EUROPEAN COMMUNITIES (LAWYERS' SERVICES)

HC Deb 12 November 1976 vol 919 cc812-41

11.12 a.m.

The Solicitor-General (Mr. Peter Archer)

I beg to move That this House takes note of Commission Documents Nos. R/2133/75 and R/646/76 on Lawyers' Services. This debate is provided on the recommendation of the Select Committee, and it is happily timed, because, while it is always difficult to make a firm prediction about future progress it is likely that it will be considered by the Council of Ministers at an early date, and the Ministers will need to be in possession of the views of the House.

This draft directive is concerned with the provision of services on a temporary basis in one member State of the EEC by lawyers qualified in another. Its purpose is to facilitate the provision of these services on a reciprocal basis while providing adequate safeguards to ensure that their clients the public, are properly protected. It is not concerned with lawyers engaging in regular practice in another State; it is not concerned with the mutual recognition of qualifications; it is concerned with visits for particular business. But that objective is important, and it is one which the Government fully support.

The proposal to abolish restrictions on the provision of these services was first made as long ago as 1969. In the European Parliament it was met with something less than universal acclamation, and by 1972 official negotiations had reached an impasse.

In 1974 the position was radically altered by the decision of the European Court in the cases of Reiners against the Belgian State and of Van Binsburgen, where it was held that those articles of the Community Treaty which confer the right to provide professional services in all Community countries did not require to be activated by directive but that they had had direct effect throughout the EEC since 1969.

The court rejected the argument that that right was not applicable to lawyers because it involved what Article 55 calls "official authority". It follows that a lawyer qualified in one member State has the right, arising directly from the Treaty, to provide services in another State under whatever conditions are generally applicable to lawyers there.

But the court agreed that the right did not extend to allowing someone to perform functions in a member State which the national law had justifiably and in the public interest reserved to qualified members of its own legal profession. Consumers, too, have rights and they are entitled to a measure of consumer protection in order to ensure that those who offer legal services are properly qualified to provide them.

In consequence of this decision, and in the new situation created by the accession of the United Kingdom and the Republic of Ireland, a meeting of Ministers of Justice of the EEC countries in November 1974 instructed the Commission to prepare a revised draft. This is it. Unlike its predecessor, it is not framed directly to allow lawyers generally to provide services. It takes account of the decisions and it clarifies the rights which exist already under the Treaty and sets out the conditions and safeguards under which those rights are to be exercised.

There are always problems when one seeks to arrange for those practising a profession in one country to render services in another. The structures of the profession may be different in the two countries. But if we are dealing with law, the problems are multiplied. The doctor who understands the human body in this country is likely to find that bodies function similarly in France. But a lawyer familiar with one legal system may find that he has no expertise either in the substantive law or the procedure of a different system. So, a qualification to practice German law, however impressive, is not a certificate of expertise in English law, or vice versa.

The way in which the directive approaches the problem is first to refer to all services performed by the legal profession, not just to legal advice and advocacy—matters which in this country we sometimes call "non-contentious business". This is in contrast with the original 1969 draft, which was confined to advocacy and advice.

The directive then turns to the problems arising from the differing structures of the profession by specifying a list in respect of each country of the classes of person there designated generally as lawyers. In relation to the United Kingdom, that includes advocates, barristers and solicitors. It declares that freedom to provide services means the freedom to provide those services which are undertaken by the designated profession in the host State, although a visiting lawyer may retain his own title—for example Rechtsanwalt or avvocato.

It makes an important distinction between court work and other work. In respect of court work, a visiting lawyer will be subject to the rules of professional conduct of the host State and may be required to work in conjunction with a lawyer who practices before the court he is visiting . In respect of other work, the rules of professional conduct to which he is subject are those of the country where he qualified, subject to a certain matter to which I will advert later.

Before turning to some of the specific questions which have arisen, I will mention a point which may strike those who have read the text. Like other EEC documents, this one is couched in general terms—what some of us call "open texture". It is inevitable where it has to be implemented in nine countries, because it cannot use the precise legal terminology of any of them. It means that we are not governed by a word which might have a technical meaning in Scots law but not in English law, or vice versa.

I turn next to some of the specific issues which have given rise to discussion in the United Kingdom. Over the last year there has been very full consultation between the Government Departments concerned and the representative bodies of the legal professions. The Government are most grateful for the assistance which the professions have given. In addition, we have had the benefit of the report of the Select Committee. We have also had the Eleventh Report of the Select Committee in another place.

As a result of this detailed examination, our negotiatiors in Brussles have been able to argue a number of points where we believe that the draft could be and has been improved. In respect of most of them, we confidently expect that the proposals which will ultimately be submitted to the Council of Ministers will be in an acceptable form. Hon Members will have found in the Vote Office a supplementary explanatory memorandum submitted by the Lord Chancellor's Department, dated 9th November, which draws attention to the likely changes of substance.

Mr. John Davies (Knutsford)

Perhaps the Solicitor-General will be dealing with this matter later, but will he say whether the amended form of submission to the Council of Ministers will, as far as he knows, take the form of an amended instrument by the Commission to the Council, or whether it will be prepared within the Council machinery itself? It has very serious consequences from the point of view of scrutiny and I should like to know in which of the two forms it is likely to be.

The Solicitor-General

I understand that it will be an official document. If I am wrong about that I shall endeavour to correct it at a later stage, but I take the right hon. Gentleman's point.

I now turn to some of the specific questions which have been discussed in this country. Anxiety was expressed about the need to reserve to lawyers of the host country an unshared right to prepare specific classes of legal document which may require specialised knowledge of a particular branch of the law. Mention was made particularly of the preparation of documents relating to the transfer of land and to the administration of the estates of deceased persons, as well as to the drafting of pleadings.

