HC Deb 03 February 1983 vol 36 cc511-26 10.14 pm
Mr. John Fraser (Norwood)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Supply of Services (Exclusion of Implied Terms) Order 1982 (S.I., 1982, No. 1771), dated 8th December 1982, a copy of which was laid before this House on 15th December, be annulled. It is important that the prayer is discussed, because it is unusual that a Minister should, by statutory instrument—especially one under the negative procedure—exempt private individuals from civil liability. I do not object to the procedure, but it is unusual to exempt someone from liability for tort by statutory instrument. It is, therefore, important that the House should discuss these matters even if there is no vote.

I congratulate the draftsman of the statutory instrument on its clarity. Some statutory instruments are not phrased in the clearest possible language. When I was a Minister, I sometimes found that it was not easy to get civil servants or draftsmen to draft an explanatory memorandum so that it explained the purpose of the statutory instrument.

It is a short statutory instrument, and it is phrased in such a way that on reading the second article we can instantly understand exactly what it is intended to do. That is a matter for congratulation, and I hope that that precedent is followed. A statutory instrument from the Department of Trade, especially one dealing with consumer credit, does not make the easiest of reading, even for those practised at it.

My criticism and comments fall into three parts. The statutory instrument exempts from the implied liability to carry out the service with reasonable care and skill the services of an advocate in court or before any tribunal, inquiry or arbitrator". I stop there, because I want to divide paragraph (1) into the duties of a person acting as advocate in front of a tribunal or court, and the latter limb of the paragraph, which continues: and in carrying out preliminary work directly affecting the conduct of the hearing". It is generally recognised—although not unanimously agreed—that it is necessary, even if unfortunate, to provide advocates—whether they be barristers, solicitors or others—with an exemption from liability for negligence in the way in which they conduct their cases in court. That is necessary for the simple reason that if the exemption was not provided, there would never be an end to matters that arose in dispute, be it a criminal or a civil case. We all deal with correspondence from disgruntled, convicted criminals. I must declare an interest as a solicitor—

Mr. Douglas Hogg (Grantham)

That applies to most of us in the Chamber tonight.

Mr. Fraser

There could be occasions when, at the end of a criminal trial, a disgruntled, convicted defendant would begin proceedings against his advocate for negligence, and there would never be an end to the issues that were raised. Therefore, it is inevitable that exemption must be provided by a statutory instrument.

Mr. Ivan Lawrence (Burton)

Are there not two other reasons? One is that the administration of justice requires that an advocate should defend his client fearlessly and independently. Secondly, as laid down in the case of Rondel v. Worsley, a barrister is obliged to accept any client, whether or not he likes him and whether or not he agrees that his cause is just. As those rules apply to the advocate, is there not stronger justification for exemption than that expressed in the hon. Gentleman's words?

Mr. Fraser

I do not think that advocates should be too energetic in defence of their exemption from liability. I describe the exemption as necessary rather than desirable in the terms in which the hon. and learned Gentleman has put these matters. I accept the first part of paragraph 2(1) because I think it is inevitable, but I do not make the case stronger than that.

I wish to refer to another matter which has been raised with me through one of my hon. Friends by the Chartered Institute of Patent Agents. The institute asks whether patent agents and European patent attorneys have in their advocacy role the immunity from suit for negligence that has been conferred by common law on advocates in House of Lords cases and which is being conferred on advocates by this statutory instrument. Perhaps the Minister, when he intervenes, will say whether in his view the immunity extends to chartered patent agents acting as advocates in the course of their duties.

The second limb of paragraph 2(1) refers to exemption in carrying out preliminary work directly affecting the conduct of the hearing. I am not convinced that a lawyer or other advocate should be exempted from liability for negligence in the way in which he prepares for the hearing. I can think of circumstances in which barristers, solicitors and others who act as advocates who leave the preparation for the case to the last minute—barristers who have had ropey instructions know all about this—who leave the interviewing of witnesses to the last possible moment, who fail to issue their subpoenas in time and therefore injure the capacity of a person to present his case by a sloppy and perhaps dilatory preparation of the client's case.

Mr. Douglas Hogg

I do not agree with what tae hon. Gentleman is saying. I would not want to defend the exemption on any ground other than the one on which the hon. Gentleman seeks to defend it—that one must bring finality to legal proceedings. But, once one adopts that as the basic defence of the exemption, obviously it extends to court work; but does it not also inevitably extend to all work closely related to the ultimate case? If one could go back to the preparatory stage, one could still challenge the outcome and thus there would be no finality.

Mr. Fraser

I suppose that that is almost the only argument that could be adduced in favour of the exemption. I am expressing to the House my doubts about allowing the exemption to go more widely than is absolutely necessary. Anyone who has been concerned with litigation will know that there are circumstances, not least in criminal cases, where the prospects of the client are damaged by a failure to interview witnesses or to prepare the case in good time or with complete thoroughness. I therefore express my misgivings and concern about that part of paragraph 2(1).

