§ Order for Second Reading read.
THE ATTORNEY GENERAL
Notwithstanding the lateness of the hour, I trust the House will proceed to the second reading of this Bill. Hon. Members are no doubt aware that the Inns of Court exercise the power of calling students to the Bar, and also the very disagreeable and unsatisfactory function of censuring for misconduct such as have been called, of suspending them, if necessary, or disbarring them altogether. These four Inns of Court have hitherto provided, by arrangement, for the legal education of those about to become barristers; but it has been thought desirable not only that they should be relieved from the disagreeable duty of dealing with persons who misconduct themselves in the Profession, but that the education of students should be transferred to a Council of the four Inns. The Bill provides for the constitution of such a Council. The body is to consist of SO members—a certain number to be appointed by the Crown, the rest by the Inns of Court. The Bill also provides for the election and retirement of members, and for filling up vacancies. Jurisdiction is given to the Council over the legal education and examination of students, the censuring, suspending, and disbarring of barristers, and over all other matters that may be referred to them for advice and decision. There is, too, this most important provision—that the four Inns shall respectively contribute to the Council, out of their general funds, such annual sums as may be required, 129 not exceeding the following amounts:—Lincoln's Inn, £1,300; Inner Temple, £1,500; Middle Temple, £1,200; Gray's Inn, £600. These contributions, it is thought, will be quite sufficient to enable the Council to provide for the legal education of those studying for the Bar; but provision is made in the Bill that that body may accept donations in aid of the purposes coming within the scope of their powers. This Bill, I may add, was introduced by the Lord Chancellor, and passed through the other House, last Session; but a pressure of Public Business prevented us here proceeding with it to its final stages. The measure is one which I regard as of the greatest importance; it has received the universal approbation of the Inns of Court, and I trust, therefore, that the House will assent to the second reading.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(The Attorney General.)
§ MR. J. W. BARCLAY
said, that as the Bill involved several important principles, and as the hon. Member who had an Amendment on the Paper (Mr. Norwood) did not expect the second reading would be taken at such a late hour, and was not then present, he begged to ask the Government not to proceed farther with the measure that evening. The simple object of the Bill, as he road it, was to perpetuate and extend a trades' union of an objectionable character, and the reason why those additional powers were asked for was that that trades' union found itself in the present day unable to exercise proper control and supervision over its members. If the aim of the Lord Chancellor and the Attorney General was to secure an irreproachable race of lawyers and law agents, then there would be some excuse for maintaining the trades' union; but they know, by experience, that the Inns of Court exercised no such influence. To his mind, it was a question whether the public would not be better served if the Legal Profession were entirely thrown open, and the close corporations called Inns entirely abolished. The Amendment of the hon. Member for Hull was directed against one very serious abuse—namely, that an advocate could accept a retaining fee, and yet not consider himself bound to render his client any services in return. It had been the prac- 130 tice among leading practitioners to accept fees in cases which they knew beforehand they could not attend to. ["No, no!"] Hon. Members dissented; but was it not a fact that the abuse had become so glaring that the attention of the members of the Bar themselves had been called to it? It was, no doubt, true that there were gentlemen of a higher order of morality in the Profession; but he repeated that the practice did prevail. If working men, in their trades' unions, were to act as barristers did in this matter, there would be no end of reprobation passed upon them. But he defied hon. Members to point out the case of a single trades' union in which working men conducted themselves so utterly in defiance of all the principles of political economy as did certain members of standing at the Bar, who were sometimes retained in order to prevent their being engaged on the other side. Now, surely it was a great abuse for an advocate to accept a retaining fee when he knew perfectly well that his other engagements would not permit him to give any attention to the case. Seeing, then, that a very important principle was involved, and that the hon. Member for Hull (Mr. Norwood), who felt very strongly on the matter, was not in his place, he trusted that the Attorney General would not proceed with his Motion that evening. He moved the adjournment of the debate.
§ Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. James Barclay.)