Part of the problem was that in relation to conveyancing and probate it was said that the directive did not create genuine reciprocity between the United Kingdom and the Continent, because in Europe these activities are the preserve of notaires, who are excluded from the scope of the directive, while here they are the function of solicitors who are included in the directive. The result would have been that an avocat could come over here to do this work, which he could not do at home, while a solicitor would not be entitled to undertake such activities when visiting another member State.

This anomaly was pointed out in the European Parliament by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker Smith), and the Commission submitted an amendment to cover the point. Subsequent negotiations have led to a revised text which is likely to protect member States if they wish to reserve to prescribed categories of lawyers the preparation of formal documents for obtaining a title to administer the estates of deceased persons, and the drafting of formal documents creating or transferring interests in land.

The proposed provision is discretionary but it would enable the United Kingdom to reserve the preparation of the chief documents in connection with conveyancing and succession to nationally qualified lawyers. There is no specific exemption for the drafting of pleadings but, as I have indicated, by Article 5 member States may impose an obligation on the visiting lawyer in relation to court work to act in conjunction with a lawyer practising before the court in the host country and who would, where necessary, be responsible to that court.

In addition, the visiting lawyer will be subject to the conditions and rules of professional conduct of the host Member State. This will enable an adequate measure of control to be exercised over the visiting lawyer in respect of all aspects of court work, including the drafting of pleadings and the conduct of cases in court.

A further problem is the position of the non-practising lawyer. In the United Kingdom, a lawyer who is employed by a commercial undertaking or public body remains a member of his profession and subject to his professional code of conduct. He does the same work and can act for his employer in the same way as if that employer were a private client. On the Continent it is more usual for the employed lawyer to be required to leave his profession altogether on accepting a salaried position, although this varies and in some member States the situation is closer to that of the United Kingdom.

The Commission's proposal did not take this distinction into account, and in relation to United Kingdom lawyers the scope of the directive was limited to those in private practice. Perhaps not surprisingly, the bodies representing employed lawyers felt that they should be allowed the benefit of the directive where they are required to go abroad on behalf of their employers. I am pleased to say that this view has found favour in Brussels, and the directive is likely to refer simply to barristers, advocates and solicitors, without specifying that they shall be in private practice.

This is subject to one further qualification. A new provision is to be recommended which will allow those member States which do not permit lawyers in the salaried employment of a private undertaking to represent that undertaking in judicial proceedings to exclude foreign employed lawyers to the same extent as their own nationals. The Government's view is that this is acceptable in substance. If an employed lawyer could appear in a country which did not allow its own employed lawyers to do court work, there would be reverse discrimination. In any event, most employed lawyers employed abroad will be concerned with advice rather than advocacy, but the form of the new provision may leave something to be desired. It speaks only of lawyers employed by private undertakings, and it will have to be further considered in Brussels.

There is one other outstanding matter of importance. This concerns Article 4(4), which deals with the code of conduct which is to be applied to the visiting lawyer in relation to non-court activities. As I said earlier, he would be subject to the professional rules of the country where he qualified and those of the host State would not apply; nor would what are described as the conditions of the host State, which might include detailed requirements about the organisation of lawyers' offices, or the way in which they keep their accounts.

This position is not acceptable to the majority of member States and, consequently, in the Brussels negotiations it has been proposed that, while the lawyer should remain subject to the rules of professional conduct of the State where he is qualified, this should be without prejudice to what the text calls the "fundamental ethical principles" applicable in the host State, with particular reference to certain generally accepted principles, such as confidentiality.

This solution would be acceptable to the United Kingdom and, I understand, to our own profession, but certain member States are not content with that. They seek to apply not only the fundamental ethical principles of the host State but all the conditions, which would bring into play an array of complicated professional requirements which it is hardly practicable to apply to a lawyer on a purely temporary visit.

A solicitor might find himself barred from giving legal advice in a State which has a rule that a lawyer may have only one office because at home his firm happens to have two offices. The Government's view is that that solution would be objectionable and would defeat the objective of the directive, which is to facilitate services.

I do not believe that this difficulty is insuperable. I repeat that in the Government's view the position with regard to the directive as a whole is satisfactory, subject to finding an adequate solution to that problem. But, of course, the Government will take into account the views that hon. Members express today. Obviously, it is an advantage in some situations for a client to have the services of people skilled in the law of a different country without unnecessary restrictions.

Before concluding, I apologise in advance to the House that I shall have to leave during the debate. My right hon. Friend the Lord Advocate and my hon. Friend the Parliamentary Secretary will be here. Unhappily, the saints who were able to perform the miracle of bilocation did not leave us their secret. But I hope that hon. and learned Gentlemen will accept that there is no disrespect intended.

11.30 a.m.

Sir Derek Walker-Smith (Hertfordshire, East)

The House will be grateful to the hon. and learned Gentleman the Solicitor-General for his characteristically clear and cogent exposition of the matter of this directive, which has been a long time coming into being because of the various difficult considerations surrounding it, to which he gave expression and explanation.

I am sure that the House will readily excuse the hon. and learned Gentleman. We know the difficulties always attaching to his office; and those difficulties, if I may say so without striking any partisan note, are scarcely likely to be less at present than in the normal case. I am sure that we shall be very happy to have the matter left in the able hands of the learned Lord Advocate—certainly those of us who have known him and admired his contributions to the House over a period.

This directive is concerned with the liberalisation of lawyers' services in the Community. We can see from Article 3(c) of the Treaty establishing the European Economic Community that this directive seeks to serve one of the main objectives of the Community as there expressed in the words: the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital". This objective is furthered by Article 59 of the Treaty which refers to the progressive abolition of restrictions on freedom to provide services and in Article 60 which in paragraph (d) includes in the category of "Services" activities of the professions. The full realisation of this principle would involve the right of establishment by professional men of one member State in the territory of other member States as well as the recognition of their qualifications to act or advise ad hoc on a temporary basis across the frontiers of those member States.

