HC Deb 11 May 1956 vol 552 cc1606-18
Mr. E. Fletcher

I beg to move, in page 9, to leave out lines 20 to 24.

I tabled this Amendment because I thought it ought to be discussed before approving a proposal which gives the Council of the Law Society a rather startling new power. I do not propose to dwell on it at any length, because I gather that my hon. Friend the Member for Leicester, North-West (Mr. Janner) has something to say about it. However, it is quite novel, for the suggestion in the Clause is that in future, after an articled clerk has entered into articles with his principal, has, perhaps, passed his intermediate examination and is, perhaps, preparing for his final examination, the Council of the Law Society should then be able, in the words of the Clause, "of their own motion" to intervene and discharge the articles on the ground that the clerk is "morally unfit" to become an officer of the Supreme Court.

The first comment that occurs to one is that it is an interference with a contract made between two parties. The principal who accepts the responsibility of training the articled clerk, of looking after him generally, guiding him, assisting him, not only with his legal studies but in his general character and demeanour and preparation for the profession, has the duty to consider the whole character of the articled clerk, and, in appropriate cases, to take the necessary action. Why, therefore, one asks oneself, should a third party, should the Council of the Law Society, be able to intervene and, if it comes to the conclusion that the clerk is morally unfit, be able to discharge the articles?

The second question, which, in a sense, I think, is even graver, is this. What is meant by moral unfitness? These are very wide words. I think the Committee will want to know what are the kinds of grounds on which the Council of the Law Society would want to intervene while an articled clerk is under articles and say, "You are so morally unfit to be a solicitor that your articles must now be discharged." After all, it would be a very serious thing to say to anybody.

A person who has passed his examination and is qualified and has been admitted cannot, as far as I know, be struck off on the ground of moral unfitness. The hon. Member for Chichester (Sir L. Joynson-Hicks), who is sponsoring the Bill, ought to be complimented on the admirable way he is discharging the function of piloting the Bill through the Committee, but I would say to him that, as far as I understand the position, a solicitor cannot be struck off the roll on the ground of moral unfitness. There may be various misdemeanours he may commit which, if proved against him, may justify his being struck off, but the words "moral unfitness" are a very vague, very wide and very ill-defined term.

Moreover, there is no appeal against the action of the Council. The provision in this paragraph (e) is not like that relating to the Disciplinary Committee which we were considering a moment ago. There is provision for appeal in that case. Here there is, as I understand this new, startling provision, an unfettered power in the Council to say that in its opinion a young man is morally unfit, and that that puts an end to his articles. This, I think, is asking the Committee to accept too much.

Mr. Janner

I support the contention of my hon. Friend the Member for Islington, East (Mr. E. Fletcher) in this matter. I suppose that if one were to ask whether the words "morally unfit" should be utilised in this sense, then, at first glance, possibly people would say that a man must be morally fit in order to be an officer of the Supreme Court. However, it is not quite as simple as that, because before a man or woman enters into articles nowadays there is a very close investigation into the character and ability and suitability of the individual concerned; so that nowadays, although this has come about in quite recent times, before a person can take up articles with a solicitor, he must pass a very severe test of his character and of his general fitness ultimately to be an officer of the Supreme Court.

2.0 p.m.

When that has been done, when the principal of a firm or the person to whom the individual is articled has had him under supervision for any length of time, he is in a position to gauge much more accurately than anybody else whether that individual is fit to be an officer of the Supreme Court. Indeed, though I do not remember the exact terms of the declaration, he has to sign or enter into a declaration whereby he declares that the articled clerk is a person who has fulfilled his obligations under his articles, and these are pretty steep provisions. The articles themselves contain clauses which demand that the articled clerk shall be a fit and proper person and do the appropriate things during the course of his articles. If the principal were satisfied that there was a very grave moral aberration on the part of the articled clerk, he would not make the declaration that is required.

My hon. Friend is, I believe, right in saying that it is not right to leave an arbitrary decision to this Council. Indeed, I doubt whether the Law Society would want it, without a right of appeal even to anybody, including themselves, because this is a difficult term to interpret. The law itself does not claim to be a code of morals, and now the Law Society is to set up a new type of code, in which I suppose it will have to interpret, within its own four walls, what is meant by the term used in this Clause.

I hope the hon. Gentleman will, on reflection, agree that we cannot leave the Clause in this indefinite form. What exactly does it mean? Does the hon. Gentleman mean that, if a person had committed a domestic offence for which he is not charged in a court at all, that might make that individual an unsatisfactory person to conduct the business of a solicitor? Let me put it this way. Might it not be said—or even will it be said—if the articled clerk has committed a matrimonial offence, and if he becomes an officer of the Supreme Court, it would not be safe to have a client visit him? That may very well be said, though I do not know how far this can be taken, but I think that if this provision is to be made, there should be a right of appeal for the individual concerned.