§ SIR GEORGE BOWYER
must express his regret that this very important Bill had been brought forward at an hour when it was absolutely impossible it could be properly discussed. Therefore, he hoped that the hon. and learned Gentleman would allow some further opportunity for debate on going into Committee. Now, the Bill, to his mind, practically rendered the office of the four Inns of Court a sinecure. The education and discipline of the Bar were to be vested in a Council, leaving the Inns of Court with the one simple prerogative of calling students, and making their functions purely ministerial. The result would be that some day the Benchers, like the Serjeants and the Doctors before them, would sell the property of the Inns, and divide the pro- 131 ceeds amongst themselves. They would vote themselves to be without anything to do, and perfectly useless. So great a revolution in the constitution of the Bar as that proposed by the Bill, ought not to be decided upon without full discussion. A point of great importance was that the Inns were to contribute for the purposes of legal education. Now, Parliament would want to know more than they did at present on that subject, and particularly what was the proportion of the several contributions to the incomes of the Inns. The entire question was one not so much for lawyers as for the whole community.
§ SIR HENRY JAMES
I am only going to say that I hope the hon. Member will not persist in his Motion for the adjournment of this debate. This Bill has been fully considered by those who are most interested in it—the Benchers of the different Inns—and I think they have fully accepted its principle, which is, that instead of four bodies acting without any unison, there should be a federation of those bodies, with the view of giving them greater strength and unity. That being agreed to, all the rest can as well be discussed in Committee as on the second reading. The point involved in the Amendment of the hon. Member for Hull was very fully discussed last year, when I called attention to a particular case which it was supposed created a grievance, but which, on inquiry, it was found inflicted no grievance at all. It is now asserted—rather crudely, it is true—that counsel are in the habit of receiving fees, well knowing, at the same time, that they will not be able to attend to the cases for which they receive those fees. Now, I think I shall not be exceeding the limits of Parliamentary language, when I say that the hon. Member has not the slightest foundation for that statement; he has no foundation for it so far as my knowledge and experience goes. It is true that owing to peculiar circumstances—the arrangements of the Courts and the uncertainty of the duration of cases—it is impossible for an advocate of distinction to pledge himself to be in a particular place at a particular hour; but I do know that the fullest acknowledgment is made of these harassing conditions by the gentlemen who give us our instructions. It is not they who complain. The complaints are made 132 by persons who have no practical knowledge of the inconveniences attending the exercise of the Profession, and who not unnaturally, perhaps, think the fault must be with the members of the Bar. But if these charges are to be brought, let them be founded on particular facts, and made against particular persons—not preferred in vague and uncertain form, convicting no one, and yet casting a slur on the whole Profession. If anyone wants an opportunity of making any of these charges, no doubt it will be afforded him; but I trust the Attorney General will consult the convenience of the House rather than that of the hon. Member for Hull, who might have been present, and that he will proceed with the second reading.
THE ATTORNEY GENERAL
I am sorry the hon. Member for Hull (Mr. Norwood) is not here; but his absence is not owing to any fault of mine. The other night I put off the Bill at great inconvenience to myself, because he was not present. I am very desirous of taking the second reading to-night, and therefore I hope hon. Members will give way. Due Notice will be given of the day on which the Committee stage will be taken, so that any matters which it is wished to be discussed may be raised.