This directive, as the hon. and learned Gentleman pointed out, is concerned only with the latter aspect—with the freedom to provide services, not with the full right of establishment which is envisaged by the Treaties as something to be achieved at some stage in the development of the Community.

There are two desiderata in these matters, both valuable in themselves but, as so often happens, not easy in their reconciliation. The first desideratum is a reasonable interchange of professional skills between the member states—a sort of cross-fertilisation. The second is that this should be achieved without any lowering of professional standards and qualifications and without the consequent prejudice that such lowering would have for those for whom the services are provided. That is a reconciliation easy to state but a good deal more difficult to achieve.

That being so, it is not surprising that this directive has taken so long to come into being. I myself have been actively concerned with the evolution of the directive over a period—that is, in its latter stages, of course, following the accession of the United Kingdom to the Community. I have been engaged in effect in two functions. The first has been as Chairman of the Legal Affairs Committee of the European Parliament, where it has been my duty to preside over the discussions on the directive at the various sittings of the Committee. I say "to preside", but I should perhaps indicate that the chairman of a committee in the European Parliament is not like the Chairman of a Standing Committee in the House. He has a participating role as well as a role of guiding the procedural processes of the committee.

The second function was as spokesman for the European Conservative Group in the debates upon the matter in the plenary session of the Parliament. In this second regard I made some modest contribution with a number of amendments designed to improve the directive which, by common consent, is better now in its revised form than it was when it originally came to the Legal Affairs Committee some time ago.

The Solicitor-General has kindly re ferred in particular to my amendment to Article 1(1) of the directive which was accepted by the European Parliament in plenary session. That is the amendment which refers to the conveyancing position and the wording of which is to be found in Commission Document R 646/76 and also in the Lord Chancellor's supplementary memorandum of 9th November. That memorandum also refers to other improvements or probable improvements in the directive some of which again were the subject of amendments which I moved in the European Parliament.

Certainly it is the view of the Law Society and of the Senate of the Inns of Court and Bar that improvement has been achieved. During the passage of the directive through the European Parliament—that is, through the Legal Affairs Committee and through the Parliament as a whole—I was in close consultation with these two bodies, but did not in any sense regard myself as mandated by either of them, though as a practising member of the Bar I obviously have a connection with the one and, indeed, as a practising member of the Bar have a connection with the other since that, as the hon. and learned Gentleman knows, is where our clients also come from. Nevertheless, I did not give any uncritical acceptance of the suggestions which were put before me. I studied them closely, and I certainly agreed with some of them and had some success with them, such as the one which has been mentioned in regard to the conveyancing position, and so on.

On the other hand, I did not think it possible to accept the suggestion, put forward at one stage, that the visiting lawyer when engaged in actual court proceedings should be put under the control of a lawyer in the host State. I do not think, and I so stated in the European Parliament, that "control" is the mot juste to apply to the relationship between one professional gentleman and another. I did think, and I canvassed this possibility in the Legal Affairs Commmittee and in the Parliament, that the addition of the words under the supervision of as well as in conjunction with might have strengthened and defined the position in regard to the protection of the professional standards of the host State; but I believe that the provisions of Article 5 of the directive as we have it in its present form are a sufficient protection, that the visiting lawyer must work in conjunction with a lawyer who practises before the court in question and who would be, if necessary, responsible to that authority.

I believe that in essence there has now been achieved a directive which is reasonably satisfactory for its important purposes. It strikes as well as may be the difficult balance between liberalisation, on the one hand—that is, the elimination of restrictive practices—and the protection of professional standards, on the other. That is, after all, a considerable achievement.

The liberalisation of services and mutual recognition of professional qualifications are not easy in any calling or discipline. But, as the Solicitor-General has indicated, there are particular and inherent difficulties as far as the practice of law is concerned. These difficulties arise in applying the agreed principles to the idiosyncratic practice of the law. They derive from the very nature of the practice of law as compared with the practice of other professions, such as medicine, architecture and engineering.

The practice of law lacks the universality of those callings. A doctor's skills are readily exportable. His knowledge and training enable him to deploy his skills, with minor adaptations, in any part of the world. With law it is different, because both procedure and content differ from country to country. In one sense there is only one profession of the law, but in another sense there are parallel professions in individual countries.

To draw attention to these differences is not to derogate from the principle of liberalisation. It is merely to illustrate the difficulties attached to the application and implementation of that principle. The difficulties have been accentuated by the expansion of the Community, and the differences between the patterns of court procedures. In the original six member States procedure is based largely on Roman and civil law, with the investigatory approach, compared with the United Kingdom and Ireland which have the adversary concept, and emphasis on oral evidence and cross-examination, with the restriction of the judicial function to that of hearing and determination.

There are certain fundamental differences in structure, pattern and approach, but in spite of these, British lawyers certainly would welcome help and co-operation in fitting cases from lawyers from other EEC countries, whether in consultation and advice, or in the actual preparation and presentation of cases in the courts. The difficulties which I have identified do not detract in any way from our desire as a profession to cooperate with EEC lawyers, and to welcome their participation in our proceedings.

Of course, the difficulties condition the method of applying the principles, and therefore impose the need for safeguards. These safeguards are not designed to protect the preserves of lawyers of the host countries; neither are they designed to exercise any monopoly or restrictive practice to protect the position of lawyers. On the contrary, they are to safeguard court procedures and the interests of the litigant, whose legitimate interest in seeing that his case is presented in conformity with the procedures of the court is and should be a paramount consideration both for lawyers and parliamentarians alike.

I conclude by welcoming the directive in its improved and amended form and with a word for the future. The Commission will, no doubt, now embark on preparatory studies on the second and more difficult aspect of this matter—the implementation of the freedom of establishment for lawyers. There are many difficulties here and a solution will need to be sought by the full process of consultation with the representative organisations of the legal profession in the various member States, and in full consultation with the European Parliament, its legal Affairs Committee, and, of course, with the national parliaments of the member States.

