HC Deb 16 October 1990 vol 177 cc1107-12
Lord James Douglas-Hamilton

I beg to move amendment No. 23, in page 19, line 21, leave out '(4)' and insert '(13)'.

Mr. Deputy Speaker

With this we may also consider the following amendments: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.

Government amendments Nos. 24, 25, 35, 36 and 37.

6.45 pm
Lord James Douglas-Hamilton

I shall be happy to accept amendment No. 136 when it is moved. It ensures consistency between the rules governing registration of executry practitioners and qualified conveyancers, and I am grateful to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for bringing it before the House.

Amendments Nos. 23, 24, 25, 35 and 36 seek to establish a standard time limit for appeals against decisions made by the Scottish Conveyancing and Executry Services Board relating to disciplinary matters and to the refusal of applications for registration as a qualified conveyancer or as an executry practitioner. The House will have noted that clause 18(10) already provides for such a time limit in connection with the disciplinary measures imposed by the board. The amendments aim for a consistent approach throughout part II.

I am sure that the House will agree that 21 days is a reasonable period within which an aggrieved practitioner can be expected to appeal against a decision made by the board. It corresponds exactly to similar provisions in the Solicitors (Scotland) Act 1980, which is perhaps the most relevant comparable legislation.

Amendment No. 37 fulfils an undertaking that I gave to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) during the Committee's consideration of his amendment No. 253. Its purpose is to place the Secretary of State under a specific duty to include provisions relating to educational qualifications and practical training in the regulations governing the conduct and practice of executry practitioners, which he is required to make under clause 16. While it was always the Government's intention that such matters should be covered in the regulations, the amendment puts the matter beyond question. I wish to make it clear that we have responded to the concern expressed by the hon. Member for Garscadden in Committee.

Mr. Dewar

There is no time to go over what is obviously an improved position. I can only say that I am grateful to the Minister for accepting amendment No. 136, which I shall move when we come to it. It is important that we give proper attention to educational qualifications and to training qualifications in the area where both qualified conveyancers and executry practitioners operate.

The amendments that we shall consider this evening go a long way to meet some of the doubts and anxieties that were expressed in Committee, and I am glad to see them on the amendment paper.

Amendment made: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.—[Mr. Dewar.] Amendments made: No. 24, in page 19, line 31, after 'may' insert

',within 21 days of the date on which the Board's decision is intimated to him,'. No. 25, in page 19, line 33, leave out 'if he is not satisfied' and insert

'within 21 days of the date on which the outcome of such review is intimated to him'. No. 97, in page 20, line 5, at end insert— 'or (d) a multi-disciplinary practice within the meaning of that section,'.—[Lord James Douglas-Hamilton.]

Lord James Douglas-Hamilton

I beg to move amendment No. 26, in page 20, line 22, at end insert— '(10A) The Secretary of State shall, subject to section 36 of this Act and after consultation with such persons as he considers appropriate, by regulations make such provision as he thinks fit with a view to maintaining appropriate standards of conduct and practice of independent qualified conveyancers, and such regulations shall, in particular, make provision with respect to—

  1. (a) the manner in which such conveyancers conduct the provision of conveyancing services;
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  2. (b) conflicts of interest;
  3. (c) the contractual obligations of such conveyancers;
  4. (d) the holding of clients' money; and
  5. (e) the disclosure of and accounting for commissions.
(10B) Regulations under subsection (10A) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.'

Mr. Deputy Speaker

With this we may take Government amendments Nos. 27 to 32, 43, 56 and 57.

Lord James Douglas-Hamilton

Broadly speaking, the amendments reflect the terms of an amendment that was tabled in Committee—again, by the hon. Member for Glasgow, Garscadden (Mr. Dewar)—with some further consequential amendments.

The purpose of the amendments is to place responsibility for making rules governing the conduct and practice of independent qualified conveyancers in the hands of the Secretary of State, who will be required to make such rules in the form of regulations that will, in turn, be subject to affirmative resolution in both Houses of Parliament. When our amended conveyancing proposals were brought before the Committee, our initial view was that it should be for the board to make the rules, subject to the approval of the Secretary of State; however, on reflection a further degree of parliamentary scrutiny is considered appropriate, and I am happy to commend the amendments that so clearly reflect the Committee's wishes.

Mr. Dewar

This is becoming something of a dialogue, but for the best of all possible reasons the Minister has again been helpful. The decision that the Secretary of State should make resolutions that are open to affirmative procedure strengthens parliamentary scrutiny in an area in which there is a degree of public interest. My hon. Friend the Member for Dundee, East (Mr. McAllion) is muttering. I assure him that the whole point is to allow him into the discussion rather than having it confined to the conveyancing board. I hope that he is pleased at that, and I look forward to hearing his many contributions when we debate the regulations that will ultimately be laid.

Amendment agreed to.

Amendments made: No. 27, in page 20, line 25, leave out 'subsections (12) and (13)' and insert 'subsection (12)'.

No. 28, in page 20, line 28, at end insert 'and'.

No. 29, in page 20, leave out lines 33 to 45.

No. 30, in page 21, line 5, leave out 'or (11)(c)'.

