HC Deb 16 May 1958 vol 588 cc817-26
Mr. Malcolm MacPherson (Stirling and Falkirk Burghs)

I beg to move, in page 1, line 18, at the end to insert: Provided that in the case of any person who is an applicant for admission as a solicitor and in respect of whom the Council are not so satisfied, they shall serve upon such person, at the address shown upon his or her application for admission, notice in writing that the Council are not so satisfied, and setting forth—

  1. (a) the specific reasons for their being not so satisfied; and
  2. (b) that the Council have for such reasons decided to refuse him or her admission as a solicitor;
and such person shall then be entitled within twenty-eight days of the date on which such notice is served upon him or her, to appeal to the Court against the decision of the Council, and on any such appeal the Court may confirm or overturn such decision, or may give such other direction in the matter as the Court thinks fit, including directions as to the expenses of the proceedings before the Court, and the order of the Court shall be final. This Amendment is concerned with the possibility of appeal from a decision connected with the admission of solicitors. On reading Clause 1, it would appear to the layman that there is no appeal from the decision that is taken by the Council of the Law Society under the Clause. In fact, I am glad to find that the main point with which the Amendment sought to deal is covered by the linking of this Bill with its predecessors and by the Amendment to be moved later by the hon. Member for Edinburgh, South (Mr. M. Clark Hutchison). However, there remains one point on which I should like to argue the substance of the Amendment.

1.0 p.m.

Clause 1 sets out three conditions which have to be satisfied before admission as a solicitor in Scotland. The first is that the person concerned must have reached the age of 21; the second is that he must have satisfied certain conditions as to training and education; and the third is that he must be in the opinion of the Council of the Law Society of Scotland a fit and proper person to follow the profession of solicitor. It is with the third point that I am concerned.

The Council of the Law Society makes a decision as to whether it considers an applicant to be a fit and proper person to be recommended to the Court of Session for admission as a solicitor. One presumes that this decision is made not in the interests simply of the legal profession but in the interests of the public in general. It happens that the professional organisations, including the Law Society of Scotland, do a great deal of work in the matter of organisation in the profession which would otherwise, were it not done by these organisations, fall to be done by some public authority. In a number of the decisions which they are called upon to make one assumes that they have in mind the public interest. I think that one may assume that in connection with this decision. Theoretically, I suppose, the public should decide whom it wishes to serve it in the capacity of a member of the profession, but it is a great deal more convenient for the profession itself to do it.

When an applicant is refused a statement by the Council that he is a fit and proper person, it will normally be, one imagines, because his character is bad in some way or other. I say "normally," but I suppose that such occasions will occur only very rarely. Normally one would not expect that the decision of the Council in a matter of this sort would be disputed, but I think one must take into account the possibility of unusual circumstances.

The decision is, after all, taken by the Council simply as a body of men who hear the applicant in private and who are, besides belonging to a particular profession, human beings subject to all the gusts of opinion that may blow about at whatever time they may be considering an application. It is perfectly possible, to put it bluntly, that at a certain time there may be strong feelings—about, let us say, extreme political or other beliefs—which might sway members of the Council. It is against that kind of danger that one must be continually watchful. I do not say that it will occur very often. Indeed, I am not sure that in the case of a profession of this sort it is at all likely to occur even over a long stretch of time, but it is the kind of thing against which, it seems to me, one ought to make sure that there is some safeguard. One has known in other countries, if not in this country, cases in which great gusts of public feeling have condemned minorities out of hand, and it is perfectly possible that such a thing could happen here.

An applicant in a situation like this, is, after all, a minority, and it is in order to make sure that he has some proper defence that I have tabled my Amendment. The defence of the applicant, in so far as it relates to an appeal over the head of the Council of the Law Society is, I think, met by the Amendment which is to be moved by the hon. Member for Edinburgh, South which declares that the existing situation under the Solicitors (Scotland) Act, 1933, is unaltered.

My Amendment, however, also suggests that, besides the appeal, there ought to be a statement from the Council of the Law Society to the applicant stating plainly the reason why it has not found him to be a fit and proper person. This seems to me to be only reasonable and fair treatment—only justice, if one wishes to use the word. The applicant ought to be told why as a result of a decision of this sort he is not being found to be a fit and proper person. There is, after all, a stigma placed upon him. Anyone who knows that he has made an application and has been turned down will certainly feel that he is in some way, with which they are not familiar, open to criticism.

I am told that there are certain practical difficulties in the way of carrying out this proposal. I am told that it is not possible to put in writing in a letter to the applicant a statement which makes clear the reason why he is turned down if the reason is concerned perhaps with his past individual record or character as shown in his public actions. He may, indeed, be a person convicted of an offence, or something of that sort. I am not sure that this is a good argument against giving such a statement.