I have complete misgivings about paragraph 2(2) which proposes to exempt from implied liability for negligence the services rendered to a company by a director of the company in his capacity as such. I do not see any justification for exempting the directors of companies from implied liability to be careful, skilful and confident. After all, on the one hand the directors of a company are protected in so far as they are shareholders from obligations to the general public and to creditors by limited liability. They have an income very often from the company without personal risk and there are renowned cases where people prominent in public life, not least Members of Parliament, I am sorry to say have lent their names to companies by going on to the boards of directors to add some glow to the title of the directors, and sometimes receive considerable remuneration for that purpose. They have all those advantages or some of those advantages; and yet Parliament is conferring on those people an exemption from an implied obligation to give reasonable care and skill to their performance in the company as a director. That exemption is a blot upon a welcome Act of Parliament which is to the advantage of consumers.

The Minister must be particularly careful to guard the public, creditors and investors, against the performances of companies. I do not wish to exaggerate these matters, but we have recently had some well-known scandals in the insurance and reinsurance markets. There was well advertised criticism in a recent case, reported at great length on the front page in a recent issue of The Times, of the way in which Parliament supervises the commodities market.

There have also been scandals in the conduct of the securities market, and the Minister is well aware of the problems that exist there. Bearing in mind the obligation of the Department of Trade to guard creditors and the general public from the mis-management of companies it is pointing in the wrong direction to give company directors exemption from liability to show care and skill. In support of my case I quote part of paragraph 5.13 of Professor Gower's "Review of Investor Protection". The heading of that paragraph is: Over concentration on honesty rather than competence". Professor Gower's message is that competence, care and skill are just as important as standards of honesty. He says: The statutory regulations concentrate, almost exclusively, on probity and, in some cases, adequacy of financial resources, and ignore questions of competence. He goes on to say: The result is that statutory licensing schemes which purport to exclude those who are not 'fit and proper persons' generally succeed only in excluding those who are dishonest and, moreover, who have been shown to be dishonest by being convicted of serious criminal offences, and that self-regulation all too often achieves no more than weeding out those who are obviously not 'the right sort'. The investor, it can be argued, is entitled to some protection from ignorant fools as well as from convicted crooks and unfortunates who lack wealth and the social graces. The terms of the exemption give some kind of a charter to the ignorant fool to sit on a board of directors, to receive remuneration, and yet to owe neither the company nor the community any sort of responsibility.

Mr. Nicholas Baker (Dorset, North)

I think that the hon. Gentleman has gone a little further than he meant to, because he was talking just now about duties owed by directors to consumers or third parties. Surely the duties that we are talking about are those owed by a director to the company.

Mr. Fraser

We do not want to engage in legal niceties tonight. The hon. Gentleman is correct, but if a company becomes insolvent, the company's creditors, through the liquidator's representations, could eventually take proceedings against the directors for their lack of competence. Therefore, there is that route between the consumer, the creditor and the director. However, I did not want to go into that degree of detail at 10.30 pm on a Thursday.

I think that I have made my point sufficiently. Instead of exempting directors from liability, the Department of Trade has some responsibility to increase their accountability and to supervise and encourage their competence. It is a pity it is phrased as it is; and I look forward to some explanation. If the Minister is not able to withdraw it on this occasion, I hope that he will keep the matter under careful review for the future.

10.28 pm
Sir Walter Clegg (North Fylde)

I shall be brief. First, I declare an interest as a practising solicitor and the chairman of the all-party solicitors group. I agree with some of what has been said by the hon. Member for Norwood (Mr. Fraser), but he left out one factor which affects the advocate not only in appearing in court but in preparing his case, and that is his dual duty—his duty to his client and his duty to the court. Those two duties can often be in conflict, and all who have practised as advocates have experience of that. One thing that an advocate cannot do is to put before the court a case that is known to be false. Having said that, I believe that the order is necessary, because there would be an endless stream of litigation from dissatisfied people which would not be at all satisfactory, either for them or for the profession.

10.29 pm
Mr. Frederick Willey (Sunderland, North)

I introduced the Supply of Goods and Services Bill last Session. It received the support of both Houses and is now an Act. I support whatever the Minister of State has to say. He should realise that I was not generally supported in bringing forward legislation to implement Service Please. the proposal did not receive unanimous support from the various consumer bodies until the Bill was actually introduced.

I took the course that I did because I thought that an arguable case had been put forward by the National Consumer Council. I thought that, if the Bill were presented, Parliament would accept it, although I realised that it was a revolutionary step.

Part I of the Bill arose from a Law Commission report Part II followed a report from the National Consumer Council. I had to be cautious about bringing it forward, and I thought that by providing for exclusions the legislation would be acceptable to the House. The exclusions were for the Secretary of State to decide. They had to be provided, as we were taking exceptional steps. The Service Please report was published only a month before the Bill was tabled for consideration by the House.

