HC Deb 27 February 1903 vol 118 cc1026-32

Order for Second Reading read.


I am conscious I am going to introduce a Bill dealing with a difficult and delicate question, but I introduce it on the authority and responsibility of the Incorporated Law Society. I am glad I can say to the learned Attorney General that this Bill has already passed in another place, having been moved, I think, by Lord Macnaghten, and supported by the Lord Chief Justice and the Master of the Rolls—eminent legal authorities. The question of defaulting solicitors has, unfortunately, been too often before the public and before the House; and, while every member of that honourable profession must regret that such is the case, they must also concur in the demand made, both by the public and in this House, that they should do their best to prevent occurrences which are injurious and wrong from every point of view. And, that being so, I shall ask the House not to refuse the means to enable them to carry out what I believe is a general and most proper feeling on the part of the public. I may say at once that statutory powers for these purposes have been given by Parliament to the Incorporated Law Society as the registrar of solicitors, and that they have exercised those powers, not only with great responsibility both to the public and to the profession, but, I believe, with great judgment and discretion, and certainly with an honest and honourable desire to do what is right amid many conflicting interests. I have not the honour to be a member of that Committee, and therefore; I say, with the certainty of conviction, that in my opinion, these statutory duties are well and properly performed, and certainly with an honest desire to fulfil the requirements of Parliament and of the public. It was the former practice of the Society—as the registrar of solicitors—not to renew the practising certificate of a solicitor who had, possibly owing to misfortune, become bankrupt. But under the authority of a case tried in the Divisional Courts some years ago, the Society exercised discretion in the matter—and exercised it honestly and properly. However, more recently the matter was taken to the Court of Appeal, which held that there was in law no such discretion, and, therefore, whatever the circumstances of the bankruptcy of a solicitor, there was compulsion on the part of the Society to renew the practising certificate. The former practice worked well, and I know of no case of hardship arising under it. I think the House will agree that there are many cases in which it is most desirable that that discretion should be exercised. A bankruptcy may often be a misfortune, and when it is so it is greatly to be regretted. But this Bill applies only to undischarged bankrupts, and though there may be cases of undischarged bankrupts which have been equally caused by misfortunes, the discharge is not refused by the Bankruptcy Court. It is quite true that the discharge may be postponed for two years where the minimum dividend of 10s. in the has not been paid, and that is a provision in the Bankruptcy Act of 1890 which I myself introduced into this House.

Again, there is discretion in the Bankruptcy Court to refuse the discharge if the bankrupt is held to be responsible for the occurrence of the bankruptcy. I think I may say that an undischarged bankrupt may be in that position owing to a possible miscarriage of justice, but the immense probability is that his position is due to circumstances over which he had control. However, I think the House will agree with me that when there has been anything criminal or objectionable from an honourable standpoint, and even when there has been, perhaps, though I urge this point less strongly, a mere want of means in carrying on a profession which demands some means, and without which means there may be temptations, I say I think the House will agree that a Committee with statutory powers and responsibilities, inquiring into these circumstances may well, in addition to other statutory powers, be vested with the discretion of refusing to renew the certificates. If the Committee should exercise an unwise or improper discretion, there is provided an appeal to the Master of the Bolls. And here I may say that the Master of the Rolls approved this Bill when it passed in another place. Under these circumstances, I think the House will say that unless there is some strong ground for the belief—which I hope is not the case—that these powers have ever been administered harshly or improperly, a discretion under such circumstances in the case of undischarged bankrupts—a discretion protected by a right of appeal to the Master of the Rolls—may well be entrusted to the Society.

The only other provision in the Bill is that the Society shall have access to the file of the Bankruptcy Court, so that it may be informed of the whole circumstances of the case. To this there can be no objection. This Bill, I find, applies to Ireland, and I can only say to hon. Members from that country that if they prefer that Ireland shall be dealt with separately in this matter I am quite willing to undertake not to proceed with that part of the Bill. Although I am in favour of uniform legislation, and believe that that is the proper line in dealing with these questions, still if hon. Members object to the inclusion of Ireland, I am content to leave the matter in their hands, and will not persist in pressing that provision. I beg to move the Second Reading of this Bill with a full sense of responsibility and with a strong belief that it is a proper one and that the powers proposed to be granted will be properly exercised.

