HC Deb 13 June 1984 vol 61 cc931-49

Solicitors shall be entitled to appear in and conduct all family proceedings.".—[Mr. Weetch.]

Brought up, and read the First time.

Mr. Ken Weetch (Ipswich)

I beg to move, That the clause be read a Second time.

Hon. Members will have noted that I am the only non-lawyer on the list of Members who tabled the new clause. Therefore, I am arguing the case with no professional interest to defend and, indeed, no interest to declare at all. No one could level the charge at me of being willing to make even a partial intervention on behalf of lawyers of any sort.

Mr. Keith Best (Ynys Môn)

Does the hon. Gentleman draw an inference from the fact that all the other supporters of the new clause are members of the Law Society and that none of them is a member of the Bar?

Mr. Weetch

That intervention comes a little early in my speech. I can say only that those who put their names to the new clause know their business best.

Mr. Tony Favell (Stockport)

Does the hon. Gentleman know that my hon. Friend the Member for Bridlington (Mr. Townend) is a chartered accountant?

Mr. Weetch

If I have accused anyone who is not a lawyer of being one, I apologise unreservedly. When I rose to speak I believed that I was the only non-lawyer, but I am grateful for that information.

The general case for a divided legal profession — advocates and solicitors—was thoroughly investigated some time ago by the Royal Commission on Legal Services, and the last thing I wish to do is to go over that ground generally. There are many arguments for a unified profession as against a divided profession, but I shall not discuss those arguments.

Mr. Alex Carlile (Montgomery)

Is the hon. Gentleman aware of the conclusion of the Royal Commission on Legal Services, which was strongly in favour of retaining the divided profession on the grounds that it provided a higher standard of legal service?

Mr. Weetch

I read the Royal Commission's report carefully, and I am well aware of the conclusion. However, the new clause relates to only one area of legal work. I am not arguing the general case, but addressing my remarks to family and divorce proceedings. The focus of the new clause is narrow. I hope that it answers the hon. Gentleman's intervention to say that I am not concerned with the wide angle taken by the Royal Commission, although I understand that there may be some common arguments.

The new clause would allow solicitors to appear in and conduct family proceeding cases without restriction. As a non-lawyer and as a man in the street, speaking for the consumer interest, I believe that that proposition is right. The current position, as I understand it—I stand to be corrected on technical matters — is that a solicitor is prevented by law from conducting proceedings in open court in the High Court, but has full rights of audience in the county court. He cannot appear in a defended divorce suit or in an appeal from magistrates to the divisional court of the Family Division of the High Court.

Part V of the Bill will give solicitors many more rights of audience and representation. Since it is likely—I put it no higher than that—that defended divorce suits will be heard more and more in county courts as a result of the legislation, solicitors will be entitled to audience in defended cases in those courts. Therefore, I concede that solicitors will be given more work as a result of the readjustment of legal and court responsibilities.

However, a few no-go areas remain for solicitors, and I shall leave it to another hon. Member to explain what they are. It is inconsistent that, having taken this step to widen the area of advocacy for solicitors, the Solicitor-General was not able to take the matter to its logical conclusion. However, I shall argue the case as a layman and examine it from a common sense point of view.

Sir Raymond Gower (Vale of Glamorgan)

Can the hon. Gentleman give me some guidance—I assure him that I am not hostile to his case — on the term "all family proceedings"? Does he mean that to refer to appeals to the Court of Appeal or to the House of Lords? It would appear so from the wording, and I suggest — as a solicitor, I am prepared to go along with him to a great extent—that the wording is too wide. Does he not agree that there should be some restriction?

Mr. Weetch

I did not envisage sending the bulk of solicitors to appeal before the House of Lords. That was not in my mind. What I had most in mind were proceedings in the High Court.

Mr. Kenneth Hind (Lancashire, West)

On that point, would you accept that: on the wording of your amendment—

Mr. Speaker


Mr. Hind

I apologise, Mr. Speaker. Will the hon. Gentleman accept that if we were to vote for the new clause it would imply that we would send solicitors to the Court of Appeal and the House of Lords to deal with matrimonial finance and associated matters?

4.30 pm
Mr. Weetch

The answer is yes. If the hon. Gentleman thinks that the wording of the new clause is too wide, he must exercise his judgment.

Perhaps I may come to the common sense of the case. I have been interrupted so many times even before my speech has come up through the gears, but I shall hasten to make progress.

First, in divorce and matrimonial matters many solicitors do a good job in sorting out many of the complex matters involved. They often make good advocates. I have come across many solicitors. who make far better advocates than their counterparts who specialise in advocacy, because they often have a better grip of the material, having prepared it. There are good solicitors in my constituency, and I take the opportunity to pay tribute to them.

Secondly, the main point of the case is that solicitors are above all family practitioners, and these are family matters. Often they have to deal with other areas of family business and can bring a great deal of direct knowledge and practical experience of the human issues involved in the whole framework of matrimonial proceedings. Solicitors are often advisers on a range of general matters. Therefore, the proposal in the new clause is appropriate and relevant.

Thirdly, there is the argument of continuity. If a solicitor has conducted the advocacy before the magistrates court, it is to the advantage of all concerned that he continues the advocacy. He knows the case. He has cleared his mind about the principle and the detail, so I can see no advantage, in family matters, to change horses in midstream and hand the case over, especially if an advocate has to be instructed at the last minute and important details have to be read up literally while the advocate is on the bus on the way to the case, as frequently happens — although advocates do not often travel by bus.

Fourthly, the new clause is in line with the Government's general philosophy of making a bonfire of restrictive practices. This restrictive practice would be highly anomalous if it were allowed to continue. The best parallel example to quote is the gradual elimination of dual capacity on the stock exchange, where the functions of jobbers and brokers are increasingly being combined. Dual capacity should ultimately go in the law, and we could make a start in family matters.

Finally, there is the question of cost. It would be cheaper for the consumer, in this case the client. On cost grounds there is a strong argument for retaining the matter in single hands, if possible. We have had considerable debate from time to time about the cost of divorce proceedings and how necessary it is for the cost to come down. This is one way to do it. The public would be very glad of it.

