The Future
| Author | Christopher Jessel |
| Pages | 469-476 |
Chapter 29 The Future
29.1 OFFICIAL PROPOSALS FOR REFORM
Much of this account has described how the system of holding and organising land in the manor, which reached its height some time about 1189, has been steadily dismantled over the centuries. Certain rights or obligations once existed but have been reduced or varied, and this book has described the fragments which are left. In 1925, many thought that manors would cease to exist, but they have been resilient and survive today. For the most part they now make up a harmless antiquarian interest but from time to time ancient rights survive, or are claimed to survive, in a way that can threaten established interests. A number of the more recent cases mentioned in this book arose because someone had acquired the lordship of a manor and sought to use that to assert unexpected rights. In general judges have been able to restrain such abuses but often it has involved landowners and others in substantial expense, time and trouble.
For that reason manorial law has attracted the attention of members of Parliament and others. In 2004 Paul Flynn MP instituted a debate. In response David Lammy the Parliamentary Under-Secretary of State for Constitutional Affairs, said, in referring to the Land Registration Act 2002:
The Government have introduced specific reforms that should address the worst of the problems highlighted by my hon. Friend, but fundamental reform of this difficult and complex area of law may be needed. That would be a significant undertaking requiring considerable expertise.
In the particular context of escheat he quoted Charles Harpum, the former Law Commissioner, who, he said:
in something of an understatement, commented: ‘The present state of the law can be described rather charitably as nonsensical.’ Following discussions with my
1 Hansard, House of Commons, col 202WH (3 February 2004).
470 The Law of the Manor
Department, the Law Commission is considering whether the proposed reviews should form part of its ninth programme of law reform. I have no doubt that it will pay much heed to what Charles Harpum said. The draft programme will be sent to my noble Friend the Secretary of State for Constitutional Affairs for approval later this year. Whether the reviews of the feudal and manorial systems will be included in the programme depends on their relative priority compared with other proposed reforms. The proposals have no special priority in the assessment process; there are always several worthy contenders for each place on the programme. Any further reform that results from the process will, of course, have to comply with the European convention on human rights.
The Law Commission had already indicated that this subject needs reform. In Land Registration for the Twenty-First Century it said:
We cannot immediately see any good reason for the retention of the remaining aspects of feudalism in England and Wales. We note that the Scottish Parliament recently abolished the admittedly more pervasive feudal system that applied in Scotland.
In relation to escheat it said (para 11.27):
We had extended discussions with both the Crown Estate and the then Treasury Solicitor to see if a more rational system could be constructed, at least for registered land (we were constrained by the scope of the Bill). We explored a possible solution, but in the end it foundered because of the uncertainty of the present law. Given that uncertainty there was a risk that in solving one set of problems, we might have created new ones. What is needed is a fundamental reform of the law governing both ownerless property, and the Crown’s responsibilities in relation to it.
The Commission stated in the past that:
There are several residual but significant feudal elements that remain part of the law of England and Wales. The Commission’s 9th Programme included a review of feudal land law. The Commission was not able to carry out work in this area during the 9th Programme because of the demands of other projects. The feudal land law project was automatically considered for inclusion in the 10th Programme, alongside proposals for new projects suggested by consultees.
However, in its eleventh programme of law reform
2 Law Commission No 271, Land...
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