LAY OBSERVERS (Hansard, 4 July 1974)

§ The Solicitor-General
I beg to move Amendment No. 5, in page 4, line 33, at end insert and shall publish any such directions". The proposal is that the Lord Chancellor shall publish general directions to the lay observers under the new Section 28A. Assurances were given in Committee that those directions would be published, and the purpose of the amendment is to turn those assurances into a statutory provision. It was always intended that the directions should be made public. The whole exercise is intended to protect the public, and it is essential that the public should know the nature of the directions. There seems to be no reason why that requirement should not be in the Bill.

§ Sir Michael Havers
I hope that the directions will contain no nonsense 768 about the number of departmental staff, electric fires or cups of tea but that they will be focused on the duties of the lay observer and not on small administrative matters about which the Lord Chancellor may direct but which should not be included in the published directions.

§ The Solicitor-General
For this purpose we might distinguish between directions and administrative requirements. The directions concerned are those which relate to the protection of the public by the lay observers.

§ The Solicitor-General
I beg to move Amendment No. 6, in page 4, line 48, at end insert— '(9) The Society shall furnish a lay observer with such information as he may from time to time reasonably require. (10) The Lord Chancellor shall direct the submission to him of annual reports by lay observers on the discharge of the functions conferred on them by this section. (11) The Lord Chancellor shall lay a copy of any report under subsection (10) above before each House of Parliament'.

Mr. Deputy Speaker
With this we are taking sub-Amendment (a) to Amendment No. 6, at end of subsection (9), insert 'including any information that the Society may be capable of obtaining from any person'.

§ The Solicitor-General
The amendment has two purposes. First it provides that the Law Society shall furnish the lay observer with such information as he may require. It might be helpful to remind ourselves that his function is not to sit on appeal from the Law Society. The purpose of the lay observer is to assess the way in which the Law Society has handled a complaint and, having done so, to elaborate on that to the Lord Chancellor. The lay observer's report will be published, and he may also conclude in relation to any complaint that there should be a referral to the Solicitors Disciplinary Tribunal. He might make that reference himself or he might recommend the complainant to do so. Obviously it is helpful that he should see the information which was before the Law Society in order to decide how the complaint should have been handled.
769 11.45 p.m.
But the amendment goes further. It includes what I think is the real purpose behind the sub-amendment of my hon. Friend the Member for Nottingham, West (Mr. English), whom we are delighted to see back among us, albeit belatedly. The lay observer may take the view that the Law Society should have asked for further information. It was pointed out in Committee that as a natural consequence of that view one should be able to say "Please ask for that information now, and we will see where it would have led and where it in fact leads."
The Law Society does not have wide powers to demand information of a solicitor. If it were thought that he was withholding information unreasonably, it could presumably decline to renew his practising certificate or it could in extreme cases take the view that the actual withholding of information amounted to misconduct. It is not likely that the Law Society would be unco-operative if the lay observer asked for information. The Law Society has no intention of being unco-operative. And if it was unco-operative it would be open to the lay observer to say so, and presumably to say so very damagingly, in his report. It is useful to include this provision in the Bill.
There is no dispute about what I understand to be the intention of my hon. Friend's sub-amendment. I must not anticipate what he will say. It is not intended that my amendment should be limited to information in the possession of the Law Society at the time of asking. I turn now to the other part of the amendment relating to the report of the lay observer.
My noble Friend the Lord Chancellor said in the House of Lords that the intention was that the lay observer should make annual reports and that those annual reports should be published. Clearly the public should know how their representative had been proceeding and what he had found.
In Committee the question arose whether we should ensure opportunities from time to time for the House to debate the affairs of the legal profession. My hon. Friend the Member for Lewisham, 770 West (Mr. Price) referred to that during the course of the earlier debate. If the annual report is laid before Parliament, that will be one method of ensuring that there is such an opportunity. In time we may evolve other methods. This may be a useful beginning.
Subsection (10) of the amendment deals with annual reports. We must distinguish them from reports on individual cases. It is not intended that those should normally be published. Normally they will concern only the complainant and the solicitor. It is a distinction which, as my hon. Friend pointed out in Committee, is observed in the case of the Parliamentary Commissioner. There may of course be occasions when the lay observer might wish to make special reports. My noble Friend is considering how to deal with that situation in his directions. The Committee accepted this.
Finally, I come to the reason why the proposed subsection (10) is drafted in its present form. It may be found desirable as our experience proceeds to appoint more than one lay observer. This is an experiment. Time will tell. If it is desirable to appoint more lay observers, it may not be inconvenient for each of the several lay observers to present his own separate annual report. The purpose of this wording is to ensure that my noble Friend the Lord Chancellor will have an opportunity, if that situation arises, of considering what is the most convenient form of ensuring that there is an annual report or reports from the lay observers.
We are feeling our way. Our thinking on all this has developed as the discussions on the Bill proceeded. I hope, however, that the amendment will serve to make the proposal for the lay observer more effective.

