HL Deb 26 March 1985 vol 461 cc876-83

3.11 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Administration of Justice Bill, have consented to place their prerogative and interests so far as they are concerned on behalf of the Crown and the Duchy of Cornwall at the disposal of Parliament for the purposes of the Bill.

I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(The Lord Chancellor.)

On Question, Bill read a third time.

Lord Morris moved Amendment No. 1: After Clause 5, insert the following new clause:

("Probate work by legal executives and others.

.—(1) Section 23 of the Solicitors Act 1974 (restriction on persons acting in probate matters when not qualified to act as a solicitor) shall be amended as follows.

(2) After subsection (2) there shall be inserted— (3) Subsection (1) also does not apply to any act done by a person, including a Fellow of the Institute of Legal Executives, at the direction and under the supervision of another person if it could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section.".")

The noble Lord said: My Lords, you will recall that the same amendment was tabled by me at both Committee and Report stage. During Committee my noble and learned friend the Lord Chancellor was good enough to suggest that he would have another look at this matter and come back at Report. At Report stage my noble and learned friend let us know that he was not quite ready to deliver his consideration upon the matter.

On that basis I re-tabled the amendment for two reasons: first, because I made something of a hash of arguing the point in Committee. But that reason alone is not good enough. However, the major reason why I wanted to air this matter was that the noble and learned Lord the Lord Chancellor was good enough to write to me between the Report stage and the Third Reading with his reasons for feeling that this amendment was not necessary. I felt it very important that as this Bill will pass to another place the point should be aired just for a short while longer.

My noble and learned friend suggested that it might be unfortunate if a client in probate matters was not at least initially instructed by an admitted solicitor, and that this in part was the object of Section 23 of the Solicitors Act 1974; and furthermore that he had heard of no complaints that had been received by himself or his department with regard to the operation of Section 23. It was these two grounds, if I have summarised my noble and learned friend's letter correctly, that persuaded my noble and learned friend that any amendment such as mine was in fact not necessary.

However, I am advised that it is by no means exceptional for experienced legal executives who have recognised written qualifications in probate, and indeed experience in probate, to handle probate work on behalf of their instructing clients—from the eggs to the apples, so to speak, from beginning to end. I venture to suggest that the reason why no problems have arised with regard to the operation of Section 23 is simply that the public are perfectly satisfied with the service that they receive from solicitors in this field, whether they be admitted or unadmitted.

It is my contention that Section 23 should reflect what happens in practice rather than reflect what some might like to happen in practice. Indeed, by practice rules made by the Law Society, Fellows of the Institute of Legal Executives are permitted to manage solicitors' branch offices. This means that, while a solicitor is expected to be in attendance at some time for clients who wish to see him, the legal executive is essentially in control of the business of that office.

For such to happen must assume that legal executors will be available to see new clients and to take initial instructions, including of course instructions in probate matters. Furthermore, I suggest that your own experience tells you that one does not ask a member of a solicitor's staff to show his practising certificate or evidence of his qualifications. I think that the public generally assume that the person in the solicitor's office with whom one is dealing is an admitted solicitor although this is by no means necessary. All I ask is that my noble and learned friend hears me and that he be good enough to consider this matter a little further in the light of what has been said, particularly bearing in mind that this will, I am advised, be followed up when this measure reaches another place. I beg to move.

Lord Mishcon

My Lords, modesty is always a very acceptable virtue in your Lordships' House; but I think that the noble Lord, Lord Morris, was too modest when he referred to his contribution at Committee stage as being a muddled one. It was not; but he has made the position abundantly clear today. Perhaps I may add an observation or two. There is a possibility of a problem arising in the future because of the difference between the terms of Section 22, as amended, and Section 23 if it remains unamended. However, I should not like anyone to think—certainly not the noble and learned Lord—that Section 23 was regarded by my profession as anything other than very worthwhile in its aim to protect the public. With the noble Lord, Lord Morris, I wonder whether, now that the Bill will undoubtedly be travelling on its voyage down the corridor, consideration could not be given to this question without weakening the protection for the public but which might put this clause at risk if the amendment is not made in Section 23 to match that in Section 22.

Lord Denning

My Lords, may I also add a word in support of the amendment? In my young days legal executives were all called managing clerks. There was the managing clerk of the litigation department; the managing clerk of the conveyancing department; and the managing clerk dealing with probate. They were first-rate people. They had been in the profession all their lives and had much more experience, and often much more knowledge, than the partner himself. At least I had the greatest confidence in them. It is right that these managing clerks, now legal executives, with their experience—and they have had to pass their examinations—should and could be entrusted to do it in the terms of this amendment at the direction and under the supervision of the partner. I support the amendment so as to clear up the position. There should be no doubt about the validity of what these managing clerks or legal executives do. I support the amendment.