I believed the provision of exclusions to be a wise precaution; and, that having been accepted by all but one or two hon. Members, I thought it best to accept the Secretary of State's judgment.

I corresponded with and met some of the interested parties. I realised that I was taking a risk in presenting the Bill, because there had been no opportunity for interested bodies to make adequate representations. One had to be tolerant of the views that were put forward. Lord Mishcon presented the Bill in another place, and he and I met the Law Society, among other bodies. We did not accept the proposal to include express exclusions in the Bill. That is why I accept the Secretary of State's discretion. When the Bill was in the other place, the Secretary of State said that he would receive representations to see whether any addition to the common law was involved. The Bill was codifying the common law.

As my hon. Friend the Member for Norwood (Mr. Fraser) conceded, there is a case for excluding advocates. The Minister may claim that they come within his definition. I doubt whether a company director can complain that the Act is an addition to the reversal afforded by the common law.

A narrower argument was put to us about non-executive directors. Although it is not conclusive, Lord Mishcon and I were satisfied that it was not an addition to the common law. We are legislating on a matter about which there will eventually be an inquiry. I introduced the Bill, although I realised that people in some professions could be at risk.

If people genuinely felt that they were at risk and convinced the Secretary of State of that, I should lean generously in that direction. The important thing was to get the legislation accepted. It was accepted without Division, but that meant that reasonable tolerance had to be inherent in it. For that reason, I recognise what the Government have now done. I hope that the House will accept that the legislation was obtained very early and that it was best to obtain it in a good spirit.

10.35 pm
Mr. Toby Jessel (Twickenham)

The House and the country are indebted to the right hon. Member for Sunderland, North (Mr. Willey) for the legislation that he succeeded in getting on to the statute book. The short order before us today, however, concerns one specific aspect of consumer protection.

I am a supporter of consumer protection and of practically everything that my hon. Friend the Minister for Consumer Affairs does. Nevertheless, I am rather doubtful about the proposals before us today, which seem to be not so much consumer protection as consumer non-protection with regard to the services of lawyers.

The order states: Section 13 of the Supply of Goods and Services Act 1982 which provides that, in a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill shall not apply to the following services:— (i) the services of an advocate in court or before any tribunal, inquiry or arbitrator and in carrying out preliminary work directly affecting the conduct of the hearing. In other words, we are being asked to write into the law a rule to the effect that barristers or solicitors acting as advocates do not have to carry out their duties with reasonable care and skill. That is quite extraordinary.

I do not believe that barristers are bad people on the whole. I know quite a number of them, and some are among my best friends. Moreover, I come from a family of lawyers. My grandfather's uncle was Master of the Rolls 100 years ago, and in six years not one of the cases that he heard in the Court of Appeal was reversed by the House of Lords. That is very different from what happened in recent years with Lord Denning, when scarcely a month seemed to pass without that happening—not that I intend any criticism of Lord Denning.

The public are entitled to expect that lawyers should carry out their services with reasonable care and skill. I have been unfortunate enough to have needed to use the services of barristers on five occasions. On four of those occasions they did their work extremely well and conscientiously. On the fifth occasion, the work was done badly by a barrister who I am sure was an exception. Why should we write into the law any rule to the effect that consumers in that situation are not entitled to expect their barrister or solicitor acting as advocate to carry out his duties with reasonable care and skill?

I can see the argument that consumers should not be able to sue barristers. Otherwise, the process would go on for ever. Nevertheless, if the will is there, I should have thought that the accumulated brainpower of the parliamentary draftsmen, the Bar Council and the rest ought to be able to find some way of ensuring that the people in question cannot be sued without writing into law that a provision to the effect they do not have to carry out their duties with reasonable care and skill.

Barristers who are much in demand sometimes take on more cases than they can cope with, or they may have to go to some other part of the country. With just a few hours' or a day's notice, the client may be told that he will have to have a different barrister. That is not fair to the consumer. The Bar Council and the barristers are somewhat complacent about the adverse effect tag that can have on the client.

Mr. Nicholas Baker

Did my hon. Friend try the simple expedient of not paying the barrister's fees?

Mr. Jessel

I could not do that, because the solicitor would have been extremely difficult about it, and in any case it is not a satisfactory solution. A right for a barrister not to carry out his duties with "reasonable care and skill" should not be written into the law as we are being asked to write it in. I find it difficult to support that.

10.40 pm
Mr. Ken Weetch (Ipswich)

I am a strong supporter of the Supply of Goods and Services Act. The House owes a strong vote of thanks to all who worked so hard to put it on the Statute Book. It is a valuable piece of legislation. I was particularly pleased that its provisions in part II make an attempt to cover the supply of services, which is not a simple matter. The House will be glad to know that it is the intention of the Minister to bring part II into operation by July this year.