I gather that the argument is that if such a statement were made, the Council, which is not protected in any way by privilege in these matters, would find itself perhaps open to a libel action. I am very doubtful whether that is a full justification for not giving such a statement. If the Council rests a decision of this sort on something which could be actionable for libel, it seems to me that it is resting its decision on something on which it should not rest it. It ought to rest its decision in a matter of this sort on something less questionable.

That is the substance of what I have to say. The main part of my Amendment, that concerned with appeal, is being met, but the other part, that concerned with the provision of a statement to the applicant of the reasons why he is not considered a fit and proper person, is not so far being met.

Mr. Michael Clark Hutchison (Edinburgh, South)

I appreciate the points made by the hon. Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson), and I largely agree with the object of his Amendment. However, I think he is under some misapprehension as to how solicitors are admitted in Scotland.

The provisions concerning admission are contained in Sections 14 and 15 of the Solicitors (Scotland) Act, 1933. These, as amended by the present Bill, provide that an applicant for admission may present to the court a petition praying to be admitted. If the applicant has a certificate from the Law Society, the court will admit him automatically. It has no discretion in the matter.

In a case where an individual has not such a certificate, there is nothing to prevent him from going to the court and asking for admission. It is then up to the court to examine his case and ascertain whether he is a competent and fit person, and if it decides that he is then he can be admitted. In other words, the court has complete discretion. There is, thus, this right to bypass, as it were, the Council, and I believe that that will meet the hon. Member's point.

All this was perhaps not very clear in the Bill as it was first drafted, and I am grateful to the hon. Member for drawing attention to it, but I think the point will be made quite clear in the Amendment which I shall shortly move.

The hon. Member said that the Council did not give reasons for refusing an application and mentioned that it might make itself liable to an action for damages if reasons were given in writing. That is so—in a number of cases there is a risk of an action arising and the Council does not feel it should run such risks. If a person, however, went to the Council and sought admission and was refused, he could still go to the court and at the hearing, if the Law Society still opposed the admission, it would have to give its reasons and it would then be up to the court to say yea or nay.

I believe that this explanation will meet the hon. Member's point and I think that he will regard my Amendment as covering the matters which he has raised. I hope that my account will satisfy him.

The Lord Advocate (Mr. W. R. Milligan)

I intervene to welcome the Bill on behalf of the Government. It was welcomed in another place and supported by my noble Friend Lord Strathclyde and Lord Mathers also gave it his approval.

I am much obliged to the hon. Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson) for having raised this matter of appeals and reasons. My hon. Friend the Member for Edinburgh, South (Mr. M. Clark Hutchison) has sufficiently dealt with the question of appeal and I think that the hon. Member appreciates the position there, but I respectfully suggest that the Committee should not accept the principle of the hon. Member's Amendment as it affects reasons.

In a similar situation, where one has an appointment, election or admission to a professional body with which to deal, it is not the practice to give reasons. That does not mean that it is a good practice. As the Committee will remember, this whole question of tribunals—although this is not of the type with which the Franks Committee dealt—was recently explored. It may be desirable in similar circumstances that reasons should be given, but that would be a departure from the present regular practice. However, I am certain that the Law Society will carefully note what the hon. Member has said and will consider whether any possible modification should be made.

I take this opportunity to congratulate the Law Society on presenting the Bill and thanking my hon. Friend the Member for Edinburgh, South for supporting it, and thanking the hon. Member for Stirling and Falkirk Burghs for all the interest he has taken. Perhaps in those circumstances the hon. Member will see fit to withdraw the Amendment.

Mr. Malcolm MacPherson

I think that there still remains a point outstanding, but it is a point on which there is not much difference between us and I agree that the major part of my Amendment is met by the hon. Member's Amendment. In those circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendment made: In page 2, line 13, at end insert: (3) Nothing in the foregoing provisions of this section shall prejudice the power of the Court to admit a person as a solicitor in pursuance of the Colonial Solicitors Act, 1900, or under section fourteen or section fifteen of the Act of 1933.—[Mr. M. Clark Hutchison.]

Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.

1.15 p.m.

Mr. Malcolm MacPherson

The main element in this matter of admission to the legal profession is the legal training and education which the applicant must undergo. In these matters, although the Court of Session has the final decision on whether an applicant will be admitted, the Council of the Law Society is the supervisory body which will make the regulations which must be submitted to the Court of Session. It is the body which will take the first step in deciding whether a person is suitable and properly qualified to be admitted to the profession.

The concurrence of the Lord President in the regulations which are made must be sought, but there is no provision for the representation of the public interest—apart from the Lord President who is himself professionally concerned with the legal profession, if not with the solicitors' half of it.

The professions serve the public and are proud to serve the public, but there is an argument in favour of having the public represented in those parts of the professional organisation which are concerned with education, particularly formal classroom education. A profession itself is likely to see the more immediate things, the matters more concerned with day-to-day work in its own conduct of business. That has, in fact, been the history of legal education in Scotland. It has tended to be fairly narrowly professional.