I shall be interested in the reply of the Solicitor-General, and especially to hear how many ingenious props he can manufacture to shore up a structure that has been decaying for years.

Sir Raymond Gower

I regret very much that the hon. Member for Ipswich (Mr. Weetch) and those who support him have worded the new clause in this way. I think they would have commanded greater support if they had limited it to ensuring that there would be a wider right of audience only up to the level of the High Court and the Crown court in the trial of a matrimonial cause. Although the hon. Gentleman did not appear to agree with me at the time, surely on reflection he must agree that this general wording would embrace the possibility of an appeal to the Court of Appeal or the House of Lords. He said that he would not mind that.

Mr. Weetch

Can the hon. Gentleman tell me what would be so terrible about that?

Sir Raymond Gower

I accept the validity of the hon. Gentleman's arguments when he says that it would be advantageous in many cases for the solicitor who had dealt with the matter at the lowest level to continue to deal with it at a higher level. But he must surely agree that when a case goes as far as the Court of Appeal, it is usually on a fairly important point of law or because it is a difficult case. In most cases an instructing solicitor or any solicitor dealing with it would want the benefit of specialised advice from an expert on the subject. He would not even be content with the services of a barrister with a general practice. Even more would that argument apply if it was decided to take the case to the House of Lords.

Mr. Abse

The hon. Gentleman is speaking as though the new clause would make it mandatory for solicitors to take these cases to the House of Lords. No solicitor who knew that he had a case of such complexity that it required a silk to deal with it would wish to go on himself in the interests of his client. I suggest that all my hon. Friend is trying to do is look after the client and not the Bar or solicitors.

Sir Raymond Gower

It is entirely unrealistic to envisage a case being so important as to go to the Court of Appeal and to require the right of a solicitor to have audience there. By making the wording so wide in this sense the hon. Gentleman is lessening the support that he is likely to get in the House. Many Members who might have supported him as far as the High Court will be deterred because his wording goes much further.

Mr. Tony Blair (Sedgefield)

Will the hon. Gentleman agree that all the new clause seeks to do is to give a choice, so that it is up to the solicitor and his client whether they want a barrister or a solicitor to represent them? For example, in the employment appeal tribunals, where a solicitor can appear, many people decide of their own choice to brief barristers, but it is not mandatory.

Sir Raymond Gower

That may be the case. I may be wrong, but in my view by having the wording so wide hon. Gentlemen are lessening the chance of getting the amendment accepted. I am sure I shall be proved right in the event.

Mr. Alex Carlile

I make it clear at the outset that I speak for myself, not for my party, and also that I speak as a practising member of the Bar and with a frank interest and belief in the value of an independent Bar.

I share the reservations expressed by the hon. Member for the Vale of Glamorgan (Sir R. Gower) as to the breadth of the new clause. That apart, though, there are substantial objections to the principle behind it.

Passing reference was made by the hon. Member for Ipswich (Mr. Weetch) to the Benson commission—the Royal Commission on Legal Services. We must not forget the detail into which the commission went and the careful examination that it undertook. The short but valuable paragraph 18.40 on pages 212 and 213 of the report states: The present arrangements ensure a system of objective selection which the proposed arrangements would lack. At present, to judge from the data obtained by our Users' Survey, a client goes to a solicitor, usually by way of personal recommendation, without any informed knowledge of his capacity for handling the class of work required. the number of firms available in a given area and likely to be known to a potential client is limited and the area of choice is not wide. However, when it is necessary to instruct a barrister, it is the responsibility of the solicitor to advise his client which of the barristers practising in the relevant field is fitted to take the case in question. The qualities required are more likely to be found by this method than by any other. Accordingly, we consider that, under the present arrangemens, the range of informed choice is wider and selection of a suitable advocate more likely. We are concerned with giving the lay client an informed choice of the best available advocate for his or her case. The Benson commission's conclusion was not only clear, but it was based upon a users' survey and consultation not only with the two parts of the profession, but with people with experience of litigation.

There is no doubt that many solicitors are extremely competent and would be able to conduct matrimonial causes in the higher courts. No one responsible, not even the most partisan member of the Bar or arguer for the rights of the Bar, would gainsay that. We are not questioning whether there are solicitors who are fit to conduct such cases because undoubtedly they exist. We are, however, talking about what happens when a client goes to the wrong sort of solicitor or a solicitor who is not competent to carry out work for him and is given an unsatisfactory service in court.

Mr. Toby Jessel (Twickenham)

A client could find the wrong barrister.

Mr. Carlile

That matter was specifically considered by Benson, and if the hon. Member for Twickenham (Mr. Jessel) had been listening he would have heard me describe the way in which Benson dealt with that.

Many lay clients go to a solicitor in a general practice having walked into his office from the street, perhaps without knowing anything about him; or to a solicitor who is expert in some spheres, but not in others. Some solicitors will undertake almost any form of advocacy and any case in which they have the right to appear without necessarily being competent to handle it. That might be an unpalatable truth, but truth it is. All who practise have seen that happen from time to time. As Benson said, the lay client, having gone to a solicitor who is forced to instruct counsel to deal with the case because of the restrictive practice rule, is far more likely to have his case dealt with by someone competent.

Mr. Gerald Bermingham (St. Helens, South)

Does the hon. and learned Member for Montgomery (Mr. Carlile) agree that his remarks about solicitors as a whole were a little intemperate? All solicitors are covered by compulsory insurance. If a solicitor makes a mess of a case, a remedy is available to the client. He can sue.

Mr. Carlile

With respect to the hon. Member for St. Helens, South (Mr. Bermingham), who is an experienced solicitor and no doubt extremely competent in all areas, it is small comfort to a divorced wife who has been deprived of her child or settlement by an incompetent solicitor to be told that she can claim against an insurance company. The type of person who will be devastated by such an experience is most unlikely to want to stir the ashes of a desperately unhappy experience and go running either to the Law Society or—woe of woes—if she wants to claim against her solicitor, to another solicitor.

Mr. David Sumberg (Bury, South)

Does the hon. and learned Gentleman accept that there is no possibility of a negligence action arising out of court proceedings, so that example could not apply in any event?