I hope that, in the light of these considerations, the hon. Gentleman opposite will take instructions, if he has to do so, or if not, that he is perhaps himself now persuaded that it is not quite fair, putting it very mildly, to leave the fate of an individual who has passed all his examinations, paid his premium and everything else without any right of appeal at all. I am not passing any reflection on the Council of the Law Society or the people who are likely to judge this matter, because, after all, they are human beings, and it will be for them to decide what these terms actually mean. There is nobody to whom they can go to tell them that they are wrong. I think it is important that we should give this right of appeal to the individual concerned, because his whole future may be destroyed, since once he has become articled he would not 'be able to go into any other branch of the law.

There is another great difficulty here. I do not know whether under the new rules the individual concerned would be entitled to take such a clerk into a solicitor's office. Perhaps the hon. Gentleman will be able to tell me. If the Council of the Law Society decides that he is not a fit and proper person, in consequence of this moral aberration or whatever it may be, to become a solicitor, will he be in the same position, for example, as a solicitor who has committed an offence and has been struck off the rolls or suspended, because we know that he is not entitled, without special leave, even to become a clerk in a solicitor's office?

Therefore, this goes very far, and it does not merely mean that a person might be entirely deprived of the possibility of carrying on that profession, but might even extend to his being deprived of earning a livelihood in any capacity at all in a solicitor's office. It might very well, and probably will, mean that a person who went straight into his articles after leaving school would have no possibility of doing any other kind of work at all. This is not a trivial matter which we are considering, but one of a substantial nature, and we should reflect very carefully before coming to a decision to accept the Clause as it stands. I therefore appeal to the hon. Gentleman to reflect on it again, and to assure us that, if he is in any doubt about the matter, he will be prepared to consider it at a later stage.

The Solicitor-General (Sir Harry Hylton-Foster)

Before my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks) replies to these points, not being the sole lion in the den of Daniels in the House, I wonder whether I might contribute some reflections which I hope are helpful.

The Committee has already voted Clause 2 into the Bill, and under the provisions of that Clause, before anybody can be admitted a solicitor, he will have to satisfy the Law Society of his moral fitness.

Mr. Janner

As a learned Law Officer of the Crown, with a very clear mind on this subject, can the Solicitor-General say what necessity there is for this additional precaution, if what he is now saying is correct? If that is the case, there is no need for the subsection to which we are referring.

The Solicitor-General

Perhaps the hon. Gentleman will allow me to make a submission about that, although this is a domestic matter to the other branch of the profession and I do not wish to intrude. As the hon. Gentleman used the phrase, may I say that part of the iron curtain which a person has to penetrate before he can be admitted is to satisfy the Law Society of his "moral fitness". Complaint has been made about this new test—I think it was called "moral unfitness"—because the hon. Member for Islington, East (Mr. E. Fletcher), who is not now in the Chamber, probably forgot that it was not quite right to call it new. The principal Act, which is referred to, uses these very words "moral unfitness", as the test in Section 14.

I think that the hon. Member for Islington, East, was perhaps forgetting that in the days, not very long ago, when he took his own final examination, a peril then hung over his head, because if, under the principal Measure, the Solicitors Act, 1932, an allegation had been made by the Registrar against his moral fitness to be an officer of the Supreme Court, an inquiry into that allegation would have been added, as it were, to his final examination. He would have had to survive that test just as he would have had to know things about trust accounts, and whatever else solicitors have to know.

This is really not a new horror, and no one would doubt that so honourable and responsible a profession as that of solicitors—and it is easier for me to say these things than for some hon. Members who belong to it—would think it highly undesirable that people who were morally unfit should be admitted into the profession.

What follows? I should have thought, as a layman, that it was kinder to let the chap know at the earliest possible stage of his budding career that such is the fact. If he is a person who, by reason of moral unfitness, will not be admitted ultimately, it is just as well to let him know at the earliest possible stage. This provision in the Bill would make it possible to tell him at any stage of his articles—perhaps when he had done two of his five years and not more —" No, do not go on, because you are not going to be admitted: since you will not be able ultimately to satisfy the requirements of Clause 2." I should have thought that in the appropriate case, and no doubt it would be extremely rare, it would be much kinder to the young man not to waste his time and money but to take power to tell him at the earliest possible stage if need be. No one thinks that the Law Society will act irrationally or hurriedly about this. It would be a power to enable the Society to be kind by letting a man know at an earlier stage than that at which he seeks admission.