§ MR. CHARLES LEWIS
said, in regard to the very high ground taken by the hon. and learned Member for Taunton (Sir Henry James), he did not intend to make any charges against the Bar, but simply to ask some consideration for the vast body of gentlemen who employed the Bar. He would not say that a Profession so distinguished as that to which his hon. and learned Friend belonged, and which numbered in its ranks men of the highest integrity, knowingly pursued a system that was something like unprincipled; but he was prepared to assert that the arrangements under which the legal business of the country was carried on was most unsatisfactory. Whether that arose from any want of agreement between the members of the Bar themselves, or any want of comity between the Bench and the Bar, he could not say; but it was perfectly notorious that persons who paid large sums of money in retaining eminent counsel, frequently found themselves left without the services of those gentlemen when their cases were called on. This was no new matter. Two years ago there 133 was an important discussion on the subject in that House, when a large number of Members voted in favour of the Bill brought in by the hon. Member for Hull. And things had not improved in the meantime; indeed, at this moment the hopeless state of confusion into which their legal business had fallen was a disgrace to the Judicature system of the country, and demanded the very serious consideration of the House. It was all very well for legal Members of that House to stand up in the panoply of their own distinguished position, and argue for the Bill; but it was perfectly clear that it was in the power of the Bar to make better arrangements—say, by dividing itself into sections—by which a legitimate chance would be given to suitors of securing the services of counsel to whom they had paid large retaining fees. It was perfectly well known that in the Chancery Courts such an arrangement prevailed. There were four Courts of First Instance in that branch of the Judicature, and the leaders of the Bar, practising in them, divided themselves into as many sections, which they never left except on special retainers. The consequence was that there was very few complaints of neglect of suitors in the Chancery Division. Why should not some such attempt be made on the Common Law side? He had ceased, himself, to be a member of the Legal Profession; but as one who had taken an active part in it for 37 years, he was prepared to say that there was very wide - spread dissatisfaction amongst clients, in reference to this question of retainers. He did not say that it was the fault of advocates that they did not sometimes render those services for which they were paid—it was the fault of the system which made it a mere matter of haphazard whether clients could reckon upon the attendance of counsel to whom they have given heavy fees. He ventured to suggest that if the second reading were agreed to that night, it should be on the understanding that the next stage should be made the first Order of the Day, so that the hon. Member for Hull might have an opportunity of taking a division on his Amendment. The hon. and learned Member for Taunton (Sir Henry James), in taking high ground, slightly overstated his case; for he (Mr. Lewis) happened to know that there were 134 counsel who professed to take briefs in every one of the Common Law Divisions of the High Court of Justice, and who, at the same time, occasionally went in for the Divorce Court and heavy arbitration cases. Now, in these instances, it was found, as a matter of practice, that it was entirely a question of mere chance whether clients were able to obtain the services of counsel they had retained, when those services were required. If the Motion for the adjournment of the debate were pressed, he should feel compelled, as a matter of consistency, to vote for it.
regretted extremely that the hon. Member should have used such strong words in reference to a most honourable Profession. He charged them, in fact, with nothing less than obtaining money under false pretences; but he (Mr. Cole) consoled himself with the belief that Gentlemen who made imputations of this kind knew nothing of the Profession, its members, or its practice. At the present moment, the arrangements of the various Courts made the transaction of business extremely difficult, and it did occasionally happen that members of the Bar were unable to attend to the cases for which they had been retained. There was no analogy between the Common Law Division and the Chancery Division; for in the former there were sometimes as many as 15 Courts sitting at one time, 3 Divisional Courts, the Court of Appeal and the House of Lords, with Nisi Prius Courts sitting both in London and Westminster. With regard to Nisi Prizes cases, there was only one list in which causes were entered for all the Divisions, and from that list the Divisions were supplied each day, and no one could tell in which his case might come on. It might be in one paper to-day, in another to-morrow, and so on. He himself had had cases that had been in as many as five different papers ere they came on. This made practice exceedingly difficult; but the public were much to blame for it. They ran after distinguished advocates, and for the mere chance of obtaining their services, were willing to pay them large retaining fees.
§ MR. O'SHAUGHNESSY
maintained that the Bill provided exactly the machinery necessary for removing the abuses which admittedly existed. It had been said that the Bill was one to per- 135 petuate close corporations or trades' unions. Now, so far from that being its object, it sought to take away from the Inns of Court any aspect or character of the kind they might ever have possessed. If the powers set up by the Bill were insufficient to meet the abuses which existed, it was open to the House to strengthen them in Committee.
§ MR. BIGGAR
supported the adjournment of the debate in the interest not of the lawyers, but of a much more ill-used class—suitors and the public—who should be afforded an opportunity of expressing an opinion on the Bill. In illustration of the abuse of retainers, he mentioned a case which came under his own experience in one of the Committee-rooms of the House. Several learned counsel were engaged by the promoters of a private Bill. At the hour for commencement none of these were present; but the Committee consented to wait until one could be found to open the case. Presently one of the barristers was hunted up and brought to the room, when he requested the Committee to allow him a short time to rest after his fatigues elsewhere. The learned gentleman then sat down, took his lunch, scanned over his brief, and afterwards opened the Bill in a speech of about 15 minutes' duration. After that, he believed, he never showed his face again in the Committee-room whilst the case lasted.
