HL Deb 28 February 1924 vol 56 cc457-67

Qualification for certain offices in the Supreme Court.

Master in Lunacy … 4.—(i) A practising barrister of not less than ten years' standing ; or
Master, Taxing Office … 7.—(i) A practising solicitor of not less than ten years' standing; or
(ii) An admitted solicitor of not less than ten years' standing who has during the ten years immediately preceding his appointment been employed as deputy or assistant master or as deputy or assistant to the official solicitor or as a clerk in the offices of the Royal Courts of Justice, or who has during part of that period been employed as such deputy or assistant or clerk and during the remainder of that period been in practice as a solicitor ; or
(iii) A master, Chancery Division ; or
(iv) The official solicitor to the Supreme Court.

LORD TERRINGTON moved, in the paragraph defining the qualification of a Master in Lunacy, to insert, after "barrister," "or a practising solicitor." The noble Lord said: I must plead very strong justification for putting this Amendment on the Paper, because it affects the whole of the solicitors' profession in this country, as well as those who are members of the so-called higher branch of the profession. In this country, as distinct from every other country, we have two branches of the legal profession, and the dividing line between them is sometimes rather sharply defined. One branch resents any encroachment by the other upon what it considers its own particular prerogatives. This is the issue

such manner as the Lord Chancellor, with the concurrence of the Treasury, may by order direct, and shall be employed in such capacities, as the Lord Chancellor may by order so direct.

THE LORD CHANCELLOR moved, in subsection (2), to leave out "so." The noble and learned Viscount said: This is a purely drafting Amendment to correct an inaccuracy. I beg to move.

Amendment moved— Page 5, line 32, leave out ("so"). (The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Remaining clauses agreed to.

First Schedule :

which is raised in this particular Amendment, affecting who shall be Masters in Lunacy.

Hitherto, these appointments have been held to be the exclusive right of barristers. The Amendment seeks to extend this privilege to solicitors of a similar practice ; that is, of ten years' practice. In all matters appertaining to this particular appointment I submit that there is nothing in the training of the legal profession which entitles the higher branch to have an exclusive right. True, we want men of professional standing and of sound legal knowledge to occupy these offices, but solicitors, in my view, and in the view of those who have requested me to put down this Amendment, have qualifications as good, and knowledge and experience as certain for the position of Masters in Lunacy as barristers of equal standing and experience. I think that solicitors appearing before the Masters in Lunacy obtain far greater knowledge of practice and experience than do barristers. As a solicitor of 29 years' experience, I have frequently appeared in Lunacy in my early days, and I have clerks who now appear, and it is almost the exception to find barristers practising in Lunacy. Only solicitors, by Statute, can be Masters in Chancery, and I submit that the work of the Chancery Masters is far above the work of Masters in Lunacy.

Solicitors have largely to do with family estates and details of that kind, and they have far more experience in the detail of family matters than have barristers, who, after all, take their instructions from my side of the profession, and carry them out in their chambers and appear to plead in Court when necessary. This applies equally to Masters in Lunacy. Under, I think, the Act of 1891, which was passed to remedy the state of affairs then, when a man might be not actually insane but unable to look after his own affairs, he might go to the Master in Lunacy and have a committee appointed, and the committee practically could do anything that a man in his own family life could do. They could even give the same subscriptions and donations and family presents that a man could give if able to look after his own affairs.

But all that is under the jurisdiction and subject to the approval of the Master in Lunacy, and who is more qualified to be appointed, if otherwise fit, to the position of Master in Lunacy to look after family affairs of that kind, than a solicitor? The majority of the cases coming before the Master in Lunacy consists of those cases so found by inquisition, now an almost obsolete clause, numbering in 1915 only 4.36 persons, and those who are brought under the Master's jurisdiction by application, about 4,500. Other lunatics to the number of 130,000 in 1915 were under the administration of the Board of Control.

