SOLICITORS (AMENDMENT) BILL

HC Deb 22 January 1974 vol 867 cc1504-33

Question again proposed, That the Bill be now read a Second time.

Mr. Houghton

I come to the disciplinary tribunal. From a consumer point of view, this is perhaps the most important clause of the Bill. The Solicitor-General explained that the disciplinary committee is converted into a solicitors' disciplinary tribunal. The membership is enlarged. It extends to solicitors of not less than 10 years' standing and provides for lay members who are neither solicitors nor barristers and whose fees will be met from public funds.

The interests of the profession are adequately safeguarded. The tribunal will have on it a majority of solicitors, but at least one lay member must be present. For cases, three members—two solicitors and one lay member—constitute the tribunal: there must be a lay member.

This is an advance on previous proposals, and it is to be welcomed. Lay members are put there to safeguard the public interest as well as the professional interest. The prevalent idea, to which the Solicitor-General referred, is that professional men stick together and will not go against their own kind. We cannot get rid of this idea, because people think that this is how it is. We have to dispel this, I believe, false idea of what professional men do.

That will be best done by the intervention of the laity into the mysteries of professional life. It can be best dispelled by having non-professional members of the tribunal. I do not say that it is essential for this purpose to have a majority of lay members on the tribunal. I think that one watchdog is enough, as long as he will bark ; and if he is not satisfied with the way the tribunal works he can always resign, because his professional life is not at stake: he is a lay member ; he is a free man.

Therefore, although I would have liked to see a tribunal a little more strongly manned by the layman, nevertheless I would not make an issue of the constitution now proposed. We will see how it works out. It is a valuable precedent. I am not aware that this has yet been done in any other profession, though I may be wrong.

Mr. English

It has been done with the Press Council.

Mr. Houghton

Then I think that it should be extended, for all sorts of reasons.

What is proposed in the Bill in that connection has a message to others. Some of us take the view that it is undesirable for a trade union, for example, to have the sole right of discipline over a member against whom misconduct or other default has been alleged when that trade union can, by exercising its disciplinary right, deprive him of the right to follow his occupation. That is a very severe power for any body to have. This is indeed what the disciplinary committee used to have but now the disciplinary committee does not have it in that form because the tribunal takes its place and upon the tribunal there is to be lay or outside representation.

So the message here is to the trade unions also that, when dealing with disciplinary matters involving the possibility of depriving a member of his membership of the union, which would seriously impede or indeed prevent his following his normal occupation, they should contemplate involving a lay person in the consideration.

When such a concept is mentioned to the trade unions they say "But the doctors do not have this. The lawyers do not have this. The accountants do not have this. Why should we be thought to be less capable of taking an impartial and judicial view of misconduct than the professional bodies?" Here is the message in the Bill as regards the profession of solicitors.

I come to the point which the Solicitor-General mentioned towards the end of his speech regarding the appointment of a lay observer. There is nothing in the Bill about the matter of referral to the tribunal. The lay element comes into play only when cases get to the tribunal. The lay members of the tribunal have no connection with the power of the society's professional purposes committee to refer cases to the tribunal.

I was surprised that the Solicitor-General said it was the Government's view that the proposal to have a lay observer to look at the process of referral, if necessary, before cases get to the tribunal or at cases that are not to be referred to the tribunal was not to be put in the Bill because it was desirable to have experience of this experiment. The Law Society has been conducting its own experiment on this matter over the last 12 months. In those circumstances the Solicitor-General was entitled to be bolder about this proposition, because the experiment had taken place and there is confidence in it.

We know that the proposed lay observer is not an ombudsman, but he would be able to see the papers ; he would be able to express an opinion upon the merits of the case ; he would be able to recommend further steps of explanation to the complainant client or to recommend that the case should be referred to the tribunal. He would be an influential person, as I have no doubt he already is in connection with decisions on complaints which are not referred to the tribunal.

However, these and other points are suitable for discussion in Committee. I emphasise that in all these matters we must seek to strengthen the confidence of the citizen in the profession of solicitor.

As the Solicitor-General said, however unjustified the suspicions may be we must try to remove them and provide against the currency of the belief that professional men are birds of a feather or, as Shaw once put it, Professional bodies are a conspiracy against society. That notion should be dispelled.

Perhaps one day we may have a more comprehensive system for the establishment of civil rights. I have heard of a proposal for a civil rights commission which would deal with the various aspects of the appeal of the citizen against bureaucracy, against authority and against those in whom the public place their trust and who occupy a special position protected by the law. No public complaints of the behaviour of solicitors should be completely disposed of within a closed shop. That is my point. It is the point in favour of the lay observer coming into the Bill and of starting him off with statutory authority. The influence of the more objective viewpoints should be brought to bear or be available at every stage when dealing with complaints. Matters of discipline are, of course, to be dealt with by the tribunal.

Solicitors are rightly trusted by the public. They are given by law rights and privileges denied to others and they are protected against impostors, sea lawyers and well-informed laymen. They occupy an exclusive position. They have high standing in society, they are respected for integrity and knowledge. On the whole, the responsibilities and trustworthiness that go with this position are borne with distinction and honour.

We have probably as good a solicitor profession as any country in the world. We are entitled to ask in return for a high standard of professional knowledge, skill and promptitude in business, and when criticisms of undue delay and professional misconduct are alleged against a member of the profession its members should not claim to be complete masters in their own house. This is not a freemasonry—it is a work force, a public and social service which is employed and protected by the public. That calls for a full sense of public responsibility. The Bill moves several steps towards its achievement and I hope that it will be possible to advance a little further before the Bill leaves this House.

6.23 p.m.

Mr. Ivor Stanbrook (Orpington)

As one who in the past has expressed criticism of the way in which the Law Society has dealt with complaints against solicitors, I feel bound to give a cautious general welcome to the main provisions of the Bill. My hon. and learned Friend the Solicitor-General showered many bouquets on the Law Society which, I believe with all due respect, it does not deserve, especially in respect of complaints against solicitors. The treatment of complaints by the Law Society is a cause of widespread and acute dissatisfaction among ordinary citizens. I fell sure, therefore, that the provisions of the Bill must represent steps in the right direction. I know personally of cases in which the treatment of complaints by the Law Society has been quite appalling. I hope, therefore, that the new provisions will ensure that such cases do not arise again.

