HC Deb 04 July 1974 vol 876 cc777-88

Amendments made:

No. 8, in page 13, line 43, leave out '(3), and 34' and insert '34(1) and'.

No. 9, in page 14, line 1, after '33', insert '(1)'.—[The Solicitor-General.]

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

12.12 a.m.

Mr. English

I do not want to detain the House, but when this is the fourth Bill in a series which has extended over three Sessions and more than one Parliament, something should be said as it reaches its last stage.

The story illustrates some of the virtues of the House. When the first Bill, a Private Member's Bill, came forward, some of us, including not only my hon. Friends who have been here tonight but also my hon. Friends the Members for Southampton, lichen (Mr. Mitchell) and Erith and Crayford (Mr. Wellbeloved), thought that it should deal also with complaints against solicitors by members of the public. There are more complaints against 20,000 solicitors than there are to the Ombudsman against the whole Civil Service. I do not suggest that they are all justified, but their very number shows the feeling in the country.

On the first Bill, I regret to say that the Law Society thought that consultation with Governments was sufficient and that consultation with back benchers was unnecessary. On the second Bill, the first having fallen by the wayside, the Law Society agreed to consult us. Although it did not adopt some of our suggestions then, I am grateful to the Law Society for adopting them on the third Bill and on this one, the fourth.

The third and fourth Bills were Government Bills. Members of the previous Government, including the former Solicitor-General, will know that we had considerable discussions with them on the third one. Now the Government have changed, but the arguments remain the same, and slowly but surely we have achieved the insurance provision which is vital.

It was not wholly the fault of solicitors that they were not insured against complaints of negligence. Part of the difficulty, I understood from the Law Society, was a difficulty with the insurers. Now there is a clear statement that the Law Society can require solicitors to be insured. They may do it generally or in particular, and as a safeguard to make sure that the insurers do it they can theoretically do it themselves, if only to make sure that the insurance companies will not let them. This is vital. We also have the lay observer. I persist in calling him, somewhat to the dislike of certain hon. Members, a sort of Ombudsman because, in my view, that is what he is, even if he is an Ombudsman of second rather than first instance.

I am extremely grateful in particular to my hon. and learned Friend the Solicitor-General. I am sure that his tact and helpfulness in Committee and behind the scenes have ensured that the Bill—the fourth of its line—will be passed. I am also grateful to the fact that the Law Society eventually over a long period of time took many of the points which were made. I hope that on future occasions it will try to react a little more speedily.

It must be said that there are many people in this day and age who are going to consult solicitors for the first time. They are young people, for example, buying a house for the first time or—although one hopes not—seeking a divorce. They go to a solicitor for the first time and sometimes have difficulties because they happen to find a poor one.

The other thing I would like to persuade the profession to do is not to regard a mistake as a crime or a sin. We all make mistakes, but there is one thing that we can all do about mistakes—that is, if we make a mistake which causes someone to lose money and we are insured against such an eventuality, we can pay them compensation for the financial loss which we have, probably unintentionally, caused them.

I suggest to the Law Society that it must think carefully about this issue of what is technically termed "negligence" but which is not the word I prefer to use, for a variety of reasons, and think carefully about how it can encourage the profession to take the attitude that everyone may make a mistake but that we can sometimes do something to put right the results.

I think I have said enough at this time of night. I hope that the Bill will soon receive the Royal Assent after all the delay which has occurred.

12.18 a.m.

Sir Michael Havers

As a one-time parent of this Bill suddenly, by some incestuous method on 28th February, translated, by a stroke of the pen by the electors, into a grandparent, I am delighted that it has reached this stage. It has been a nightmare to my successor, I am sure, and it certainly was to me as Solicitor-General.

Two earlier such Bills were stopped by hon. Members' objections. The third was stopped almost in mid-air last autumn, and now the fourth is really to become law. I wish it well, and I hope that the improvements which have been built into the Bill over the many discussions of the last three years will be welcomed not only by the solicitors' profession but by the public at large.

12.19 a.m.

Mr. Nicholas Winterton (Macclesfield)

I hope that my intervention in the debate will be understood. I can claim no legal training nor any basically academic training other than that normally provided for young people. But I am here tonight representing constituents who have written to me about this Bill.