Motion made, and Question proposed—

"That his Bill be now read a second time."(Sir Albert Rollit.)

MR. CLANCY (Dublin Co., N.)

said he regretted that if the Motion for the Second Reading of this Bill were pressed to a division it would be his duty to vote against it, because it seemed to be quite unnecessary for all reasonable purposes. It proposed to make the lot of certain solicitors unduly severe. The proposition of the hon. Baronet amounted to this—that they were to invest the Incorporated Law Society and the judges with absolute discretion, and with the power of making something a crime which might not be a crime at present. Bankruptcy was no crime, and to make it a crime seemed to him to be the main effect and intention of the promoters of the Bill. The proposal was that any solicitor applying for a renewal of his certificate should, if he were an undischarged bankrupt, be liable to have it suspended by the Incorporated Law Society. Now it was suggested that an undischarged bankrupt was different to a man who had obtained his discharge in bankruptcy, and that he ought, therefore, to be treated differently and more severely. But the fact that he was an undischarged bankrupt might be as much a misfortune as the fact that he was a bankrupt at all; and if it was the case that his failure to obtain his discharge was owing to no misfortune of his own, but was a pure misfortune, it seemed an extraordinary proposal that that class of bankrupt should be selected from among other men for especially severe punishment, and that he should be deprived of the means of earning his livelihood for ever afterwards. That surely was a proposal which would not commend itself to men of common sense, and he failed to understand why it was made at all. If a man had been guilty of some disgraceful act in the exercise of his profession, the present law provided ample means for the punishment of such an offence. He imagined that the Incorporated Law Society after the conviction of such a man, after even the public exposure of such a man without conviction, would have no difficulty whatever in applying to the Court, and in doing so successfully, in order to have him struck off the rolls. As a matter of fact that was what happened every day.

Fortunately in Ireland they were not troubled with those matters so much as they were in England, and any person who had read the English newspapers, particularly the London newspapers, could not fail to be struck with the fact that there had been an abnormal number—even taking into account the large number of solicitors—of the members of the profession who had been proved guilty of misconduct. Therefore, he was not surprised that some such proposal as this should have been made. But in Ireland they were in a better position. Nothing like the same number of such cases had occurred there, so that so far as Ireland was concerned there was no reason for the application of so severe a remedy. But what was to be said of the further proposal that the Incorporated Law Society, composed of persons of the same profession, should be constituted a tribunal to investigate the conduct of their fellows, invested with the power of deciding, apparently without evidence and in the absence of the parties, questions which might deprive members of the profession of the means of earning their bread in the country of their birth? He would not invest any body of men with such a power, while, if there was any body which less than another should be entrusted with such a power, it was surely the Incorporated Law Society. That body should be the first to call to its aid, in the work of purifying the profession, some outside body which could not be accused of being influenced by motives of professional jealousy. The Bill gave an appeal to the Master of the Rolls in England and the Lord Chancellor in Ireland, who, also, he believed, might sit in camera. No judge ought, and he did not believe that men like the present occupants of the offices referred to would like, to be entrusted with such a power. There was no reason for the Bill; it would inflict unnecessary hardship and be contrary to the recognised principles of jurisprudence: and on these grounds he moved that the Bill be read a second time that day six months.

Amendment proposed— To leave out the word 'now,' and at the end of the Question to add the words 'upon this day six months.' "—(Mr. Clancy.)

Question proposed, "That the word, 'now' stand part of the Question."

MR. CALDWELL (Lanark, Mid)

rose to continue the debate, when—

MR. JOYCE (Limerick)

called attention to the fact that less than forty Members were present.

The House having been counted—


There being less than forty Members present, the sitting will be suspended until four o'clock, unless in the meantime a quorum is formed, in which case business will proceed. If no quorum be formed, the House will be adjourned at four o'clock.

(Sitting suspended.)

At Four o'clock, sixteen Members only being present, the House was adjourned by Mr. Speaker without Question first put, till Monday next.

Adjourned at Four o'clock till Monday next.