HC Deb 20 January 1949 vol 460 cc343-52

3.46 p.m.

The Attorney-General (Sir Hartley Shawcross)

I beg to move, "That the Bill be now read a Second time."

This is a very dull Bill. I must confess that when I myself read it for the first time it was once more borne in upon me that it is not given to the Law Officers the applause of listening senates to command. I sometimes wished after I had read this Bill, that somebody sometime would entrust to the Law Officers one of those more exciting and contentious Bills like another I see on the Order Paper today, the Water (Scotland) Bill, on which my right hon. and learned Friend the Solicitor-General and I could really let ourselves go.

I am afraid this is not such an occasion. This is one of those modest, non-controversial little Bills so fitting to the character of Law Officers, which from time to time are entrusted to us. It is indeed a very little Bill. It does very little and it does it, I hope, very quickly indeed. It pretends to accomplish no great reform in our legal administration, but it cuts away just a little of the dead wood which surrounds far too much the living tree of our Statute law. Its main proposal, although there are some subsidiary points in the Bill, is to abolish the Stamp Duty, already almost negligible, which is paid on practising certificates taken out by solicitors.

Those who pursue the great and honourable calling of a solicitor have to take out each year a practising certificate. That certificate could be refused by those who have it in power to grant it where the solicitor concerned has been guilty of some disciplinary offence or, I think, where during the course of the past year—and this is a risk to which members of my profession are especially exposed—he has been made bankrupt or driven mad. We do not propose to abolish the necessity for solicitors to obtain practising certificates in that way, but what we recommend to the House in this Bill is that they should no longer be required to pay Stamp Duty on those certificates.

The position in regard to that is that a long time ago—I think in the 18th century—a Stamp Duty, which amounted to £9 a year in the case of solicitors practising in the London and Edinburgh areas and £6 a year elsewhere, had to be paid on the taking out of the certificate. In 1941 an additional burden of a different kind was imposed upon solicitors, and it was one peculiar to that profession. They were required to make an annual contribution to a compensation fund from which grants could be made to persons who might have suffered loss through some malpractice on the part of a solicitor; and, in addition, they were required to employ at their own expense accountants who would certify each year the accounts of their practices. In 1947 it occurred to the legislature to make some quid pro quo for that additional burden by reducing the Stamp Duty on taking out the certificate.

It would, no doubt, have been abolished at that time but for technical and procedural difficulties which would have resulted in the necessity for amending other Statutes, and which apparently would have had the effect of converting the Finance Bill into a non-money Bill, which would have produced constitutional consequences which were not thought at that time by the Chancellor to be justified by the importance of the innovation. What was done in 1947 was to reduce the duty, already quite small, to a twentieth of what it previously had been. It is now a duty which is quite insignificant so far as its value to the Revenue is concerned, and is, I suppose, merely tiresome and annoying to those who each year are called upon to pay it. What we propose in this Bill is to abolish it altogether. Practising certificates will still be required, but no duty will be paid upon them.

We also propose to take the opportunity provided by this Bill of repealing a number of Statutes or statutory provisions which have long since fallen into desuetude with regard to those whose practice in the law has been distinguished by some form of specialised title. Some of those titles are themselves ancient and absolete, and I must confess that I had to look into the books to see what they were all about. The first one is the title of "Conveyancer." That title has been applied in the past by Statute to persons who, being neither barristers nor solicitors, employed themselves only in the preparation of deeds. That has ceased to exist as a separate profession. Conveyancing is, of course, normally done now by solicitors or by barristers, and they will continue to do it, and there is no reason now for any statutory privilege to be given to those who, in years gone past, were entitled to practise as conveyancers without being barristers or solicitors.

Then there are the "special pleaders." The term "special pleader" will still be available as a term of abuse which Members on one side of the House can direct against Members on the other side of the House—with justification, of course, only from this side of the House; but it ceases to have a statutory or legal significance. It used to be used in respect of those who devoted themselves in the main to the drafting of pleadings in Common Law matters and to appearing, not in open court and as advocates, but in precedural matters before judges in chambers.