4.45 pm
Mr. Carlile

I know that the hon. Member for Bury, South (Mr. Sumberg) is right as regards the Bar, and I suspect that he is right in relation to solicitors. Many of us are familiar with the case of Rondel v. Worsley, which deals in general terms with such problems.

If a lay client goes to a solicitor and the solicitor responsibly instructs a suitable member of the Bar to conduct the case, whether he is a specialist or a general common lawyer experienced in matrimonial law, there is a reasonable guarantee that a good standard of service will be given in court.

Another issue in connection with the new clause is of fundamental importance. It is inappropriate that the back door of a matrimonial law Bill should be used to hasten a far-reaching change in the provision of legal services. The hon. Member for Ipswich is 100 per cent. wrong when he suggests that his new clause involves a narrow sphere and that one cannot compare matrimonial advocacy with criminal advocacy. He argued that somehow the advocacy part of matrimonial cases is of less importance or requires different standards. Those who have practised in matrimonial cases in the higher courts know that the type of advocacy required may be strikingly similar in some matrimonial cases to that required in criminal or personal injuries cases, or in any other type of case where specialised advocacy and advocacy experience is required. Such changes in the provision of legal services should riot be made in this type of legislation.

I declared my interest earlier. I think that the independence of the Bar is not only a cherished part of our legal structure, but an important part, in matrimonial cases as in any other. I recall an instance within my hearing when one advocate said to another outside the court room, "Just remember that we are not divorcing one another. We have clients."

In matrimonial cases, above all others, the solicitor is likely to have a great deal of contact in his office with his client. He is likely to be under enormous pressure from his client. Emotional and financial considerations are involved, as well as considerations of high principle. A profession which is divided and retains the objectivity of the Bar is needed in the more serious matrimonial cases more than in any other sphere.

Mr. Hind

The hon. Member for Ipswich (Mr. Weetch) has put forward a cogent argument for the merger of the two sides of the legal profession, but we are not here to discuss that matter today. The hon. Member is striking at the fundamental basis of the division of responsibility within the English Bar and the Law Society. For that reason, we should look at it carefully and examine the much wider arguments that should be taking place about the clause. I suggest that this is nothing more than nibbling away at the rights of audience of the Bar in England.

Sir Raymond Gower

And Wales.

Mr. Hind

And Wales. I apologise to my hon. Friend and thank him for that comment.

The reasons for rejecting the arguments are that the English legal system has traditionally been divided into two parts. When a barrister is brought into a case, he comes in as a skilled specialist advocate. For years, he has trained in certain fields. The Bar is no longer divided as in the past, when every barrister did every type of case. It is divided into specialists in criminal, matrimonial, patents and so on. The solicitor goes to such a specialist, and asks for his skill. The skilled advocate is trained to provide expertise in a specific sphere. Most of all, as my hon. Friend the Member for Vale of Glamorgan (Sir R. Gower) said, he brings objectivity to the case of his client.

A solicitor who has seen a divorcee off the street from the beginning of his or her case, and has gone through the case bit by bit, is not likely to be very objective. That solicitor has seen the client over and over again. When it comes to court proceedings, expert objective advice is required. We should be considering all the rights of audience together, and not in relation to matrimonial matters only.

I am sure many of my hon. Friends will agree with the hon. Member for Ipswich (Mr. Weetch) that the arguments that can be applied to the rights of audience in the Family Division can be applied equally to the rights of audience in any other part of the legal profession. The solicitor will be doing the criminal case in the Crown court, he will be doing the patents in the High Court, and he will continue to deal with all kinds of cases throughout the profession.

The Bar has been encouraged to recruit people into the profession for a number of years. The stage has been reached where the number of banisters in the profession is more than equal to the amount of work available. The Bar is now considering reducing the intake into the profession, because the work is not available. The suggestion has been made that the position of the solicitor with rights of audience in the High Court, the Court of Appeal and the House of Lords who can get clients off the street is not altered, and that he acquires an area of work. The barrister, however, cannot go to the street and advertise his skill. He cannot take members of the general public into his office and take instructions from them, from banks, from building societies, or from insurance companies.

I am sure that the hon. Member for Ipswich will join me in my next question. If hon. Members are prepared to vote in favour of the clause, are they prepared to accept the consequences of the vote, and give to members of the Bar a merged profession? Many members of the Bar think as I do, and would dearly like to have access to members of the general public, and to take instructions from them. One has to have one or the other. One cannot nibble at the two, and try to make something out of that.

It has been suggested that we should consider sending solicitors to the Court of Appeal and to the House of Lords. Is that the intention of the clause? I think that the proposers of the clause have not fully considered the consequences. It would drive a coach and horses through the recommendations of the Benson commission, which advised how the legal profession should be run.

Many solicitors, whom I know personally and who instruct me, are not sure that they want the right of audience. Cynically, I doubt whether they can make as much money appearing in the High Court as they can sitting in their offices taking instructions from the clients, wrapping their tape round the instructions and sending them out to counsel. I am sure that many of them will think twice about this.

The hon. Member for Ipswich said that there will be a considerable increase in the number of cases conducted by solicitors. From experience, I say to the hon. Gentleman that that is nonsense. The number of contested divorces is few. Under the new court procedure for undefended divorces, the majority of divorce cases, and the ancillary proceedings of custody and property are dealt with in the county court in any event. This provision will be used without proper debate and appropriate legislation to open the door for rights of audience for solicitors in every other court in the country. This is not the Bill in which such provision should be included. It is a different matter from what the House is now considering. I urge hon. Members to reject the clause as inappropriate.

Mr. Abse

I regret that so much heat should be engendered by a small new clause that I tabled and that my hon. Friend the Member for Ipswich (Mr. Weetch) was prepared to move. It is a demonstration of the disproportionate alarm that has evidently been felt by the Bar upon a matter which, as my hon. Friend stressed, is directed to a narrow area. From experience, I believe that there is a strong case for the solicitor to have the right to take through the proceedings, wherever they may go, if he has the competence and ability to do so.