I am interested in the new provisions, especially in relation to the lay observer, but I shall reserve my personal consideration for them to a more appropriate stage. However, I wish to draw attention to Clause 2 which seems to me to be quite extraordinary. It is a big psychological error by the Law Society to propose to delete the requirement as to moral fitness at a time when apparently the Law Society is endeavouring to be even stricter concerning cases of dishonesty among the profession. It is a profession of trust. Therefore why, in this of all the provisions, do we need to remove the reference to the morals of its members? It seems to me to be a sinister provision, almost a confession by the Law Society of its failure to maintain moral standards among its members. I find it objectionable. I hope that there will be second thoughts about it.

6.25 p.m.

Mr. Michael English (Nottingham, West)

I am grateful that the Bill is now being introduced by the Government. There is a long history attached to my interest in the matter. It arose originally from constituency cases, and, as many hon. Members have said before this debate we have all had constituency cases of complaints against solicitors.

Invariably complaints raise a series of problems. If one has a complaint against a member of some other profession—say an accountant or a doctor—one can go to a solicitor quite readily for his advice. But it is an undoubted fact that some solicitors do not wish to take cases which are brought against another solicitor. I am quite aware that, if approached, the Law Society will find a solicitor for a complainant who wishes to bring an action of negligence, but often people do not realise this. They may go to a solicitor who turns them down and then they think that all solicitors will turn them down, which is not true. However, such an impression can be created.

There are undoubtedly cases of difficulty. The first which brought the matter to my attention was that of a retired business man who decided to build himself a bungalow for himself and his wife to retire to. When he found that he had been paying money and his bungalow was not being built, he went to his solicitor to get something done. Being a retired business man, when he discovered that nothing happened he became suspicious. He recollected that the solicitor concerned was the man who had recommended the builder to him. He looked up the firm of builders and discovered that the sleeping partner in the business was his own solicitor, who obviously was not too keen on pressurising the recalcitrant builder.

Since that example came to my attention the Law Society has changed its rules on conflict of interest between members. At one time there were practically no restrictions on such conflicts, which was reprehensible and which the Law Society has to a degree recongised to be such.

I had discussions with officers of the Law Society at that time and discovered more about complaints that worried me. In the layman's eyes a complaint against a solicitor or any other person might not be something about which it is necessary to go to court. I believe that the Law Society does a good job with the criminal solicitors and the solicitor who needs expelling from the profession. That has never been the real basis of my concern. What has been my concern is what, in terms we put into the Parliamentary Commissioner Act in relation to the Ombudsman, one might call maladministration.

We are all human beings. We are all fallible. We can all lose papers or forget something that should have been done on 30th May only to find suddenly that it is June. None of these things is odious. There is nothing reprehensible in saying that a solicitor makes a mistake, just as the rest of us make mistakes from time to time. But these were the things that the Law Society was doing least about.

If one told the Law Society that one's solicitor had stolen some money, it would quickly and expertly deal with the matter. If the complaint were justified, the solicitor would be dealt with in the appropriate way by the disciplinary tribunal. But if a complainant said that his solicitor had made a mistake and that as a result he had suffered delay or financial loss, the Law Society would say, "That is nothing to do with us. Your solicitor is not engaged in malpractice. You should get another solicitor to sue the first one for negligence."

Mr. Clinton Davis (Hackney, Central)

My hon. Friend will be aware of the new provisions in relation to small claims which are supposed to, and I think for the most part do, cut out these formalities. It is not necessary for a party to be represented in such proceedings before a registrar in the county court.

Mr. English

I was coming to this point, but my hon. Friend forgets that I am relating the history of the Bill and of my interest in it. He will be aware that the system he has described did not exist when the first of these Bills was brought forward. Before my hon. Friend came into the Chamber, I think, the Solicitor-General was accusing some of us of having been misguided. I hope to show that our misguidedness has achieved considerable results in the content of this Bill and elsewhere.

At the time of the first of these Bills, one was told that one's only recourse if a solicitor had made a mistake was to recruit another solicitor and sue him for negligence. This was monstrous. By a relatively quick and simple procedure the Law Society would investigate a complaint of actual crookery yet the whole panoply of the law had to be used to suggest to a solicitor that he had made a mistake and owed a client financial compensation—which would be paid out of his insurance, as I thought

I discovered at the time that there was some difficulty in insuring solicitors against negligence. That is one of the provisions in this Bill. It is interesting that it was not in the first Bill—although it was in the second and is now in the third. I pointed out to the Law Society that if insurance companies would not insure against possible claims, there was a simple answer on the analogy of the Road Traffic Acts. No one ever fails to find somebody prepared to insure his car if he is legally permitted to drive at all. The reason goes back as far as the 1920s and it is that the Road Traffic Acts empowered the Minister of Transport, as he then was, to insure in default of another insurer being found. I presume that the Secretary of State for the Environment now has that power. As a result, insurance companies insure. They do not want to lose their business to the State, so they make sure, even in some cases at a loss, that they insure everyone who is legally allowed to drive.

I suggested to the Law Society that, if one of its problems was the difficulty of insuring against what I call mistakes but what legal terminology refers to as negligence—it is arguable whether they are the same—they should simply include in the next Solicitors Bill a clause containing similar provisions. I agree with the Solicitor-General that there are different ways of doing this. One of the more essential things is not only to make it possible but to make sure that insurance companies see that it is desirable for them to insure solicitors against their own mistakes.

That is satisfactory and that is one clause that my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) and I managed to have included in the second Bill. However, it still did not contain provisions which are now in this Bill, so we objected to that one, too. We wished to do so courteously, so several back benchers of both parties met representatives of the Law Society, both its officers and the members of its Council, chairmen of its relevant committees, to discuss again various possibilities.

At the time, during the whole of last Session—the Solicitor-General knows that he and I also discussed the matter personally—there seemed to be no movement at all. My back-bench Friends and I are reasonable men who are prepared to negotiate reasonably, but the only response we received was, "No, we will not alter this Bill from what it is". That Bill as it was last Session is now altered and the proof is before us today. It could have been done more easily.