There is much work still to be done in this context. I see it as parallel work—work on the elimination of restrictions where possible on the one hand, and work to achieve suitable regulation of the activities of foreign lawyers in the host country on the other. Perhaps there should be undertakings given by foreign lawyers to comply with a code of ethical rules which might be devised in the Community as a whole, along the lines of the International Bar Association rules of professional ethics.

Meanwhile, we can congratulate ourselves on the appearance of this directive in its improved and practical form, and on a long and not always easy exercise in co-operation among the institutions of the Community, the legal professions and parliamentarians. I hope that we shall see its fruits in the strengthening in the Community and in member States of service to the public, and the maintenance and strengthening of the rule of law.

11.47 a.m.

Mr. Ivan Lawrence (Burton)

The directive is another example of how the purist aim of dismantling all the barriers created by nationality—an aim so desirable in theory—is difficult to implement in practice, and to some extent undesirable for the United Kingdom.

The foundation of this document is that there is a profession of lawyer which is, in practice, interchangeable in operation between the nine countries of the Community. However, the truth is otherwise because of the differences between our common law and the law based on the Code Napoleon. These differences are very substantial and the operation of procedures arising out of the substantive differences may cause difficulties. The position of the notary in foreign systems is not comparable with that of any lawyer in the United Kingdom, for example.

I pay tribute to my right hon. and learned Friend the Member for Hertfordshire, East (Sir Derek Walker-Smith) for proposing the amendment in the European Parliament which resulted in the removal of this anomaly. As a practising lawyer and a politician, I also pay very great tribute to my right hon. and learned Friend's excellent work as Chairman of the Legal Affairs Committee in the European Parliament. Too few lawyers in this country appreciate the dedicated work being done on their behalf and on behalf of our citizens who are represented by lawyers like my right hon. and learned Friend.

Fortunately, the practical results of this directive are likely to be limited. Possibly they will mean little more than Irish lawyers practising in English courts. The average French, German, Dutch, Belgian, Danish, Italian and Luxemburger lawyer is no more competent to advise a client in English law, or to be effective in audience before an English court, than an Englishman is in their countries. There is good sense in Article No. 5 which requires a foreign lawyer to work in conjunction with a British lawyer when the two are serving jointly the interests of a British client. This needs no further elaboration.

I ask the Lord Advocate whether he will direct attention to two problems which arise out of the directive. The Solicitor-General said in opening the debate that after the Van Binsbergen case there was a meeting of lawyers in Europe which resulted in the new directive. But the directive states Whereas pursuant to the Treaty all restrictions on the provision of services which are based on nationality or on conditions of residence have been prohibited since the end of the transitional period. Therefore, what follows is based upon that "whereas" assumption that all restrictions on conditions of residence have gone. Nevertheless, it appears that the Van Binsbergen case shows expressly that restrictions on residence are permissible where they are necessary for the administration of justice—for example, the requirement that a solicitor must have an office within the jurisdiction, or that it is for the public good to require a compulsory subscription to a guarantee or compensation fund. There appears, therefore, to be a contradiction between the situation as it is and the situation envisaged by the directive. If there is a discrepancy there, lawyers in this country would like it resolved.

The second matter concerns Article 4(4), which deals with activities relating to the representation of a client in judicial proceedings. It provides that these proceedings shall be carried out in each host member State under the conditions laid down for lawyers established in that State. The word "conditions" is causing concern because of uncertainty about its meaning. In a meeting at the end of October of the Joint Committee of the Bars and Law Societies of the European Community the United Kingdom delegation asked the other delegations what they understoood the word "conditions" to mean. It received a variety of vague replies. Even the Germans, who are Insisting upon the inclusion of that term, could not say what it means with any precision. The Joint Committee resolved to recommend that the word be deleted. and I should like some indication from the Lord Advocate as to the effect of that request.

I wish to acknowledge the good intentions and hard work that has been done on this subject by the Senate of the Inns of Court and the Bar and the Law Society in trying to make the directive workable in accordance with the ideals of the Community. It is their desire, as it is the desire of any lawyer concerned with European matters, to see not that the profession itself is protected against competition, but that the interests of the British litigant and the protection of the British citizen are, as my right hon. and learned Friend said, the paramount consideration.

11.55 a.m.

Mr. Ian Percival (Southport)

I echo immediately the welcome given to these directives by the Solicitor-General, my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) and my hon. Friend the Member for Burton (Mr. Lawrence).

I was glad that the Solicitor-General was able to deal with so many of the points of detail which have been raised by the many parties which have been considering these directives and have written to us about them.

I am not able to form a view of the Solicitor-General's comments on these points of detail sufficiently quickly to say much about those comments now. But I think that the value of his having made them today is that it will enable the professional bodies which are interested in this matter to consider what he has said about the up-to-date position, and then to write to us on those points about which they still feel any misgivings. I believe that that is the correct way in which to conduct the various stages of exercises such as this. In that way we may feel sure that those outside the House who are interested have had every opportunity to keep abreast of what is happening inside Government circles and inside the House, and we are able in our own turn to keep fully informed of their feelings on the subject.

I have however some comments to make on points of details, and certain questions to ask. Let me say at once that I should not take exception in the least if the Lord Advocate felt unable to give me specific answers off the cuff today. I think that very often that is not of much value. If the question is worth asking, it should be worth considering before the answer is given. I therefore preface my observations with those qualifications, and I would much rather that the right hon. and learned Gentleman took time to consider the questions and gave me a considered written reply in due course if there if any problem about giving an immediate answer.

I turn now to the agreeable task of making further acknowledgements. It is my very real pleasure to pay tribute to the great part played in these matters by my right hon. and learned Friend the Member for Hertfordshire, East. Too few people may know that it is largely due to his personal skill, expertise and efforts that this directive is now so very different from that which was first put before the countries of the Community for consideration. It is right that we should publicly recognise that.