I am sorry to see that the Minister has used the power given to him in section 12(4) to make lawyers arguing cases in courts and before tribunals and arbitrations exempt from the provisions of the Act. It is wrong in principle and I have come prepared to argue against it. I do not do so as a lawyer—I am not a lawyer. I am the man in the street and I am a consumer of legal services on as few occasions as possible.

If the order is passed it will, among other things, make lawyers when acting as advocates exempt from section 13, which provides, according to the order that, in a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill". That is right. Any professional man who offers a service, or to supply a service, should do just that. It should not be a matter of contract, it is a matter of ethics.

Once again, as in similar legislation, and in restrictive practice legislation, from which one can quote examples, the lawyers are in the process of dealing themselves out of an important part of the legislation. I object to that. If the order is passed, barristers and solicitors when arguing cases before courts or tribunals of one sort or another will have no legal obligations under the Act, as other professional people have, to provide their services with "reasonable care and skill".

Far from providing an exemption, if there is one section of the community that the legislation should cover, it should be lawyers. To put it mildly, I have considerable reservations about the exemptions from section 13 proposed by the order. There is no justification for lawyer advocates in courts of law being immune from liability for negligence under the present law, and under the legislation that I thought was to be a comprehensive piece of consumer legislation, but which, if the order is passed, will not be.

Moreover, and perhaps more important, there is no good reason why immunity should be extended as proposed by the order to lawyer advocates appearing before tribunals, inquiries or arbitrations. I shall not argue about company directors. I was tempted to do so, but it will take me a little time to make the case about lawyers, so I shall leave company directors out of my argument. That is not to say that I would not be prepared to argue that case, if I had time.

First, I want to touch on the present immunity of lawyers. As a non-lawyer, may I say that I have spent a good part of this week reading the arguments contained in the legal precedents, and at the same time I have taken legal advice where I was not clear about where the arguments were leading. There is no doubt that in common law, lawyers are immune from liability for negligence in respect of mishandling court cases when they appear as advocates. For barristers, this was established by the House of Lords in 1967 in the case of Rondel v. Worsley, which has already been mentioned by a Conservative Member. That was reinforced and extended to solicitors in the case of Saif Ali v. Sydney Mitchell in 1980. The immunity from suit which lawyers enjoy with regard to their misconduct in handling court cases is a prime example, in my view, of the legal profession as a sectional interest looking after itself. The fact that lawyers as advocates in court are immune—I ask the House to note—has been decided by lawyers in the interests of lawyers, and has been corroborated, supported and underlined by other lawyers. I have yet to see where the consumers' interests have been represented here—in other words, the interests of "the man in the street".

In general terms, the law of negligence has developed tremendously in the past 50 years. I have come across some quite entertaining cases. The first great leap forward was Donoghue v. Stevenson, a case about a snail in a ginger beer bottle, which occurred in 1932. I am advised that the modem law of negligence is founded on that case. However, there are other landmarks. There was Hedley Byrne v. Heller in 1964, which extended liability for negligence to negligent statements. Another landmark was Anns v. Merton borough council in 1977, when for the first time a local authority was liable for the negligent discharge of its statutory duty under the Public Health Act. In another sphere in which I am particularly interested, building societies and valuations, the recent case of Yianni v. Evans has extended the law of negligence thereto.

The point that I want to put to the House in general terms is that, as a result of these decisions, negligence is greatly extended as a concept. One might have hoped that the ancient immunity of advocates, derived from a time when legal liability for neglect of duty was seen very differently, would not continue to be justified. Unfortunately, one would have hoped in vain. Rondel v. Worsley and Saif Ali v. Mitchell preserved the ancient immunity for lawyers, at least in the conduct of cases in court.

I want to contest some of the points that were put briefly from the Government Benches, and I shall listen carefully to the answers to my argument. The first argument that I heard tonight was that the administration of justice requires that a barrister should be able to carry out his duty to the court fearlessly and independently. I should hope so. Nobody would want him to do otherwise. Is it seriously argued that he would carry out his duty fearfully and with bias if he were made liable for careless mistakes? I do not think that it follows in logic. It might follow in lawyers' logic, but that is logic of a pretty peculiar kind. What other professional man and what other man of business is shown to lack fearlessness and independence because he is liable for careless mistakes? It is surely an insult to the independence and integrity of the Bar, among other things, to suggest that barristers need legal immunity so that they should conduct their cases in court with fearlessness and independence. As a layman I do not accept that argument in any shape or form.

It is said that actions for negligence against barristers would make the retrying of original actions inevitable and so prolong litigation, contrary to the public interest. That is well rehearsed in the cases down the years, again by lawyers, for lawyers and underlined by other lawyers. It is often said, but I do not think that it is true. Let us suppose that a disgruntled litigant alleges that he lost his case or was convicted by a criminal court because his counsel or solicitor failed to conduct the case in court properly. The first thing that would have to be decided would be whether the advocate conducted the case properly. I accept that that would be difficult to prove. The client would have to prove by evidence from other legal practitioners that the lawyer for the defendant had not merely committed an error of judgment but had done what no reasonable advocate would have done in the circumstances. Only then would the claim against the advocate begin to get on its feet.