I refer particularly to Clause 6, which deals with the fee payable on the issue of a practising certificate. The hon. and learned Solicitor-General may have expected some mention of Clause 6 during the remaining stages of the Bill. I am reliably informed that many solicitors have written to professional journals expressing severe criticism of the clause. Many of them have gone as far as demanding its total removal from the Bill. It seems to many of them that this clause is analogous to a club committee seeking power to increase subscriptions without limit and to expand funds without the ordinary members of that club having any say in the matter.

The situation is further aggravated by the fact that payment of the subscription—I refer to the fee for a practising certificate—is compulsory if one wishes to practise, and that for all practical purposes there is no available alternative of resignation.

Motions have been submitted to the Law Society by a number of solicitors. I believe that the Law Society's annual general meeting takes place later today. One of the motions submitted states: The Law Society having noted the provisions of Clause 6 of the Solicitors (Amendment Bill [H.L.] printed on the 9th April 1974 which would permit of such fee as the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice may from time to time determine in lieu of the present maximum fee of £20, considering that the existing law provides for a fee not exceeding £20 which is to be applied in such manner and to such extent as the Society might think fit for the purposes of the Society including the facilitating of the acquisition of legal knowledge and considering the existing total fees for the year ended 31st December 1972 amounted to a sum of £548,082 decides:

  1. (a) that the Society rejects the provision for an unlimited practising certificate fee which could be applied for any purposes of the Society and that a stated maximum fee be specified;
  2. (b) that the Society do everything in its power to bring about amendments to give effect to the provisions of paragraph (a) instructs the Council of the Society to adopt this decision and put it into effect forthwith."
The Council of the Law Society received that notice of motion but has been advised that the motion would be ultra vires and that it would be wholly without effect as directions to the council upon matters delegated to the council under the society's charters.

I have drawn this matter to the attention of the House because I feel concerned, on behalf of my constituents, about the fact that this clause gives certain powers—powers which cannot be questioned by people who are solicitors and wish to practise. It could well be that year by year the Law Society could increase the fee for a practising certificate. In the final stages of this important Bill, this matter should be noted in the House.

It is not my intention to vote against the Third Reading of the Bill. There is a great deal of good in the Bill. It has been quite an experience for me to sit patiently listening to those with far more knowledge of the law that ever I shall have. I believe that the provisions of the Bill will be of considerable benefit. However, I hope that the Solicitor-General will make very clear to my constituents, who are concerned about the provisions of this clause, how these funds are to be applied. If that information and assurance is given, the criticisms of the clause and the opposition to it will be reduced, if not eliminated.

12.25 a.m.

Mr. Christopher Price

Most hon. Members probably regard the Bill as very much of a time-filler introduced by the Government at the beginning of the Session principally because they could not think of anything else to introduce as they had not prepared their more important Bills. For that reason, many people may write the Bill off as relatively unimportant. I believe that it will be seen as crucial in bringing into being the interface between the professional associations and the education system.

The Bill is a turning point. It is the end of the great bargain which was struck in the nineteenth century between the Government and the great professions. The Government said to the professions "You guarantee respectability, and we will give you monopoly. We will do a straight swap." That has worked well for about 100 years. It is now coming to an end, because in this modest measure Parliament, on behalf of society, is demanding a certain amount of control over the activities of this profession and is for the first time willing to spend some money—very little at first—to ensure that the control works effectively.

I believe that the ombudsman we are setting up over the Law Society in the guise of a lay observer will be the first of many ombudsmen to be appointed by Parliament to oversee the professions which hitherto have thought themselves to be sufficiently great, important and socially responsible—I use that word in a completely neutral sense—not to need any supervision by the community at large.

I would like to see an ombudsman for doctors, one for dentists and one for other professional men. That is why I would have liked the lay observer to have been appointed from within the department of the Parliamentary Commissioner for Administration rather than the initiative for his appointment resting with the Lord Chancellor. My amendment to secure that result was defeated in Committee.

The Bill marks the beginning of the end of the great elite professions. Parliament's insistence on making regulations for education and training and putting a lay observer over the Law Society will be seen in the future to mark the point where the legal profession, as with many other professions, is thrown more widely open to society at large.