The amendments on which he has played such a significant part contribute most notably to achieving those important reconciliations and balances of which he has spoken. In doing what he has done my right hon. and learned Friend, a long-standing and honoured Member of this House, has made an immense practical contribution to overcoming all the difficulties of which he has spoken so eloquently this morning.

I pay tribute also to the professional bodies for having got together so very well on this matter. They have got together in this country, in the United Kingdom generally and in Europe. That is a welcome development. At times there have been dangers that the different parts of the profession throughout the United Kingdom might be going their own independent ways rather than getting together to discuss their problems. Here we have the opposite.

It is a development much to be commended and I am sure that my right hon. and learned Friend the Member for Hertfordshire, East will agree that it has contributed significantly to the results which have been achieved. Although it is always invidious to name individuals, I want to pay a special tribute to Mr. David Edward, QC, Treasurer of the Faculty of Advocates, who has played such a leading role in the process of the several parts of the profession reaching a combined view and putting it forward in Europe, as well as giving us a summary of the remaining points to be considered.

Article 1 is enormously improved by the addition of the words starting "Notwithstanding". However, I am in a little doubt about what exactly are the words proposed. I assume that the words in the Document 646/76 are those most likely to be inserted in the directive in its final form. I hope that is so because in other drafts and references to the draft of this article which I have seen the word "formal" has crept in. I think it would be unwise to use any adjective other than "legal" which is the one used in Document 646. Otherwise we could be introducing further difficulties of interpretation in our own legal terminology. It is difficult enough to be precise in our own terminology, but when one is trying to be sufficiently precise to achieve the same meaning in the legal terminology of nine countries, one must be even more cautious.

I hope that the Lord Advocate can deal with the points raised by the Scottish Law Society on Article 1(1). Does the wording in Document 646 cover the preparation of writs relating to heritable or moveable property and the appropriation of documents to found or oppose an application for the granting of confirmation of executors?

The Lord Chancellor's supplementary explanatory memorandum says that it is expected that the designations in Article 1(2) will be changed so that "solicitor in private practice" is replaced by the word "solicitor" alone. I notice however that in the amendments proposed in Document 646 it is said that Article 1(2), the list of designations, is "unchanged". May we have an assurance that we can take it from the Lord Chancellor's memorandum that Document 646 is not the last word on this matter.

The discussion on Article 4(4) is about the inclusion or exclusion of the words "conditions of". I understand that they are not in the directive and never have been. They are not included in the amendments proposed in Document 646. Is it therefore that some member States—Germany has been referred to specifically—now wish these words to be included, even though they are not recommended in Document 646? If so, our practical position is one of resisting inclusion rather than seeking exclusion, which is a rather stronger position. I should like an assurance that that analysis of the situation is correct and that it is proposed to resist the inclusion of the words "conditions of". That would reassure those people who are concerned about this matter.

In some drafts sent to us by various bodies—I have here one from the Senate of the Inns of Court and the Bar which has the words "Text sent from the Lord Chancellor's Office on 20th October 1976" written on the top of the photostat copy—Article 5 (1) reads: they must be introduced, in accordance with local rules or customs, to the presiding judge and, where necessary, the President of the Bar in the host Member State. I cannot find these last words in the directive of 1975, in the amendments proposed in Document 646 or anywhere else except in this draft and one other. I cannot find them in any official documents.

I should be glad if the Lord Advocate could tell us whether it is proposed that these words be added, what is he basis for them, whether there has been agreement between member States which makes their introduction a formality and what will be their effect. I am far from clear how the first part of the sentence could be applied in this country though I see how the second part might be applied here and might be very useful.

The Law Society of Scotland has suggested that when an advocate from overseas comes here occasionally to practise he should be required to nominate whether he is practising as an advocate or a solicitor. The Lord Advocate would know better than I the basis of that point and I hope that, today or in writing later, he will be able to clarify the matter.

Mr. Marcus Lipton (Lambeth, Central)

Perhaps I may point out that there is no difference between barristers and solicitors on the Continent. The legal profession is one profession. Only in this country is there a separation.

Mr. Percival

That is the point. As long as we have separation—and there are many people who think that for sound reasons in the interests of the public it is desirable to maintain that distinction—it may be important that, when a lawyer comes here from somewhere overseas where there is not that distinction, he should indicate in which of our classifications of lawyer he is purporting to practise. I express no view on that either way. I merely make the point in the hope than an authoritative view may be obtained on it. The reason for this matter's being raised is the very reason posed by the hon. Gentleman in his intervention.

Mr. David Edward, in the note which we have all had, referred to detailed submissions made to the Lord Chancellor's office about the proposed Article 6. No doubt those detailed submissions will receive the full consideration which all other points raised with the Lord Chancellor's office obviously have received so far. I express the hope that we may in due course be advised about the views of the Lord Chancellor on those detailed submissions and what action may be taken about them. I gather that there have been discussions over the past two years relating to Articles 5 and 6, ending with an agreement reached in Perugia among all the Bars and Law Societies of Europe. Is the Lord Advocate able to tell us whether Article 6 gives effect to what was then agreed, or whether it has not proved possible to give effect to that agreement? If the latter, in what respect does Article 6 fall short of or differ from what was agreed on that occasion? That information would be of enormous assistance, because we should then know what is left in issue.

I should also like some assistance on the question of timing. I seem to have gathered several different versions of the text, over the course of the week. I notice that one refers to two years and another to 18 months. I am far from clear as to which is the latest official figure or what is now expected to be the period allowed for implementation. My right hon. and learned Friend the Member for Hertfordshire, East said that this was a comparatively minor matter in view of what is yet to come and. he referred to the directive on the right of establishment. There is another interesting directive to come—on the recognition of qualifications—which will be even more difficult than those in the medical and scientific spheres, for the very reasons to which my right hon. and learned Friend referred. I do not know whether the Lord Advocate can give us any indication of the progress that is being made, or whether we are likely to see detailed progress on these matters.