The Lord Chancellor

My Lords, I can see difficulties about this amendment. It is quite acceptable that unqualified persons, whether they are legal executives or not, shoud prepare probate papers under the supervision of a qualified person. That is quite acceptable, although I do not think that this amendment would be necessary in order to make it acceptable. I think it already is. However, it gets stuck in two respects: first, it will enable people to take the initial instructions. My present view is that the person who takes initial instructions ought to be a qualified person. It is not an easy thing to do. Nor am I satisfied with what my noble and learned friend has said about it; nor am I clear in my mind what is meant by taking instructions under supervision. I can well understand what is meant by preparing papers under supervision, but I cannot quite visualise what actually goes on on the ground if an unqualified person takes the instructions; how does he get the supervision? If he goes there with the qualified person, I should have thought that this amendment is unnecessary. If he goes without, I do not think he is getting supervision, and I think it is objectionable. So that is one difficulty that I have.

Now I come to the second point. Despite what my noble and learned friend on the Cross-Benches says, the amendment says: a person, including a Fellow of the Institute of Legal Executives, at the direction and under the supervision of another person". It does not say anything about being confined to managing clerks or legal executives. It says: a person, including a Fellow of the Institute of Legal Executives So it seems to me in that form to be objectionable, except to the extent that papers can be prepared under supervision by an unqualified person. It seems to me to be inept. But I confirm one thing which I pointed out to my noble friend, and that is that the Government are not aware of any problems having actually arisen. Whether, as my noble friend suggested, that means that it has been going on all the time and that therefore it is perfectly all right, or whether it means nothing which is objectionable has been going on and therefore it is absolutely all right, does not appear. I can only say that in the form in which it appears the amendment is not acceptable. If my noble friend wants me to consider what he has said over and above what he said in Committee and at Report stage, I shall certainly do so, and let him know what has emerged from that consideration.

Lord Morris

My Lords, I am most grateful to my noble and learned friend the Lord Chancellor for that response and, indeed, for the most distinguished support that I have received from both the Cross-Benches and the noble Lord, Lord Mishcon. His point is a very valid one, and if I may respectfully say so, it would certainly cause an odd conflict between Sections 22 and 23.

I also take the point made by the noble and learned Lord the Lord Chancellor with regard to the word "including" which is a very real objection and which almost certainly will be considered by those who will be handling this interesting but by no means weighty matter in another place. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 2: After Clause 42, insert the following new clause:—

("Grant of legal aid by High Court or Court of Appeal .—(1) Where, at the hearing of any proceedings in the High Court or in the civil division of the Court of Appeal, it appears to the judge or that court to be desirable that a party appearing in person should receive legal aid for the further conduct of those proceedings, the judge or the court may, with the consent of that party, determine that he should be treated as if he were a person to whom an emergency certificate had been issued in accordance with regulations made under Part I of the Legal Aid Act 1974 subject to his complying with such conditions as to the furnishing of information and otherwise as may be required by such regulations. (2) On making a determination under subsection (1) for the grant of legal aid to any party the judge or the Court of Appeal may adjourn the proceedings so far as may be necessary to enable that party to be represented by a solicitor and counsel and shall cause notice of the determination to he sent to The Law Society.").

The noble and learned Lord said: My Lords, the amendment that I now move proposes that in a civil case where a party is unrepresented and is appearing in person and it appears to the judge or the court that he should receive legal aid for one reason or another—perhaps the importance of the issues involved, such as public policy questions, etc.—the judge or the court should have power to enable legal aid and advice to be provided, with of course the consent of the party in question.

It is somewhat paradoxical that one lay justice can grant legal aid to an accused person committed for trial, even though there appears to be no real defence to the charge, while a High Court judge, or even three Lord Justices, have no such power in a civil case, even when it appears to them that the litigant's case has real merits and ought to be assisted in its furtherance. The full merits of a case may not emerge until well into the course of the proceedings in court. It is the case that some legal aid committees are less willing than others to grant legal aid, and the matters in issue, the merits of the matters, as I have said, can appear during the currency of the proceedings.

For most people the refusal of a legal aid certificate means in effect the end of any hope for them of redress or, indeed, of defence against attack. There is a danger in this, in that it means trial not by courts, but by legal aid committees.

