HL Deb 26 March 1985 vol 461 cc892-9

4.6 p.m.

The Lord Chancellor

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

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

Lord Elwyn-Jones

My Lords, when we reached the Second Reading of this Bill I ventured to suggest that it was good in some parts but bad in others. As a result of the House performing effectively and, it must be admitted, at some length, its duties as a revising Chamber, it is a far better Bill now than when it was introduced. Some of the most objected to elements have gone and some of the better elements have been improved. For all that we are grateful. We are grateful, too, for the generous participation of the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Elton, in our deliberations.

I shall not now submit to the temptation of remarking upon previous victories. There is still much to be done. I would, however, venture to mention one matter of which we were able to touch only the surface during our discussions. I refer to the arrangements in regard to legal aid and legal advice. Clauses 41 and 42 made useful but modest additions; but it is a fact that law centres are facing a crisis of survival in respect of funding. In view of the stage of the Bill that we have reached, I shall not dwell at length on this. It is, however, a sad fact that two law centres, the Stockwell and Clapham Law Centre and the North Lambeth Law Project, are facing closure. Their applications for renewal of urban aid have been turned down. They now face closure peremptorily and suddenly on 31st March. The abruptness of the closures will leave unresolved hundreds of cases of people who have consulted the centres and the individuals and the families concerned will be left without legal representation. Many of the cases with which the centres have been dealing and are dealing cannot receive legal aid and cannot be transferred to private solicitors.

What I would venture to ask the noble and learned Lord the Lord Chancellor at this stage on this Bill is this. Can they and others in like position not at least be maintained until wider decisions about funding of law centres are made? We had an interesting preliminary talk and discussion about this between the noble and learned Lord and myself. I appreciate that it raises very important questions, constitutional and otherwise, and I think that it may well be that we can persuade the usual channels to have those matters generally discussed at some convenient point in time. In the meantime, I take advantage, I hope not excessively, of this opportunity to ask in respect of SOSs from these law centres whether something at least could not be done to maintain the present arrangements until wider discussions regarding the funding of law centres are dealt with. Having said that, we send the Bill to another place, thanks to the deliberations of your Lordships' House, in far better shape than it was when we first received it.

4.11 p.m.

Lord Denning

My Lords, when my noble and learned friend the Lord Chancellor opened the Second Reading debate on this Bill, he said that it was, intended … to carry out a number of relatively small but I trust, helpful and uncontroversial changes". I am afraid that he must have been disappointed because the changes have turned out to be relatively large, unhelpful and controversial. Perhaps I may say a word on one or two of them. Part I dealt with solicitors' discipline because, as the Royal Commission had pointed out in 1979, we had evidence of a great feeling of unease about the Law Society's handling of complaints, a feeling that lawyers look after their own. This is damaging to the profession. That unease was accentuated by a case, now notorious, in which they themselves acquitted one of their own council. The Royal Commission recommended something very different: that the Law Society should not only look into allegations of professional misconduct but also should look into complaints of inefficiency, incompetence and negligent and bad work; and that this should be looked into by a quasi-judicial body with lay representatives upon it who could determine the matter fairly and well.

I am sorry to say that the recommendations of the Royal Commission have not been accepted and I am afraid that what have been accepted are the proposals of the Law Society themselves. My noble and learned friend the Lord Chancellor said that the proposals in this part of the Bill came from the Law Society. He said that part was demanded by the solicitors' profession through the Law Society, which is its accredited representative in his office.

My Lords, there it is. Instead of having a quasi-judicial body, the disciplinary matters in this very clause of the Bill are left to the Law Society themselves with a discretion if they think fit (in one place) or if they think appropriate. We sought to try to put some amendments to bring this part into line with the Royal Commission's recommendations. Those have not been accepted.

Then on Part II there appears the most important part of the Bill—namely, the setting up of a new profession of licensed conveyancers. That, no doubt, was done because of a Private Member's Bill in another place which urged that solicitors had a monopoly of conveyancing and were charging much too much for their work in conveyancing and that it should be done much more cheaply. The Government committed themselves to a reform of the position; but the Royal Commission had considered it and had been against the new profession, and what the Royal Commission said was: The effect of setting up a new profession would be to dilute the service available but without creating conditions in which competition was likely to be effective in holding down charges". So the Royal Commission—and they were especially asked to deal with it—were against the new profession. There it is in Part II of the Bill.