I should like the Lord Advocate to address his mind in particular to what seems to me one of the most important aspects of what we are talking about—namely, the effect of this on our domestic law. The right hon. and learned Gentleman and I served on the Foster Committee, which deliberated for quite a long time on how this House was to retain supervision or control over law-making in the Community which would oblige us to change our domestic law. It was because of the importance of that that the Foster Committee was set up. It was because of the importance of that matter that the Foster Committee made its first recommendation for explanatory memoranda and it was because of that that paragraph 3 of the proposed explanatory memorandum—the effect on law—was perhaps, in his mind and mine, to be the most important of all the provisions in the memoranda.

We are talking not just about how these provisions will affect the different practices of the different professions, but about how they will affect the domestic law of this country. We have in my view rather less than the full information which it ought now to be possible to give.

In the first two memoranda issued by the Lord Chancellor's office, reference was made to the need which would arise to amend the Solicitors Act 1974 and in particular the provisions of Section 22. I should have thought that, as the result of the draft as it will be if the amendments in Document R/646/76 go through, there must be a need for amendment of Section 22 and probably of Section 23. The possible amendment of Section 23 has not yet been referred to in any memorandum, so I may be wrong in supposing that would be necessary. However, I doubt whether I am wrong in thinking that.

Furthermore, the one subject on which we have not touched very much is prohibition on the issuing of any writ or process by anyone except a qualified person. I refer now to Section 20 of the Solicitors Act 1974. I do not find it easy to see how these provisions could go through in their present form without necessitating some amendment of Section 19 and/or Section 20. I express no view whether that is a good or a bad thing. I merely express the view that we ought now to take stock, as we are getting close to a final draft for this directive, of what amendments to our domestic law would be necessary on the basis of agreeing this directive with the proposed amendments.

We ought to take stock for two reasons. First, we must consider the effect of translating this into practical terms. Secondly, it is important that before this directive is agreed to by the Government, there should be a statement on the lines of the explanatory memoranda setting out clearly what changes it is now believed will be necessary. That is the whole purpose of dealing with directives in this way.

This is an important example of how useful and necessary this procedure is. If people are told in this way what amendments of our domestic law are necessary, they then have an opportunity to comment upon them—and we are all entitled to look to the Government, in view of the procedure that we have adopted, to specify what they believe the necessary amendments to be. For the reasons which I have indicated and whilst I accept that I may be wrong, I doubt whether the extent of the amendments which would be necessary has as yet been set out and specified. I think that it should be.

I end as I began by welcoming this directive and paying the warmest of tributes to all who have had a hand in bringing it this far with such a large measure of agreement.

12.20 p.m.

Mr. Marcus Lipton (Lambeth, Central)

I fear that this will develop into a rather dreary date. It is not being attended by many of my hon. Friends, and it was only by accident that I found myself in the Chamber for the purpose of hearing the speech of the hon. and learned Member for Southport (Mr. Percival).

I think that we have lost a golden opportunity to harmonise our professional legal system with that of the Common Market countries. We continue to maintain a difference between the two professions of solicitor and barrister, and I think that the time has come to merge the two. The hon. and learned Member for Southport did not commit himself either way on that topic, but I have long felt that the two professions ought to be merged and that barristers and solicitors in this country should be treated in the same way as lawyers in all the other European countries.

Mr. Percival

I will make my comment on that shortly in an endeavour to be as neutral as I can and to avoid going off at a tangent on matters that are no doubt interesting but have nothing to do with this debate. The hon. Gentleman is suggesting that on the Continent all lawyers are treated alike, but he could not be more wrong. One finds that there are avocats, avoués and notaires, to mention only three kinds in France alone. The hon. Gentleman has based his argument on a false premise.

Mr. Lipton

My impression is that vis-à-vis the courts they are treated in the same way. Any lawyer in any of the Continental countries can act as an advocate or notary in whatever capacity he wants to carry out his legal professional duties. That is why, although I see nods of disapproval—

Mr. Percival

Disagreement, not disapproval.

Mr. Lipton

I am fortified in my belief by the knowledge that what I am saying is not altogether disapproved of. Hon. Gentlemen opposite think that I am wrong in fact, but I believe that in principle I am right. That is the only contribution I wish to make to the debate.

12.23 p.m.

The Lord Advocate (Mr. Ronald King Murray)

I begin by expressing my gratitude to all those who have taken part in the debate for the general welcome they have given to the directive.

My hon. Friend the Member for Lambeth, Central (Mr. Lipton) made it clear that he wishes to see a fusion of the legal professions in this country, whether or not there is such a fusion in any other country. It is true that this matter is under discussion, and no doubt it will be the subject of evidence to the two Royal Commissions that are under way on the legal profession. My hon. Friend need not feel that his point of view will not be represented in a proper forum because this directive does not deal with the matter.

Mr. Lipton

That lets me out.

The Lord Advocate

I hope that despite his remark from a sedentary position my hon. Friend will continue to stay with us.

The right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) was most gracious in what he said about the directive and the consultations that have taken place, and I should like to associate myself with his remarks in that general connection.

I associate myself also with the tribute paid by the hon. Member for Burton (Mr. Lawrence) to the right hon. and learned Member for Hertfordshire, East for his activities on the European scene and in particular his work as Chairman of the Legal Affairs Committee of the European Parliament.

I am grateful to the right hon. and learned Gentleman for his comment on the adequacy of Article 5 as it stands. He touched on an important matter that was exercising the mind of my hon. Friend the Member for Lambeth, Central—namely, the universality of the legal profession. With delicate courtesy he left aside many of the difficulties to which my hon. Friend referred and which, as Opposition Members made clear when my hon. Friend was speaking, raise issues that are far from simple.