When a client sees a solicitor upon a matrimonial matter, he consults a man or woman who is to deal with the most intimate and difficult of personal problems that a human being may have. A solicitor has to listen, often for long periods—perhaps for much longer than he need—to get to know the facts on which to decide whether he can advise upon a petition. It is a denigration of the role of a solicitor to suggest that he merely breaks marriages. His capacity as a solicitor is tested when he acts as a listening post, which is often what is needed by people requiring a catharsis when they experience the emotional distress and woe that a divorce involves. When a party pours out his or her woes to a solicitor, a relationship is established that is quite different from that established when a person wishes to instruct a solicitor to draw up a will or to commence litigation over some commercial matter. By the very nature and quality of divorce, the relationship is bound to be an intimate one. It is erroneous to suggest that if a case goes to the High Court, after it has been dealt with to a great extent in the magistrates court by a solicitor, that solicitor, whatever his skills, can, by means of a brief, convey to a barrister the nuances and shades that have been conveyed to him.

I am not concerned for the handful of cases involved. It is not a battle for work. I want to ensure that the client does not sometimes undergo the dismaying experience of a young barrister coming in utterly cold, and picking up a paper to deal with a matter that has for a long time been dealt with by a solicitor in whom the client has considerable confidence. It is important that the House should realise how small the problem is and how disproportionate is the reaction that is regrettably found among hon. Members who are also members of the Bar.

In practice, in 1982 there were 344 appeals from magistrates to the divisional court of the Family Division of the High Court. That is what we are talking about.

5 pm

Mr. Hind

Does the hon. Gentleman accept that he is talking not merely about appeals, but about all divorce and ancillary matters, including custody, wardship, and so on, with which the Family Division of the High Court deals? Effectively, the provision gives solicitors a total right of audience in the Family Division of the High Court.

Mr. Abse

I wish that the hon. Gentleman would use his skills as a barrister at least to examine the Bill to see what work may still be done exclusively by a barrister. I do not want to go into the details on which the hon. Gentleman insists, but the House should appreciate that at present a solicitor is prevented by common law from conducting any proceedings in open court in the High Court, but has full rights of audience in the county court and in chambers in the High Court.

A solicitor cannot appear as an advocate in a defended suit in the High Court—a defended suit is at present always heard in the High Court, but in future it may not necessarily be — he cannot appear as an advocate in proceedings in the High Court to commit for breach of an order of the court, including a breach of matrimonial injunction, and he cannot appear on an appeal from magistrates to the divisional court of the Family Division of the High Court. As I have said, 344 cases were involved in the latter instance in 1982, and the rest of the work is peripheral. In the majority of cases, a solicitor is unlikely to wish to conduct the case. He may advise someone that it would be wiser to instruct a barrister who has specialised in a particular area of law, embracing the issues involved in the particular case. So we are dealing with a very small number of cases.

Mr. Ivan Lawrence (Burton)

As solicitors now have the right of audience in chambers in the High Court on issues including the custody of children and financial matters — which means the overwhelming number of divorce cases—it would obviously be useful to know in how many of those cases solicitors claimed their right to represent their clients. Can the hon. Gentleman tell us?

Mr. Abse

I cannot give the figure, and I very much doubt whether it is available. However, it is clear that a solicitor would not go into chambers in the High Court on such a contested issue unless he felt that he had the experience and skill to do so. Of course, some solicitors have expertise in divorce matters and others have not. Those who are barristers will know that an incompetent, bungling solicitor, who assumed the responsibility of going to the High Court without being equipped, would quickly learn that he was being more than foolish and unwise. The blunt fact is that it is only those who have the confidence to be able to deal with the issues who would seek to—

Mr. Alex Carlile


Mr. Abse

I shall not give way to the hon. and learned Gentleman because, with respect, I do not want this debate. There are many more important issues to be debated in the House.

In Committee, the Solicitor-General deployed an argument that will presumably be used again—that is that the Benson commission recommended that the rights of audience should not be extended. That was not overwhelmingly agreed, but it was accepted by the majority. That recommendation was made on the basis of certain beliefs. One of the most important was that solicitors were already overstretched and would be unable to assimilate the additional work proposed in the new clause. The Benson commission stressed that that was the important and practical consideration that moved it to make the recommendation. It was based on the assumption—indeed, recommendation of the Benson commission—that solicitors should retain their conveyancing monopoly. That recommendation will probably be overridden by Parliament. I welcome that, providing that we do not seek a change from a solicitors' monopoly to a monopoly of banks and building societies.

It is in the public interest that such monopolies should be broken. Indeed, at the centenary lunch of parliamentary Lobby journalists in January, the Prime Minister said that she would like the Governments which she led to be seen as Governments which tackled the vested interests which have been immune for years". Naturally, she mentioned the trade unions, local government and the monopolies in the professions". By trying to cling on to a particular area for which there is a special case, the Bar is behaving unwisely. The assumptions on which that Benson recommendation was made have largely been undermined. The Government are correctly prepared to override one recommendation. However, the Solicitor-General should not forget that in the House he is primarily not a barrister but a Member of Parliament, and as such his interest should be to protect not the Bar but the public interest. I believe that this measure is in the public interest.

I am not scratching round as a solicitor so that 100 cases a year can be distributed to solicitors throughout the country while the Bar loses a little work. I am not saying that there should be a fusion of the professions. I do not believe in that. There is a strong case for proper differentiation in certain areas. But the Bar has even resisted the changes in the Bill which move falteringly towards family courts. I want to see family courts established, with freedom from the adversarial style that has unfortunately left such an impression on our divorce law, and emancipation from the attitudes in criminal courts that has been mentioned. The switch in work that is embodied in the Bill should go further. That will bring us a little nearer to the time when we can have what we all want—genuine family courts that are wholly free of the present miserable adversarial system in our divorce courts.

Mr. Lawrence

Anybody who thought of coming to me with a divorce case would be advised to seek somebody better qualified to represent him or her in the courts. Therefore, I have no personal interest because the volume of my work will not be affected by the outcome of this matter, although as a practising barrister I have an interest in the integrity of the legal profession. It saddens me to notice that in a year when all has not been going well in the solicitors' profession, and in particular, although riot exclusively, it has been threatened with the deprivation of its right of conveyancing, it appears to have forgotten that we are all lawyers in the House, hated or loved as we may be, and have been for generations and centuries so, since Jack Cade's rebellion. The motto "United we stand, divided we fall", has been forgotten by the hon. Member for Torfaen (Mr. Abse) and his supporters, who seek to turn their guns on the Bar.

