HL Deb 10 July 1874 vol 220 cc1457-70
LORD SELBORNE

, in calling attention to the constitution of the Inns of Court and to legal education, said, that for many years past those two subjects had been a great deal before Parliament. They were considered by a Committee of the House of Commons in 1846, and by a Royal Commission in 1854; and some five or six years ago an active movement for the improvement of the existing sys-of legal education was commenced by a society which received a large amount of support from the two branches of the legal profession. In the meantime, much had been done by the Inns of Court for the improvement of the education of their own members. In all he had to say, he intended to speak with all respect of those learned bodies; but, with a full knowledge of what they had done to improve legal education in this country, it was quite insufficient to meet the exigencies of the case, and he hoped that much more would be done hereafter in the same direction. He intended to submit to their Lordships two Bills—one relating to the Inns of Court, and the other to legal education—two subjects having a near connection, but which he thought it would be more advisable to treat in separate Bills. The first Bill he proposed to lay on the Table was one for the incorporation of the Inns of Court and the regulation of their affairs. Those Inns were very ancient institutions, for they could be traced back to the date of a Royal Commission issued in the reign of King Edward II., and he ventured with confidence to say that they discharged public functions, and public functions of the greatest importance. They had been in a variety of ways recognized by Parliament. In 1854 it was referred to a Royal Commission— To inquire into the arrangements of the Inns of Court, for promoting the study of Law and Jurisprudence, the revenues properly applicable to that purpose, and the means most likely to secure a systematic and sound education of students of Law, and provide satisfactory tests of fitness for admission to the Bar. In the Report of that Commission it was stated that— None of the Inns are corporate bodies; they are merely voluntary societies, and a great part of their income is still derived from the contributions of their members. He thought these Societies could scarcely be described as voluntary, because admission to one of them was essential in the case of every person desirous of being called to the Bar, and certain payments had to be made by every person who was admitted. With regard to two of these Societies, it appeared they held very large property, and it was impossible for a single moment to take any other view than that the Inns of Court were discharging public functions, that they were clothed with great privileges, and that they held their property solely for public purposes. The Report of the Commission stated— We conceive that as regards the Temples a direct trust arises by the acceptance of the grant made by James I.; and in justice to the Benchers, who form the governing body of each Inn of Court, we are bound to observe that there is every disposition on their part to lender the funds of the Societies available for the purpose of Education of the students, whether such trust exist or not. He did not think their Lordships would hesitate to state that, the Inns of Court being invested with a public character and invested with a public responsibility—as they were, in fact, corporations—no harm could result from their being legally incorporated. With regard to the position of the Inns of Court towards the community, the Royal Commissioners made these observations— As regards the duty which the Inns of Court owe to the community, whilst conferring on individuals the right of practising at the Bar, it will be proper to call attention to the privileges incident to the status of a Barrister. He alone is allowed to plead for others in the Superior Courts of Westminster, and he is not responsible to his clients for negligence or otherwise. He alone is eligible for numerous appointments of considerable emolument and responsibility in this country, including not only the higher judicial appointments, but also the offices of Recorder, Judge of a County Court, or Commissioner of Bankruptcy, and Revising Barrister. The Police Magistrates of the Metropolis also are now selected from the Bar. In the Colonics the judicial appointments open to Barristers only are also numerous. The Inns of Court being intrusted with the exclusive right of conferring or withholding a position to which such privileges as we have enumerated are incident, the community is surely entitled to require some guarantee—first, for the personal character, and next for the professional qualifications of the individuals called to the Bar. The only security at present possessed by those who employ a Barrister as counsel consists in this—that any defect in the Advocate may lead to the loss of practice. But there is not even such security against the appointment of an unfit person to any of the judicial offices to which we have referred. As regards the moral character of the Barrister, considerable attention appears at all times to have been directed by the Societies to the exclusion of persons against whom any grave delinquency can be alleged from admission to the Society in the first instance or to the Bar if it be discovered at a later stage. Farther than this, the Societies possess and have on recent occasions exercised the power of 'dis-barring,' or visiting with other severe penalties, after due inquiry, any person who has properly deserved such reprobation, their decision in this respect being subject to an appeal to the Judges. We are of opinion that these precautions have been generally sufficient to prevent any injurious effect to the community with respect to moral impropriety or misconduct in Barristers. Now, supposing it to be right that the Inns of Court should exercise the disciplinary power spoken of by the Commissioners, there were at present serious impediments in the way of its due exercise. He would not like to state what might occur—and indeed, what had occurred—in the exercise of that authority. A large number of Benchers might assemble together to investigate a case, but they had no