§ Sir Michael Havers
I am not altogether clear what the Solicitor-General is saying about special reports. I do not foresee that these will be required very often. I can, however, foresee the occasion when there will be something occurring which the lay observer will feel should be brought to the notice of the Lord Chancellor and, if necessary, to the House before the 12 months are up. I hope that it can be covered within the direction which the Lord Chancellor will publish. If so, I shall be satisfied.
771 I hope that it is in order to comment on the welcome arrival of the hon. Member for Nottingham, West (Mr. English). He is not often to be seen with his hands tied behind his back, or in front of him as they are at present. We hope that he is not too badly injured. The fact remains, however, that the hon. Gentleman's sub-amendment is totally unnecessary on the wording already contained in the clause.

§ Mr. Michael English (Nottingham, West)
I begin by expressing my gratitude to two of my hon. Friends. I gather that my hon. Friend the Member for Durham (Mr. Hughes) endeavoured to move my new Clause 1 and that my hon. Friend the Member for Keighley (Mr. Cryer) was prepared to speak to my sub-amendment to this amendment had I not got back in time from another place. I also thank my hon. and learned Friend the Solicitor-General and the hon. and learned Member for Wimbledon (Sir M. Havers) for their remarks. I can assure them that my tongue has not sustained a fracture and that any other fracture is minor.
I accept the remarks of the hon. and learned Member for Wimbledon about my amendment. Its object was to find out.
The Solicitor-General said that the Law Society has not any very great powers to obtain information from solicitors. But we are dealing with legislation, and it is not sufficient to say that the Law Society does not have powers. All our arguments over three years have been directed to ensuring that the Law Society deals with clients' complaints. If the Law Society felt at any time that it had not sufficient powers to do that, I can personally assure its representatives that such a Bill would go through with a speed that they might not expect in comparison with this one.
The whole tendency of society at the moment is to assist in dealing with these matters. If the Law Society is lacking any power, I hope that it will not simply say that but will recognise that there are hon. Members only too willing to give it powers to investigate clients' complaints.
I tabled the sub-amendment to ensure also that the lay observer cannot be met with the answer from the Law Society "You can require information from us, but we cannot tell you about information 772 from a solicitor which may be related to the confidentiality applying between solicitor and client." Usually that can be got round. Normally the client is the complainant, and he will waive his privilege. On occasions, however, more than one party is involved, and difficulties may arise.
I tabled my amendment so that the Solicitor-General would have an opportunity to say that the lay observer not only can get information from the Law Society but can get information which the Law Society can get from solicitors. In practice it is often obtained without any legal powers because of the long-stop power of removing a practising certificate. So long as it can be done, I hope that the lay observer can also get it done if necessary.