It has brought in a new profession of licensed conveyancers with a constitution and structure almost identical with that of the Law Society itself, but, if I may say so, with the improvements suggested by the Royal Commission. What is the effect of it? I am afraid that these new proposals will run into opposition in another place. On March 16th, The Times had a leading article, "Plan to end solicitors' monopoly will not cut conveyancing costs". And then perhaps the most instructive letter of all appeared a day or two ago in The Times newspaper from a member of Parliament, Mr. Weetch, who himself had been one of the private Members who were advocating the change. I am afraid that he is so disappointed with Part II as dealt with in this House that he said in that letter to The Times: The new body will, in fact, be a paler but otherwise faithful, copy of the Law Society … the Bill has all the hallmarks of having been shaped by the dead hand of the restrictive practitioners in Chancery Lane, fighting a successful rearguard action against change". And his last paragraph says: I for one will speak and vote against the Bill. In doing so I shall reflect, sadly and with some irony, that I have been part of the reform movement that aided the Bill's creation". There it is, my Lords. One of those private Members who urged that Bill through and got it through in another place, now, on seeing this Part II of the Bill, with all the elaboration and costs of the new profession, with all the training and all that sort of thing—seeing all that, he says, virtually, "It will not work. It will not do what I asked". "Now", he says, "I am going to vote against that Bill". Much better if the Government had gone by the Royal Commission as they recommended years ago: "Don't let us have a new profession: it won't do any good". That is Part II.

My Lords, Part III deals with legal aid. I mention legal aid with some regret. It deals with legal aid in some disciplinary matters, barristers and solicitors alike. But, oh, what a pity! What needed to be done in legal aid was such reforms as the judges had recommended in two cases five years ago, both on that troublesome matter of the statutory charge and the matrimonial home. The judges had said that these problems were most urgent to be remedied and only very recently in the Court of Appeal it was said that sensible settlements have got bogged down by this statutory charge. There it is, the statutory charge.

And then on the matter of the legal aid fund subsidising one person against another who is unassisted, reform was recommended by the judges five years ago. Nothing has been done to help the unassisted person who wins against the legal aid fund and cannot have his costs. That is why I suggested two amendments in regard to legal aid. There was a great opportunity for reform, but it has not been taken. That is in relation to Part III. I shall pass over Part IV. The proposal for taking away the right of appeal to the Court of Appeal has gone. There is nothing more I need say. This Bill must and will pass, but I am disappointed that it has not done more: so little done, so much to do.

4.21 p.m.

Lord Mishcon

My Lords, there are only a few observations that I have to make, and frankly I would not have made them had not the noble and learned Lord, Lord Denning—I know he will forgive me if I say this—intervened in the way that he did on certain parts of this Bill. We are used to the expression that the voice of the turtle has been heard in the land—and a lovely biblical phrase it is. But this afternoon the voice of Jeremiah has been heard in this House, and I feel that in the circumstances I ought, if I may say so, to deal with some of the Jeremiads.

If I may make this comment on behalf of the profession to which I am privileged to belong and which I regard as a very great profession—a profession that deals in so many ways, and voluntarily, with the administration of justice in this land—I would answer the comments of the noble and learned Lord, Lord Denning, on Part I of the Bill. I know of no reason for his remarks in criticism of what may be the Law Society's powers under Part I of the Bill. They have nothing to do with disciplinary action, which of course was the matter that covered the member of the Law Society Council to whom the noble and learned Lord referred—a most regrettable case, a case about which the Law Society has expressed its deep distress. But nobody has ever complained, other than in regard to that case, about disciplinary action by the Law Society.

Part I of the Bill deals with shoddy work. In those circumstances it is really the most sensible thing in the world not to have an outside tribunal or a specially created tribunal to deal with shoddy work within a profession; it obviously is for the profession itself to judge it. I can only say this: I know of no sterner treatment accorded to a doctor than that meted out by the General Medical Council, even though it is always, I am sure, justly administered.

If I may turn to the profession which the noble and learned Lord has graced all the years of his life except in his boyhood days, may I say that I know of no sterner treatment of the work of a barrister than that of the Bar Council. I can assure the noble and learned Lord that there will be, and has been, no sterner critic of bad work than the Law Society itself. I had to answer that in regard to Part I of the Bill.

In regard to Part II of the Bill—I am going to end my remarks after dealing with that part; I shall not follow the noble and learned Lord right the way through the Bill, in answer to any comments that he saw fit to make—the demand was made quite clearly for cheaper conveyancing and for the ending of what was deemed to be a monopoly. I am not going to carry this argument any further at this stage of the Bill. I am only going to say this. In view of the fact that it was decided, possibly as an experiment—I do not know; one has to see how it goes—to let people who had not got to the stage of qualifying for my profession deal with conveyancing, especially the conveyancing of residences (originally it was only residences), I should have thought it was appropriate to give them a welcome. I should have thought it was appropriate to wish them well, to wish their council well.