legal mode of proceeding; they had no power to administer an oath, and they were not surrounded by those safe-guards which every public body discharging such functions should have the advantage of. The Commission of 1854 recommended that the Inns of Court should be united in one University for the purpose of legal education, but remaining separate as to their property. His noble and learned Friend on the Woolsack asked the Benchers of Lincoln's Inn in 1863 to assent to that recommendation, and on his motion they passed this Resolution:— That, in the opinion of this Bench, the creation of a Legal University to which the various Inns of Court might be affiliated, and through which legal degrees might be conferred and discipline exercised, would be desirable. He thought that, with the recommendation of the Commissioners and the authority of that Resolution, he had laid sufficient ground for the proposal he had to make as to the incorporation of the Inns of Court, and the making of proper regulations for the conduct of their business. Early this year he drafted a Bill and circulated it in the hope that it would elicit useful suggestions for actual legislation. In that Bill he united the two subjects which he now proposed to treat in separate Bills. The Bill was circulated among the Judges, and it was sent to the Inns of Court; but he was bound to say that he did not get all the assistance he could have wished from those Societies. As was usual in such cases, they appointed a joint Committee, and an extremely short Resolution came to him stating that they disapproved his draft Bill. Whether they disapproved particular provisions, or whether they disapproved the Inns of Court being dealt with in the same Bill as dealt with the subject of legal education, he did not know. But since then he had made himself acquainted with objections to his draft scheme, and the Bill which he was now about to propose, and which he would ask their Lordships to read a first time, was somewhat different as regarded the Inns of Court. The Bill after incorporating all the existing Inns of Court, while keeping their several properties distinct, proposed to fix a certain number of Benchers for each of the four Inns. What that number should be was, of course, open to discussion; but he proposed 50 for Lincoln's Inn, 40 for the Inner Temple, 40 for the Middle Temple, and 20 for Gray's Inn. He thought they would not be too few—the only doubt he had was whether they would not be too numerous. The Prince of Wales and other members of the Royal Family, certain Privy Councillors, persons who had been Her Majesty's Judges, and other distinguished persons had done the Inns of Court the honour of becoming Benchers. He hoped that in future such distinguished persons would also be found among the Benchers; but, exclusive of them, in respect of filling future vacancies he proposed to make considerable changes. Hitherto, the Governing Bodies of the Inns had been self-elected. The Benchers themselves elected to their own body. It had been hitherto the practice—the invariable practice in Lincoln's Inn and the very general practice in the other Inns—to elect to the Bench all Queen's Counsel who were members of the Inn. The Queen's Counsel had now become so numerous that some restriction had been put on that practice, but it was the general one in all the Inns. Originally he proposed that the election of the Benchers should be by the barristers of the Inn, but he had modified that proposition. He now proposed that until the Benchers should be reduced to the number prescribed by the Bill, one only out of every two vacancies should be filled up; and that the election of a Bencher to each second vacancy should be by barristers of five years' standing. After the reduction to the prescribed number, the election of a Master of the Bench to fill the vacancy should be alternately by the Benchers and alternately by practising barristers of five years' standing. It had been suggested to him that if the right of voting were given to all barristers, gentlemen who had been called to the Bar but did not practise would come up in great numbers and swamp the votes of the practising barristers. Though he did not himself think there was any great fear of that, he proposed by the Bill that only practising barristers should have the right of voting. A roll of those barristers was to be prepared, but until that roll was made out The Law List would be referred to, and a practising barrister would be taken to be a barrister who had chambers and who practised in any of the Courts. With regard to the investigation of charges of misconduct brought against members of the profession, the Bill would create a proper tribunal for their hearing. The Judges of Her Majesty's High Court of Justice would be the Visitors. Then as regarded the property of the Corporation and the management of their affairs he proposed to retain the existing powers of the Governing Bodies; but subject to necessary charges and outgoings all surplus or residue was to be appropriated for the purposes of legal education. Such was the outline of the Bill to which in concluding, he would ask their Lordships to give a first reading. Now, as to the other branch of the subject, he was not prepared this evening to ask their Lordships to give the Bill a first reading because it was not yet ready to be put into the printers' hands, but he would state its main provisions. He did not think it necessary to argue points which had been so fully considered by a Committee of the House of Commons in 1846, and again by a Royal Commission in 1854, as to the importance of a sound and systematic study of the law to those who were to follow either branch of the legal profession. That branch of the profession which was composed of attorneys and solicitors long ago came to the conclusion that no young man ought to be admitted to it without having passed an examination; and long ago, also, considerable means of professional instruction were procured by that branch of the profession. In the meantime attempts were made by the Inns of Court, and with some amount of success. What was done was as well done as it could have been under the circumstances, but the proceeding itself was narrow. For a long time there was