Then it would become necessary to inquire into what would have been the outcome of the case if the advocate had conducted it properly. I accept that that is also a considerable burden of proof. It would not be sufficient to demonstrate that proper handling of the case by the advocate might have turned the case the other way. It would probably be essential to prove that it most certainly would have turned the case the other way. Only in the most clear cases would that happen.

The case would have to be retried, it is said. I ask as a layman: What is so terrible about that in certain circumstances? It happens from time to time in the criminal law. However, in the end this is a matter of what priority one has. That is the substance of the argument. Does one have the lawyer's priority of not trying the case again? I consider that the higher priority is that of assisting someone who has suffered from negligence when there is no avenue for him to get redress. That is the correct priority. I put it squarely before the House that surely it is better that an issue should be retried rather than that a gross injustice should occur in the form of negligence going without compensation or other redress.

A barrister is obliged to accept any client, however difficult, who has sought his services. I shall take the commonsense view. I read in Halsbury's "Laws of England": a barrister is under an obligation to accept any brief in the courts in which he professes to practise which is offered to him at a proper professional fee commensurate with the length and difficulty of the case. I do not see how it follows from that that a barrister should be immune from liability towards any client in whatever degree is reasonable, no matter how negligent the barrister may be in the handling of the case. Let us assume that there is the probability of a vexatious case for negligence being brought against the advocate. Who is better equipped than a barrister to resist a legal claim for negligence if there is no negligence? A barrister needs no legal immunity from liability. He is able to cope adequately with frivolous claims for negligence. If there is merit in the claim, the barrister will have to compensate the client, quite rightly. If there is no merit in the claim the barrister will be able to defend the position without too much trouble. There seems to be no inherent merit in the principle of immunity enshrined in Rondel v. Worsley. It is something for Parliament to ponder in the context of the proposed exempting order. That case is a lawyers' charter. I am speaking for the ordinary man.

The second broad part of this argument refers to the extension of immunity to advocates before any tribunal, inquiry or arbitrator. In other words, there are already privileges from immunity under the common law and in this legislation we intend to add insult to injury tacking on a bit. That is what is proposed.

Again referring to the case law, so far as I can read there is nothing, not even the slightest hint, in Rondel v Worsley or Saif Ali v. Mitchell to indicate that the immunity enjoyed by advocates before the court already extends under common law to advocates before tribunals, inquiries and arbitrations. Having read all the cases, I see no suggestion by any of the learned judges that there should be any extension to tribunals. The indications are, if anything, the other way. Lord Wilberforce in Saif Ali, page 1039, described the extent of the immunity as he understood it. Having described it, he then extended it to cover solicitors acting as advocates. His Lordship never suggested that the principle might apply to proceedings other than litigation in court. But that is precisely what this legislation will do. This is supposed to be legislation for the ordinary common man. It looks to me to be nothing of the kind.

A little earlier in the same case, the noble Lord quoted with approval a New Zealand case which I also endeavoured to read, Rees v Sinclair, where the judge had said of the principle of barrister immunity in relation to court work: The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice". Lord Diplock in the same case referred to this passage with approval. If this is right and if the whole trend of the argument in all those cases is right, there is no reason to think that the principle of immunity extends to matters that are conducted before arbitrations, inquiries and tribunals.

It will be said that the present law is uncertain as to the liability for negligence of advocates before tribunals, inquiries and arbitrations. T stand to be corrected, but I do not think there is any case which has decided this matter one way or the other. So nobody can say for certain whether immunity applies before these bodies or not. In view of that, so runs the argument, it would be right to prevent the 1982 Act from implying that the advocate will carry out the service with reasonable care and skill. By providing exemption now, it is said, the common law position, whatever it is, will be maintained. I would argue that to some extent, this is so. I accept it to a certain point.

However, unless advocacy before tribunals is exempted by this order, the 1982 Act will bite—I hope that it will have bitten very hard—and so impose a duty of care, although it may be the law that there is no such duty at present. It has to be accepted that the object of the 1982 Act and of this order, which follows it, was to declare in a statutory form the existing common law. It is argued that it is a codification statute, pure and simple. The reality is that it is an extension.

I have been saddened and disillusioned to find so much consumer legislation from which lawyers have been exempted. It was the case with the restrictive practices law and the Fair Trading Act 1973, where, after a long rigmarole about how evil restrictive practices were no one was surprised to find legal services at the top of the list of exempted professions.

Mr. Willey

Has my hon. Friend received or sought any representations from the National Consumer Council?

Mr. Weetch

I have not sought any.