The position is bogus. Fusion is an issue of great importance and is worth discussing in the House. It is worth going into in great depth to see whether the recommendations and conclusions of the Royal Commission are the proper ones. Against that, I would have not the slightest complaint. The issue of fusion must inevitably arise out of a measure such as that suggested in the new clause. The hon. Member for Ipswich (Mr. Weetch) called it a narrow issue, and in that he seemed to have the support of the hon. Member for Torfaen. However, it is not a narrow issue to take away one of the central planks of the legal profession as it operates. The thin end of the wedge would soon be widened into a larger one. That issue and the debate are important, and I am not averse to discussing them. However, that they should be introduced into the law by a side wind through a Bill such as this is thoroughly objectionable and wrong.

I have no objection to considering whether members of the Bar should take their instructions directly from the public, whether they should be allowed to set up in shops in the high street in competition, whether they should have the right of election to the Law Society or whether they should be able to undertake conveyancing. It would be a good idea if at some later stage we discussed all these matters. But it is superficial to raise the issue of fusion in this way, particularly as, when one comes to examine it, there seems to be no basis for raising it.

Labour Members have waxed long and eloquent about the relationship between the individual petitioner or an individual caught up in the miserable activities of divorce cases and the solicitor, and have talked about how close the relationship between the solicitor and the client is, and therefore how important it is that the matter be seen through to a conclusion by the solicitor who has that relationship. With that, we can all agree, but there is nothing in the existing situation and the existing state of the law that prevents that from happening. From the earliest stage to the latest, the solicitor who is in there first and who is the close friend, associate, adviser or confidant of the distressed person in the divorce case is there. That facility is not taken away.

Also, there is already the objectivity to which the hon. and learned Member for Montgomery (Mr. Carlile) properly pointed. That objectivity is vital in all matters of important law, and particularly when the legalities are involved—not the facts—and the application of the law to the particular facts of the particular case.

5.15 pm

What do solicitors lack? They can be there at the beginning and right through to the end. They can appear in a magistrates court where they have the right of audience in all family matters from beginning to end. They can appear in the High Court in chambers before a tribunal that considers nearly all the issues that today arise in court divorce proceedings—financial matters and custody.

It is a most interesting aspect of this new clause and its proponents that if there were so much pressure on the profession and the need were so great for solicitors to have the right of audience in the High Court, why on earth do so few of them take advantage of the right that they now have to appear in chambers, where the procedure is less adversarial and much more conciliatory? The fact that solicitors do not take advantage of the rights that they now have seems to show that there is no pressure for this change in the law that they are now demanding.

Whether solicitors do not take advantage of those rights because it would be too costly to do so, and they can make more money elsewhere, I do not know. They may not consider that they are capable of raising the specific matters on divorce law that they could raise merely because their solicitor's practice is wide and diverse and there is a limit to the amount of time that solicitors can spend in being expert in a particular part of law. Whatever the reason, the opportunity now exists for them to appear in most of the cases heard in the High Court, and they do not choose to do so.

The mainstay of the case advanced by the hon. Member for Ipswich seemed to disappear when the one remaining part of the divorce law procedures that is not open to the solicitor was surrendered by him. Sensibly and realistically, he conceded that, for the purpose of the appeals to the Court of Appeal or the House of Lords, one wanted an expert lawyer and he was not seeking to put solicitors in that position. The same point applies with equal validity to the other feature where the law is important, and that is appeals from the magistrates court to the divisional court, where again solicitors are not able to represent their clients directly, where a point of law is always involved, and a point of law essentially.

Therefore, once the hon. Member for Ipswich concedes, as he did, that in questions of law the solicitor has less justification for representing clients than a trained, experienced and expert barrister, the whole basis of his case disappears, because in other material aspects of the divorce law the solicitor has access and the right to represent his client.

Therefore, if there is no real pressure for this change, and if there is no call in the public interest for it—as the Royal Commission seemed clearly to show, after it had treated this as a very important matter that was necessary to be decided in the public interest—and if the only reason for this is that the solicitors' profession is going through an edgy, unhappy time and is looking around for ways in which it can divert some of the attention from itself to other practitioners, apart from saying that I think that that is a sad situation, I can only say that it shows that there is no justification for this new clause and that it should be rejected.

Several Hon. Members


Mr. W. Benyon (Milton Keynes)

On a point of order, Mr. Deputy Speaker. As the new clause has been proved to be defective and is admitted to be so by the mover, is there any reason why we should continue with these proceedings?

Mr. Deputy Speaker (Mr. Harold Walker)

The new clause has been selected by Mr. Speaker. Therefore, it is in order for debate, and the House is entitled to debate it.

Mr. Bermingham

I did not intend to take part in the debate, as I regard the entire argument as asinine. I put it as simply as that. I put it to Conservative Members and to the hon. Member for Montgomery (Mr. Carlile) that the contributions opposing the new clause have in no way served the bench, the Bar or the solicitors' profession. At the end of the day it should be remembered that there is a client, whose interests should be paramount.

I have my own views about fusion, but this is not the occasion on which to air them, although I agree with the hon. and learned Member for Burton (Mr. Lawrence) that the subject needs to be discussed at some stage. However, if the primary debating Chamber in the land is to discuss whether High Court cases should be dealt with by solicitors or barristers, those who take part should at least know something about the way in which the other side works.

Specialisation is in no way peculiar to the Bar. Many of the major firms of solicitors have highly specialised divisions dealing with particular areas of business. In my former practice, for example, the people in the matrimonial, criminal or conveyancing departments did not cross those boundaries or become involved in any other type of work. That kind of specialisation is necessary in a modern legal practice, whether it be at the Bar or in a solicitors' practice. The argument that one part of the legal profession is more specialised or does not have enough work in a particular sphere is an insult to the entire profession and falls ill from the lips of those who make it.