As a result, it contains what my right hon. Friend has correctly stressed—the interesting provision relating to lay members of the disciplinary tribunal. I think my right hon. Friend misheard my intervention earlier. I did not say that this was the first profession for which this had been done, but that there was a precedent in the Press Council. Of course, the Press Council's duties, although not dissimilar, are certainly not exactly the same or even exactly like those of the disciplinary tribunal. It certainly has no power—although it can suggest it—to say that someone should not be an editor or a journalist because of some dastardly thing that he has done. So it is a precedent with a distinction.

Then, in the Law Society's Gazette to which the hon. and learned Gentleman referred, I saw details of this interesting provision for a lay observer. I had suggested to the Law Society that there should be what might be termed an ombudsman. I did not mind that he was to be a layman, although I had thought that a solicitor who was not practising might be better, on the analogy of the Parliamentary Commissioner who is a civil servant who has ceased to be a departmental civil servant.

In the Parliamentary Commissioner's last annual report—not the one that he has just published and which is still being printed but his report for 1972—he refers to just over 570 complaints raised by Members of Parliament on behalf of their constituents. I believe that he has a staff of about 90 to investigate and deal with those complaints. I do not suggest that the majority of the complaints are justifiable ; they are not. But they are thoroughly investigated by a substantial staff.

I understand from its officers that the Law Society has about 5,000 complaints brought directly to its doors in Chancery Lane. I imagine that there are probably quite a few more scattered about the countryside which are abortively given to other solicitors—"Would you sue my previous solicitor for me?"—and which die a natural death. To deal with those 5,000 complaints, which is, perhaps, eight or nine times the number of complaints against the Civil Service and Government of the United Kingdom, it has a staff which is the reverse of what is required. In round terms to deal with nearly 10 times as many complaints, the society has perhaps one-tenth of the staff. I am talking not of complaints of crookery, with which it deals very adequately, but about the bulk of complaints, which are not of that sort. The Law Society cannot claim that it is dealing as adequately with complaints against solicitors as we are now dealing with complaints against the Civil Service and members of the hospital service.

In the discussions which we had last year the Law Society put a very good answer to me, which I accept. It said that it could not afford to do so and that the Exchequer had more money than the society. That is a fair point. The Solicitor-General has now conceded this point. He is saying that the lay members of the Disciplinary Tribunal and the lay observer should be paid by the Exchequer. So they should. But what he is not saying is that this provision, which is slightly different from my original suggestion—again, to save money, I suspect—which we have been told by everyone is not actually in the Bill, has to a certain extent been worked out. It is a mysterious, vague, amorphous provision.

We are told that the lay observer will be slightly different in that he will not be an ombudsman who can deal with complaints in the first instance but will be a lay observer who can deal with complaints on appeal. If one takes one's complaint to the Law Society, the Professional Purposes Committee will look at it or, possibly, get one of its grossly-overworked staff to look at it. If one does not like the result of that, one can go to the lay observer.

That is all well and good, but I do not know who will take on that job. Any lay observer faced with the fact that he knows that the Law Society has nothing like the proportion of staff to complaints that the ombudsman has, ought to accept every such appeal because, at the first instance, it must be true of the overwhelming majority of complaints raised with the Law Society that they are not dealt with adequately. I say that in the sense that they are not dealt with as adequately as we now believe that com-paints against even servants of the Crown should be dealt with.

I do not know how the lay observer will interpret his function. Presumably he will interpret it by saying that the whole standard of dealing with complaints must be much lower because there are nearly 10 times as many complaints as there are against the Civil Service and nearly 10 times fewer staff, so it must be proportionately lower—roughly 100 times lower. That is an exaggeration, but it is bound to be some measure of the truth.

It was for precisely that reason that I asked the Minister why this was not in the Bill. I want to ask him again. I hope that if he speaks again, with the leave of the House, he will explain this matter to me. When I had my last discussion with the Law Society, only last week, I understood that it had no objection to the lay observer provision becoming part of this legislation. On that understanding I said that as I understood it—I could not speak for my hon. Friend the Member for Erith and Cray-ford (Mr. Wellbeloved), but I have spoken to him since—I believed that backbenchers of the House who have hitherto objected to these Bills would withdraw their opposition ; and that this was now very satisfactory. I believe that my hon. Friend now shares the view that it would have been satisfactory.

However, the Solicitor-General says that it cannot be in the Bill. He says that we can deal with all these matters in Committee but that this provision cannot be in the Bill—so we cannot deal with it in Committee. I do not blame the Solicitor-General personally. I can only suggest that it is that crusty Tory, the Lord Chancellor, who is literally a conservative with a small "c" in almost any matter connected with the profession, who has said, "We dare not put this in the Bill because if we do people will want to look at it exactly and it may cost the Treasury money for a bigger staff for this lay observer" and so on. I hope that that is not the reason and that the Solicitor-General will say so.

It seems to be a disgrace that on something which is most necessary, where the Law Society through no fault of its own but simply because it does not have sufficient resources is at its weakest in dealing with complaints, this provision of a lay observer has been omitted. The Law Society is prepared to agree to it. It has taken three years of negotiation. I give the Law Society credit, because on every point raised by hon. Members it has gone to some trouble to agree with their point of view, although not necessarily entirely.

We are all reasonable men who are happy with half a loaf rather than none in our job. The Law Society has done extremely well. As I understand it, the Law Society is prepared to see this lay observer provision, which is the last of the several things that we wanted in the Bill. Now only the Government are blocking it. Does the House realise that if this Bill had been a Private Member's Bill, as it was last year, it would have gone through on the nod because no one would have objected to it? It would have had the lay observer provision in it because that is what all of us want. But now although the Law Society, formerly in opposition to this provision, is not now, it is still not in the Bill merely because it is a Government Bill.

I can only think that it is the Lord Chancellor who is at the back of this matter. It is an extraordinary thing to do. I am happy to let the Bill go through peacefully if an assurance is given that this provision will be put into the Bill at the Committee stage. I hope that the scope of the Bill will enable hon. Members to move that such a provision be included, but I do not know that that is so. Having looked at the Money Resolution I am certain that its scope will not enable us to do it. That is why it will be done in some mysterious way out of the other appropriations of the Lord Chancellor.