Mr. Willey

My hon. Friend would have been wise to have done so.

Mr. Weetch

I have relied on my own judgment in these matters, as I usually do.

Mr. Willey

It is not my hon. Friend's judgment.

Mr. Weetch

It is my own judgment, expressed to the best of my ability. The legislation that one would have hoped to see in the supply of Goods and Services Act would benefit the ordinary consumer. A section of it has been hijacked by lawyers who have avoided its provisions. Once again, as in other legislation, they have been aided and abetted by politicians.

Lawyers in Britain have restrictive practices that are almost as wide as the Atlantic. If there is one section of the community that needs no immunity and which has proved that it can take care of itself, it is advocates. They need no help from us. They need none and will get none from me. I hope that they get none from the Minister. I urge the hon. Gentleman to withdraw the order.

11.2 pm

Mr. Nicholas Baker (Dorset, North)

Those of us hon. Members who dare to admit that we are lawyers by profession, as we scurry to our homes tonight, will go in groups, fearful that we shall encounter the hon. Member for Ipswich (Mr. Weetch). I pay tribute to the right hon. Member for Sunderland, North (Mr. Willey) for the Act. I had grave doubts about the advisability of including services in the order. In many respects, this well-intentioned Act, directed much more towards protecting consumers in the sphere of goods, will have little or no effect on consumer protection in services. A director is not in the position of someone who is providing a service. It is generally right that a director should be exempt, as the order provides.

The Select Committee on Statutory Instruments, of which I am a member, has asked about the definition of advocate. It would be useful to have clarification. A barrister and, presumably, a solicitor, when acting in a court or before a tribunal is clearly intended to be covered. What about people who serve in citizens advice bureaux, hon. Members and people acting for others?

There is some doubt about what the phrase directly affecting the conduct of the hearing means. Does it cover a lawyer—if I dare utter the phrase—preparing papers on a matter that ultimately comes to court? That should be clarified.

My third and last point concerns consultation. My hon. Friend will know that I am interested in the work of his company advisory law panel. It would be helpful if its proceedings were not confidential. Can the House be told with whom he consulted on the exemptions provided in this order? Did he consult the panel? Did he consult other bodies, such as the Institute of Directors, about the exclusion of directors? I would be interested to hear his answers about that.

With that, I support the order.

11.5 pm

Mr. Tom McNally (Stockport, South)

I congratulate the hon. Member for Ipswich (Mr. Weetch). If ever I have a dock brief to hand out, I will certainly give it to him. There was a certain poetry as he bombarded the Conservative Benches with case law and judgments and when the serried ranks of lawyers fled the field in the face of his onslaught.

I declare an interest, in that I am a consumer. Looking around the Chamber earlier, I felt like a Daniel in a den of lions all ready to state their cases. The order is a worry. I hope that the Minister thought hard before bringing it before the House. The hon. Member for Norwood (Mr. Fraser) was right to say that it is an important issue. It should be brought before the House and discussed not only by lawyers with a vested interest but for the wider consumer interests that the Bill intended.

The Act deals with consumer protection. It is worrying that the Minister's actions under the clause should be exercised in defence of lawyers and directors. I do not wish to make cheap party political points or a cross-the-Floor point, but when the man in the street is asked "Where do you think protection or exemption will come?" and is told that the Minister exempted directors and lawyers, the phrase "Well, he would, wouldn't he?" comes echoing down the ages. I hope that the Minister does not believe that this order will go through on the nod. We are asking him for a full explanation as to why he should have exercised his right on directors. Some of the lawyers have agonised to us about the tremendous burdens they carry. We shall listen to the Minister's judgment on that. Nobody has yet put forward the case for directors.

As to the lawyers, the hon. Member for Ipswich made a valid point when he said that moods and attitudes are changing, and that some of the historic rights and privileges of the legal profession are being questioned. It should not be automatically assumed that the House will understand the heavy burdens that lawyers carry. There is less sympathy towards the bare-footed boys from Gray's Inn than there may have been in previous Parliaments. They must face the fact that to take exemption from negligence is a very serious matter, just as it is serious for a victim of supposed victim of negligence. It is awesome to try to take on a lawyer with all his expertise. Some Conservative Members have tended to over-egg the pudding by talking about continuous litigation. It is not as simple, straightforward, or obvious as that.

I do not know whether other hon. Members have received correspondence from the Consumers Association, but I received a letter from that body, one line of which I shall quote. It is the key to what the Minister must reassure the House about. The letter states: Surely it is better that an issue should be retried rather than a gross injustice should occur in the form of negligence going without compensation or other redress. The hon. Member for Ipswich mentioned that point.

The crux of the matter is that lawyers are to have that extra escape route from negligence. The Minister shakes his head, which means, I hope, that he will reassure us on the matter. There is no reason why directors should have that exemption. The Minister's predecessor explained her attitude to the House—this may be the key to why this order is before us tonight—by saying: Exempting power is a small price to pay for quick legislation. That is the key to the dilemma faced by the Minister in bringing in this legislation. Was he faced with the alternative of getting this legislation or with having wrecking tactics imposed by vested interests?