We in this country assume that the legal professions on the other side of the Channel are unitary, but that assumption is far from accurate. This is a matter on which we need not feel that an undue attack is being made on the legal professions as they exist in this country, but that does not mean that there are not difficulties. Clearly there are, and they have been touched on in this debate.

The Law Society of Scotland made a point on this issue and stressed the anxiety—this was referred to by the hon. and learned Member for Southport (Mr. Percival)—that a Continental practitioner may come to Scotland and attempt to exercise the rôle of solicitor and advocate because he can do that in his own jurisdiction. The answer to that, although I do not give it authoritatively—luckily, I cannot give authorative replies from the Dispatch Box—is contained in Article 4 of the draft directive as its stands, particularly if one works out the consequences of paragraphs 1 and 3 of that article. I hope that that will meet the case, although I do not pretend that this is a matter that is entirely free from doubt or that I am attempting to give an authoritative answer.

I am grateful to the hon. and learned Member for Southport for the prospective immunity that he conferred upon me from giving instant opinions. I am not a great enthusiast for instant opinions, and I think that the hon. and learned Gentleman said that he is not either. Therefore, I shall not go beyond what I feel I can honestly say on these matters from the Dispatch Box today.

I hope that I can comment fairly widely on the points that have been made during the debate, but I shall not attempt to give positive answers where I feel that I cannot do so. I give a general undertaking that if I do not today touch on a point which has been raised—hon. Members will understand this—if it is possible to do so I shall write and give further guidance later.

I turn first to the point raised by the hon. Member for Burton. He raised an interesting matter on the memorandum submitted by the legal profession about the effect of the Van Binsburgen case and the meaning of the first "whereas" in the preamble. This is a reference to the abolition of all restrictions in the preamble and it is a matter which, along with other matters, is under active consideration by the Council's legal service. That is the only factual answer that I can give the hon. Gentleman. The ultimate interpretation of what the European Court decided in the Van Binsburgen case must be a matter for the European Court itself, and the hon. Gentleman will understand why I do not venture into that field.

The next point raised by the hon. Gentleman—and by others too—arises on Article 4(4) where one sees the words "conditions of". The question is whether they are in or out. The answer is that the words are out, but there is a danger that there may be pressure to put them in. As I understand the situation, it is vital for us, in order to meet such pressure, to have a clear understanding of what "conditions" means in its various translations in European languages. Certainly the precise meaning, or even any clearly-defined meaning, of this term is hard to seek. The German word bedingung is fraught with a penumbra of vagueness. That may not be altogether untrue of the word "conditions" in the other European languages concerned.

Mr. Lawrence

Can the Lord Advocate give some indication of what the Germans have in mind as being the meaning of the word "conditions"? It seems to be somewhat superfluous. Can the Lord Advocate personally explain why the word "conditions" is causing this problem?

The Lord Advocate

I shall take refuge in the prospective immunity which the hon. and learned Member for South-port conferred on me, but I think that linguistically and legally the word is different. It is a matter which the Government are most actively pursuing. It is obviously vital to know what conception is embodied in that particular terminology.

The hon. and learned Member for Southport raised a number of detailed points which I shall try to answer in the sequence in which he presented them. He made an interesting observation about the use of the word "formal" in Article 1(1) and indicated that "legal" would be better. It is difficult to choose precise words to confer a general meaning in the different languages of the different juridical systems of the member countries of the Community.

Mr. Percival

I was pointing out that the proposed meaning includes the word "legal" and does not include the word "formal". I was expressing a view that there would be no virtue in seeking to change it to "legal" and that the concept of "formal" would be even more difficult.

The Lord Advocate

I misunderstood the point that the hon. and learned Gentleman made. If he prefers the word "legal" without any qualification by the word "formal", I can understand the point. My personal view is that the hon. and learned Gentleman has an accurate approach to this matter.

I have already dealt with the question of "conditions" and I cannot elaborate on that. In connection with Article 5 (1), the hon. and learned Gentleman asked me what was the meaning of the words "where necessary". He drew attention to the fact that under Article 5 there is the concept that visiting lawyers should be introduced to the presiding judge and where necessary, the president of the Bat in the host member State. The hon. and learned Gentleman gave qualified approval to the latter saying that that would be a useful exercise but he rather questioned what was intended by the words "where necessary". I cannot answer him specifically but, with his approval, I shall write to him and try to give a rather fuller explanation of why those words are there.

I cannot give an answer to the earlier point about introduction in accordance with local rules or customs. But it would not be inappropriate, in countries where practitioners are far from the capital, or even another State, for the judge to meet a strange practitioner who comes from another jurisdiction, so that the judge can know who the person is. That would seem a fairly obvious courtesy, and maybe that is all that is intended. This is perhaps another matter about which I can write to the hon. and learned Gentleman.

The hon. and learned Gentleman expressed certain anxiety about Articles 5 and 6 and the effect that they might have with regard to the exercise of two functions in this country—the advocacy functions and solicitor functions of practitioners coming from a jurisdiction where both facilities might be exercised. I think I have already answered that point.

My understanding of Article 4, particularly paragraphs 1 and 3, is that it would exclude a practitioner from exercising both roles, and I think he would have to elect—as the Law Society of Scotland suggested—the function he intended to undertake.

I have noted the point that the hon. and learned Gentleman made about Article 6. This matter, including the matters raised by Mr. David Edward, are under consideration. The hon. and learned Gentleman asked me about the explanatory memoranda dealing with the list of practitioners in Article 1(2). I can assure him that the most recent memorandum from the Lord Chancellor is accurate and that the words "practising" and "in private practice" have been deleted.

