AS AN AMENDMENT TO COMMONS AMENDMENT NO. 123 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 123A. It may be convenient if I speak also to Amendments Nos. 123B, 123C, 123D, 123E and 123F. If any of those amendments were carried, that would affect the Motion in relation to Amendment No. 123.
Amendment No. 123 seeks to insert a new clause. I accept that, as the Lord Advocate said, this new clause is to some extent a reformulation of what was contained in a clause which appeared in the original Bill. Your Lordships will see that subsection (1) of the new clause states: Where an application made under section 23 that is, an application by a body to allow its non-lawyer members to be granted the right to conduct litigation and to have right of audience— any member of the body concerned who has complied with the terms of the scheme in relation to the matters mentioned in section 23(2) (b) (i), and who appears to the body to be a fit and proper person, shall have the right to conduct litigation". Given that this is entirely new and that these persons are to be allowed to conduct cases in the highest courts in Scotland, or even the lowest courts, I should have thought it entirely appropriate that it should not be a body which determines whether or not its members are fit but that the Lord President should have a right in that respect.
One of the examples given in another place—I think it was given in this House as well—of a body which might apply was Murgatroyd & Co.; a firm of patent agents which the noble Lord, Lord Lloyd of Kilgerran will know better than I do. If that company is called upon to determine who is a fit and proper person it is bound to say that all its staff are fit and proper persons. I believe the judgment should lie outside.

§ Lord Lloyd of Kilgerran
My Lords, I am grateful to the noble and learned Lord for giving way. Although, in view of what he said, I am tempted to speak about patent agents and intellectual property, my only reason for intervening is that I am sure noble Lords wish to avoid the difficulties that can arise from not 1589 quite understanding which amendment is being dealt with. The noble and learned Lord occasionally drops his voice and it is difficult to hear what he is saying.

§ Lord McCluskey
My Lords, I am sorry and I shall endeavour to stand nearer the microphones so that my voice is more adequately amplified. However, I should have thought that some noble Lords may hear more of my voice than they want to!
My first point, therefore, is that I believe the Lord President should have the right to determine whether or not a person who is said by the body to be a fit and proper person is, in fact, suitable.
My Amendment No. 123B seeks to leave out subsection (2) of the new clause. Again, it is highly unfortunate that the Lord President of the Court of Session is to be forced to act as soon as is reasonably practicable. It is right to say that the only persons referred to in subsection (2) are the Lord President of the Court of Session and the Secretary of State for Scotland. The words "or body" are superfluous because no body has any function conferred upon it upon which that subsection bites.
Therefore, proceeding on the basis that the Lord President and the Secretary of State are the only persons involved, and that there is no body involved, why should we force them to do this? I repeat a point made earlier in relation to the charities provision. Why should we put in this provision? What will be the sanction if the Lord President drags his feet or if the Secretary of State does not act as soon as he reasonably can? Is there to be a judicial review of the Lord President's failure or judicial review of the Secretary of State's slowness?
For those reasons and particularly because no body is referred to on whom the subsection bites, I move Amendment No. 123A.
Moved, That Amendment No. 123A, as an amendment to Commons Amendment No. 123, be agreed to.—(Lord McCluskey.)

§ Lord Fraser of Carmyllie
I am in danger of becoming repetitive in my approach to these provisions. While I understand the arguments put forward by the noble and learned Lord, I come back to the fact that we are not introducing substantial changes to the policy that left this House. What we have done—I hope it is clearer now—is to set out the scheme in clauses so that it is more comprehensible.
My recollection is that we have previously discussed this matter. It was not considered appropriate that the Lord President should concern himself with individuals but was felt that it would be for the body to determine whether a person was fit and proper. Of course, as we discussed earlier, the Lord President has a very important role, together with the Secretary of State, in determining the qualifications and tests that are to be appropriate if a scheme is to be approved which allows people who are not lawyers to have a right of audience.
1590 With respect to the noble and learned Lord, while it is right—as I indicated when we first discussed this matter with the noble and learned Lord—that the Lord President should have an opportunity in advance of disciplinary proceedings to request the suspension of an individual in order to allow the disciplinary proceedings to go forward, it is not for him to become directly involved in those disciplinary proceedings. After all, he does not do that at present, either in relation to the Faculty of Advocates or directly in relation to solicitors.

§ Lord McCluskey
My Lords, I am surprised to hear the Lord Advocate explain that the Lord President is not to be concerned with individuals. Subsection (4) empowers the Lord President to act in relation to an individual if that individual's professional misconduct, or conduct, comes to his notice. Therefore, the Lord President is concerned in, so to speak, the suspension of persons on an individual basis and it would appear sensible that he should also be concerned with the approval of persons on an individual basis.

§ Lord Fraser of Carmyllie
My Lords, I hope I have made it clear to the noble and learned Lord that I recognise that the Lord President has a right under subsection (4) to request the suspension of an individual. That is a different situation. Where disciplinary proceedings are to be properly carried out by the body, it is not unreasonable, as an interim measure, for him to request the suspension of an individual. However, the actual determination of whether a disciplinary offence has been committed by an individual is properly a matter for the body to decide.

§ Lord McCluskey
My Lords, again, in this mainly empty Chamber I do not propose to divide the House on this matter. I beg leave to withdraw the amendment and, having spoken to it, I shall not move Amendment No. 123B.