In the Sixth Report of the Royal Commission on the Civil Service, 1915, page 35, paragraph 26, there is a finding to which I think I ought to direct attention though I do not propose to quote it at length. Masters in Lunaey are required to be barristers of ten years' standing. Under the Lunacy Act, 1921, they have become, in effect, Judges in Lunacy as regards administration and management of the property, appeals from their decision to the Judge being very rare. This involves the legal work of hearing summonses, settling deeds, issuing orders, and also the administrative work of managing the lunatic's estate or business, settling accounts dealing with investments, and so on. In fact, the work is very similar to the work of the Chancery Masters, who are required to be solicitors. The Royal Commissioners thought that solicitors might be made eligible for appointment as Masters in Lunacy. I beg to move.

Amendment moved— Page 18, line 29, after ("barrister") insert ("or a practising solicitor").—(Lord Terrington.)

LORD RIDDELL

I desire to support this Amendment on two grounds. First of all, no class of man comes more into touch with, lunatics and potential lunatics than do solicitors; whereas, members of the Bar only come into touch with solicitors. Secondly, solicitors are, or are supposed to be, business men. Anyone who has had experience of Masters in Lunacy and the affairs of lunatics must be well aware that most of the work done by Masters in Lunacy relates to business matters. I can imagine no position more suitable for a solicitor to occupy than that of a Master in Lunacy. When one remembers that solicitors have been thought suitable to occupy the position of Prime Minister, of Chancellor of the Exchequer and, I think, of Minister of Labour, it is obvious that a solicitor's qualifications must render him suitable for the comparatively lowly, although responsible, position of a Master in Lunacy.

Happily, there has been a gradual tendency during the past few years, to extend the scope of the solicitor's work. Litigation to-day does not assume the same proportions in the Lunacy Office as I believe it formerly did. The work is mostly administrative, and there is every reason why solicitors should be eligible for these posts. The Lord Chancellor will, of course, select the best person available, who may be a barrister or a solicitor; but, as the noble Lord who moved this Amendment pointed out, it is certainly desirable that the Lord Chancellor should have an opportunity, if and when ho thinks fit, of appointing a solicitor to this important and delicate office.

I do not know whether I am in order, but there is another matter that I should like to mention. I would submit to the Lord Chancellor that it might be well to impose an age limit in regard to the service of Masters in Lunacy. It seems to be a very healthy occupation, and that is another reason why solicitors—I am a solicitor—should have an opportunity of engaging in it. Many Masters in Lunacy seem to continue to exercise their functions until a very advanced age ; I think that one who retired the other day was 88, or something of the sort. I do not know whether this is cognate to the matter before the House, but I would venture to suggest that a time limit might well be imposed on officials who have to exercise such important functions. I sincerely hope the House will accept this Amendment, and that solicitors will thus be made available, for an office which is peculiarly suitable to those who have had a legal and business training. There is really no reason in these days why the Bar should have this monopoly.

THE LORD CHANCELLOR (VISCOUNT HALDANE)

With reference to the minor point which has been raised—the age limit—we propose to take care of that. As regards the larger question which raises something much more important, I do not think that I have failed in giving every opportunity to the solicitors' profession, whenever I have had an opening, to occupy legal offices. I have always been in sympathy with their desire to get readily to the Bar and to obtain every training that is necessary for rising to judicial office. But that has not prevented me from insisting, as I have always insisted, that people should not hold offices for which they are not properly qualified. For example, you cannot get the training that a Judge requires by practising the profession of a solicitor. You may acquire great knowledge, great acumen, great experience of men and affairs; but the habit of mind which legal reasoning in judicial matters requires can only be got by that special training which the Bar affords. There are a good many solicitors who have gone from their profession to the Bar and have then become dis- tinguished Judges; but they have gone through the mill at the Bar before they prepared themselves for the final step.

That reduces the question before the House to this: What is the nature of the office of a Master in Lunacy? It is true that he docs a great deal of administrative work; that is, he superintends it rather than does it: but that is done incidentally to a much wider position which he occupies. In old days the entire care of lunatics, so far as the work that is now done by the Masters in Lunacy was concerned, was vested in the Lord Chancellor. The Lord Chancellor not only decided the legal questions relating to them, but ho directed the administration of their affairs. Then, when the Lord Chancellor's work became more burdensome, that part of it devolved upon the Lords Justices of Appeal who took it over. I myself, when a young man at the Bar, have argued before the Lords Justices of Appeal a multitude of questions which in those days required to be brought by formal legal process for decision. Those questions very often raised difficult points of law. There was a great deal of administration and also a great deal of law.

