COMMONS AMENDMENT (Hansard, 24 October 1990)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 107. In moving Amendment No. 107 I shall speak also to Amendment No. 108A.
These amendments exempt from Section 23 of the Solicitors Act 1974, employees of banks, building societies and insurance companies and therefore allow them to prepare for reward applications for grants of representation in probate. They also provide that employees of those who are exempt from Section 23, by virtue of that section, for example, solicitors, barristers, notaries public and the Public Trustee, or Clause 47 of this Bill (members of approved bodies) may prepare applications if done at the direction, and under the supervision, of those who are exempt. The clause already provides that those who wish to be exempted from Section 23 and provide the full range of probate services must be suitably trained, as must their staff. This amendment, which allows the staff of exempted people to prepare papers only if they are under supervision, provides additional protection to clients in respect of new entrants to the market.
As to Amendment No. 108A, it must be remembered that the kind of work in this area protected by the monopoly is very limited. It extends only to the preparation for reward of applications for grants of probate, and not to the administration of estates. The financial institutions are already experienced in administration of estates and are prudentially regulated and it is for this reason that they were put on the "fast-track" and only required to belong to a suitable ombudsman scheme.
Moved, That the House do agree with the Commons in their Amendment No. 107.—(The Lord Chancellor.)

§ Lord Mishcon
My Lords, I am mystified. It must be my fault, but at least I have the excuse, as I understand it, that the Law Society is similarly mystified by one part of the provision. I completely understand that the statute should be able to say that a private practitioner must work under supervision; or that the employee must work under supervision. But for some unknown reason a body corporate is able to employ anybody to prepare papers for probate without such supervision.
A partnership or sole practitioner must ensure that the work is supervised by a solicitor, a barrister or a notary public. Apparently all one needs to do is become a limited company and one will escape completely from that supervision. Perhaps the noble and learned Lord could explain, first, whether I am right or wrong; secondly, if I am right, why.

§ The Lord Chancellor
My Lords, the amendment allows the staff of exempted people to prepare papers only under supervision. That provides additional protection to clients in respect of new entrants to the market.
1428 The clause already provides that those who wish to be exempted from Section 23 and provide the full range of probate services must be suitably trained as must their staff. The amendment allows the staff of exempted people to prepare papers only under supervision, thus providing additional protection to clients in respect of new entrants to the market.
The noble Lord is expressing a concern which is not justified by the way in which these provisions operate. To require people to employ staff who are exempt from Section 23 merely to supervise the preparation of applications, which in many cases is no more than filling in two forms based on the precedent set out in the text books would, in view of their present expertise, be an unnecessary regulation of their business practice. It would add to the expense of the transaction without adding significantly to the protection for the client.

§ Lord Mishcon
My Lords, perhaps the noble and learned Lord would forgive me. Before he sits down could he say whether I am completely wrong in looking at Amendment No. 108A and saying, with the wording of the section, that subsection (1) does not apply to, any act done by an officer or employee of a body corporate at a time when it is exempt from subsection (1) by virtue of [these] paragraphs"? Subsection (b) says, any act done by any person at the direction and under the supervision of —another person if—
(i) that other person was at the time his employer, a partner of his employer or a fellow employee; and

(ii) the act could have been done by that other person …without committing an offence under this section".
That appears to be dealing with an individual, and there is an exemption in the case of a body corporate.

§ The Lord Chancellor
My Lords, the body corporate is qualified in terms of the arrangements made. The amendment exempts from Section 23 employees of banks, building societies and insurance companies and therefore allows them to prepare for reward applications for grants of representations in probate. They also provide that employees of those exempt from Section 23, by virtue of that section, may prepare applications if done at the direction and under the supervision of those who are exempt.
The clause already provides that those who wish to be exempted from Section 23 and provide a full range of probate services must be suitably trained, as must their staff. The amendment allows the staff of exempted people to prepare papers only if they are under supervision. That provides additional protection to clients in respect of new entrants to the market.

§ Lord Mishcon
My Lords, I must not take up the time of the House or the noble and learned Lord any longer. It still seems to me—I say this with deep respect—that if one is an individual practitioner, one must jolly well see that there is supervision by a solicitor, barrister or a notary. If one is a corporate entity, be it a bank or whatever, that supervision is not necessary. I must not detain the House any longer but that is a worrying thought if what I am saying is 1429 correct. However, if the noble and learned Lord is saying that I am not correct then I am wasting the time of the House.

§ The Lord Chancellor
My Lords, there must be some misunderstanding. Financial institutions are already experienced in the administration of estates and are already prudentially regulated. Therefore, they have responsibility for ensuring that what their staffs do is proper. In addition, they have been put under the obligation of belonging to a suitable ombudsman scheme. Having regard to the nature of what is required of them, I believe that this is a suitable protection for the public. It is not necessary to impose an additional obligation that they should be supervised, for example, by a solicitor, barrister or notary public.