That phrase will go, along with that special phrase "Draftsmen in Equity." Where the barrister concerned was dealing with Chancery matters, he was called, not a "special pleader," but a "Draftsman in Equity." Barristers will still be entitled, if they so desire, to call themselves by those names if they want to indicate the special kind of work they are holding themselves out to do, but they will have no special statutory privileges beyond those which are accorded under the law to barristers as such.

Finally, we propose in this Bill—and this is a matter to which it may be necessary to give a little consideration on Committee stage—to abolish the necessity for notaries public to take out special practising certificates as such. The office of a notary public is a very ancient one. They were the original scribes of the Roman law, and they are appointed even today under a Statute of Henry VIII by the Court of Faculties, which is presided over by the Archbishop of Canterbury. Previously they were appointed by the Pope.

Mr. Eric Fletcher (Islington, East)

What are they?

The Attorney-General

That is what I wanted to know, and so I looked it up in the dictionary, and I found that they were officers who took note of anything which might concern the public. One would have thought from that that at present they must be very busy people, but that was, indeed, an inadequate description of them. They have other functions, and important ones, which are in rather more specialised directions than that.

Mr. Leslie Hale (Oldham)

Is there really any reason for their existence at all? I must declare a financial interest in this, for I am a commissioner for oaths. Could not the work be done by commissioners for oaths? My point is, that this is virtually a hereditary profession. It is not passed on from father to son, but from solicitor to articled clerk.

The Attorney-General

It would be out of Order for me on this Bill to deal with that aspect of the matter, because in this Bill it is not proposed to abolish the office. I would hesitate to say that it was not a useful office. Out of 523 of these gentlemen 500 are solicitors, and it is generally an office which is performed—and I think that it is increasingly the case—by practising solicitors, but it is a little specialised. Their task, as I understand, is not merely to attest documents, as commissioners for oaths may do, but actually to prepare deeds and other legal and commercial documents with a view to their being used in foreign places and conforming to the foreign law, when these involve qualifications which are quite specialised, and in some cases, as I am instructed, very high qualifications indeed.

Then, in addition, some of them are required to translate legal documents into the languages of foreign law or from those languages into the language of our own law. Then they prepare all sorts of mercantile documents. The only one that I remember by name is a "Bottomry Bond." They also deal with the preparation of ships' protests. I think that they do discharge an important function in the mercantile and commercial life of the country. It is skilled work, and high qualifications, whether general, or those of a solicitor, appear to be required for it. In modern times, I am told, they no longer carry the badge of office which, in the Middle Ages, they used to have, which was an ink horn and pen case suspended by a silken cord from their girdles. That was the badge of office which led Cave to say of them what, I gather, the hon. Member for Oldham (Mr. Hale) would wish to say of them, "'Away with him, I say. Hang him with his pen and ink-horn about his neck'."

Mr. Hale

Was that not said of all lawyers?

The Attorney-General

That was, in fact, about a notary who had this badge of office with which he might be hanged at once. We do not want to hang them. We do not think there is any necessity for taking that step in regard to them. We want to save them—and this appears reasonable, though I think we shall have to look at it in Committee, perhaps—we want to save them from the necessity of taking out a separate practising certificate, bearing in mind that the very great and increasing majority already take out practising certificates as solicitors. But the effect of the Bill—I hope that it will not unduly disappoint the hon. Member for Oldham—is that we shall still be able to say, as was said to the Merchant of Venice, Go with me to a notary; seal me there Your single bond. I hope that the competition notaries will provide in that respect will not seriously injure the commissioners for oaths.

4.0 p.m.

Captain Crookshank (Gainsborough)

I must apologise to the House for the unfortunate absence of my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) who cannot be here as early as this, and, therefore, not being an expert in this matter, I would merely say that we on these Benches welcome the Bill because it seems, although the right hon. and learned Gentleman says that it is very dull, to effect a useful purpose. After all, the right hon. and learned Gentleman, who is rather complaining that he had a dull job to do, must remember that life is a question of ups and downs, and laughter and tears follow one another. I understand from the public Press that he had anything but a dull time just before Christmas, so perhaps this is the penalty for that slight change in his functions.