MR. C. H.WILSON
said, that his hon. Colleague (Mr. Norwood) did not desire to impede the progress of the Bill. His object was simply to provide a remedy for a state of things which was as unsatisfactory to the Bar as it was to clients. It was unsatisfactory to the latter, because, by the non-attendance of a leading counsel, a case might be lost, and a man ruined for life. What was the practice? They all knew that clients would go to the fashionable members of the Bar, and those gentlemen had so much work thrown upon them, that it was utterly impossible for thorn to perform all those duties that were almost forced upon them. That was the position. He was quite sure, that if the Attorney General would give assurance that the Committee would have ample to discuss this Motion, his hon. Colleague (Mr. Norwood) would be perfectly satisfied.
§ MR. DILLWYN,
for his own part, would suggest that the discussion should take place on the second reading, because that seemed to him the most fitting time to take discussion on the principle of the Bill. The hon. and learned Baronet the Member for Wexford (Sir George Bowyer) quoted some very weighty reasons against the principle of the Bill; and, no doubt, if hon. and learned Members of the Profession had expected this Bill to come on, many more would have come down to the House, and there would have been a full discussion. He had listened with great interest to what had been said; and, believing that full discussion before second reading was desirable, if the hon. Member persisted in the Motion for adjournment, he should certainly vote with him.
§ Question put.
§ The House divided:—Ayes 29; Noes 101: Majority 72.—(Div. List, No. 27.)
§ Question again proposed, "That the Bill be now read a second time."
§ Motion made, and Question proposed, "That this House do now adjourn."—(Br. Cameron.)
§ MR. J. W. BARCLAY
said, that when he came down that evening, he had no intention of taking part in this debate; but the Amendment of the hon. Member for Hull (Mr. Norwood) had given rise to a question of considerable interest to the general public, in regard to certain practices of barristers. He did not intend to characterize the Profession as a dishonourable Profession, but he did say that certain members of the Profession were in the habit of taking fees. ["Name, name!"] He did not think the House of Commons was to be made the medium of indicting any individual in particular. Had he been prepared, he should have referred to evidence, and to particular cases on this subject, as the hon. Member for Hull, he believed, was prepared to do. He was aware that there were as honourable members of the Bar as of any other Profession. The object of this Bill, as the hon. and learned Gentleman the Attorney General told them, was to have a strong body to enforce discipline among mem- 137 bers of the Bar. Therefore, when this proposal was brought up for the increase of discipline, he considered it was a proper time to discuss the general question. Some hon. Members had strongly resented the idea that the Association of the Legal Profession was of the character of a trades' union. He did not see any difference between a trades' union of working men and a corporation of members of the Bar, except that the one was established by legal authority, and the other by private consent. There might be arguments for this corporation, but the same arguments might be used for trades' unions. If they asked a mason the reason for trades' unions, he would say they prevented the employing of men who were not trained masons, and that they would build houses that would tumble down, and great public injury would follow. On the other hand, they would be told that if men not properly qualified acted as barristers, no dependence could be placed on the Judges with whom the decisions ultimately rested. He would like to see whore there was any difference between the Legal Profession and trades' unions, about which so much was heard of in the Press and in that House. He thought the discussion so far showed the necessity for much larger discussion of this question. He did not know much about the Legal Profession; but he had come as much into contact with the Legal Profession as he cared to do, and he knew there was a general feeling of dissatisfaction in regard to the system of retaining barristers, which, if they allowed this Bill to pass, they would be countenancing. It was urged upon all sides that the present system was bad, and he thought such an occasion as the present was a fair opportunity for discussing whether there could not be some improvement. With regard to barristers taking fees in cases which they knew they could not attend to, of course it remained very much with the barrister himself to give an idea whether he would be able to attend to the case or not; but without going so far as saying that a barrister knowingly accepted fees for any ease which he knew he could not attend, he could have no difficulty in referring to instances where fees were accepted when the barrister knew he had already as many briefs as it was morally possible for him to 138 attend to. He said that if he thought it was necessary—[Interruption]—he repeated that if he thought it was necessary, he could prove such cases among barristers where retaining fees had been accepted when the barrister himself must have been aware that they could not all be attended to. Barristers might attain to large practice, but they should not accept a larger number of briefs than it was morally possible for them to attend to. He did not think the hon. and learned Member for Taunton (Sir Henry James) went beyond what was necessary for him to say. He did not make any general accusation against the legal Profession, but certain members of that Profession. This Bill had been introduced for strengthening the discipline of the Bar, and the fact that this Bill had been introduced for strengthening the discipline of the Bar, justified what had been said on the subject.
