HL Deb 17 December 1925 vol 62 cc1583-93

Read 3a (according to Order), with the Amendments.

Clause 31 [Appeal to Quarter Sessions]:

THE MARQUESS OF SALISBURY

My Lords, this is purely a drafting Amendment.

Amendment moved—

Clause 31, page 34, line 27, after ("appeal") insert ("instead of appearing as respondent").—(The Marquess of Salisbury.)

On Question, Amendment agreed to.

Clause 32:

Procedure on appeals.

(8) On an appeal to a court of quarter sessions under this Act any party to the appeal shall be heard either in person or by counsel or solicitor.

LORD DARLING moved to leave out subsection (8). The noble and learned Lord said: My Lords, I am moving this Amendment on behalf of Lord Danesfort and I have to apologise for moving it at so late a stage in the progress of the Bill. The subsection reads thus On an appeal to a court of Quarter Sessions under this Act any party to the appeal shall be heard either in person or by counsel or solicitor. That introduces a change in the practice at Quarter Sessions. Under the ordinary law any person having an appeal may appear and argue on his own behalf, but at nearly all Quarter Sessions, particularly the important Quarter Sessions, counsel has a monopoly of audience and the change this clause makes is that on these rating appeals solicitors will have a right of audience which they have not got at present. These rating appeals generally raise questions of great difficulty and technicality and among barristers there are those who are specially qualified to argue such appeals.

If it is desirable, as some people think, to give solicitors equal audience with barristers in the courts of the country that is a matter of general policy. It has been debated for more than fifty years and there has been an attempt to assimilate the practice of this country with that of other countries where there is no distinction between barristers and solicitors. Here there has always been that distinction, and it seems to me that if this is to be done it should be done after full consideration and generally, and not in a particular instance such as this, giving solicitors a right to go where at present they have no right to go and argue before a Court where at present they have no right of audience. I understand that when this was proposed in the other House it was negatived in Committee, but that at a later stage, owing to the great amount of discussion upon it, the Minister yielded to the effect of what art eminent member of that House once called the "dreary drip of dilatory declamation" and accepted it. So it comes here. Those who desire it to be deleted now owe your Lordships' House an apology for having brought it forward so late, but if I am involved in the crime it is only vicariously.

Amendment moved— Page 37, lines 39 to 41, leave section (8).—(Lord Darling.)

VISCOUNT HALDANE

My Lords, I appreciate the loyalty of my noble and learned friend to the privileges and traditions of his own profession, but he is speaking ten years at least too late. The solicitor to-day is a very different person to what he once was. He is a highly educated man, a trained lawyer and he is very often—I will not say always, I would not say it even of barristers—able to state his case quite well. On questions of rating where he has been in contact with the facts and in close relation to his client, he is peculiarly well fitted for the purpose. The noble and learned Lord asks, where are you going to draw the line? Are you going to let solicitors do everything, or are you going to discourage altogether the employment of barristers? I should say that the employment of barristers must depend in all cases upon whether barristers are required. They are required for a great many cases, and those of your Lordships who have sat in this House and listened to appeals know that very well. But they are not always required. They are certainly not always required in rating appeals, and I would leave it to nature to say when barristers should be employed, for the solicitor will find out very soon, if he is matching himself with some one who is much more skilled than himself, that he will be beaten. If he is not, he will find that he has succeeded in his point without. putting the client to the expense of bringing down a barrister.

I, for one, am little disposed to insist in these days on the privileges of barristers. I leave it to nature. There always will be employment for barristers, who are people who have bad special training and are marked out by their very excellence for the discharge of their particular functions, but to say that you must always employ barristers is to put an undue tax on the public. We have passed that stage now and I think we should be doing ill if we struck out the provision which the Government has put in.

LORD CARSON

My Lords, I should like to make one or two observations upon this matter, which, although it seems a small one, really involves a very large principle. The argument of the noble Viscount who has just addressed the House would really apply to every case in which right of audience is demanded in any court. The noble and learned Viscount says, as I understand him, let the public say whether they desire to have a solicitor alone or to have a counsel instructed by a solicitor. I can quite understand a change in the law involving an amalgamation of the two professions. I do not think that it would be at all to the disadvantage of the Bar. I know that had they been I should, after a long life's work. probably be a member of a firm at the present moment, and this would be more valuable for my family. I could have carried on for the rest of my life instead of being in my present position, which wears me out from day to day far more than anything that I would have to do if I were in that happy situation.