The previous Minister also said: My right hon. Friend will use the power very sparingly."—[Official Report, 22 January 1982; Vol. 16, c. 537.] Can the Minister say tonight that this order shows the sparing use of those powers? Is he not conceding that, in consumer protection, we shall have gentlemen and players, where the players—such as plumbers, builders and car mechanics—will be held responsible but the professionals will be exempt? That is the case that he must answer.

Beyond the Minister's reply, I ask the Law Society—with the hon. Member for Ipswich I have done a little research—to ponder whether, when legislation is before the House, making offers that cannot be refused is more in keeping with the Mafia than with society protecting the integrity of a profession. It is not good enough that one justification for exemptions is that the Law Society would have caused trouble. That is no basis on which to make law, and it is one reason why we want more reassurance than the simple explanation of the Minister tonight.

11.13 pm
Mr. Ivan Lawrence (Burton)

Fortunately, the hon. Member for Ipswich (Mr. Weetch) is more or less on his own tonght in his vindictive and obsessive hatred of lawyers. I hope that the time never comes when he needs one.

Mr. Weetch

So do I.

Mr. Lawrence

The hon. Gentleman's attempt to turn this debate into bash lawyer's night at the Palais de Westminster has not been overly successful. He has shown a singular lack of understanding about the problems that face everyone, layman and lawyer alike, in our judicial system. The system is geared to protect, above all, the client and the individual. It is wrong to suggest that there is no remedy against the negligent lawyer. If a case has been conducted negligently, as a result of which injustice is done, the Court of Appeal puts it right at no expense to the layman who has suffered. Furthermore, no lawyer is allowed to practise, if he is persistently negligent, without the sinecure—sometimes the worst penalty that can befall a lawyer—of the suspension of his practice by those who watch over him to ensure that his standards are of the highest and that his integrity and performance are a credit to the profession.

Therefore, there are remedies, even if the hon. Member for Ipswich does not know that. The hon. Gentleman was ridiculous in his dismissal of the justifications for the exemptions for lawyers that are set out in the case of Rondel v. Worsley. I hope that he never has to wonder whether his lawyer is pulling his weight for him in a court of law because he is frightened of what others will say, or that an action for negligence might be brought against him. To pretend that such pressure would not weigh heavily on the shoulders of a lawyer—who is, after all, a human being, and just as subject to such pressures as anybody else—is to display a singular lack of understanding of human nature.

The rights that lawyers enjoy are—as has been pointed out—exceptional, but they are constantly being recon-sidered by lawyers. They are particularly careful not to extend them beyond the existing bounds. Reference has been made to the case of Rondel v. Worsley. In that case, their Lordships, by a majority, decided: Public policy does not require that a barrister shall be immune from action for negligence in relation to matters unconnected with cases in court, for if he fails to exercise the ordinary care and skill that can reasonably be expected of him, he should be and is in no better position than any other professional man. That is scarce protection for the lawyer.

Mr. McNally

rose—

Mr. Lawrence

I am sorry, but I have no time to give way. I continue by reaffirming the proposition that the only protections which the lawyers have are those where it is considered that public policy and the administration of justice require that this be done. I have only a few minutes in which to make the many points that I should like to raise. However, it is clear that the order is part of a codification process and that there is no intention to have—and the words to not achieve—an extension of the existing law. It is crystallised and codified and made clear in statutory form, so that all can see. No additional benefits are given to lawyers, or anyone else.

Therefore, it behoves all hon. Members to accept and welcome the order, which is based on the Act introduced by the right hon. Member for Sunderland, North (Mr. Willey), and to congratulate the Minister on introducing it. We must hope that it has—as the hon. Member for Norwood (Mr. Fraser) implied—the unanimous support of the House.

11.17 pm
The Minister for Consumer Affairs (Dr. Gerard Vaughan)

In the few minutes left, I shall take up as many points as possible.

I appreciated the point made by the hon. Member for Norwood (Mr. Fraser). It was right and proper of him to make it, and I know that the Department will have been pleased to hear his remarks about the clarity of the order's language. That is pleasing, because the Department is making a great effort to simplify the language used in our documents. Only the other day I was extremely pleased to find that the paper that we produced on the nationalised industries' consumer councils had led to several people writing to say that the English was very clear. That was most welcome.

It seems clear that there is a serious misunderstanding about the order on the part of several hon. Members. The debate has ranged over different aspects, which could be debated for a long time, because many of them concerned whether the law should be changed. I hate to disappoint the House, but those issues are not before us tonight. The object of the order is simply to ensure that part II of the Supply of Goods and Services Act does no more than it was intended to do. It does no more than codify and crystallise the law and bring it together in one place. It is not intended to alter the law.