Mr. Alex Carlile

Does the hon. Gentleman accept the other side of the coin, which is that there are still many firms of solicitors in which the partners are not competent to conduct matrimonial proceedings in the High Court and do not have the experience to deal with difficult matters of that kind, and that problems arise because they sometimes attempt so to do? Does he agree with the Benson commission that the nearest one can come to guaranteeing competent representation for the lay client is to retain the present system, subject to the changes made by the Bill?

Mr. Bermingham

I note with interest the multitudinous questions raised by the hon. and learned Gentleman, and I should be the first to admit that there are solicitors who lack the competence necessary to deal with certain problems and areas of the law. No doubt the hon. and learned Gentleman will acknowledge in return that there are also barristers who are not competent to deal with particular matters. Both sides of the profession are becoming increasingly specialised. That is important and right, because that is the way to provide a proper service for the client.

I should make it clear to the hon. and learned Gentleman that I am well aware of the effect of Rondel v. Worsley, which deals only with advocacy, and that solicitors are equally protected in their advocacy, but there is far more to the conduct of a case than mere advocacy. There is all the preparation, advice, and so on. Those are the areas in which I referred to the client having a remedy, whether it be against the solicitor or against the barrister.

I shall not detain the House long, as the new clause does nothing for the Bill which we are here to improve. I must tell my hon. Friend the Member for Ipswich (Mr. Weetch) that I do not intend to support the new clause, because I do not believe that this is the time or the place for the argument involved. Nevertheless, if the argument is to continue, let the two sides of the profession stop sniping at each other, as that serves no one in the profession well and certainly does not serve the interests of the client.

Mr. Richard Alexander (Newark)

I am happy to follow the hon. Member for St. Helens, South (Mr. Bermingham) and to concur with much of what he said, but I intend to support the new clause.

It is sad that we have almost reached the end of the discussion of the new clause without any Conservative Member speaking in support of it. There has been a good deal of rather unseemly wrangling between the Bar and the solicitors, and we have heard a good deal about professional privileges, but I regret that it has been left to the Opposition to emphasise the interests of the client.

I declare a general interest as a solicitor, although I do not practise in matrimonial cases. I was delighted to hear the paeons of praise for the efficiency of solicitors from the hon. Member for Ipswich (Mr. Weetch), and I welcome his belated conversion. I believe that his main point remains valid. The solicitor has the general conduct of the vast part of the case involving the client. One of my hon. Friends referred earlier to clients coming in off the street, as though they were scroungers or scavengers. They are clients, from whom one takes instructions. One has discussions with them in one's room. They are not something off the street, to be regarded as beneath contempt. They are the people for whose interests we act in a detailed and, I trust, caring manner. There is nothing disgraceful in that. To refer to solicitors taking people off the street is to demean the argument.

Mr. Alex Carlile

Does the hon. Gentleman agree that, on the recommendation of the Law Society, to which he belongs, solicitors have put signs in their windows—I commend them for it — advertising that they are solicitors and inviting people passing by to walk in off the street and seek advice for their legal problems? Does he accept, therefore, that it is quite wrong for him to suggest that I intended to demean the client by using that phrase?

Mr. Alexander

The hon. and learned Gentleman does me an injustice. My remarks related to a Conservative Member.

My main concern is to give the other side of the case from the Conservative Benches. So far, I have been the only Conservative Member to do so.

Mr. Greg Knight (Derby, North)

Will my hon. Friend give way?

Mr. Alexander

No, I must get on.

If the new clause is not accepted, we shall allow a restrictive practice to continue in an area of great importance to the client. The House may wish to continue the restrictive practice, but it should be aware of exactly what it is doing. Excluding the Court of Appeal and the House of Lords, when barristers are used in the High Court it is not usually for earth-shattering matters requiring specialists. There is scarcely anything at High Court level to which a competent solicitor cannot attend on behalf of his client. Even if that were not the case—I believe that the hon. Member for Ipswich made this point—it is not the specialist barrister who is called in to deal with the case, but the average junior member of the Bar. He is given the brief by the clerk of the chamber, who must find someone to take on the case.

There may be cases when a specialist is needed. Obviously, those cases are more likely to arise in the Court of Appeal and in the House of Lords. If the new clause is accepted, there will be an opportunity for solicitors to deal with this matter if their clients wish. If we do not pass the new clause, we shall perpetuate a restrictive practice.

5.30 pm
Mr. Sumberg

I shall be extremely brief, because I sense from the mood of the House that there is a desire to proceed to more fundamental matters. I speak to the new clause because, like several of my hon. Friends, I am a practising solicitor and have been for almost 20 years and because I served on the Standing Committee which discussed the new clause. I departed from the actions of most of my professional colleagues during the debate in Committee when voting and speaking against this new clause, and I see no reason this afternoon to depart from that course. I have considered this matter in great detail, and nothing I have heard this afternoon and nothing I have read since the debate in Committee has persuaded me to change my mind.

My reasons for being against the new clause are twofold. My first reason is one of principle and my second' is of a more practical nature. With respect to the reason of principle, I believe that the organisation of the English legal profession works for the advantage not only of the profession but, more importantly, of the client. The organisation of the profession is based fairly and squarely on the fact that each branch—the Bar and solicitors—has a separate, defined and distinct function to perform. It is necessary for that process to continue so that both branches can grow and flourish.

The hon. Member for Torfaen (Mr. Abse) said that the new clause is limited in scope, and I accept that. It affects only a small number of cases. If the new clause is passed, whether its supporters like it or not, it will open the door to future arguments and pressure for a general extension of the solicitors' right of audience and, hence, a diminution in the effectiveness of the Bar and of my profession.

The principal argument in favour of the new clause—the one that has been repeated ad nauseam—is that it would allow the client to have the benefit of one advocate to conduct the case from start to finish. That argument can be applied to every legal action that comes before the courts. That is what I fear will happen if the new clause is passed.

My second reason for being against the new clause involves practicality. I believe that solicitors face a serious threat to the independence of their profession. That threat is dangerous for all of us. We need every friend that we can get, but we have not helped our cause this afternoon. The Bar is our natural ally. I believe that the debate has advanced the day when we may face further threats.