§ Mr. Christopher Price
I welcome the amendment as one of a number of amendments which I think my hon. Friend the Member for Nottingham, West (Mr. English) would agree would not have been moved on Report had it not been for the activities of a small and sometimes irritable group behind him in Committee.
It is particularly important that we should strengthen, as I believe we have done, the powers of the lay observer. I recognise that the lay observer is in no sense a court of appeal against the activities of the Law Society. Nevertheless accusations against the Law Society in its investigations sometimes concern not only a refusal properly to investigate but a determination only partially to investigate a matter.
I was recently concerned with a case in which the Law Society threw all its weight against one partner in a firm of solicitors and steadfastly refused to throw any of its weight against the other two partners.
If the lay observer comes across such a case, I think that the amendment we are introducing—the clause would be strengthened even more if the sub-amendment were accepted too—will give him the necessary power, which I hope will never have to be used, because the Law Society, knowing that it is there in the background, will be kept on its toes to carry out its investigations in a fuller and more fearless manner than if the long-stop power of the lay observer did not exist.
773 I hope that the lay observer, although not a court of appeal, will regard himself as a tough cookie, as it were, and will be willing, with whatever resources the Government may give him—I hope that they will not be meagre resources—to take on the full might and determination of the Law Society if he thinks it is the right course to take. The arming of the lay observer with these powers should ensure that the Law Society carries out its duties and responsibilities rather more comprehensively than in the past.

§ The Solicitor-General
The intention is that the lay observer shall be effective. That is what the Bill is about. I believe that he will be more effective in consequence of our discussions in Committee.
It may be because of the lateness of the hour, or perhaps I am more than usually inarticulate tonight, but I intended to convey what the hon. and learned Member for Wimbledon (Sir M. Havers) understood to be the intention—namely, that my noble Friend the Lord Chancellor will deal in his directions with the situation which may arise from time to time where the lay observer wishes to make a special report under the directions which my noble Friend will be making.
I turn now to the point which concerns my hon. Friend the Member for Nottingham, West (Mr. English). It would be unfair to mislead anyone into believing that the Law Society now has extensive statutory powers to require the production of information from solicitors. However, it would be unusual and in most cases unwise for a solicitor to refuse to give information for which he had been asked.
I think that in normal circumstances the Law Society would not require to come back to the House and ask for additional powers. The intention, as my hon. Friend said, is that the lay observer will be able to ask not only for information which the Law Society has at the time but for information which it could obtain if it asked for it.

§ Mr. English
I hope my hon. and learned Friend will agree with my political judgment that if the Law Society ever sought additional powers on this subject the House would be willing to grant them.

§ The Solicitor-General
I find that it becomes increasingly dangerous to predict anything about proceedings in this House, which consists of a number or hon. Members who have minds of their own. In so far as one can predict anything, however, I agree with my hon. Friend's prediction.
My hon. Friend also asked about the situation which might arise if the requirement of information entailed a breach of professional confidence between solicitor and client. As my hon. Friend said, this difficulty would not normally arise because the complainant would be the client, but there could be situations in which the difficulty arises.
I hope that either the lay observer or the Law Society will hesitate long before requiring the production of information which has been given by way of professional confidence, because confidence between solicitor and client is an important aspect of the service that a solicitor can give to the public. If the matter were pressed, and if it became a serious conflict between the interests of the complainant and the privilege of the client, presumably a court would have to decide whether the requirement of the lay observer was reasonable. I must in fairness point out that what is proposed is that the Law Society should disclose what the lay observer "reasonably requires", and in the last resort it could be that a court would have to decide whether his requirement was reasonable. I do not think I can give more precise guidance than that.

§ Mr. English
Does my hon. and learned Friend, using his professional judgment, consider that the words "reasonably require" are wide enough to cover privileged information if the request is otherwise reasonable?

§ The Solicitor-General
That is a matter which I have not had an opportunity to consider at length, but if I have occasion later to revise what I say now I shall write to my hon. Friend. I think that a court would, in appropriate circumstances, be entitled to override the privilege of the client. It would be a matter for the court to decide whether, in all the circumstances, it was justifiable so to do.
I have done my best to answer my hon. Friend's questions, and in those 775 circumstances he may not wish to proceed with his alteration to my amendment.

§ Mr. English
I do not.