All this is an endeavour to hide an excellent proposal under a mat. If one wants to hide something away, one must have a reason. The reason is that it is just a front, a beautiful bluff to say that the Government are doing something. But on looking at it one realises that it is just a genie out of a bottle that has come like a puff of smoke and that it is not real.

If the Solicitor-General will not give this assurance I shall have to consult my hon. Friends and it may be that there will be a Division. I hope, Mr. Speaker, if you are in the Chair later and there is a Division, that you will convey the interesting ruling that Mr. Deputy Speaker gave earlier upon my point of order about interests. There are rules relating to the interests of Members who are voting which are different from the rules relating to the interests of Members who are speaking. I hope that those Members who have interests will be warned if there is a Division to consider whether they should vote.

However, if the Solicitor-General will give the assurance that the provision about the lay observer will be introduced by him in Committee, I would give him the assurance that the Bill will go through on the nod. Otherwise, I cannot give that assurance.

6.49 p.m.

Mr. Clinton Davis (Hackney, Central)

I must first declare my interest. I am a solicitor. I am a member of the Law Society. I am a joint secretary of the all-party Solicitors' Group with the hon. Member for Chippenham (Mr. Awdry). I am also a commissioner for oaths. That is a broad, comprehensive declaration.

Mr. James Wellbeloved (Erith and Crayford)

And a Socialist.

Mr. Davis

I am a Socialist and a member of the Labour Party, which perhaps is even more important.

It has been alleged by the hon. Member for Orpington (Mr. Stanbrook), more guardedly on this occasion than on others, that the Law Society is somewhat uncaring about the aggrieved lay client. It is right that impression should be dispelled, because I know of no other profession in which the lay client has the same comprehensive protection, for example, in the taxation of a bill or in requiring the Law Society's certificate of the fairness of a bill. That allegation is quite wrong and should not be made.

It is alleged that the Law Society has not given proper attention to complaints of lay clients. Again, that is wrong. That allegation was partially dealt with by my hon. Friend the Member for Nottingham, West (Mr. English), who said that in litigation affecting solicitors the Law Society can appoint a solicitor when other members of the profession may be unwilling to act. My experience is that it is far more common to find a solicitor prepared to undertake litigation of this kind than it is to find doctors prepared to give evidence against another doctor in matters of professional negligence, or architects prepared to give evidence against their professional brothers.

Mr. English

Does not my hon. Friend agree that one reason is that it is all a matter of circumstances? Does he not agree that an accusation that a professional person has made a mistake might be dealt with more easily if it were regarded not as a matter for action for negligence in a court but as a matter to be dealt with by, say, an ombudsman, in the general sense of the word, as a simple statement of mistake with an independent person available to arbitrate on whether or not there was a mistake?

Mr. Davis

I am a little concerned about that proposition because I believe that the courts are the right forum for determining questions of compensation. If one niggles at that proposition, it is difficult to know where to draw the line. That proposition would certainly be wrong for the medical profession, which presumably would be asked to undertake a similar arrangement to that envisaged for the solicitors' profession. I am assured that my hon. Friends are not suggesting that the solicitors' profession should be isolated.

In matters of signal importance, where substantial damages are at issue, it would be wrong to remove a determination of some issues from the jurisdiction of the court. One might ask what is the purpose of law courts if everything is to be dealt with by tribunals.

There is a case for dealing with minor matters by this form of tribunal, although the point I made during my intervention has not been answered. Through the new procedures that are available for arbitration in the county courts, it is possible for minor matters to be properly resolved without formality, and that is a significant advance.

Mr. Wellbeloved

I think that my hon. Friend is just about to deal with the number of complaints that are made to the Law Society and the manner in which they are dealt with. He will recall that my hon. Friend the Member for Nottingham, West (Mr. English) referred to 5,000 complaints. I hope that my hon. Friend will deal with that matter.

Mr. Davis

I want to deal with the points as they arise. I am not here as an apologist for the Law Society, although I admire the way in which the Law Society has given its attention to the matters raised by my hon. Friends and has been as helpful as possible to the Government in producing a progressive piece of legislation.

The hon. Member for Orpington opposes the deletion of the words "moral fitness". Having heard him speak on this sort of issue before, I expected it of him. He says that it is all terribly sinister. But it is not the job of the Law Society, in determining an application for membership of the profession, to be a judge of morals. Where would one end? After all, the virility of a proposed solicitor is not of general interest to the public at large. If someone who applies for membership of the profession is found to be mentally unfit or suffering from some similar disability, the Law Society should have power to refuse that application. It does not have that power at present. The hon. Gentleman has ignored that.

As a commissioner for oaths I very much welcome Clause 4. It is sometimes inconvenient to find commissioners for oaths, and people are put to a great deal of trouble in swearing affidavits. So long as it is necessary to go through the pantomime of swearing affidavits and paying fees to commissioners for oaths for that purpose, it is right that the commissioners should be more widely available. The Lord Chancellor still retains a right of veto to the appointment of commissioners for oaths.

I turn to the argument put forward by my hon. Friend the Member for Nottingham, West relating to complaints, about which my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) is deeply concerned. My hon. Friend the Member for Nottingham, West said that there were only five people at the Law Society dealing with 5,000 complaints.

Mr. English

No, I did not say that.

Mr. Davis

I do not want to quote my hon. Friend incorrectly, but my information is that there are 35 people dealing with 4,300 complaints.

Mr. English

Only last week I was told that the number of complaints was 5,000. If someone has since counted them and found only 4,300, or if one figure relates to a different year, I accept that entirely. I quoted the figure that I was given only last week by an official of the Law Society. I am glad to hear that the staff has grown considerably since I first inquired into it. I did not say there were as few as five. I said they numbered about one-tenth of the ombudsman's staff. The ombudsman has about 90 people to deal with 570 complaints, whereas the Law Society has about 35 people to deal with 4,300. My hon. Friend has not in any way ruined my argument.

Mr. Davis

Surely the point of substance is that innumerable complaints made to the Law Society have no firm basis and are unsifted. It is immediately apparent to people who examine them that there is no real basis for complaint in such cases. As far as the Parliamentary Commissioner is concerned, all his complaints are in the first place sifted by Members of Parliament, and by and large they relate to matters of considerably greater substance.