a hesitation to make examination indispensable before call to the Bar. He did not know whether it was in consequence of the first movement of which he was the exponent in the other House of Parliament, or whether it was merely a coincidence, but after that movement was set on foot, it was determined by the Inns of Court that an examination before call should be made indispensable, and this year witnessed the inauguration of that system. He looked on that as so much ground won, and not as a matter of argument. The Association, whose objects commended themselves to his mind, as being on the whole, sound in their character, was anxious, if possible, to place the general instruction of all—not Only of barristers, but of both branches of the profession of the law—on as large and liberal a basis as possible. He thought that under the present system there was a great waste of power. It appeared to the members of the Association that there was no reason why all the available means of legal instruction should not be concentrated in one great public institution—call it a University or a School of Law, or what they would—and that all examinations which should be thought necessary for admission to either branch of the profession, and all instruction which it might be thought desirable to give to students seeking admission to either branch, should be con-ducted by that institution. It was proposed to admit to the instructions to be given under that institution not only young men who intended to follow the law as a profession, but all persons who might wish to know something of the law. He need not point out how useful such a knowledge was, not only to gentlemen acting as magistrates and to the Members of either House of Parliament, but to every one who wished to enjoy a liberal education. The Universities had made great endeavours, and with no small amount of success, to induce undergraduates to study law, and a very efficient school of law was one of the Faculties in the University of London. As there was some jealousy in respect of what were called "special Universities," he proposed that under the Bill he intended introducing the teaching institution should be known as the General School of Law. He proposed that the Inns of Court should take an important part in that school, but that it should not be left entirely to them. The constitution which his Bill would provide was one consisting nominally of a Senate with the Lord Chancellor at its head, and 10 members nominated by the Crown, who were not to be practising barristers or solicitors, but were to represent the general interests of society. Further, there were to be certain ex officio members—namely, the heads of the four principal Divisions of the High Court of Justice—the Master of the Rolls, the two Chief Justices, and the Lord Chief Baron—the Attorney General, the Solicitor General, and the President of the Incorporated Law Society. There would be other members—barristers and solicitors. There would be 10 of each. Four of the barristers were to be elected by the Inns of Court, and the six others by barristers of five years' standing. Of the 10 solicitors, four would be elected by the Incorporated Law Society, and the six others by the solicitors of standing equal to that of the barristers who were to vote. Such was the constitution of the Governing Body. The assistance of the Inns of Court would be sought to provide funds for the teaching power. Lord St. Leonards placed some money in his hands some years ago for Exhibitions and that was accumulating; other persons would, no doubt, follow the example of that noble and learned Lord, and he was sure there would be such cooperation on the part of the Inns of Court that the teaching power would not be long in abeyance. According to the last accounts the sums received annually in educational fees under their examination system by the Inns of Court came to £4,000 or £5,000. Nearly an equal amount was received by the Incorporated Law Society from their system, so that he did not fear a want of funds. He thought that if these two systems could be brought together they should get a strong teaching power. At the Inns of Court the attendance at lectures was no longer made a passport to the Bar. But the examination came in its stead; and the consequence was that in the class-room and lecture-room the number of persons who were to be taught was narrowed, and, by diminishing the numbers, the more certainty would they diminish the vigour of the system, however good the lecturers and pupils might be. Some persons objected to the proposal that the lectures and classes should be opened indiscriminately and that there should be no separation of the two branches of the legal profession. He proposed that in the Senate regulations as to the educational qualifications of barristers should be made by the preponderating vote of barristers, and regulations as to the educational qualifications of solicitors should in like manner be made by the preponderating vote of solicitors. He must respectfully repudiate and protest against the notion that those who were to be barristers could gain anything by pursuing a separate legal education from that pursued by the attorneys and solicitors before the real lines of demarcation came to be drawn. He held that up to the stage at which it was necessary for each branch of the profession to get within its own line, the students of both branches could pursue their studies together without any loss to the barristers, but to the great gain of the attorneys and solicitors, and through them of the public. He might in proof of this point to Scotland, where the Writers to the Signet, the solicitors, and the advocates studied together; and without disparagement of the legal profession in this country, the legal profession of Scotland might be compared with it in regard to honour and educational attainments. Though it was, perhaps, unusual for a man to quote himself, he would ask their Lordships to allow him to read some remarks he made three years ago on the subject of distinction of classes— We, on the other hand, thought that in every point of view that"—namely, the distinction of classes—"is unnecessary, and, if unnecessary in every point of view, unwise; unwise, because those