative provisions lies in Parliamentary procedure.
When a Bill is a Consolidating Bill the only question which can be debated is: “Shall the law be consolidated?” Any changes to the existing law must be contained in a separate Bill, passed shortly before the Consolidating Bill or (sometimes) shortly after it. (Students may note that the same process has been at work in other parts of this list, since the period 1983-85 has been replete in Consolidation Bills.)
4 Business Names Act 1985
This is a Consolidation Act, primarily based upon sections 28-32 of the Companies Act 1981, which, in turn, repealed the Registration of Business Names Act 1916. The Business Names Register was abolished by the 1981 Act and has not been revived by this Act. The Act sets out certain criminal offences with regard to the misuse of business names and provides for certain civil remedies for breach of the Act. The principal mischief which the Act aims at is non-disclosure of the persons masquerading behind a business name.
5 Cinemas Act 1985
Another Consolidation Act. In this case, consolidating the Cinematograph Acts 1909-82, and some related enactments, but now with a completely new definition of the subject-matter of the legislation (a “film exhibition”). Despite its obviously specialist nature, this Act deserves a passing mention here. It replicates the part of the 1909 Act which gave rise to Associated Provincial Picture Houses v Wednesbury Corporation (1948), the case which lies at the heart of English administrative law.
6 Companies Act 1985
Perhaps the biggest Consolidation Act of all time — 747 sections and 25 Schedules. It consolidates the Companies Acts 1948-83. It was immediately followed by the Companies Consolidation (Consequential Provisions) Act 1985, which made provision for transitional matters, savings, and repeals consequent upon the consolidation of the above Acts.
7 Companies Securities (Insider Dealings) Act 1985
This act consolidates certain provisions (principally found in sections 68-73 of the Companies Act 1980) relating to insider dealing (with securities) and related forms of fraud.
8 Copyright (Computer Software) Amendment Act 1985
This extends the protection given to “literary work” by the Copyright Act 1956 to computer programs also. This neatly avoids further litigation on the point.
9 County Courts Act 1984
This Act consolidates various provisions from 19 Acts of Parliament (from the County Courts Act 1959 to the Administration of Justice Act 1982). The Act repeals almost all of the 1959 Act.
10 Enduring Powers of Attorney Act 1985
This act enables the donor of a power of attorney to foresee, and to make some provision for, his own future mental incapacity. This can now be done by means of a pro forma “enduring power of attorney” (prescribed by statutory instrument). Such a power of attorney preserves, to a limited extent, the position and powers of the donee during the period of limbo which descends upon the donor’s affairs with the onset of his mental incapacity. (Full power to deal with the affairs of a mentally incapable person can be given only by the Court of Protection.) The Act creates a (rebuttable) presumption that the donee of the power is the most appropriate person to be appointed receiver of the donor’s estate by the Court of Protection. The new Act must be read in conjunction with the Powers of Attorney Act 1971. The new Act does not alter the rule that the death of either party revokes a power of attorney.
11 Food and Environment Protection Act 1985
This is primarily an enabling Act. Part I enables the Government to take emergency measures should there be an escape of any substance which might contaminate food on land or in the sea or both. (The power is exercisable by means of statutory instruments.) Part II of the Act repeals the Dumping at Sea Act 1974 and substitutes a new system of licensing. Part III relates to the control of pesticides, and adds to the growing “administrative quasi-legislation” a new type of code of practice. Approved codes of practice relating to pesticides will not, in themselves, be sources of law, but (like the Highway Code) they will be admissible evidence in criminal proceedings.
12 Foreign Limitation Periods Act 1984
Some civil actions give rise to the question whether English law, or the law of some other country, applies to the dispute in question. (This is known as “private international law” or “conflict of laws”.) The effect of this Act is that the law of another country (relevant to limitation of actions) has a right to prevail over the (English) Limitation Acts if the law of that country “falls to be taken into account in the determination of any matter”. Thus, if any part of the law of a foreign country is relevant to the dispute, so also will be the law of limitations as practised in that country, and (if the time-limits are shorter in that country) the action be statute-barred in the English courts also. The Act also applies to arbitration disputes.
13 Hill Farming Act 1985
This Act extends the power to make regulations about the burning of “heather and grass” (contained in the Hill Farming Act 1946) to a wider variety of flora: “heather, grass, bracken, gorse and vaccinium”.
14 Hong Kong Act 1985
This is an Act of two sections containing not much more than the following words: “as from 1st July 1997 Her Majesty shall no longer have sovereignty or jurisdiction over any part of Hong Kong”. (A Schedule to the Act empowers Her Majesty in Council to make certain further provisions about the laws of Hong Kong and the question of nationality.)
15 Housing Act 1985
There is no satisfactory definition of the law of “housing”. (Professor West has stated that the subject has artificial boundaries.) Thus the boundary between housing and landlord and tenant is indistinct (and becoming more so with recent legislation) and the Housing Acts 1957-80 contain a number of provisions which clearly belong to the law of landlord and tenant. But whatever the limits, it has long been clear that housing law represents a jungle of legislation, long overdue for codification (see the Law Commission Report on the Consolidation of the Housing Acts — Cmnd 9515). Such a codification has necessarily involved all or some party of 79 Acts of Parliament (from the Small Dwellings Acquisition Act 1899 to the Local Government Act 1985). It has now been achieved by four Acts of Parliament: Housing Act 1985; Housing Associations Act 1985; Landlord and Tenant Act 1985; and Housing (Consequential Provisions) Act 1985.
The topics within the scope of the Housing Act 1985 are those relating to the functions of public authorities, public sector housing, the regulation of housing conditions, subsidies, grants, loans, and other financial matters, and the duty to house the homeless. As well as consolidating the Housing Acts, the Act also incorporates so much of the Small Dwelling Acquisition Acts 1899-1923 as are still operative, and those provisions of the Public Health Act 1936 relating to common lodging houses. So far as is possible, Parliament has attempted to make “housing law” an aspect of public law, and the law of “landlord and tenant” an aspect of private law.
16 Housing Associations Act 1985
This Act consolidates (for the whole of Great Britain) the provisions relating to housing associations. The expression “housing association” is a generic term which covers many different kinds of legal entity — what they have in common is the object of providing housing accommodation on a non-commercial basis. Housing associations have existed (in one form or another) for over 100 years and have been mentioned in statutes throughout this time. The oldest examples are “housing trusts”, and some of the provisions of this new Act relate specifically to housing trusts.
The statutory encouragement of housing associations as a “third force” in the housing market dates from the Housing Act 1961, and the bulk of the amendments in the new Act come from Part I of the Housing Act 1964 and Parts I to III of the Housing Act 1974. The legislation has not previously been consolidated.
17 Housing (Consequential Provisions) Act 1985
This Act contains transitional matters, amendments, savings, and repeals consequent upon the above-mentioned consolidation of the law of housing.
Correction
Powers of Attorney
In the article on “power of attorney” which appeared in the issue of March 22 at p 1259 the following amendments concerning the two sentences beginning the paragraph under the heading “Deed and witnessed” should be noted.
The requirement of two witnesses applies only where the donor of the power is unable to sign the power of attorney himself and asks someone else to sign and seal the power in his presence: section 1(2), Powers of Attorney Act 1971. Apart from this, it may be executed like any other deed (one witness).
The 50p stamp duty on powers of attorney was abolished by section 85, Finance Act 1985 (with certain other fixed duties).