I realise that, because of this speech, I shall not gain favour with my professional colleagues. I realise, too, that I have written off my chances of ever becoming president of the Law Society. I do not believe that the mass of solicitors want this change. On their behalf, as well as mine, I ask the House to reject the new clause.

Mr. Jessel

I support the new clause. I am not a lawyer. I believe that the cult of professionalism has gone too far and is worsening. Far too many professional people in Britain are interested more in impressing other members of their profession than their clients or the general public. One finds barristers who want mainly to impress other barristers; solicitors who want mainly to impress other solicitors; doctors who want mainly to impress other doctors; farmers who want mainly to impress other farmers; engineers who want mainly to impress other engineers; accountants who want mainly to impress other accountants; soldiers who want mainly to impress other soldiers; and architects who want mainly to impress other architects are about the worst. We all know that that is true. Some people do not question that aspect, but it should be questioned. The tendency is worsened by closed shops, professional rings and restrictive practices of all sorts.

On the whole, barristers are not bad people. Some of my best friends are barristers. I believe that if one speaks to hon. and learned Members one by one, and not in public, they will acknowledge that in some ways they are part of an inward-looking profession. The new clause will tend to make barristers a little less barrister-oriented and a little more client and consumer-oriented. That is entirely healthy. I have great pleasure in supporting the new clause.

The Attorney-General (Sir Michael Havers)

Some politicians seek to influence others; some politicians at least amuse others.

This new clause, which was described not in the words of the Lord Chancellor as his little ewe lamb but in the words of the hon. Member for Torfaen (Mr. Abse), as a little new clause, is much more than a little new clause because it will provide a right of audience, as has been pointed out by my hon. Friend the Member for the Vale of Glamorgan (Sir R. Gower), not only in the High Court but in the Court of Appeal and in the House of Lords.

At present, solicitors have a right of audience in all county court proceedings, but no right of audience in any superior court, save in the High Court when the court is sitting in chambers. I take very much on board the point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence), who pointed out the many occasions on which that right is not taken up. I suspect that there are two reasons why it is not taken up. First, the solicitors simply do not have the time to hang around waiting for their cases to be called. Secondly, they do not have the experience or the expertise in which the Bar has always tried to specialise. Expertise is an important aspect of this matter. There are some very difficult divorce cases, especially when considering custody and wardship, in which the expertise of some of those who practise in the family division is much sought after, because they may produce the result wanted not only by the client but by the solicitor instructing the barrister.

I have a sister who is a judge in the family division, and I often discuss with her the problems that she has. They are major problems that require a great deal of expertise and knowledge to find, in the end, the fair and true result for the client. The public interest is, therefore, being respected.

The rights of audience of solicitors and barristers were considered by the Royal Commission on Legal Services. A majority of the Royal Commission recommended that there should be no further general extension of solicitors' rights of audience. That recommendation was accepted by the Government in their response to the Royal Commission's report. I remind the House that that matter was raised as recently as 3 May in a question to my right hon. Friend the Prime Minister, who, in referring to the Royal Commission's recommendation, said that the Government had accepted that advice in 1983 and it was too early to reconsider it.

It is curious that there has been no debate on this matter during proceedings on the Bill in the other place. The matter was not even raised until a late stage during the debate in Committee. It may be that the timing is of some interest. My hon. and learned Friend the Solicitor-General pointed out in Committee that there had been no consultation on the subject and that, even if the time were ripe for reconsideration, which it was not, an essential first step before any conclusion could be reached would be to carry out consultation not only within the legal profession but among the public generally.

The hon. and learned Member for Montgomery (Mr. Carlile) spoke about this being a back-door approach. The hon. Member for Ipswich (Mr. Weetch) said that he was in favour of fusion. It seems clear that the Bill is not a suitable vehicle for such a provision. This may well be the first shot in what we know to be the Law Society's campaign to secure full rights of audience for solicitors in the proceedings. I am not suggesting for a moment that any hon. Member who has spoken in favour of the new clause is party to that.

Curiously enough, the Government have not received any formal request from the Law Society to reconsider the restrictions, although, for what it is worth, it is fair to say that a copy of the press notice announcing the campaign was sent to the Lord Chancellor. In its evidence to the Royal Commission the Law Society did not seek extended rights of audience in the High Court, although it did for the Crown court, and the minority of the commission who favoured those extended rights of audience did so only for the Crown court.

There was lengthy discussion in Committee on whether the provision even fell within the scope of the Bill. It would seem to us to be wrong to attempt to deal piecemeal with rights of audience in the superior courts in a Bill of this nature. It is perfectly true that this involves the public interest. Because of that it cannot be slipped in through the back door. If the decision of the Royal Commission needs reconsideration, that must clearly involve the widest possible public consultation. So far there has been none.

For those reasons, I recommend the House to reject the new clause.

Mr. Weetch

I shall make no reply to the debate, but I shall seek to divide the House.

Question put, That the clause be read a Second time:—

The House divided: Ayes 53, Noes 189.