However, this is not an amendment which I should have thought would add greatly to the cost of legal aid administration. I respectfully invite the sympathetic attention of the noble and learned Lord to it. Owing to pressure of time during earlier stages of the Bill we have had no opportunity to discuss the amendment which I now move more in hope than in confidence. I beg to move.

Lord Denning

My Lords, I should like to suggest that this is unnecessary. In the Court of Appeal I have had experience of litigants in person. A litigant would come on Monday morning and explain his case to us. Sometimes there would be nothing in it, but sometimes there would be something in it and we would feel that we needed help and that he needed help. So I would say to the litigant in person, "Have you asked for legal aid?". He would say, "No". I would then say. "You had better do so". But quite often it happened he would say, "Yes, I have applied for it, but I have been refused". Then I would say to him, "Well, we have heard enough about your case to realise it would be helpful to us that you should be legally aided. Will you please now go to the area committee and tell them that the Court of Appeal have recommended that you should get legal aid". So he would go along to the area committee. The area committee would take good notice of what the Court of Appeal had said and grant him his legal aid. So in point of practice every deserving case in that way does get legal aid. There is no need to go through the procedure stated in the amendment.

The Lord Chancellor

My Lords, I am grateful both to the noble and learned Lord, Lord Elwyn-Jones, who proposed this amendment, and to my noble and learned friend on the Cross-Benches who made his comment on it. I tend broadly to accept the view of my noble and learned friend in preference to that of the noble and learned Lord, but I should like to add a comment of my own. I do not myself see the paradox in the difference in approach between criminal and civil legal aid. The whole of criminal legal aid is within the grant or refusal of the court trying the case, or committing it to the Crown Court. In the case of the first instance of a committal proceeding or of a summary jurisdiction case it would, of course, be a lay magistrate or lay magistrates. But as a matter of fact they have the fairly well known, so-called Widgery, criteria to go by, which involve that legal aid is granted if liberty or reputation is at stake—I am speaking from memory—or difficult points of law are involved; or perhaps the defendant does not understand English very well or does not seem to be able to hear very well, or something like that; and the lay justice grants legal aid. In fact, in the Crown Court and in the Court of Appeal I think that over 90 per cent. of the cases get legal aid and, of course, there is no very elaborate procedure there for the assessment of means. But when it comes to civil legal aid, as my noble and learned friend on the Cross-Benches said, in the first place underpinning the whole system and responsible for it is the whole system of district and area committees of legal practitioners, barristers and solicitors upon whom grant and refusal actually depend. This would be a serious change of policy from the system which underpins civil legal aid to an application to or an originating motion from the court.

3.30 p.m.

When my noble and learned friend was hearing, with his usual courtesy and patience, litigants in person in the Court of Appeal, I have waited for my own proceedings to commence with much pleasure gathered from listening to his performance, which was a model of how to deal with litigants in person—courtesy combined with patience and a helpful suggestion where a suggestion might be helpful. As he has reminded us, he could say to the applicant or to the person seeking to conduct his own case, "Don't you think you had better obtain legal aid?". He has described in greater detail than that what then happened. The applicant was very often refused, but if a new point had emerged, my noble and learned friend told him to go back and repeat what the Court of Appeal had said.

Underpinning that, which my noble and learned friend did not mention but which is important for the working of the system, there is the whole emergency certificate procedure available, with or without a hint from the Court of Appeal. That can be invoked—it is in fact referred to in the amendment. I must point out that I cannot estimate the cost, and the noble and learned Lord said that it would not cost very much. I do not know whether it would or would not, but it would undermine the assessment of means which is vital to the whole proceedings in civil legal aid.

I am persuaded, for the same reasons as were given by my noble and learned friend, that in practice, although it would be a departure in principle from the organisation of the scheme, it would not add anything to it in the way of justice. I would not therefore accept this amendment although I quite realise that the noble and learned Lord who was deprived of an opportunity of airing this point at length at the two earlier stages of the Bill was perfectly entitled to bring it forward at Third Reading.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord for his courteous answer. I regret, however, that the noble and learned Lord, Lord Denning, for once did not get the point—which is a dangerous thing to accuse him of failing to do. My concern in this amendment is to provide a fall-back position for the litigant in person who has been refused legal aid by the relevant committee but who decides nevertheless to have a go himself. The merits of the case may emerge during the currency of the proceedings. I am not concerned with how the matter would have been dealt with in the preliminary stages of a case in his angelic way by the noble and learned Lord when he was Master of the Rolls but when the case is in full swing at the trial itself. The litigant in person inevitably suffers disadvantages in court unless he is a very exceptional character indeed. We have already advanced a good deal in easing the positions of the litigant in person by enabling him, for instance, to make claims for the expenses that he has incurred. It is felt by those who have represented their views to me that an additional fall-back position for the litigant in person would be a further useful addition to the provisions of legal aid and advice.