To-day, owing to changes which have been made in the law, the Master in Lunacy occupies the position of the Lords Justices of Appeal. They, in turn, having become overburdened with their work, that part of it has devolved upon the Master in Lunacy: so that he is really a person exercising very important judicial functions in connection with the estates of lunatics. He has, of course, nothing to do, as has been said, with that other body of lunatics who are dealt with under the Home Office, but in the case of Chancery lunatics who have large property he decides all sorts of questions relating to title, to their legal status and position, and to a number of matters which are only proper to be dealt with by a Judge. That is what the Master in Lunacy has inherited from the Lord Chancellor through the Lords Justices of Appeal. But although he does a great deal of administrative work, just as the Lord Chancellor and the Lords Justices used to do in a very expensive fashion, his primary function is that of a Judge in Lunacy, and he ought to be qualified as a Judge. He has also to do administrative work as his predecessors have done before him. It is for that reason that we never appoint to the position of Master in Lunacy anybody who is not qualified to be a Judge.

Whenever I have this question before me, I always ask as to the legal qualifications of the candidate, and unless I am satisfied that he is a person whom one could at least consider for the position of a Judge, I do not appoint him as a Master in Lunacy. Whether the practice has always been so strict as that I do not know, but at any rate so long as I have been concerned in it (and I think the same is true of the noble and learned Viscount. Lord Cave) I have been very careful to see that the full judicial qualifications have been possessed by the person appointed to the office. For that reason I think we cannot relax the qualifications of the Masters in Lunacy. In the case of a Master in Chancery of course we hare done so. That is administrative work done under the eye of the Judge, who superintends it. But in the case of the Master in the King's Bench and of the Master in Lunacy, both of whom are really Judges, we have always insisted on the judicial qualifications.

LORD EMMOTT When I came down to the House I felt a good deal of sympathy with the Amendment which my noble friend has moved; but after hearing what the Lord Chancellor has said, I am afraid that I cannot support it. It so happens that I have had a great deal to do with the Master in Lunacy. Quite recently I was interested in a case which occupied some days, and was then settled on a suggestion of his. There is no question that important judicial functions are carried out by him, although the greater part of his work is of an administrative type which could be perfectly well done by a solicitor. I am sorry I cannot support my noble friend

VISCOUNT CAVE

This, in substance, is a consolidating clause. It does not make new law, but it consolidates and shortens the law as it exists. Therefore this is hardly the opportunity for discussing the whole question of the division of these offices between the two branches of the profession. They have very rarely differed about these things up till now. The Bar has the monopoly of the Masters in the King's Bench and of the Official Referees (who are in the position of Judges) and the Master of Lunacy, who, I agree, is also very like a Judge; on the other hand, the other branch of the profession has a monopoly of the Masters in Chancery, Taxing Masters, and, I think, some other offices. So far the division has worked very fairly and very well, and I hope this opportunity will not be taken to disturb it.

On Question, Amendment negatived.

LORD TERRINGTON moved to omit paragraphs (ii), (iii), and (iv) relating to the Master, Taxing Office. The noble Lord said: This is quite a different Amendment from the last. Objection is taken to the appointment of other than practising solicitors as Taxing Masters. At present I think I am right in stating that nobody but a solicitor is appointed as a Taxing Master, although, I believe, there is one barrister who came from the Land Registry. There is a history attached to the Taxing Masters of the High Court which I do not propose to go into to-night. Something may be heard of it later in another place. Briefly our objection is this. The Taxing Master has really to apply his discretion to the allowance he makes. He has to fix, except in certain scale items, the allowances for such things as instructions for proof, and various other technical matters, with which learned Lords here will be acquainted. This system has gone on for many years, and I do not remember to have heard any expression of dissatisfaction with it.

Amongst the qualifications proposed in this Bill as qualifications for appointment as Taxing Master, are services as Deputy or Assistant Master. I do not think it is quite clear to what kind of Master that refers. The words are "Deputy or Assistant Master, or reputy or assistant to the Official Solicitor, or Clerk in the offices of the Royal Courts of Justice who has during part of that period been employed as such deputy, assistant or clerk, and during the remainder of that period been in practice as a solicitor." The effect of that might be that the applicant or candidate would come within the description contained in the Schedule although he was not in reality a practising solicitor. He may have gone for six months into practice as a solicitor, and that, as I understand the matter, would make him eligible for appointment as a Master in a Taxing Office if he had previously been in one of the offices I have named. That would be so, although he had only had six months' practice as a solicitor. That, it seems to me, is a defect in the proposal as it now stands.