This Bill really follows from the Finance Bill, when we discussed the matter at some length, and I think that, at that time, it was the universal view of the House that this was one of those tiresome little payments which had very good reasons historically, but which it is no longer necessary to exact in these days. The amount of money lost to the Treasury in consequence was negligible, but, as the right hon. and learned Gentleman has pointed out, owing to purely technical reasons in this House, it could not then be entirely abolished. All that the Bill purports to do is to complete the process which we started last year. As the House has already given its approval, so to speak, in principle that these charges should disappear, it seems only right that we should now carry the matter to its logical conclusion.

With regard to the future of notaries public, I am sure we are indebted to the right hon. and learned Gentleman for his research, and for the charming way in which he described their past and present functions. It is just as well, I think—and I believe he agrees with me—that unless there is an overwhelming reason for abolishing some historic office or tradition we should let it remain. It does no harm. It is quite true that they do not perform the same function as they did five hundred years ago, but, then, neither do we in this House, nor do lots of other people. It would be a pity to sweep them away, and I think that the right hon. and learned Gentleman would agree that there is some value in keeping these ancient offices. I am glad, therefore, that the Bill does not in fact do away with them.

The main purpose of the Bill is to do away with this minor expenditure, although it has not always been minor. In the past it must have been very tiresome, especially for the younger members of the profession, but now, as a result of last year's Act, it is such a minute sum that it might just as well be swept away. Therefore, I can on behalf of my right hon. and learned Friend, who knows far more about this matter than I can possibly know, welcome this Bill and hope that it will have a speedy passage.

4.2 p.m.

Mr. Leslie Hale (Oldham)

I personally am sorry that the hon. Member for Nelson and Colne (Mr. S. Silverman) is not here because he is one who has consistently advocated this provision, and the provision in the Budget, which came at the same time, and which is a much more important one. I cannot completely accept the invitation of the right hon. and gallant Member for Gainsborough (Captain Crookshank) to agree with him. I do not know whether the learned Attorney-General enjoyed his pre-Christmas studies of the working of private enterprise, but I think that he ought to regard the few minutes speech which he has made this afternoon as a matter for far greater pride than he expressed.

This is a fundamental and important point of principle in Labour Party policy. The present Chancellor of the Duchy of Lancaster when Chancellor of the Exchequer did abolish in the Budget, the very heavy and almost prohibitive stamp duty imposed on the articles of solicitors. That duty was £80, and no one who could not put up £80 had any hope of becoming a solicitor. That was an absolute bar, and a money bar which kept the profession completely closed to the overwhelming majority of the members of the working class and the poorer class.

The result now—and I want to emphasise this—is that there is virtually no money bar which stands in the way of entering my particular branch of the legal profession. Premiums can still be asked for, but I hope that this action will tend to abolish the whole business of requiring premiums in order to enter an occupation or profession. Although premiums can still be asked for, I think it is fair to members of my profession to say that they rarely are asked for in these days. A great number of people are quite willing to accept articled clerks without asking for a premium. If these two steps are taken, it will make the profession reasonably accessible to anyone wishing to enter it. There are a good many reasons why people would not wish to enter it, but I will not go into them now.

May I say a word or two about another matter of importance? I have no particular desire to abolish historical occupations or to reduce the number of ancient dignitaries but, as I understand it, the position of a notary public is a very special one. One becomes a notary public by two means. By chance one may happen to be articled to a notary public, in which case the ordinary process of becoming a solicitor substantially entitles one also to become a notary public. Whatever one's capacity one finds one's self, willy-nilly, a notary public if one is articled to a notary public. He may be a partner of half a dozen people who are not, but that does not matter. If one picks him in the lottery of life one becomes a notary public whether one wishes it or not.