On the other hand, the public may have other interests. It may want to see something a little beyond that and there may be specific questions on which the public should have the right to having its point of view considered. For instance, one matter which is very important to the public in the present situation is the levels of academic qualifications required for entrance to courses of professional study.

Several professional groups, namely, perhaps, the smaller or sub-professions, or semi-professions, seem to many people to ask for qualifications which are far too high—in terms of Higher Leaving Certificate passes in Scotland and, in England, the Ordinary and Advanced Level G.C.E. passes—before permitting candidates to embark on courses of study for their profession.

The professions, naturally, want to keep their own levels high, but the public may well think differently. The public may think that a certain level is sufficient and that there should be sufficient people left possessing high qualifications to be spread to other professions. We do not want a professional group to take more than its fair share of well-qualified youngsters leaving school. This is not a reflection on the legal profession; but it is a matter of some public concern in connection with a number of other professions at the moment.

That is an example of the kind of question connected with the training and education for the professions in which the public may have a very strong interest and in which the public point of view is quite likely to be different from the professional point of view and to be right. I do not say that that happens in the case of solicitors, but it is a general point affecting all the professions. It is desirable that there should be public representation in managing and deciding on the courses of professional training.

An analogy is that of the General Medical Council which has the oversight of training for the medical profession, but which does not consist entirely of medically trained people. It includes non-medically qualified people so that at any time there is always a small handful of laymen on the Council.

In a matter of this sort I think it is generally advisable to have on the Council lay people, representing the public interest, as well as professionally qualified people representing the professional interest, even though these latter are themselves also trying to keep in mind the public interest.

My second point deals with legal training and education. Subsection (1, a) deals with practical training, and subsection (1, b) with attendance at a course of legal education. These two matters are separated.

The requirements which the Council may prescribe; subject to the concurrence of the Lord President, are those which the applicant must meet. We have no further description of them than that they are such requirements as the Council may … prescribe. The public, simply with the Bill and without the regulations—which are not subject to parliamentary scrutiny and are subject only to the concurrence of the Lord President after framing by the society—are asked to buy a pig in a poke. I do not particularly object to that, but the principle might be objectionable, and there is the desirability of public representation.

The intention of the Law Society, I understand, is to implement the provisions of Clause 1, through regulations, in a direction that I fully agree with. It is to carry out, in practice, the distinction made between legal training, on the one hand, and legal education and the passing of examinations on the other. This is a very good thing. It will change the present system of apprenticeship by which the law student is a part-time worker in the firm's office and a part-time student in legal classes.

It will mean that one period of his training he will be working full-time in an office and at another period attending full-time law classes. This will have the purely practical and secondary advantage—but a very useful one—that when he is a student he will be able to obtain the ordinary public grant given to students requiring such grants in order to help their education, without being told, as he is at present, "We cannot make such-and-such a grant to you because you are earning your living part-time and are not a full-time student." It will regularise his position as a student. As a part-time worker in the firm's office he is at present looked on as perhaps not worth a great deal of remuneration until he has learned much more, but as a full-time worker he will presumably be given wider responsibilities and also more remuneration. From the purely practical point of view, therefore, this division would seem to have its advantages.

Another desirable feature in the separation of education and training is that the Clause, through regulations, will enable the Law Society to insist on whatever can be done in a formal and organisational way to improve the legal education of solicitors in Scotland. It would not be unfair to say that legal education in Scotland today is, in general, bad. I do not suggest that that adjective covers every single part of the picture, but as a general description it is unquestionably true.

The provision will enable the universities to improve their legal education quite considerably, because if they have more full-time students there will be far more incentive to turn the university law faculties from merely professional training schools into proper faculties of law, encouraging more research, by encouraging more scholarship, and, as T. B. Smith suggested in the Scotsman recently, by looking upon the legal course as something more than a mere legal training.

I do not want to pursue this point further, because I am a little afraid of going too far beyond the scope of the discussion on the Question, "That the Clause stand part of the Bill", but it seems to me that, in practice, the Scottish universities will probably be very glad of the opportunity to substitute for the present rather unsatisfactory law courses, courses which are rather more in keeping with university education in general.

I find one practical difficulty in the position. I do not believe that we are in a position to carry on four separate law courses at the four Scottish universities. We ought to close down three of the faculties and concentrate on one law faculty for Scotland. Apart from other considerations, the number of people in the legal profession in Scotland is so small that it cannot possibly staff, in the proper university sense, more than one good law faculty. With these comments I welcome the Clause.

Question put and agreed to.

Clause, as amended, ordered to stand part of the Bill.

Clauses 2 to 19 ordered to stand part of the Bill.