distinctions do not really exist or the occasion for them arise till practice begins; unwise, because the more you divide classes and narrow the boundaries of your lecture-room, the more you diminish your chances of success and efficiency: your numbers must be reduced, and with numbers, emulation, zeal, and interest—the interest and zeal of the lecturers and the interest and zeal of the pupils. We think it unwise, also because it must be desirable that all those going to practice in any branch of the profession should be admitted, if they wish to be admitted, to the best system of instruction we can give them, and we think it would be inconceivably unwise to condemn, (if we could condemn) that branch of the profession in whose hands most emphatically are the fortunes of mankind, the confidences of mankind, the affairs of families, who have to conduct all personal communications with clients, from whom all business must come to the Bar, to a lower and inferior kind of preparatory education than the best which they are willing to receive. He knew that a number of the most eminent persons among the Judges approved the united system; he knew that at least very many of the Bar approved it; and he was quite sure that the great body of the attorneys and solicitors throughout the country cordially supported it and anxiously desired it. In that opinion he entirely concurred. In proposing his measures at that late period of the Session he had not, of course, any idea of asking their Lordships to do more than give a first reading to the measures which he submitted to the House. What he desired was that they should be considered by their Lordships, that public opinion should be elicited upon them, and if, as he hoped and believed, that opinion would be in their favour, then—giving due weight to such criticism and suggestions as might be offered—he would take the sense of their Lordships' House in reference to them at an early period of next Session. The noble and learned Lord then presented A Bill to incorporate the Inns of Court and to provide for the further administration of their affairs.

THE LORD CHANCELLOR

said, he was quite sure his noble and learned Friend did not require to make any apology for bringing this subject under their Lordships' notice. It was a subject of great public importance. He was proud to think that the profession to which his noble and learned Friend and him self bad had the honour to belong was, if not the greatest, one of the greatest professions in the Kingdom. There was no profession the acts and conduct of which, and the acquirements for which, were of more interest in all the ramifications of society and in every branch both of public and of private life. But notwithstanding that, he ventured to say there was no profession the education and the preparation for which had up to this time been left so completely to be governed by accident and by the voluntary and fitful, and often the ill-conceived, efforts of private individuals or bodies. His noble and learned Friend had asked their Lordships to advance the first stage of the Bills to which he had referred, but stated that he did not purpose seeking to have them read a second time this Session. For many reasons he should prefer to have said nothing on the subject on this occasion, but to have waited until these measures had been taken up more seriously by the House; but as the question was one which he had always looked upon with great interest, he did not think he should refrain—after the very full explanation given by his noble and learned Friend—from at once expressing the views which he had been led to entertain, and how far he was able to concur in the scheme which had been indicated by his noble and learned Friend. It was very desirable, as his noble and learned Friend had said, to keep distinct the question of the Inns of Court and their regulations, and that of, what he called, a Legal School or Legal University. He was not, however, quite sure that in working out the details of his scheme his noble and learned Friend had sufficiently maintained the distinction. Now, first, as to the Legal University—he thought they ought to have a precise and definite idea as to what was desirable in a supreme Legal University. There could not, in his opinion, be a greater mistake than to erect a Legal University in this country which would be more than an examining authority. What the public had a right to require and what Parliament had a right to provide was this—that there should be a body whose duty and functions would be to secure that no person was admitted to the Bar, or allowed to enter upon the practice of the other branch of the legal profession, without passing examinations with a view to test his fitness for entering that branch of the profession in which he desired to practise. His reason for saying that in his opinion the functions of that body ought not to extend further than examining was this—he believed that any attempt to provide funds for a new Legal School which would be a teaching school would fail and, next, he believed that if they set up a new teaching Legal School they must of necessity exhaust or destroy the Inns of Court and their capacity for teaching. He quite admitted the advantage which would arise if from any source, means could be obtained to found exhibitions or scholarships in connection with what he would term the Examining Legal University: but as to its own functions it ought not, in his view, to go beyond the extent of examining. As regarded the constitution of the University he agreed generally in what his noble and learned Friend had said, but he thought the Governing Body was very much too large. He thought the Inns of Court and the profession of Solicitors ought to be represented upon it, and that there ought to be members on the Senate chosen by the Crown, but the number proposed by his noble and learned Friend to constitute the Governing Body would in practice be found to be too large. He fully concurred with his noble and learned Friend that the Governing Body ought to take care that the area of examining was such as would thoroughly test the acquirements of those who presented themselves for examination, and shew that the places where they had been educated were