Sir L. Joynson-Hicks

My hon. and learned Friend the Solicitor-General has replied to the arguments in favour of the Amendment. Little remains for me except to congratulate the hon. Member for Islington, East (Mr. E. Fletcher) and the hon. Member for Leicester, North-West (Mr. Janner) upon having declared and established their professional innocence before the Committee, and shown that over a quarter of a century they have been carrying on their business as professional solicitors without being aware of any perils which they might in cure through committing moral turpitude. The expression here, which I will certainly not try to define. is one which is hallowed in the profession, having been contained in the Solicitors Act, 1932, and again referred to in the series of subsequent acts for various purposes.

As my hon. and learned Friend the Solicitor-General has said, the object of the Clause is exceedingly narrow. The Law Society already has the duty laid upon it by Statute of exercising the discretion of discharging the articles of an articled clerk in circumstances of moral unfitness, upon the application, it may be, of the solicitor to whom he is a clerk. That obviously may well give rise to difficulties of personal relationships when so frequently the profession is very largely carried on from father to son. When there is a family tradition it would clearly give rise to difficulties in making an application.

What is here done is to enable the Society in these cases, as it is enabled to do in certain other matters, to act upon its own motion and take the initiative. If it is evident to the Society —and I regret to say that there are several cases a year—that an articled clerk has established his moral unfitness to become an officer of the Supreme Court, what is the point of the Society doing only what they have the power to do now, namely, letting him working out his period of articles, it may be for another four years, and then preventing his taking his final examinations? Surely it is far better for the Society to say, "We are afraid that you are not going to be able to qualify even if you complete your articles."

The four years, otherwise, will be completely wasted. The young man is most unlikely to be in receipt of any income. He is seeking to learn his trade and may have paid, or have had paid on his behalf, a substantial premium for his apprenticeship. Under this provision the Society also has powers to deal with such matters as the return of premiums.

As to the question whether such an articled clerk would be in the same position as a solicitor who had been struck off or suspended, the answer is "No." The same detriments do not attach to the articled clerk. I would ask the hon. Member for Leicester, North-West to examine the provision in the first paragraph of the First Schedule, much of which repeats Section 51 of the Solicitors (Amendment) Act, 1956, in more simplified and concise form. The hon. Member will see that this is a practical extension of the powers already vested in the Society by statutory provision. It is a provision introduced for the benefit of the clerk and to assist the general machinery for the operation of the articles system in the profession.

Mr. Mitchison

This has been a fascinating discussion. I gather that moral unfitness is very frequent, but only in statutes, and I feel some doubt whether in every case the same standards would necessarily apply. I should dearly have loved a short history of past cases, for the unruly apprentice is a rather attractive figure, even though when we are being more serious we think that something has to be done about him. I am sure that if my hon. Friend the Member for Islington, East (Mr. E. Fletcher) had been in the Chamber, he would have sought leave to withdraw the Amend- ment. I understand that there are procedural difficulties caused by his absence, but I assure the Committee that they are no more than procedural.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clauses 13 to 19 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Bill reported, with an Amendment; as amended, considered.

Motion made, and Question proposed, That the Bill be now read the Third time.

2.20 p.m.

Sir L. Joynson-Hicks

As the House knows, there was no opportunity for anything other than a purely formal Second Reading of this Bill, and it would be a pity if we parted from it without a few general observations upon its content, especially as it is a Bill of some importance. Although it is not the consolidation Measure for which the profession is longing, nevertheless it covers a wide field and it has received considerable attention, both in the profession and in another place through which it has passed already.

Admittedly, there is much in the Bill which is administrative and technical. I do not propose to refer to its details, particularly those Clauses which have been discussed at some length. I know that the hon. Gentleman the Member for Leicester, North-West (Mr. Janner) will agree that we of the profession are grateful to those who, though not of our branch of it, have commended the Bill in another place. I am thinking particularly of the Lord Chancellor, the Master of the Rolls, and Lord Cohen, who moved its Second Reading. They have helped the profession materially in seeking to set its business on still surer foundations and to enable it to retain still further the respect of the general public.

That is the main purpose of Clause 1, to which I referred a short while ago as being the most important Clause in the Bill. Several of the other Clauses are also useful, as well as being of a tidying character. It is curious that for upwards of 100 years the Law Society has carried on the functions of the Registrar of Societies because it is appointed so to do by the Master of the Rolls. In theory, at any rate, at any moment the Master of the Rolls may appoint someone else to be the Registrar, and it has always been felt that this would lead to considerable difficulties if it took place. Consequently, by Clause 3 the Society is required to perform the functions of the Registrar, and so blend more nearly together the work of the Registrar and the Society which, in itself, will be an exceedingly helpful step to take in preparation for a general consolidation Measure.