As far as timing is concerned, again I do not think I can give an instant reply. The hon. and learned Gentleman drew attention to the discrepancy between two years and 18 months. That may not be an absolutely vital discrepancy, but it is interesting. I cannot give any guidance today, nor can I give any guidance about progress on reciprocity.

The hon. and learned Gentleman raised an interesting point about the Solicitors Act 1974 in particular. The answer that I shall give applies both to that Act and the corresponding Scottish statute. A visiting lawyer will be subject to the provisions of the Solicitors Act in so far as he carries out the activities of a solicitor. As at present drafted, these enactments would appear to prohibit certain activities being carried out by persons other than English, Welsh, Scottish or Northern Irish solicitors, advocates or barristers. Since under the EEC Treaty and the operation of this directive some of those activities are to be opened to visiting lawyers, the provisions of the Solicitors Act will have to be varied—as the hon. and learned Gentleman envisaged—to permit a visiting lawyer, in terms of United Kingdom law, to carry out those activities.

The relevant provisions will require to be detailed and it would be premature to consider what may be necessary, or how a legislative change should be effected, until the directive solidifies in its final form. I particularly note the plea made by the hon. and learned Gentleman that at as early a date as possible a fuller explanation should be given in a statement by the Government about their intentions in this regard. I take note of that request.

Mr. Percival

I go a little further and express the view that we have now gone a sufficient distance along the road that we should now say, before the matter goes further, certainly before the directive is agreed, what amendments to our domestic law would be necessary if the directive went through as it is now envisaged.

The Lord Advocate

The hon. and learned Gentleman is pressing me hard. I must respectfully stick where I stood. A hypothetical examination of the amendments which would be necessary at any particular stage of this draft directive would be rather time-consuming and not necessarily helpful to the general public. I take the hon. and learned Gentleman's point, but I would be wrong to suggest that it would necessarily be impossible to produce a statement about the Government's thinking on this until the directive had been formally ratified by everybody If I can go further than that, I shall write to the hon. and learned Gentleman to that effect.

In conclusion, may I touch on one or two matters in addition to those which have been raised both in relation to the law of England, Scotland and Northern Ireland and—

Mr. John Davies

The right hon. and learned Gentleman said that he was about to touch on one or two matters that had not been raised in the debate. Unfortunately, I was outside the Chamber when he started his remarks. I am not sure whether he dealt with the question I raised, which was whether we shall have a new draft directive from the Commission to consider in the light of the further consideration which is now being given. The essence of the problem is contained in Article 6. The House will perhaps want to know exactly in what form that is to be presented in due course before the final decision is taken. Is the Lord Advocate able to help me?

The Lord Advocate

I assure the right hon. Gentleman that I had noted his question, which I intended to answer by saying that it was one of the questions on which I would hide under the immunity which the hon. and learned Member for Southport was kind enough to confer on me at the outset.

First, I draw to the attention of the House a matter on which my hon. and (earned Friend the Solicitor-General touched. It has been possible in recent negotiations on the directive to achieve a text which, generally speaking, avoids the use of technical legal terms, whether of English, Scottish or Northern Irish art, and to use language which is in that sense neutral and equally understandable in all the United Kingdom jurisdictions. Hon. Members may have noticed that that point arises on the memoranda that were helpfully submitted by various members of the legal profession.

I am thinking in particular of the memoranda by the Law Society and the Law Society of Scotland. Hon. and learned Members will have noticed that there are at least two different meanings to "writ". For example, in Scotland there is a reference to "writs" in connection with hereditable and moveable property, and that has a totally different meaning from "writ" in the sense in which it is used by the Law Society in its submissions, "writ" there meaning an initiating legal document. In litigation it has that use in Scoland too.

Differences of that sort show how important it is to try to get non-technical words which convey the necessary meaning in the various jurisdictions of the United Kingdom and of the other member States of the Community. That is a point which the legal professions rightly stress in their submissions to the Government.

The consultation with the Scottish legal professions as well as with those of other parts of the United Kingdom has been very full. On behalf of the Government, I am grateful that all the bodies concerned have expressed satisfaction at the way in which they have been brought into the consideration of the technical problems of drafting and the professional problems of providing proper safeguards for the public and maintaining the high standards of professional services in this country. Those are important aspects of the consumer side of the exercise about which hon. Members have been rightly concerned.

Consultation with all the professions in the United Kingdom is still continuing. The fact that there remain some anomalies in the present draft and some matters on which the professions are dissatisfied does not mean that further consideration will not be given to achieving the best directive which is possible at the end of the day. The Government will be giving further active consideration to the representations which have been made to them by the professions and, of course, to the matters which have been raised by right hon. and hon. Members today.

The debate has come at the best possible stage in the drafting of the directive when we have a draft which is the product of mature discussion and consideration between representatives of the member States but which is still open to further discussion and further representations on behalf of the United Kingdom.

In reply to the right hon. Member for Knutsford (Mr. Davies), I am informed that it is likely that the Commission will put forward amendments to the draft but that it is unlikely that it will put forward a new draft directive. That is, I hope, a specific answer to the question raised by the right hon. Gentleman.

Mr. John Davies

That is an answer, but the question which is left uncertain in my mind is whether the amendments will constitute such a new instrument as would provide for its being further considered by the House. That is the crux of the problem and it is one which I hope, if not now, will be clarified later.

The Lord Advocate

I should clearly be wise to accept the second alternative put to me by the right hon. Gentleman. If I can, I will write to him and give further clarification.

The matter is open to further discussion and representations on behalf of those concerned in the United Kingdom and of the United Kingdom as such, but at the same time the directive has been under consideration in the Community for a substantial period, and it is gratifying that there is a reasonable prospect of realising a measure which is likely to be of benefit to those classes of the public who need the services of members of foreign legal professions.

Question put and agreed to.

Resolved,

That this House takes note of Commission Documents Nos. R/2133/75 and R/646/76 on Lawyers' Services.