I very much welcome, as I am sure do the overwhelming number of solicitors, the extension of the provisions on the compensation fund and the new provisions that remain to be worked out on professional indemnity. I urge the Solicitor-General to take very much into account the point of substance that was made by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) concerning the situation where a solicitor, perhaps through no major fault of his own, may not be insured, and where the lay client may have suffered loss. It is only right that the lay client should have recourse either to the insurance fund or to the compensation fund. There should be no lacuna, and I am sure that it would be the desire of the Law Society and of the Government that the situation should be dealt with as rapidly as possible. The present difficulty is that the most appropriate scheme to carry out compulsory professional indemnity has not been worked out.

I turn to Clause 9 and the disciplinary tribunal. It is right that we should pay tribute to my hon. Friends the Members for Nottingham, West and Erith and Crayford, who for many years have proclaimed the need to have a lay element in this respect, and I would not wish to be churlish in offering praise where it is due. I do not know to what degree my hon. Friends' perseverance has led to it, but the fact is that the Law Society has taken a reasonable line on that aspect of the matter. As an experiment it undertook for 18 months to have a lay person involved in the investigation procedure to give greater credibility to the way in which the Law Society attends to complaints. I hope that, just as the Law Society has been the pathfinder in this respect, other professions will respond equally. All too often solicitors—indeed, all lawyers—are condemned as being unscrupulous and uncaring of the lay client's needs and requirements. The way in which the Law Society has dealt with the Bill indicates that that is a quite wrong impression, in just the same way as hon. Members of the House sometimes carry with them a degree of obloquy which is undeserving. And if one is a Member of Parliament and a lawyer, that is regarded as going just too far!

I am pleased to see that Clause 13 extends protection to clients in the taxation of costs. The time scale was too short, and the effect of the provisions will simplify the situation and also give added protection. I am sure that this is something which the House as a whole will support.

I come finally to Clause 14.

Mr. Charles Loughlin (Gloucestershire, West)

The substance of the difference between those who support the Bill and those who oppose it relates to the question of the ombudsman as against the disciplinary tribunal. The disciplinary tribunal insists that there shall be a majority of solicitors present at the hearing but that one person should be a lay person. My hon. Friend has not argued the contrary case as presented by my hon. Friend the Member for Nottingham, West (Mr. English). Can we be told why the legal profession does not want an ombudsman in place of the procedures laid down in the Bill? I have not made up my mind on this point ; I am simply trying to find out the situation.

Mr. Davis

This point was dealt with in the Solicitor-General's speech.

Mr. Loughlin

I was not here.

Mr. Davis

I take the view that it would be wrong simply to have a situation where an entirely lay element in the investigation should be the sole arbiter over what can be extremely complicated issues in respect of which a member of the profession involved—whether it be the solicitor's profession or any other—will have some expert knowledge. In my view, expert knowledge is absolutely essential in determining so many of the issues that come before a disciplinary tribunal. Sometimes difficulties and complexities arise.

Mr. English

I wanted a solicitor ombudsman.

Mr. Davis

My hon. Friend the Member for Nottingham, West says that he wants a solicitor's ombudsman, but I am sure that would not be acceptable to my hon. Friend the Member for Gloucestershire, West (Mr. Loughlin). This is an experimental situation, and one looks to the future with great interest to see how the situation will develop. It is not right to come to final conclusions, and I await the results with great interest.

Mr. W. R. Rees-Davies (Isle of Thanet)

The point about the ombudsman is important, but may I try to point out the real issue before us? All disciplinary tribunals in all professions are dealt with by the professions themselves. This applies to the Army, the defence forces, the Bar, valuers, doctors or dentists or even the Civil Service. The point is that one should be tried by one's peers in disciplinary matters, and the essence of these discussions is the matter of discipline. Surely the reason why the Bill appears to be going somewhat wider is that a certain element of outside complaints are not wholly professional. That is why there is this half-way house.

Mr. Davis

The hon. Member for Isle of Thanet (Mr. Rees-Davies) has put the point succinctly and carefully, and I totally accept that argument.

Mr. Wellbeloved

I have one small point to put to my hon. Friend. He did not refer to Clause 3, which in my view is of considerable importance because it removes the limitation on the fee charged for the practising certificate. The House is entitled to know what is in the Law Society's mind in respect of the amount of fee it seeks to charge.

Mr. Davis

I am only a humble backbench member of the Law Society and I cannot speak for what the Law Society has in mind. The present statutory requirement is totally unacceptable and insufficient to cover the needs of the compensation fund, and it is important that the Law Society should have greater discretion. I do not think that the Law Society will exercise that discretion irresponsibly—I see no evidence of that—and there are many members of the profession who will investigate the situation carefully and keep it under close suveillance.

I come at long last to my final point. It concerns Clause 14 and the termination of the retainer by the solicitor. This has caused a great deal of injustice to solicitors in the past. Unless there was an agreement in advance specifying that a solicitor was at liberty to withdraw from a case if costs and disbursements were not forthcoming, he had an obligation to carry on with it even if the lay client unreasonably refused to put the solicitor in funds. That is a situation which is being dealt with in order to protect the solicitor. In no other profession or business is anyone expected to offer his services if funds are not forthcoming. This is an important protection for the profession.

I end as I began by warmly applauding the Bill. It will give great protection not only to lay clients but also to members of the profession. If it is enacted it will give greater credibility to the activities of the Law Society in preserving and, indeed, improving that important relationship with its lay clients to which I have referred.

7.12 p.m.

Mr. James Wellbeloved (Erith and Crayford)

I want first to apologise to the House for not being here at the beginning of the debate as a result of my service on a Select Committee. I regret that I was not present to hear the speeches of the Solicitor-General and of my right hon. Friend the Member for Sowerby (Mr. Houghton).

My hon. Friend the Member for Nottingham, West (Mr. English) has done a great service to Parliament and to the general public in pursuing his course and his cause in such a manner over a number of years and in trying to persuade the Law Society to accept very reasonable proposals designed to improve the way in which the profession deals with complaints against solicitors. In his speech today he has set out very clearly the main issues which concern us. I entirely share his view about the lay observer and I hope that the Solicitor-General will be able to give us positive hope that the matter can be dealt with properly in Standing Committee and thus enable my hon. Friend and others, including myself, not to oppose this Bill in principle on Second Reading.