§ MR KNOWLES
said, it was not his intention to detain the House many minutes. When clients engaged eminent legal gentlemen, they were fully aware that they might be disappointed sometimes. As in all Professions, there were some abuses; but the House must not forget that barristers were often retained when they were not required to attend. They were retained to keep them away. No doubt it was often very agreeable to both when the barrister did stay away. He trusted the House would allow the Bill to be read a second time, because e was fully persuaded it would be one of considerable importance.
§ MR D. DAVIES
said, he had known members of the Profession taking fees double and treble, and sometimes four fees on the same day. He had no wish to accuse them of doing this intentionally. He had noticed this, that a client who gave £100 was more likely to have the services of a barrister than one that gave £50, so that there was something in payment after all. He had many times been willing to pay double in these Committee-rooms. He was sorry to say that a great number of his friends had passed away from this world to a better world. At the same time he had paid many thousands of pounds himself for foes, and never had any fees returned to him. He had been accustomed to do work himself, and, if the work was not 139 done, the pay was taken off. He never asked for it; and he only said now that barristers should not take three or four fees for the same day. There were many good fellows in the world, after all; but, when important matters came on, they wore anxious to secure the best. Committees were not so well up in these matters as the Judges were, and, when clients lost counsel, their case was gone, and they often lost their case because their counsel did not appear. As for this Bill, he had not read it, and he had not seen it; but he trusted the Government would give the House fair play to make the best of it.
THE ATTORNEY GENERAL
did not think the Bar were indignant because they were supposed to take double fees, but they were indignant because they were accused of taking briefs when they knew perfectly well they could not attend to them. This was what members of the Bar felt, and felt most acutely. He did not mean to say that there was no case where members of the Bar were prevented from attending to the case of their clients. That must necessarily happen under the present system. If the system could be altered; if there could be greater certainty that a case would come on, and in what Court, matters might be very different. But the present system certainly was in such a state that members of the Bar could not possibly guarantee their attendance, much less attend to every case. They did their best, and he must say that clients were sometimes unreasonable. The hon. Gentleman who had just spoken was a gentleman of great experience. He had told the House his counsel deserted him. Had he not a remedy? He might say to the counsel who deserted him—"You shall not have a brief from me again." If he did not do his utmost to attend, the client could tell him that he would not employ him again. There were hundreds of barristers of quite sufficient ability to conduct proceedings and willing to guarantee their attendance in Committee-rooms. He did not know that it could be useful to raise this discussion on this Bill. This Bill furnished means to provide for the discipline of the Bar and for punishing any barrister who might be guilty of any dereliction of duty; and he had no doubt if the Council was constituted as it was proposed to be constituted by this 140 Bill, and if it could be brought home to any member of the Bar that he had deliberately accepted a brief from a client, knowing perfectly well that he would not be able to attend to it, that would be good ground for asking the Council to censure him. If proposals were to be made to introduce machinery more effectual than that proposed by the framers of this Bill, that would be certainly a case for the Committee; and he must appeal to hon. Gentlemen opposite to allow this Bill to be read a second time, and he would undertake to do what he said he would do before—that was, to give ample opportunity to discuss the question before going into Committee. He did not think he need say more. As he said before, he could not guarantee that the Bill should be made the first Order of the Day, but he would guarantee that there should be ample Notice given before the Bill went into Committee.
§ Motion, by leave, withdrawn.
§ Bill read a second time, and committed for Monday next.
§ House adjourned at half after One o'clock.