The Solicitor-General gave a pledge in Committee which he has not honoured. The important thing about the Bill is that, by giving the Lord Chancellor a flexible right to raise the fee for ever and ever, it ensures that we never have any more Bills like this. The Law Society has come to Parliament cap in hand over the years only because it has wanted to raise the fee—it has come for money. We have said "Very well, but put in something about education and a lay observer." There has been a little healthy bargaining. Now the Law Society is off the hook for ever. It need never come back to this House.

My hon. and learned Friend the Solicitor-General promised in Committee that he would consider the point that if the House was to junk its Solicitors (Amendment) Bills, which some of us might think a good thing, it should as a quid pro quo have some mechanism through which it could exercise scrutiny year by year over the solicitors as over other professions.

I suggested a Select Committee on the professions which could exercise consider. able scrutiny. If my hon. and learned Friend feels that such a committee would not be appropriate I should be interested to hear his other suggestions, and I should be interested to hear how any consultations he has had with his colleagues on the point have gone. I do not feel that we can simply wave goodbye to the Law Society as it pushes its ship from Parliament never to return. We want to see it from time to time, and I hope that my hon. and learned Friend will be able to help on this point as he has done on others. I pay tribute to his extreme helpfulness.

Mr. Deputy Speaker

Order. I hope that the Solicitor-General will not be tempted to wander away at this stage from the exact content of the Bill.

The Solicitor-General

I hope that at this time of night, Mr. Deputy Speaker, I shall not be tempted to say one word more than I have been asked by hon. Members.

Mr. Deputy Speaker

The point of my intervention was that the hon. and learned Gentleman has been invited to go out of order.

The Solicitor-General

I am grateful for your dispensation. Mr. Deputy Speaker.

We are concluding what might transpire to be an episode of some importance. I said on Second Reading that if we were to iron out inequalities in our society and the sense of alienation felt by many of our people, it was essential to let it be known not only that the law was open to all but that the services of the legal profession in relation to advice on that law were equally open to all, and that we should encourage the public to take advice about their rights and responsibilities. That will be done only if the suspicion and hostility which exists towards the legal profession in many sectors, perhaps in the working-class movement generally, are eradicated.

It is essential if the profession is to have a future among its potential clients, and it is essential if those clients are to avail themselves of their rights. That is what the Bill is about. One of the important benefits to emerge from the Bill is protection of the public, and I certainly endorse what was said by my hon. Friend the Member for Nottingham, West (Mr. English). I take issue with him on one matter—we have not had many disagreements about questions of fact—because I am a little puzzled about where he got his figure of 20,000 complaints a year to the Law Society. My information is that the number is something less than 5,000 a year including those which are wholly misconceived.

Mr. English

I did not say 20,000 complaints in this debate. I have said it on a previous occasion. I accepted then that the information I had received was wrong. I could go into an explanation of why it was wrong again, but that would only delay the House. In this debate I referred to complaints against about 20,000 solicitors, not 20,000 complaints. There are about 22,000 solicitors in the United Kingdom, I believe. The complaints against them are greater in number as I understand it than the complaints against the whole of the Civil Service, which has far more than 20,000-odd members.

The Solicitor-General

I am grateful to my hon. Friend. At least we do not seem to be in disagreement on the facts. It is not comparing like with like, however, to compare complaints against solicitors with complaints of maladministration within the jurisdiction of the Parliamentary Commissioner. But I wholly agree with most of what my hon. Friend said.

The story of the Bill began when the Law Society found it necessary to increase fees for practising certificates. Had the Law Society not found it necessary, the Bill would never have come before the House. There is no mystery about the reason why the society needed to increase its fees. Inflation is no respecter of persons or institutions. I have received, and I know that the Law Society has received, various representations on the Law Society's financial position. I can assure the hon. Member for Macclesfield (Mr. Winterton) that I have looked at the matter quite closely. The intention is that any increase in fees will be decided by the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls. It will not be at the whim of the Council of the Law Society, even if the council were thought to have whims. I am satisfied that there is a need.