Division No. 363] [5.42 pm
Abse, Leo Leighton, Ronald
Atkinson, N. (Tottenham) Loyden, Edward
Banks, Tony (Newham NW) McDonald, Dr Oonagh
Bidwell, Sydney Madden, Max
Blair, Anthony Malins, Humfrey
Callaghan, Jim (Heyw'd & M) Maxton, John
Campbell-Savours, Dale Meadowcroft, Michael
Cocks, Rt Hon M. (Bristol S.) Mikardo, Ian
Cohen, Harry Oakes, Rt Hon Gordon
Cook, Robin F. (Livingston) Park, George
Cowans, Harry Pavitt, Laurie
Davis, Terry (B'ham, H'ge H'l) Pawsey, James
Dixon, Donald Richardson, Ms Jo
Douglas, Dick Roberts, Ernest (Hackney N)
Dunwoody, Hon Mrs G. Ross, Ernest (Dundee W)
Eastham, Ken Sheerman, Barry
Edwards, Bob (W'h'mpt'n SE) Sheldon, Rt Hon R.
Field, Frank (Birkenhead) Skinner, Dennis
Forrester, John Strang, Gavin
Foulkes, George Taylor, John (Solihull)
Fraser, J. (Norwood) Thomas, Dr R. (Carmarthen)
Freeson, Rt Hon Reginald Tinn, James
Harrison, Rt Hon Walter Wainwright, R.
Holland, Stuart (Vauxhall) Wardell, Gareth (Gower)
Home Robertson, John
Janner, Hon Greville Tellers for the Ayes:
Jessel, Toby Mr. Ken Weetch and Mr. Richard Alxander
Kaufman, Rt Hon Gerald
Kirkwood, Archy
Adley, Robert Braine, Sir Bernard
Amess, David Brandon-Bravo, Martin
Ashby, David Bright, Graham
Atkinson, David (B'm'th E) Brinton, Tim
Baker, Nicholas (N Dorset) Brooke, Hon Peter
Baldry, Anthony Bruinvels, Peter
Batiste, Spencer Burt, Alistair
Bellingham, Henry Carlile, Alexander (Montg'y)
Bennett, Sir Frederic (T'bay) Carlisle, John (N Luton)
Benyon, William Carlisle, Kenneth (Lincoln)
Best, Keith Cash, William
Bevan, David Gilroy Channon, Rt Hon Paul
Biggs-Davison, Sir John Chapman, Sydney
Boscawen, Hon Robert Chope, Christopher
Bottomley, Peter Clark, Hon A. (Plym'th S'n)
Bottomley, Mrs Virginia Clark, Dr Michael (Rochford)
Bowden, Gerald (Dulwich) Clark, Sir W. (Croydon S)
Cockeram, Eric Lyell, Nicholas
Conway, Derek Macfarlane, Neil
Coombs, Simon MacKay, Andrew (Berkshire)
Cope, John Maclean, David John
Couchman, James Madel, David
Cranborne, Viscount Major, John
Critchley, Julian Mather, Carol
Dicks, Terry Mayhew, Sir Patrick
Dorrell, Stephen Meyer, Sir Anthony
Douglas-Hamilton, Lord J. Morris, M. (N'hampton, S)
Dover, Den Morrison, Hon C. (Devizes)
Dunn, Robert Murphy, Christopher
Durant, Tony Nelson, Anthony
Dykes, Hugh Nicholls, Patrick
Evennett, David Onslow, Cranley
Fallon, Michael Oppenheim, Philip
Farr, John Ottaway, Richard
Finsberg, Sir Geoffrey Page, John (Harrow W)
Forman, Nigel Page, Richard (Herts SW)
Forsyth, Michael (Stirling) Parris, Matthew
Franks, Cecil Patten, Christopher (Bath)
Fraser, Peter (Angus East) Pawsey, James
Freeman, Roger Peacock, Mrs Elizabeth
Freud, Clement Percival, Rt Hon Sir Ian
Fry, Peter Powley, John
Gale, Roger Raffan, Keith
Galley, Roy Rhodes James, Robert
Gardner, Sir Edward (Fylde) Rhys Williams, Sir Brandon
Garel-Jones, Tristan Ridley, Rt Hon Nicholas
Gilmour, Rt Hon Sir Ian Ridsdale, Sir Julian
Good lad, Alastair Robinson, Mark (N'port W)
Gorst, John Rowe, Andrew
Gow, Ian Sackville, Hon Thomas
Gower, Sir Raymond Sainsbury, Hon Timothy
Greenway, Harry Sayeed, Jonathan
Griffiths, E. (B'y St Edm'ds) Shaw, Sir Michael (Scarb')
Ground, Patrick Shelton, William (Streatham)
Hamilton, Hon A. (Epsom) Sims, Roger
Hargreaves, Kenneth Skeet, T. H. H.
Harris, David Smith, Tim (Beaconsfield)
Haselhurst, Alan Spencer, Derek
Havers, Rt Hon Sir Michael Spicer, Jim (W Dorset)
Hawkins, Sir Paul (SW N'folk) Spicer, Michael (S Worcs)
Hawksley, Warren Squire, Robin
Hayhoe, Barney Stanbrook, Ivor
Hayward, Robert Steen, Anthony
Heathcoat-Amory, David Stern, Michael
Higgins, Rt Hon Terence L. Stevens, Martin (Fulham)
Hill, James Stewart, Allan (Eastwood)
Hind, Kenneth Stewart, Andrew (Sherwood)
Hogg, Hon Douglas (Gr'th'm) Sumberg, David
Holt, Richard Tapsell, Peter
Hooson, Tom Taylor, Rt Hon John David
Hordern, Peter Temple-Morris, Peter
Howard, Michael Thompson, Patrick (N'ich N)
Howarth, Alan (Stratf'd-on-A) Thorne, Neil (Ilford S)
Howarth, Gerald (Cannock) Thurnham, Peter
Howell, Rt Hon D. (G'ldford) Tracey, Richard
Howell, Ralph (N Norfolk) Twinn, Dr Ian
Hubbard-Miles, Peter van Straubenzee, Sir W.
Hunt, David (Wirral) Viggers, Peter
Hunter, Andrew Waddington, David
Hurd, Rt Hon Douglas Wakeham, Rt Hon John
Jenkin, Rt Hon Patrick Walden, George
Johnson-Smith, Sir Geoffrey Waller, Gary
Jones, Gwilym (Cardiff N) Wardle, C. (Bexhill)
Jones, Robert (W Herts) Watson, John
Kershaw, Sir Anthony Watts, John
Key, Robert Wells, Bowen (Hertford)
King, Roger (B'ham N'field) Whitfield, John
Knight, Gregory (Derby N) Whitney, Raymond
Knight, Mrs Jill (Edgbaston) Winterton, Mrs Ann
Knowles, Michael Wolfson, Mark
Latham, Michael Yeo, Tim
Lawler, Geoffrey Young, Sir George (Acton)
Lawrence, Ivan
Leigh, Edward (Gainsbor'gh) Tellers for the Noes:
Lester, Jim Mr. Ian Lang and Mr. Donald Thompson.
Lilley, Peter
Luce, Richard

Question accordingly negatived.

Forward to