On Question, amendment negatived.

Schedule 1 [Amendments of Solicitors Act 1974]:

Lord Mishcon moved Amendments Nos. 3 and 4: Page 46, line 21, at end insert— ("(1) Section 28 (regulations) shall be amended as follows. (2) After subsection (3) insert— (3A) Regulations about the keeping of the roll may—

  1. (a) provide for the Society, at such intervals as may be specified in the regulations, to enquire of solicitors of any class so specified whether they wish to have their names retained on the roll;
  2. (b) require solicitors of any such class, at such intervals as aforesaid, to pay to the Society a fee in respect of the retention of their names on the roll of such amount as may be prescribed by the regulations; and
  3. (c) authorise the Society to remove from the roll the name of any solicitor who—
    1. (i) fails to reply to any enquiry made in pursuance of paragraph (a) or to pay any fee payable by virtue of paragraph (b), or
    2. (ii) replies to any such enquiry by indicating that he does not wish to have his name retained on the roll;
  4. (d) authorise the Society to remove from the roll the name of any solicitor who has died.".
(3) In subsection (4), for "The regulations may" substitute "Regulations about the keeping of the roll may also"."). Page 47, line 25, at end insert— ("In section 87 (interpretation), in subsection (2)—
  1. (a) at the end of paragraph (a) insert "or in pursuance of regulations under section 28(3A);"
  2. (b) in paragraph (b), for "otherwise than at his own request" substitute "as a disciplinary sanction".").

The noble Lord said: My Lords, the main amendment is to insert a new subsection, subsection (3A), into Section 28 of the 1974 Act. This covers similar ground to the amendment which I tabled at Committee stage. However, it is closer in form to the equivalent provisions in the Scottish legislation. In particular, instead of providing, as a previous amendment did, for solicitors or a class of solicitors to make annual application to the society for retention of their names on the roll, it puts the onus on the society to inquire of them whether they wish to retain their names on the roll. Frankly, this would not make any material difference since it was always the intention of the society, I am told, to take the first step by sending out the appropriate form to the solicitors concerned.

The amendment also meets the criticism of the noble and learned Lord the Lord Chancellor in respect of the previous amendment, by making it clear that the amount of any fee will be prescribed by the regulations, which will of course be made by the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice. I believe I am at liberty to say that the Master of the Rolls has been shown the amendment and has no objection to it.

There is a minor amendment to subsection (4) of Section 28 purely for the purpose of clarification. Finally, there are amendments to the interpretation provisions in Section 87(2). The first is to ensure that a solicitor whose name has been removed from the roll under the new regulations can apply to the society to be re-enrolled under subsection (2) in the same way as a solicitor whose name has been removed at his own request. The second part would amend in Section 87(2)(b) the words striking a solicitor's name off the roll … otherwise than at his own request", which reads somewhat oddly, to striking it off as a disciplinary sanction which clarifies the distinction between removal and striking off, which professionally is indeed a difference. I beg to move.

The Lord Chancellor

My Lords, I should like to confirm that these amendments in their present form are acceptable to the Government, and are indeed the result of a considerable exchange of correspondence with my department. I am very happy to accept them.

Lord Mishcon

My Lords, I am very grateful to the noble and learned Lord. Perhaps I may be permitted to express what I know is the gratitude of the Law Society for the great courtesy extended by the noble and learned Lord's department in relation to this amendment, as they do generally.

The Lord Chancellor

I am much obliged, my Lords.

On Question, amendments agreed to.

Schedule 8 [Transitional provisions and savings]:

The Lord Chancellor moved Amendment No. 5: Page 65, line 31, leave out paragraph 7.

The noble and learned Lord said: My Lords, I suggest that this is a formal amendment. It is consequential upon the decision of the House on the new clause which I failed to get through at Report stage. It is therefore a consequential amendment. I beg to move

On Question, amendment agreed to.

The Lord Chancellor

My Lords, the most important thing in the world: I beg to move the Privilege Amendment.

An amendment (privilege) made accordingly.

The Lord Chancellor

My Lords, I beg to move that the said Bill do now pass.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, I have one or two points to raise.

The Lord Chancellor

My Lords, perhaps we should take the Statement first.

Lord Elwyn-Jones

My Lords, I am at the disposal of the House.