The order is made under part II of the Act introduced by the right hon. Member for Sunderland, North (Mr. Willey). We all pay tribute to him for it. We all especially welcome the fact that he is in the Chamber to join in the debate. He reminded us that part II followed a report entitled "Service Please" published by the National Consumer Council in October 1981. It set out clearly the problems that consumers face when they get unsatisfactory service. It was because of the problems set out in the report that we put to the Law Commission a request that it should study the law on services. We await its recommendations about what changes, if any, should be made in the present law. Part II of the Act codifies, but does not amend or change, existing common law.

My hon. Friend the Member for Twickenham (Mr. Jessel) said that this was a consumer non-protection order. The hon. Member for Stockport, South (Mr. McNally) said something on the same lines but with slightly different emphasis. I assure the House that I would not wish to lay an order that in any way damaged the interests of consumers. I am constantly alert to avoiding unnecessary regulations in that area as I believe strongly in open competition and freedom of choice for consumers, provided that the trade is carried out honestly and that the goods are of the required quality and safety. Those are the principles that I am following.

Interested as I was to hear about my hon. Friend's illustrious family tree and his illuminating comments on his legal experience, I assure him that there is nothing in the order to reduce the protection for consumers. It is a codifying measure.

Part II of the Act will come into force on 4 July. It provides that, unless there is some special agreement to the contrary, the supplier will have to carry out the service with reasonable care and skill, within a reasonable time and at a reasonable price. Those three basic requirements underlie the whole purpose of the Act and are, of course, part of the common law.

The advantage of part II is that it brings into one place, for those who have to apply the law or enforce it, the position on the law. They will not have to refer to large numbers of different legal textbooks or volumes of law reports to discover what the law is. It will help those who wish to find out exactly what the law is. It is important that we do not confuse that with wanting to change the law.

When the Act passed through the House, I gave an undertaking, as did the right hon. Member for Sunderland, North, that if in any way it inadvertently amended the law or made new law, we would lay an order to ensure that that did not happen. We have such an order before us tonight. It is a short order which seeks to ensure that the existing common law continues to apply in two areas only where it is recognised that the 1982 Act might inadvertently change that law. It is important to say again that the effect of the order is simply to ensure that the existing law continues unamended. We have not had extensive representations on this matter. Both these aspects have been brought to our notice by the Law Society. It was right and proper that it should examine whether there had been any changes made.

The first of these areas concerns solicitors and other advocates when and only when they are acting before a court, tribunal, inquiry or an arbitrator, or are carrying out preliminary work related to appearing. It is important that I should make it clear that other services provided by a solicitor—for example, conveyancing—will continue to be subject to the normal duty of care and skill which is imposed by the present common law.

Mr. Jessel

My hon. Friend says that the order does not change the law, but does it not put an official stamp of approval on the concept that a barrister does not have to apply reasonable care and skill?

Dr. Vaughan

I do not accept my hon. Friend's view. Under the Act we have the obligation to leave the law as it is. The order is not intended to change the law. Merely keeping the law as it is does not mean that one is saying that the law should not be altered or that the ordinary duties of care and skill imposed by the common law should not be continued.

Two hon. Members spoke about other types of advocacy. Although trade union officials were not mentioned, patent agents were referred to by the hon. Member for Norwood. With regard to those types of actions in court, the order leaves the position unchanged. I am advised that no cases have yet arisen to establish the position under common law of people undertaking such activities. The uncertainty, if there is an uncertainty, remains unchanged by the Act and by the order. The question of immunity could still be argued if a case ever arose that needed to come before the court.

My hon. Friend the Member for Dorset, North (Mr. Baker) asked what an advocate was. The order does not apply to Scotland, so it does not raise the special position of Scottish advocates. In the order, "advocate" is used in the general sense of someone pleading or speaking for another. It is used in the ordinary sense of the word within the English language.

My hon. Friend the Member for Dorset, North and the hon. Member for Ipswich (Mr. Weetch) asked about the conduct of hearings. The hon. Member for Ipswich did not read the whole of the judgment in Rees v Sinclair, the New Zealand case, but it made clear that the protection should exist for work done for the appearance in the court but only for that work. The judgment used the words only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. That is the part of the judgment which, I submit, is relevant to this matter.

Paragraph 2(2) deals with a particular aspect of the activities of company directors. It is not an aspect which directly concerns consumers. It relates only to the conditions between the company and the director which govern the service that he gives to that company. Unless the director has a special contract giving him specific terms, the common law requires him to exercise a degree of care and skill judged in the light of his own qualifications. For example, if a director happened to be an accountant he would be expected to exercise the care and skill of an accountant, but, if he was not an accountant, that would not be expected of him. Again, I make the main point—the order leaves the law exactly as it is.

This is an important and simple order. The law remains the same, and I hope that the House will accept the order on that basis.

Question put and negatived.