I say, as somebody who is supposed to be a little angry, possibly, at the breach of a monopoly—I think that there is a public duty here, and I readily follow that public duty, as does my profession and the society which represents it—that I think we ought to wish them well. We ought to tell their council from this House, as we tried to do through the wording of this legislation, to try to see to it that there are proper training standards and proper professional standards. I think we ought then to see whether the experiment that we are trying achieves something.

Having said that, I hope the House will not have felt, having heard the noble and learned Lord's remarks, that the Law Society had imposed any influence on the noble and learned Lord the Lord Chancellor, except helpfully, in regard to the provisions of this Bill. Anyone knowing the noble and learned Lord the Lord Chancellor as I have learnt to know him over only a few years, will know that it is extremely difficult to exercise any influence whatsoever upon him.

4.26 p.m.

The Lord Chancellor

My Lords, after that unsolicited testimonial I hardly know what to say. In the first place, I am grateful to the noble and learned Lords and the noble Lord who have participated in this debate. I must make clear to the noble and learned Lord, Lord Elwyn-Jones, something that I think he already knows, but I think perhaps I should make it clear for the benefit of those who are less well informed than he is. The law centres are not part of the Lord Chancellor's Department; they are part of the urban programme, and therefore come very clearly within another department. I do not know how he got round his colleagues, but when he was Lord Chancellor he saved the lives of several law centres but without any statutory authority at all for funding them, so far as I know. Well, good luck to him. I am a more law-abiding Lord Chancellor than that, but he will at least give me credit for having continued in the iniquity which he performed. I did not cut them off in their prime.

I have always believed in a certain degree of continuity between the tenants of this ancient and rather important office. I think he will give me credit for that. Apart from the difficulty that the Lord Chancellor's Department would be spending money without any statutory authority to do so, it is not at the moment equipped, whatever else can be said, to deal administratively with a chain of law centres which very soon would cover the whole country. Personally—this is a personal view, although I am supposed to be speaking for the Government—I have always thought that anything in the nature of a chain of advice bureaux, whether on the Citizens' Advice Bureaux level or on the more professional level, is inevitably a matter which has to be administered locally and certainly could not be administered from the centre by the Lord Chancellor's Department. At any rate at the moment, it is totally inadequate to deal with such a thing.

Moreover—I have said this before to the noble and learned Lord—I think that all of us who have held this office are concerned about maintaining its real nature as against a constant burden of administrative detail, which is acceptable in fields which are appropriate to it but not acceptable outside those fields. When my father was Lord Chancellor, from 1928 to 1935, he sat presiding judicially, either in the Privy Council or in the House of Lords, every day, every working day in time. That was possible of course because then the House of Lords did not meet until 4.15 in its fully parliamentary capacity; and so he sat in court every day and presided in the House of Lords. At about six o'clock a noble Lord would get up and say, "My Lords, at this late hour …" and then they would all go home to dinner.

The character of the office has changed quite out of recognition between the days when I remember my father as Lord Chancellor and these latter days when I have held the office myself. I do not think the Lord Chancellor's office ought to be over-burdened with a great deal of administrative detail in addition to that which it has voluntarily taken over in the course of my own period of office, that of the noble and learned Lord, Lord Gardiner, and that of the noble and learned Lord.

4.30 p.m.

My noble and learned friend on the Cross-Benches made a most peculiar speech. He quoted me as having said that the Bill introduced a number of useful yet comparatively minor reforms; but he said that I would be disappointed because it had introduced many comparatively useless and very large ones. But when it came down to brass tacks in every case, except his remarks about Part II—which I shall come to briefly as the noble Lord, Lord Mishcon, has dealt with that—his complaint was that I had not done enough. Therefore, there was an inherent contradiction in everything my noble and learned friend said. When he criticises Part I, I should tell him, with great respect, that the noble Lord, Lord Mishcon, was perfectly right. The discipline of the profession belongs to the disciplinary tribunal, which is a quasi-judicial body. It is independent of the Law Society, in so far as discipline, as in every other profession, depends in the last resort on the courts. What is proposed here, as the noble Lord, Lord Mishcon, said, is to deal with shoddy work. That was precisely where the feeling was that the previous situation was inadequate. Both branches of the legal profession felt that and so I did not feel my withers much wrung by that complaint.