I have had all sorts of possible alternatives suggested to me. It has even been pointed out that the Law Society occupies valuable premises. I think that their value was included in the figure for the reserve fund to which the hon. Gentleman referred. It would not be a solution to the problem to sell the premises from which the whole business is conducted. What is at issue is the uncommitted liquid reserves. It is true that there is now a liquid reserve, but that position is deteriorating and it is estimated that by 1975, if there were no increase, there would be a financial crisis, because the reserves are falling at an alarming rate. It would not help anyone if the Law Society could not fulfil its proper statutory functions on behalf of the public as well as of solicitors.

There has been a great deal of discussion of what part of the expenditure of the Law Society should be met by income from practising certificate fees—that is, from the profession generally—and what proportion should be met from membership fees, which is simply from those members of the profession who choose to join the Law Society. Clearly there is a need to ensure that practising certificate fees do not bear a disproportionate part of the total expenditure, which is one reason why the matter is decided by the Lord Chancellor and his fellow judges. They have the accounts required by Section 11 of the Act of 1957. They also have the society's accounts, which are laid before the society each year, and they call for such other evidence as they think fit.

I should say in fairness that the two sources of income are not paid into two separate funds but are paid into one fund, and the Law Society has to try from time to time to apportion the expenditure according to which items of expenditure should properly be met from which source. In some cases it is a fairly clear dividing line. Clearly the club facilities, as it were, should be met from membership subscriptions. The expenditure on such matters as professional purposes, education, training, discipline, law reform and discussions on the future of the profession should be borne by the profession as a whole. There are, however, other matters in between where there would be room from debate. It is for that reason that in the past it has not been the practice to publish the apportionment.

I have been shown figures, and the hon. Member may be pleased to know that it is now proposed to publish some of those calculations. It is intended that in this week's Law Society's Gazette there shall be an article by the Treasurer which will show some of them. Therefore, the hon. Gentleman may be able to set the minds of his constituents at rest to that extent.

The Law Society required this legislation. Some of my hon. Friends saw opportunities to discuss the affairs of the profession. As my hon. Friend the Member for Lewisham, West (Mr. Price) pointed out, there will not be a precisely similar opportunity again to discuss the affairs of the profession. We spent time in Committee discussing what might be a way of ensuring that the House discussed those affairs from time to time.

It is fair to point out that the fact that there will not be another requirement to increase practising certificate fees does not mean that the Law Society will not require to come before the House again. In the rapidly changing conditions of modern society about which we have been talking there may be a number of occasions when the society will require to come before the House. It might be helpful if we could build in some constitutional process by which we could ensure that there will be periodical discussions.

One of the matters that we have discussed is the possibility of a Select Committee. I discovered quite a lot about the history of Select Committees in the process of conducting my discussions. My hon. Friend the Member for Nottingham, West contributed to a debate in the House on 12th November 1970 when the Green Paper entitled "Select Committees of the House of Commons" was debated. I noted some of the suggestions which my hon. Friend then made. I also made some inquiries into the recommendations of the Select Committee on Procedure that sub-committees be introduced on law and order and public safety. All I can say at the moment is that discussions are continuing. I do not rule out anything, but obviously there are all sorts of difficulties of which my hon. Friends will be aware. You were kind enough to warn me, Mr. Deputy Speaker, that if I trespassed much further into that matter I should find myself out of order.

I believe that our discussions on the Bill have been helpful. We have been discussing ways of ensuring an element of public participation as well as the protection of the public. From discussions on earlier Bills there emerged proposals which have been included in this Bill. And it has itself changed in the course of our debates. I believe that it has changed for the better.

I believe that both the public and the legal profession have reason to be grateful for the debates we have had and for the suggestions which have been made. My hon. Friends were very kind about the part that I was permitted to play in those debates. I pay tribute to the discussions which we have had, which I believe took place in a constructive and good-tempered atmosphere. I express my gratitude to the hon. and learned Member for Wimbledon (Sir M. Havers) and his hon. Friends, to my hon. Friends and to the Law Society, which considered what was said readily and helpfully.

The history books may not accord us all our proper deserts, but I believe they may record that we played a small part in a valuable process. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.