No. 31, in page 21, line 11, leave out 'a' and insert 'an independent'.

No. 32, in page 21, line 11, leave out 'rules made under subsection (11)(c)'

and insert 'regulations made under subsection (10A)'.—[Lord James Douglas-Hamilton.]

Lord James Douglas-Hamilton

I beg to move amendment No. 33, in page 22, line 4, at end insert— '(18A) Where an offence under subsection (17)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

  1. (a) any director, secretary or other similar officer of the body corporate; or
  2. (b) any person who was purporting to act in any such capacity,
he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (18B) Where an offence under subsection (17)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.'

Mr. Deputy Speaker

With this it will be convenient to discuss Government amendments Nos. 39, 83 and 86.

Lord James Douglas-Hamilton

In a sense, the amendments are technical. They are designed to remove existing doubts about whether the law at present would allow the prosecution of individual partners and managers of organisations involved in the provision of legal services as well as the organisations themselves.

Amendment agreed to.

Lord James Douglas-Hamilton

I beg to move amendment No. 98, in page 22, line 4 at end insert— '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  1. (a) a solicitor;
  2. (b) an incorporated practice within the meaning of section 65 of the 1980 Act;
  3. (c) a multi-disciplinary practice within the meaning of that section; or
  4. (d) another independent qualified conveyancer,
knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice or independent qualified conveyancer, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.'

Mr. Deputy Speaker

With this it will be convenient to consider the following amendment No. 137, in page 22, line 4 at end insert:— '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  1. (a) a solicitor;
  2. (b) an incorporated practice within the meaning of Section 65 of the 1980 Act;
  3. (c) a multi-disciplinary practice within the meaning of Section 65 of the 1980 Act; or
  4. (e) another independent qualified conveyancer,
knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice, or independent qualified conveyancer, shall be guilty of an offence and liable in summary conviction to a fine not exceeding level 4 on the standard scale.'. Government amendments Nos. 110 and 112.

Lord James Douglas-Hamilton

This group of amendments clarifies the business relationships which can be entered into by independent qualified conveyancers and solicitors. The first amendment fulfils an undertaking that I gave in Committee to my hon. Friend the Member for Eastwood (Mr. Stewart). It prevents an independent qualified conveyancer from acting on an agency basis for persons other than solicitors or other independent qualified conveyancers. The obvious example of such an arrangement—I do not think that it is a likely scenario—would be a large financial institution seeking to use independent qualified conveyancers as agents, thus gaining access to the financial market by the back door. Amendment No. 137, which was tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) similarly seeks to prevent such business relationships, and is virtually identical to amendment No. 98, which I hope he will feel able to support.

Amendment No. 110 clarifies the extent of the provision in section 26 of the Solicitors (Scotland) Act 1980 which makes it an offence for solicitors to act on a similar agency basis for unqualified persons. It makes it clear that solicitors will be able to act on such a basis for independent qualified conveyancers and executry practitioners within their specific areas of legal practice. The amendment also makes it clear that solicitors will be able to work on that basis in law centres. That matter was raised in Committee by the hon. Member for Garscadden and, although we discussed it only briefly, the Committee clearly supported the concept of law centres. I think that the law centre in Castlemilk was mentioned. Therefore, the amendment removes one of the remaining legal obstacles to the establishment of law centres and it has the support of the Law Society.

Amendment No. 112 disapplies the offence provision in section 32 of the 1980 Act from independent qualified conveyancers preparing writs relating to heritable or moveable estate. I suggest that they relate only to moveable estate connected with the conveyancing transaction concerned. The amendments are concerned primarily with agency arrangements involving solicitors and qualified conveyancers.

Mr. Dewar

This is a complicated series of amendments and it would not help if I were to plunge into them. At the moment I am not sure that I am competent to do so. I am grateful to the Minister for a series of proposals which largely meet points that were raised in Committee. It is important for the independence of qualified conveyancers to be safeguarded. That is a polite way of saying that this is another move to ensure that the banks and building societies do not get into this field, as originally envisaged. As I understand it, the amendment will prevent conveyancers from being employed by banks or building societies. They will have to work on their own behalf or for solicitors. They cannot work for a financial institution as was at one time envisaged. That is important.

The law centres are a rather technical matter. A number of points were raised about them in Committee and I shall certainly consider how far the Minister has been able to go. I am glad that he feels that he has been able to meet some of the worries expressed by the law centres. The movement has not had as much positive encouragement in Scotland as it deserves. Perhaps we may return to that on another occasion.

Sir Nicholas Fairbairn

I welcome the amendments, which I thought that I had suggested.

Mr. Brian Wilson (Cunninghame, North)

You can have them.

Sir Nicholas Fairbairn

No man is a prophet in his own country. I hope that the message will go from here that it will be a criminal offence for anybody to attempt to get around the exclusion of institutions to do conveyancing by employing them as runners, lackeys or fags—whatever one may call them. It is a criminal matter now, and it is important for that to be known.

Amendment agreed to.

Amendments made: No. 34, in page 22, leave out line 9.

No. 99, in page 22, line 11, leave out 'such' and insert 'conveyancing'.—[Lord James Douglas-Hamilton.]

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