The Bill also helps colonial solicitors who desire to have the right to practise in this country, and that is a step which we in this House will commend wholeheartedly, and which will also tend to improve the relationship and to increase the connection between the Colonial Empire and the home country.

Turning to Clause 1 for a moment, I believe that we are the only profession which, through the statutory provision of the Compensation Fund, together says to the outside world that as a profession we will recognise and be responsible for any losses caused to the outside world through the dishonesty of one of our members, or of his clerk acting in the course of his professional duties, or in connection with any trust which he is looking after professionally.

This is a substantial burden. I think the House will agree that we are not a profession of dishonest people and that we have few black sheep, but there is no profession which does not suffer from some. However, I believe we are the only one which seeks to protect the public from problems caused in that way. So the real purpose of Clause 1 is to enable the profession to increase the amount which it collects towards the compensation fund, so as to build up a reserve, and thereby enhance the assurance which it will give to the public of being able to offer such compensation as may be necessary if and when required.

The primary object of this Bill is, therefore, both to maintain the honour of the profession and to enhance the confidence which it holds in the esteem of the public.

2.27 p.m.

Mr. Janner

I shall refer only briefly to the points made so aptly by the hon. Gentleman the Member for Chichester (Sir L. Joynson-Hicks). Every measure taken to establish the fact that the solicitor's profession regards itself as anxious to protect in every sense any individual wronged by a member of the profession, is welcomed by the profession itself.

As you know, Mr. Deputy-Speaker, in spite of the bricks which are occasionally hurled against us in common with our friends in the other branch of the profession, in this country both professions stand high in the public esteem, and they are highly respected throughout the world. Indeed, they are as much respected as any practising body anywhere in the world.

It is true that in a profession which is entrusted with so much important and valuable information and work, and which has heavy funds placed at its disposal by its clients, there must be some people who abuse the trust placed in them, albeit they are a very small proportion. It is not generally known in the country how large are the funds which pass automatically through the hands of the profession. It is taken for granted that a solicitor will hold very large funds in the aggregate without being paid anything for holding them.

It may be said that he is paid for his work, but in most cases if an individual or a company is entrusted with funds, remuneration is paid in consequence of the trust reposed in the individual or the company. Quite rightly, that side of a solicitor's duty is taken for granted, with the consequence that people entrust practically their lives—that is what it amounts to—to solicitors.

If this were understood in its fullest extent, I think that the community as a whole would realise how few are the solicitors who fall by the way. I know the Law Society will agree that every precaution should be taken not only to prevent that kind of thing from happening but, in the event of a wrongful act on the part of a member of the profession, to see that no one suffers as a consequence.

We are grateful to the Law Society for having taken the step of promoting the Bill. The points which my hon. Friend the Member for Islington, East (Mr. E. Fletcher and I raised in Committee were raised with a view to protecting individuals in case there might be the slightest danger of anyone suffering. I know that the Law Society will take into consideration what we said. We know very well that a dissatisfied client or a witness who has been cross-examined is sometimes vicious about the matter and regards it as a personal affair on the part of the solicitor or clerk. Such a person might easily act as an informer without there being the slightest foundation for the accusation.

We are anxious, as I am sure is the hon. Member for Chichester, that this Bill should not open the way to informers to make the life of an articled clerk uncomfortable or to place him from time to time in a position of anxiety. That is what we had in mind in Committee, but by and large the profession as a whole, and certainly hon. Members on both sides of the House, will regard this as a very useful Measure. I have very much pleasure in supporting it.

2.33 p.m.

Mr. Mitchison

As another Daniel surrounded by lions, I should like to say that all my hon. Friends appreciate the utility of this Measure. We should like to congratulate the hon. Member for Chichester (Sir L. Joynson-Hicks). I feel sure that his profession could not have found a more distinguished, more courteous and more eloquent advocate for what it desired to put forward.

2.34 p.m.

The Solicitor-General

It is known that the Government welcome the Bill. I should like to congratulate the Law Society on getting so fine a champion as my hon. Friend the Member for Chichester (Sir L. Joynson-Hicks) to conduct it in so agreeable a manner here.

Question put and agreed to.

Bill accordingly read the Third time and passed, with an Amendment.

Notice taken that 40 Members were not present:

House counted, and, 40 Members not being present, adjourned at twenty-three minutes to Three o'clock till Monday next.