such as imparted competence and fitness for admission to the profession. With respect to funds for a legal University having that scope, nothing in his mind could be more simple than the mode of obtaining them. All that was required was to make it a condition that every person presenting himself for examination should, before examination, pay a certain sum of money; and the sums thus received would be perfectly adequate to maintain fully such a Legal University as he described. He now came to the question, what was to be the connection between the Inns of Court and the Legal University and how far the Inns of Court were to be interfered with? He quite agreed with his noble and learned Friend that the idea was not to be entertained for one moment that the Inns of Court were private Bodies in the sense of not being responsible to public opinion and to Parliament; or were Bodies who were to be allowed to continue to grant privileges in connection with the profession of the law, but were to be perfectly irresponsible as to what they did with their property or the powers they exercised. He could not, however, concur in his noble and learned Friend's proposal that Parliament should interfere to incorporate the Inns of Court and regulate their internal government and management. A safe and proper analogy to be acted upon in this case was, he thought, afforded by what Parliament did several years since with respect to Colleges and Universities, and which Parliament might now do with respect to the Inns of Court. A stop which he could not but think would be expedient for the Inns of Court was this—that they should be armed with Parliamentary powers for making statutes for their own regulation as places of learning and discipline, as the Colleges had been; that Commissioners should be appointed of a nature, standing, and position analogous to the Commissioners appointed for the Universities of Oxford and Cambridge; that the statutes should be submitted to the Queen in Council; and, further, if no statutes were submitted, or being submitted were not approved by Order in Council, that statutes should then be framed for them through the intervention of the Commissioners. As in the case of the Colleges, care should be taken that the Inns of Court, as places of legal discipline and education, should be led to give an education as broad and liberal as possible, and without any attempt being made at the earlier stages of that education to draw lines of demarcation between the different branches of the profession or to narrow the education to be given into a mere dry acquirement of legal rules. The education ought to be large and wide and liberal, and any statutes that did not contemplate that result ought not, he thought, to meet with approbation. He owned that he was not altogether surprised that the Inns of Court did not approve, in the first instance, the proposal to regulate them by incorporation under Bills to be promoted in Parliament against them. He believed that if legislation proceeded upon the lines he had endeavoured to indicate, it would prove extremely beneficial. He knew no one in whose hands he should be more rejoiced to see such legislation than in those of his noble and learned Friend; and if his noble and learned Friend undertook it, he should be most happy to give him every support in his power. If, however, his noble and learned Friend did not do so, he should feel it to be his duty at some future time to make a proposal to Parliament on the subject.

LORD HATHERLEY

said, he felt great satisfaction in remarking the advance of opinion in the subject of legal education, since the Commissioners had inquired into the subject; and at the concurrence of opinion of the two noble and learned Lords who had just addressed them, which he trusted would result in the passing of an efficient measure for the establishment of a proper system. In 1845 the Commissioners who were appointed to inquire into the question recommended that a Legal University should be established, of which the Inns of Court should form the Colleges for the purpose of giving a general education in law as distinguished from the technical education which was obtained at a barrister's chambers—of which the public also might avail themselves and acquire a knowledge of the laws by which they were governed. If that proposal were adopted, justices of the peace and magistrates would become bettor acquainted with the laws which they were called upon to administer; and the public in general would cease to look upon the law as a dry, barren, dreary, pestilential waste, full of pitfalls known only to those who were acquainted with its paths and who were prone to lie in wait to entrap the unwary; and would come to regard it in the true light as being a noble and beneficent institution for the maintenance of the good government of the country and of the contentment of all subjects of the Realm—for the distribution of property according to just rights, and for the efficient protection of society against fraud and violence. The Commission of 1845, of which he had the honour to be Chairman, was very much indebted to the Inns of Court for the candour and frankness with which they threw open all the accounts of their property to them; but the Commissioners, at the same time, felt that but very little good proportionate to the amount of their property resulted from the existence of these institutions. Lord Westbury took up the question of legal education very warmly; and subsequently his noble and learned Friend took a very leading part in advocating the establishment of a Legal University. His (Lord Hatherley's) desire was that a good sound legal education should be open to all, so that those who did not intend to practise at the Bar, such as military men, might acquire a fair knowledge of the principles of law. He should also rejoice to see the barrier that existed at present between the two branches of the profession broken down. On the whole, he thought the proposals of his noble and learned Friend deserved the most serious and careful attention of the profession and of Parliament.

LORD WAVENEY

was understood to offer a few remarks in approval of the noble and learned Lord's scheme.

Bill read 1a; and to be printed.—(No. 169.)