I am not one of those who take the view that solicitors are out to catch the public. I take the opposite view because I believe that the legal profession is a very honourable one and that almost overwhelmingly those solicitors who are Members of this House bring to bear a great deal of compassion and readiness to assist their fellow Members to understand some of the legal complexities which face Members of Parliament and their constituents. I hope, therefore, that my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) will not think anything that I or those who have joined forces with me have done is an attack upon the profession and that we have not given matters careful thought before opposing consistently for at least two Sessions of Parliament the Private Bill promoted and presented to Parliament by the Law Society. My hon. Friend the Member for Nottingham, West and I did so because we wanted to see introduced into that Bill three vital elements. Two of them have now been included and are reasonably satisfactory, though they do not go the whole way.

We wanted first to ensure that there was a lay element in the adjudication of the society's disciplinary procedures in that it was dealing with complaints against members of the profession, and we wanted to ensure that there was adequate provision for the proper investigation of complaints. The total number of complaints is not in serious dispute. It is in excess of 4,000 a year. I readily accept that a substantial number of them may be quite minor and that many may not be justified at all. However, because they are genuine grievances held by the complainants, they are entitled to serious investigation by a profession with the honour, integrity and standing of the Law Society.

It is clear from the figures that we have of the number of staff employed in the Law Society's investigatory department that there is good ground for believing that the care and attention which 'be public ought to expect for the investigation of complaints may not necessarily be given. I shall not develop that point because it is one which I am sure the Standing Committee will investigate thoroughly in its consideration of the Bill, if and when it reaches its Committee stage. It is no good having a lay element trying to reassure the public that complaints will be dealt with unless the Law Society can show that there is proper machinery to do the job of investigation so that proper evidence can be presented for adjudication.

My hon. Friend the Member for Nottingham, West also referred to the lay observer—the ombudsman. That is an essential element, and we look to the Solicitor-General for some reassurance on the matter.

I see one very hopeful sign in the Money Resolution which refers to money paid from funds voted by Parliament in respect of the lay member. It is clear that it will be open to this House on an annual basis to debate the use to which those funds are put. I believe that the Law Society can look forward in the years ahead, assuming that this measure reaches the statute book, to regular reviews of the procedure in the course of debates upon the money voted by Parliament for the purposes set out in the Money Resolution. I hope that the Solicitor-General will be able to confirm my interpretation of that possibility. It is an important matter about which we should be clear.

I was surprised that my hon. Friend the Member for Hackney, Central was not able to tell the House the figure in the mind of the Law Society in respect of the fee for the practising certificate. This is an important matter, and as the Solicitor-General has now assumed full responsibility since we are considering a Government Bill, I hope that he will be able to tell us just what is envisaged as being a suitable fee.

My reason for being concerned is not only that the amount of the fee will be reflected in charges by solicitors to their clients. It could also have a substantial effect on the rates of local authorities and other bodies which employ solicitors. It must not be forgotten that solicitors have this rather quaint procedure whereby their trade union, if I may use that description, is the only one which calls upon employers to pay the union dues of its members. Solicitors employed by local authorities have their legal certificate fees paid from public funds.

Therefore, it is legitimate to know, before agreeing in principle to give the Bill a Second Reading, just what sort of burden will be put upon public funds by giving this open-ended commitment to the Law Society to make its own adjudication on the fee that should be charged for the practising certificate. I hope that we shall have some positive assistance on that matter and that it will not be left wide open.

I will not make a meal of this measure today, because I hope that the House, with its usual generosity, will agree that my name should be among those appointed to serve on the Committee, should the Bill be given a Second Reading. The point made by my hon. Friend the Member for Nottingham, West about the lay observer will determine whether the Bill gets an unopposed Second Reading in principle and that again will depend on how far the Solicitor-General goes in his reply.

7.21 p.m.

The Solicitor-General

May I reply, with the leave of the House? First, I should like to deal with the three points made by the right hon. Member for Sowerby (Mr. Houghton). He said that delay is one of the most frequent complaints against solicitors. I am sure that all members of that profession, as well as myself, are grateful for his kind words about overwork rather than negligence often being the cause. I think that has been the case in many offices when we consider the tremendous upsurge of work that has taken place. For example, in just a few years the Bar will have doubled its numbers compared with 10 to 15 years ago.

The right hon. Gentleman's comments about a solicitor being disqualified to sit as a magistrate are not directly relevant to the Bill, but I fully understand what he was saying. I imagine he meant sitting as a lay magistrate from time to time as opposed to sitting as a stipendiary. Such solicitors have proved extremely helpful in the administration of the law. That point was dealt with in the Administration of Justice Act last year. My experience generally has been that solicitors have proved extremely useful, particularly concerning the more complicated prosecutions with which they have to deal. I have not yet come across an instance in which a solicitor was overbearing in any way with his lay colleagues during a hearing.

The right hon. Gentleman said that the disciplinary tribunal, the one watchdog, is fine as long as it barks. He said that his professional life is not at stake. My experience is that when there is a rogue elephant in a particular profession the other members of the tribe are very quick and active to do everything that they can to get him out of the tribe. My experience of the Disciplinary Committee of the Law Society has been that it could never be accused of trying to protect one of its own who appears before it.

Finally, the right hon. Gentleman spoke about being a well-informed layman. On every occasion that I hear him, particularly today, but also through the BBC, I think that the benefit to the public of the well-informed layman can also be described as a loss to the solicitor's profession, which I am sure he would have graced had he chosen that way of life.

My hon. Friend the Member for Orpington (Mr. Stanbrook) repeated the widespread and acute dissatisfaction that he suggests exists against the Law Society. It is a cry that we have heard in this House time after time. We know that there is a personal reason for the vehemence that my hon. Friend shows on this subject.

My hon. Friend spoke of Clause 2 being a change which he described as very objectionable by taking away the phrase "morally fit" and substituting the words, the Society is satisfied as to his character and his suitability to be a solicitor". I should think that that extends and improves the criteria for admission as a solicitor. As it stands, a man with mental instability who had suffered from nervous disorders would not be excluded. But having to satisfy the society as to his character and suitability to be a solicitor is a more stringent test. It was certainly intended to be such by the Law Society and by those responsible for drafting that clause.

