HC Deb 25 July 1990 vol 177 cc597-600 11.15 pm
The Attorney-General

I beg to move amendment No. 145, in page 22, line 35, leave out paragraph (e) and insert—

'(e) where—

  1. (i) he is employed (whether wholly or in part), or is otherwise engaged, to assist in the conduct of 598 litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and
  2. (ii) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.'.

11.15 pm
Madam Deputy Speaker

With this it will be convenient to consider the following amendments: No. 3, in page 22, line 37, at end insert 'or before a master of the Supreme Court in hearings for the assessment of damages.'.

No. 4, in page 22, line 37, at end insert 'or in chambers in any county court.'.

No. 131, in page 22, line 37, at end insert 'or in hearings for the assessment of damages'. and Government amendments Nos. 146 to 148.

The Attorney-General

Amendments Nos. 145, 146 and 147 have been tabled following an undertaking that I gave in Committee to give sympathetic consideration to an amendment tabled by my hon. Friend the Member for Stroud (Mr. Knapman). The customary right of solicitors' clerks to be heard in chambers in county courts is to be recognised in statute. My amendments are a little more complicated than those tabled by the Opposition, so I shall take a short time to explain their effect.

The Government amendments avoid using the term "solicitors' clerks", which is archaic and imprecise. We prefer the concept of an individual acting on the instructions of a qualified litigator—a description which covers three groups. First, it includes a practising solicitor as defined in clause 17(8)(b); secondly, it includes a corporate body recognised under section 9 of the Administration of Justice Act 1985; thirdly, it takes in any solicitor referred to in section 88(1) of the Solicitors Act 1974. In addition, although the class of persons being given these rights of audience will usually be employees of such qualified litigators, there will not always exist the legal relationship of master and servant between them.

The amendments additionally provide a power for the Lord Chancellor to prescribe, with the concurrence of the president of the family division and after consultation with the president of the Law Society, certain categories of family proceedings in which these rights of audience will not subsist as rights, but will be exercisable only at the discretion of the court in individual cases. The reason is that nearly all family business is heard in chambers. That includes family business where representation by non-legal staff may sometimes be inappropriate. It may not be necessary for the power to be used but, especially in the light of the Government's overall strategy for developing family jurisdiction, it is sensible to provide for the possibility of its exercise in future. We have consulted the senior judiciary before tabling these amendments.

Mr. William Cash (Stafford)

Since 1972, I have been involved in advising the Institute of Legal Executives, and I therefore declare an interest. The amendment in my name and that of the right hon. and learned Member for Warley, West (Mr. Archer) deals with a question to which my right hon. and learned Friend the Attorney-General referred.

The question is whether it should be entirely within the discretion of the judiciary to determine whether people who are members of the institute or other solicitors' clerks should be heard in the proceedings covered by the amendment. Perhaps not from time immemorial, but certainly over many generations, it has been accepted that solicitors' clerks and, in this case, fellows of the institute should have competence and, by way of some form of prescription, the right to be heard. The amendment would reserve their position and ensure that they could be heard before a master of the Supreme Court in hearings for the assessment of damages or in chambers in any country court.

We discussed this subject in Committee. We were given to understand that the fellows of the institute and other solicitors' clerks who qualified would have the right to be heard. It appears from the Government amendment that the right is not given to them in the precise terms for which they hoped. It is of importance to the institute and to solicitors' clerks that they should be heard in chambers in the High Court or a county court. Why does a qualification appear to be imposed on their right to be heard, which has been understood for many generations?

The Attorney-General

My hon. Friend has represented those important members of the legal profession for many years. The amendments that the Government, having taken advice, have found it possible to bring forward, give to those whom my hon. Friend assiduously represents what they reasonably need. We have listened to the representations that have been made. I believe that they now have what they reasonably need, and they certainly have that which the senior judiciary are prepared to support.

It is, of course, important for that branch of the legal profession, as it is for every other branch, to remember that they are the providers of services—services to clients and to the courts and, through each of those services, to the administration of justice.

It has been necessary to consult the senior judiciary—it would have been remiss of us if we had not done so—and what is now brought forward in the amendments represents what has the support of the judiciary. I believe that it provides what is reasonably needed and what has been reasonably pressed for.

Mr. Cash

In the light of what my right hon. and learned Friend has said, I shall not press my amendment.

Amendment agreed to.

Amendments made: No. 146, in page 23, line 31, at end insert— ' "family proceedings" has the same meaning as in the Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989;'.

No. 147, in page 23, line 35, at end insert— ' "qualified litigator" means—

  1. (i) any practising solicitor ("practising" having the same meaning as in section I7(8)(b));
  2. (ii) any recognised body; and
  3. (iii) any person who is exempt from the requirement to hold a practising certificate by virtue of section 88 of the Solicitors Act 1974 (saving for solicitors to public departments and the City of London);'.

No. 148, in page 23, line 37, at end insert— ' "reserved family proceedings" means such category of family proceedings as the Lord Chancellor may, after consulting the President of the Law Society and with the concurrence of the President of the Family Division, by order prescribe;'.—[The Attorney-General.]

The Attorney-General

I beg to move amendment No. 23, in page 23, line 44, after 'solicitor)' insert 'section 22 of that Act (unqualified person not to prepare certain documents etc)'.

Madam Deputy Speaker

With this it will be convenient to discuss Government amendments Nos. 24 to 26, 32, 33 and 71.

The Attorney-General

These amendments together provide that the holder of the office of official solicitor will automatically, by virtue of his office, be given all necessary powers to perform his functions as official solicitor. They also make technical disapplications of the Solicitors Act 1974 so as to permit persons to exercise advocacy, litigation and probate rights.

Amendment agreed to.

Amendment made: No. 24, in page 23, line 46, leave out from 'audience' to end of line 47.

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