In relation to Part II, my noble and learned friend has perhaps not followed what really happened. In another place Mr. Austin Mitchell brought in a Bill which was to deprive solicitors—who are probably one of the most competitive small businesses in the world, except the City firms who have large businesses—of what is wrongly called their "monopoly". There was an overwhelming opinion in another place, which is, after all, the elected Chamber, that a form of non-solicitor conveyancer should be introduced. I will not say that the Bill was bought off, but it was withdrawn precisely on the undertaking that we should attempt what we have tried in Part II. We attempted it by way of the Farrand Committee, which was a widely-based committee, the composition and terms of reference of which caused it to be generally accepted as representing a performance on behalf of the Government of the pledge under which Mr. Austin Mitchell's Bill was withdrawn.

The Farrand Committee reported. The only matter of importance in which we have deviated in Part II from the findings of the Farrand Committee was that we thought—and I think quite rightly—that we could not legislate this Session if we prescribed for the new profession all the qualifications which the Farrand Committee would have imposed. So we agreed that the council should be set up to undertake the work of providing the qualifications and that we should keep our word and bond by carrying out the policy which we had undertaken to do.

Of course, my noble and learned friend may be right that this thing will not succeed. He said that licensed conveyancers will not succeed in competition with solicitors. I cannot say that they will; I only know that we have carried out our bargain. If they do not succeed, it will be because the solicitors' profession is so highly competitive. It may interest my noble and learned friend to know that since the Austin Mitchell Bill was withdrawn conveyancing costs imposed by solicitors have gone down by 30 per cent. At least we have achieved that. I noticed the other day that a constituent of one of my Cabinet colleagues complained. He was an unlicensed, and therefore I suppose illegal, conveyancer who complained that he could not compete with solicitors any more because solicitors are charging about ½ per cent. for conveyancing. It must be said that where a different, but still comparable, system obtains—namely, in the United States of America—I am told that the costs of conveyancing vary between 1.8 per cent. in one state and 6.8 per cent. in another. I do not think that I shall be very much shaken by the criticism of Part II by my noble and learned friend.

What was the most astonishing part of that speech was the quotation from Mr. Ken Weetch. Mr. Ken Weetch, as he said in his letter to The Times, was complaining that what he called the "dead hand of Chancery Lane struggling for its privileges" was prevailing. But my noble and learned friend's speech demanded that the noble Lord, Lord Benson, who wanted Chancery Lane to reign supreme, should have been followed. Thus there is no logic whatever in what was said about Part II.

Then he came to Part III. It is true that civil legal aid is undergoing considerable revision at the hands of the Government. We are not legislating at this stage on a grand scale; when I was given a legislative slot for this programme I made it very clear indeed that I would not do so. I have sought to put into it a number of useful and, I think, comparatively modest changes, most of which did not come from me because I take the advice of the judiciary and others. My noble and learned friend is always writing books saying "Trust the judges". I usually take the advice of the judiciary and others as to what changes I recommend. My noble and learned friend said quite rightly at an earlier stage of the Bill that when he was a judge he always attempted to do justice. I never doubted it for a moment, and I have said that again and again in public and in private. He is one of the most remarkable judicial minds of our time and I hope that nothing I say will diminish or qualify anything I have said; but he has rather the reputation of being a law unto himself.

There was a time when Lord Chancellors administered a form of law called equity. It was said that equity was the size of the Lord Chancellor's foot. I think we have developed since then, but I will remind my noble and learned friend of what one of my predecessors said about this. He said that law reform is obtained either by consent or not at all. When consent is not forthcoming then this Lord Chancellor, remembering the wise remarks of Lord Campbell, his predecessor, will not attempt to force it through, unless he feels that it is absolutely necessary to do so, and then he would appeal to the other place. Law reform is by consent or not at all. The extraordinary thing is how seldom consent is available from the legal profession, which is one of the greatest obstacles to law reform that I have ever seen. Ever since the 8th Report of my noble and learned friend Lord Edmund-Davies of the Criminal Law Revision Committee—which was a lucid, coherent and logical document—was howled down by the legal profession, I have noticed time and time again that they are the main obstacles to law reform.

The other thing which was said about law reform, I think by my predecessor Lord Haldane, was that it takes three Lord Chancellors to make any important reform of the law. Well, I am now two of them and there is still a third to come. I hope that the good work will go on despite the voice of Jeremiah being heard in the land, as the noble Lord, Lord Mishcon, told us.

On Question, Bill passed, and sent to the Commons.