Mr. English

Will the conflict of interest provisions apply in a divorce action if the Bill is passed?

The Solicitor-General

I do not follow that point. I have heard a number of comments—I will not say "threats", because that is probably an improper word to use in this House—by the hon. Gentleman about what will happen to me if I vote in the Lobby tonight should a Division be called, but I am not frightened of those threats.

Mr. English

The hon. and learned Gentleman has misunderstood me. I asked whether the conflict of interest rules of the Law Society that prevent a solicitor acting for clients with different interests apply where a solicitor is acting in a divorce action?

The Solicitor-General

I am sorry. I still do not understand the point. I do not think that it arises from the debate. I should like to get on because there is another debate which hon. Members are waiting to get started.

The hon. Member for Nottingham, West (Mr. English) makes comparisons from the last report of the Ombudsman between the 570 complaints with which he deals with his staff of 90 and those dealt with by the Law Society and its staff. These matters have been dealt with in detail by the hon. Member for Hackney, Central (Mr. Clinton Davis). The complaints that go to the Ombudsman have to be sifted through Members of Parliament. The complaints that arrive at the Law Society, either by post or, as we have been told, in person in certain instances, concern cases some of which are so trivial that they do not require much time to deal with them.

Any advocate, whether a barrister or a solicitor, will know that there are always clients who, when a case is lost, immediately blame their advocate. On occasions they may be right. There are happy exceptions, as I am sure the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) will confirm. For example, a case which one has lost but in which one has put up a tremendous fight may earn more respect, admiration and thanks than a case which was comparatively difficult but which one did win. But there are usually a number of people who will complain, "I know that I was right. I lost. Therefore, my lawyer is to blame."

I turn now to the suggestion about making provision in the Bill for a lay observer. I expressed the Government's views in reply to an intervention in my opening speech. I see no reason at this stage to alter the views that I then put forward.

It is said that the refusal to put such a provision into the Bill is hiding it away and is a bluff. We do not intend it to be hidden away or to be a bluff. I should remind the House that those who were accused of bluffing and hiding it away are the very people, the Law Society, whom hon. Gentlemen opposite have been quick and I think right to praise for the co-operation and consideration that they have given to this matter. The Lord Chancellor will naturally exercise a degree of control, particularly as the payment to the lay observer will come from the Lord Chancellor's fund dealing with the general administration of justice.

Mr. Wellbeloved

I should not like the hon. and learned Gentleman to misinterpret the tributes that we paid to the Law Society. It took three years and the blocking of two private Bills to get the Law Society to go as far as it has. It is ready to go to the length of making provision for a lay observer, but the Government apparently are now the stumbling block.

The Solicitor-General

There is no question of the Government being the stumbling block. The original initiatives for the Bill came from the Government. It was agreed to by the Law Society. The only question is whether in a wholly new and experimental way we should try to limit what should happen by words in the Bill or whether we should run it experimentally and see whether after a period some sort of change might not be necessary in the public interest. That is why the matter has been handled in this way and that is why I complained about the phrase "hiding it away" and the word "bluff".

It is a cry that has been made so many times, particularly by the hon. Member for Nottingham, West about the ombudsman, the lay observer or whatever one likes to call him, that he should be able to deal with and finalise any claim where there may be a case against a solicitor. The hon. Member for Hackney, Central said, and I am sure that most people would agree with him, that the proper forum for these cases is a court. But even if the provision was made for the ombudsman or lay observer to deal with this it would have to be done by something just like a court.

Often if one has to deal with negligence, whether the solicitor or the client was right, as to what the consequences of the solicitor's alleged negligence were, it will require evidence and witnesses to determine the facts. That could obviously not be dealt with by letter or papers and so we should be substituting our accepted system of justice in the courts with another form of court presided over by the lay observer or ombudsman. In such circumstances I believe that the system we now have is the better system.

Mr. English

There is one vast difference, of course. The court can literally impose punishments or penalties as can the disciplinary tribunal. The Ombudsman cannot. All that the Solicitor-General has said is equally true of the Ombudsman investigating negligence of a civil servant which in certain cases can be brought into court. The difference is that when the Ombudsman finally makes his recommendation it is only by custom and practice that the Government accept it. We remember the famous row when they did not in which my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) was a participant. The Ombudsman is not like a court of law which hands down an order saying, "You must do it."

The Solicitor-General

The only other way in which I can see this can be done would be by statute requiring a solicitor to accept an order against him to pay what may amount to thousands of pounds of damages arising out of a decision by a man who probably is not legally qualified. That is obviously undesirable.

I deal finally with the matter raised by the hon. Member for Erith and Crayford (Mr. Wellbeloved) concerning fees for the practising certificate. They are open-ended for the Law Society, he said, and one could understand his fears if what he said were true. He explained to the House, and we sympathise with him, that he had not heard my opening speech. I reassure him that the fees are decided by the Master of the Rolls with the concurrence of the Lord Chief Justice and the Lord Chancellor. The Law Society, therefore, will be able to make representations to the Master of the Rolls about what the fees for the practising certificate should be. In the end it would not be for the society to make a recommendation.

As for the question of annual payments I do not wish to express a final opinion to the House but I understand that the view formed by the hon. Member is probably the right one.

Question put, That the Bill he now read a Second time:—

The House proceeded to a Division——

Mr. English

(seated and covered): On a point of order, Mr. Deputy Speaker. Can you guide us on what Members who are either solicitors or barristers should do? Should they vote or should they not?

Mr. Deputy Speaker (Mr. Oscar Murton)

I am prepared to give a ruling on this matter. In 1811 Mr. Speaker Abbot used these words to describe an interest which would disqualify a vote: This interest must be a direct pecuniary interest, and separately belonging to the persons whose votes were questioned, and not in common with the rest of his Majesty's subjects, or on a matter of state policy.