By that means without any linguistic test or academic test or any test of knowledge of ancient history, and even without being asked to draw a bottomry bond at all, one can become a notary public. That is not, in my view, the way in which anyone should qualify for any profession. I suggest that in the Committee stage of this Bill we might discuss this point with the proper professional authorities to see whether the proper professional functions of a notary public which in fact——

The Attorney-General

I should perhaps have told the House that this Bill has been very fully discussed with the professional authorities—the Bar Council and the Law Society—and I am informed that both approved of its contents. I should not like the hon. Member to think that that had not been done, or to think that by the way I introduced the Bill to the House, I did not attach much importance to it. What appeared to me to be the point was that the real principle—and I agree the most important principle—about the Stamp Duty had been accepted and adopted by the House last year, and that this was merely the technical implementation of a principle which had in fact already become part of our life.

Mr. Hale

I suggest that the probable explanation of why the Law Society have not made this suggestion to the right hon. and learned Gentleman is that in their collective wisdom they never thought of it. I should, therefore, be glad it my observations were called to their attention for their reflection and consideration, and I hope that as a result, representations may be made to him to enable him to reconsider the matter in the course of the Committee stage. I thank him for the Bill.

4.9 p.m.

Mr. Beverley Baxter (Wood Green)

The Attorney-General is always fathering infants in this House and telling us that he is introducing a tiny little Bill. I do not think that this is at all a little Bill for the simple reason that it shows that the Chancellor of the Exchequer is willing to give up some of the money which he is taking from the oppressed classes of this country. For that reason I think that it is a very significant Bill. I desire to ask the Attorney-General a question to which he cannot possibly give me a full answer. Perhaps, however, if I put it to him he might be able to give us a very small answer, in keeping with his usual practice. Will he undertake on behalf of the Government to say that it is the intention not only to deal with solicitors, on whom this injustice has so long been prolonged, but to extend this principle to others of the professional classes who are having a very desperate time? I ask the Attorney-General whether he will reply to the question, even if he cannot do so with a clear conscience.

The Attorney-General

I hesitate to answer that question because I have not all the information before me, but I do not think journalists pay any Stamp Duty, nor do dramatic critics.

4.11 p.m.

Mr. Eric Fletcher (Islington, East)

I, in common with all other hon. Members, welcome this Bill which, as my right hon. and learned Friend has said, is merely carrying out the policy enunciated by the Chancellor of the Exchequer in a previous Budget. I rise only for the purpose of saying a word or two about the subject of notaries public. I am not sure that the right hon. and gallant Member for Gainsborough (Captain Crookshank) really appreciated the point. I do not think any of us want to see the abolition of what is an historic office, not only of some importance in this country but also of some international importance. For myself, I should prefer to see a considerable extension of the number of notaries public. The point is that the office of notary public, one of great antiquity, is an office of international recognition; there are notaries public throughout the world. It so happens that there are many more notaries public in countries like America, and in some of the Continental countries of Europe, than there are in England.

As a matter of international custom, there are certain documents which. When required for use in foreign countries, have to be witnessed before a notary public. From time to time I come across documents which have to be witnessed in England before a notary public because they are required for production in some foreign country. In this country the office of notary public has become very exclusive, and the number of notaries public is very limited; whereas in the United States of America one finds, not exactly that notaries public grow on trees, but that in nearly every legal office not merely the qualified members of the firm—be they barristers or solicitors—but also almost every clerk in the office is a notary public in the sense that he is qualified to witness documents required outside the United States of America. I do not think it has ever been suggested that that extension of the qualification of notary public has been any debasement of the office.

In this country the number of notaries public has become, by some accident—perhaps because it has been the preserve of certain families and has descended from generation to generation—extremely limited. Outside London it is often difficult for people who have to sign a document required abroad to find a notary public. If documents could be regarded as international currency if witnessed before a solicitor or commissioner for oaths, it would be a simple matter. The point therefore arises, not necessarily on this Bill but on the next occasion when this matter is being inquired into, whether it might not be convenient for the inhabitants of this country—not only the commercial community but all who are concerned with international relations—that some consideration should be given to the modernisation of the old practice which required these documents to be witnessed before a notary public. I hope it might be possible by some simple machinery to extend the office of notary public, either to all solicitors or to all commissioners for oaths, in order that when these occasions arise there may not be, as there sometimes is at present, difficulty in complying with the requirements of foreign law.

Question put, and agreed to.

Bill read a Second time, and committed to a Committee of the whole House for Monday next.—[Mr. Pearson.]