On my side of the profession we consider, rightly or wrongly, that we know the practice of taxing bills very much better than any other branch of the profession. I do not suppose that any noble and learned Lord present has been through a lawyer's bill. In an action of any length it is the most difficult document to draw up in order to get justice for the solicitor concerned. If some official has been what one might call hidebound—I use the word in no offensive sense—in a public or official Department for a long time, he has not the knowledge of the world and of how costs are incurred and actions fought that is possessed by a solicitor who has been in continuous practice for not less than ten years. It is difficult to explain the matter here, and I speak with great deference in the presence of so many members of the higher branch of my profession, but with all respect to them I think I may say that they have had no experience in taxing bills. That duty, as a matter of fact, is almost invariably left by firms of solicitors to an expert clerk. There is probably in every solicitor's office one man who has been there for thirty or forty years doing nothing but preparing bills for taxation, and he acquires great skill at that particular work. It is inconceivable that anybody taken out of the office of an official solicitor, or out of the Master's Office, or the Deputy Master's Office, could be put into the position of a Taxing Master. We feel most strongly—and we are a very large body of about 15,000—that no one should be given this appointment unless he has been a, practising solicitor for not less than ten years.

Amendment moved— Page 19, leave out lines 9 to 25.—(Lord Terrington.)

THE LORD CHANCELLOR

On the occasion of the last Amendment the noble Lord was proposing to extend the privileges of solicitors. On the present occasion he is endeavouring to cut them down, and well might he tell your Lord- ships that this was not easy to explain. I will tell your Lordships what the provision is. It relates to the appointment of the Taxing Master. The Taxing Master certainly ought to be a skilled solicitor. It is a solicitor's business, just as much as the business of the Judge is a barrister's business; and we confine this to solicitors.

But the question is this. The first of the two classes who are eligible, as your Lordships will see if you turn to the Schedule, is a practising solicitor of not less than ten years' standing. We may have in the Courts, on the staff of the Taxing Master, somebody who is also a solicitor, who has had his training there assisting the Taxing Master and gaining experience at first hand, and, accordingly, we provide as a second alternative that he must be an admitted solicitor of not less than ten years' standing who has during the ten years immediately preceding his appointment been employed as Deputy or Assistant Master or as deputy or assistant to the Official Solicitor or as a Clerk in the officies of the Royal Courts of Justice, or who has during part of that period been employed as such deputy or assistant or clerk and during the remainder of that period been in practice as a solicitor.

That requires a solicitor to be appointed. I entirely agree that he is the proper person; and the only question is: Where can you get the solicitor with the best training? It is open to you to take him out of the whole ranks of the profession. That is the first category. But there is the alternative. He must be an admitted solicitor of not less than ton years' standing who has great experience in the particular work for which you require his appointment. It is not a theoretical question. A short time ago there was the case of a, man who was exceptionally qualified for this appointment. He was an admitted solicitor and had been doing taxing work, yet we could not appoint him. These cases are not frequent, but we thought it right, when we had an opportunity, to take power in order to be, able to appoint some one who had received his training on the spot. The words do not give anybody the right to go there. They only give an opportunity to the Lord Chancellor of looking about in a wider field in order to select the most qualified man, and your Lordships may rest assured that neither the present Lord Chancellor, nor his successors, would be likely to take anybody out of the Law Courts who is not really highly qualified for the work.

LORD BUCKMASTER

When I was Lord Chancellor I was extremely anxious to obtain the power which this Bill confers, and for two reasons. The first is that to which the Lord Chancellor has referred. If you desire to select for these important posts the very best men you must have the widest possible field of selection. The second reason was this. It appeared to me a matter of great consequence that you should encourage men in the Law Courts to do work to the utmost of their ability by the prospect that their work might, be recognised and rewarded. I am glad to see this provision in the Bill.

On Question, Amendment negatived.

First Schedule agreed to.

Second Schedule :