Division No. 31.]	AYES	[7.35 p.m.
Adiey, Robert	Hall, Sir John (Wycombe)	Owen, Idris (Stockport, N.)
Allason, James (Hemel Hempstead)	Hall-Davis, A. G. F.	Page, Rt. Hn. Graham (Crosby)
Atkins, Humphrey	Hamilton, Michael (Salisbury)	Parkinson, Cecil
Austick, David	Harrison, Col, Sir Harwood (Eye)	Percival, Ian
Awdry, Daniel	Haselhurst, Alan	Pike, Miss Mervyn
Baker, W. H. K. (Banff)	Hastings, Stephen	Pink, R. Bonner
Batsford, Brian	Havers, Sir Michael	Powell, Rt. Hn. J. Enoch
Beamish, Col, Sir Tufton	Hawkins, Paul	Price, David (Eastleigh)
Beith, A. J.	Hayhoe, Barney	Proudfoot, Wilfred
Bell, Ronald	Hicks, Robert	Redmond, Robert
Benyon, W.	Hiley, Joseph	Rees, Peter (Dover)
Biffen, John	Hill, John E. B. (Norfolk, S.)	Rees-Davies, W. R.
Biggs-Davison, John	Holland, Philip	Rhys Williams Sir Brandon
Boardman, Tom (Leicester, S. W.)	Hooson, Emlyn	Ridsdale, Julian
Boscawen, Hn. Robert	Hornby, Richard	Rossi, Hugh (Hornsey)
Bossom, Sir Clive	Hornsby-Smith, Rt. Hn. Dame Patricia	Sainsbury, Timothy
Bowden, Andrew	Howe, Rt. Hn. Sir Geoffrey (Reigate)	Scott, Nicholas
Bray, Ronald	Howell, Ralph (Norfolk, N.)	Scott-Hopkins, James
Brinton, Sir Tatton	Iremonger, T. L.	Shaw, Michael (Sc'b'gh & Whitby)
Brown, Sir Edward (Bath)	Irvine, Bryant Godman (Rye)	Shelton, William (Clapham)
Bryan, Sir Paul	James, David	Shersby, Michael
Buchanan-Smith, Alick (Angus, N&M)	Jessel, Toby	Silkin, Hn. S. C. (Dulwich)
Burden, F. A.	Jones, Arthur (Northants, S.)	Simeons, Charles
Butler, Adam (Bosworth)	Kellett-Bowman, Mrs. Elaine	Skeet, T. H. H.
Campbell, Rt. Hn. G. (Moray & Nairn)	Kershaw, Anthony	Smith, Cyril (Rochdale) Soref, Harold
Carlisle, Mark	King, Evelyn (Dorset, S.)	Soref, Keith
Chapman, Sydney	Kinsey, J. R.	Speed, Keith
Clark, William (surrey, E.)	Kirk Peter	Sproat, lain
Clegg, Walter	Knight, Mrs. Jill	Stainton, Keith
Cockeram, Eric	Knox, David	Stanbrook, Ivor
Cooke, Robert	Lane, David	Steel, David
Cooper, A. E.	Le Marchant, Spencer	Sutcliffe, John
Corfield, Rt. Hn. Sir Frederick	Lloyd, Ian (P'tsm'th, Langstone)	Taylor, Sir Charles (Eastbourne)
Cormack, Patrick	Loveridge, John	Taylor, Frank (Moss Side)
Costain, A. P.	Luce, R. N.	Tebbit, Norman
d'Avigdor-Goldsmid, Maj.-Gen. Jack	McAdden, Sir Stephen	Thomas, John Stradling (Monmouth)
Davis, Clinton (Hackney, C.)	MacArthur, Ian	Thompson, Sir Richard (Croydon, S.)
Deedes, Rt. Hn. W. F.	McCrindle, R. A.	Tugendhat, Christopher
Dykes, Hugh	McLaren, Martin	van Straubenzee, W. R.
Eden, Rt. Hn. Sir John	McNair-Wilson, Michael	Vaughan, Dr. Gerard
Elliot, Capt, Walter (Carshalton)	Madel, David	Waddington, David
Elliott, R. W. (N'c'tle-upon-Tyne, N.)	Mather, Carol	Walder, David (Clitheroe)
Eyre, Reginald	Mawby, Ray	Walker-Smith, Rt. Hn. Sir Derek
Fidler, Michael	Maxwell-Hyslop, R. J.	Walters, Dennis
Finsberg, Geoffrey (Hampstead)	Meyer, Sir Anthony	Ward, Dame Irene
Fletcher, Alexander (Edinburgh, N.)	Miscampbell, Norman	Wells, John (Maidstone)
Fookes, Miss Janet	Mitchell, David (Basingstoke)	White, Roger (Gravesend)
Fowler, Norman	Moate, Roger	Whitelaw, Rt. Hn. William
Glyn, Dr. Alan	Money, Ernle	Wilson, William (Coventry, S.)
Gower, Raymond	Monks, Mrs. Connie	Winterton, Nicholas
Gray, Hamish	Monro, Hector	Wolrige-Gordon, Patrick
Green, Alan	Morgan-Giles, Rear-Adm.	Wood, Rt. Hn. Richard
Griffiths, Eldon (Bury St. Edmunds)	Neave, Airey	Worsley, Marcus
Grimond, Rt. Hn. J.	Nicholls, Sir Harmar	Younger, Hn. George
Grylls, Michael	Normanton, Tom	TELLERS FOR THE AYES:
Gummer, J. Selwyn	Oakes, Gordon	Mr. Michael Jopling and
Gurden, Harold	Oppenheim, Mrs. Sally	Mr. Marcus Fox.

NOES
Clark, David (Colne Valley)	Marks, Kenneth
Cox, Thomas (Wandsworth, C.)	Mitchell, R. C. (S'hampton, Itchen)	TELLERS FOR THE NOES:
Davis, Terry (Bromsgrove)	Price, William (Rugby)	Mr. James Wellbeloved and
Deakins, Eric	Skinner, Dennis	Mr. Michael English.
Hardy, Peter	Stallard, A W.

Question accordingly agreed to.

This ruling has been followed by all subsequent Speakers. There are many solicitors outside this House and the Bill is clearly a matter of State policy. A motion to disallow any vote on its Second Reading would, therefore, clearly be out of order.

The House having divided: Ayes 168, Noes 10.

Bill read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).