But that is not what we are discussing now. The question is this. In this great court of record, this ancient court of Quarter Sessions, are you going to create a new right of audience in the solicitor? I quite agree with the noble and learned Viscount that you will find many very competent solicitors able to argue there just as well as any counsel. I quite agree that you may get solicitors who are better than some counsel. So you would in the Courts of Justice, and so you would in all the courts in certain cases. Certain persons are better qualified than others. But so long as you have two branches of the profession—and, of course, it is impossible to argue that point upon this occasion—you must draw a dividing line somewhere. If the solicitor is to be given audience before the Court of Quarter Sessions, as suggested by the noble and learned Viscount, I would like to ask in return if a counsel is to be entitled to appear at the Court of Quarter Sessions without being instructed by a solicitor. That is what i, really comes to. If you go on taking away certain privileges from the Bar and handing them over to solicitors, you must go into the question of the position of the barrister in relation to his solicitor.

There are hundreds of things that a solicitor can do very well without a barrister. He could see a client, who might bring his documents and papers, and he could give him advice. He is not, under the rules of the profession, at present entitled to do that, but I believe he can do it in Scotland. When, therefore, you speak of giving the solicitor right of audience in the courts you do not give the same right to a counsel, because you say to a. counsel that he must get up and plead on the instructions of a solicitor only. I hope that the House will agree with this Amendment and that anybody-who thinks that it would be a better arrangement, having regard to the great advances that have been made in the solicitor's profession, to amalgamate the two professions, will get up boldly and say so. But so long as you have two professions you must draw some line, and I submit to your Lordships that I have shown that you are drawing it in an unfair manner for, while you are taking away certain privileges from the Bar, you are not giving correlative privileges as to the barrister acting without a solicitor.

THE MARQUESS OF SALISBURY

My Lords, l hope that your Lordships will extend a little compassion to the Minister whose business it is to reply upon this Amendment, for two reasons. In the first place, although this Bill has been before your Lordships for a good many days—I do not put it higher than that—and though it has gone through all its stages up to the very last, no suggestion reached me that this particular subsection was going to be called in question until this morning. I was not even informed last night on behalf of my noble friends that any such suggestion would be made, and it was not until shortly before one o'clock to-day that I became aware that this Amendment would be moved. That is one reason. The other reason why I ask for your compassion is that it is my duty to state the case upon what is not so much a legal matter as a matter connected with the privileges of the legal profession, in opposition to many noble and learned Lords. In these circumstances I propose to take a course which is not very usual in this House, and that is to leave it to your Lordships, without any suggestion of Government pressure, to decide upon this Amendment as you think fit. I may say that upon this Bench we are ourselves divided as to the merits of this Amendment, and if your Lordships observe the great array of legal talent which sits around me, all belonging to the barrister's branch of the profession, you will not be altogether surprised.

I may, however, in a very few words state the reasons for resisting the Amendment. My noble and learned friend who has just spoken speaks of this proposal as if it were altogether unprecedented. I believe as a matter of fact that already Quarter Sessions have the power of allowing solicitors to plead before them, and that in a certain number of cases they do so. That is one precedent. Then there are the licensing committees, which exercise judicial functions, and before them, I believe, it is quite as common as not for solicitors to practice. I know that it is so in the North Riding of Yorkshire, because the hon. gentleman representing one of the con-constituencies there so stated in the House of Commons when relating his experience as Chairman of Quarter Sessions. I know that it is the case in my own county, too, for I have often sat in the licensing committee and heard solicitors plead before the committee. Consequently it is not such an extraordinary innovation as my noble and learned friend would suggest. He spoke of the ancient court of Quarter Sessions—

LORD CARSON

It takes an Act of Parliament to do it.

THE MARQUESS OF SALISBURY

Of course; but, it takes an Act of Parliament to do a great many small things. The ancient court of Quarter Sessions to which he refers is really only a committee under this Bill. All the power is delegated. These are all small technical points. Let me come to the substantial points. Why does this provision appear in the Bill? It appears in order to study the slender purse of a great many of the ratepayer litigants. Often they are very poor men. Why should we not make litigation as cheap as we can? I have the most profound respect for noble and learned Lords but if there is one deep objection to the administration of the law of England, it is its inordinate expense. It really has come to this, that in many respects there is a denial of justice to poor men because of the difficulty of meeting the expenses that are thrown upon them. I do not say that it is so in this case, and I do not imagine that in any case the expenses would be very high—

LORD CARSON Why do you not change the law

THE MARQUESS OF SALISBURY

That is just what we are proposing to do now. I do not say that it will amount to very much in the present in any event, but undoubtedly the practice of a solicitor is cheaper than the practice of a barrister and so I am advised by the responsible department. It is in the interest of the ratepayers that the expense should be diminished. I do not take a very strong view on this point. I have a great respect, of course, for barristers, but it does seem to me that the danger which lurks behind this good Bill is that it may be expensive in some respects to the individual. It will be an economy to the public authorities, but to the private individuals it may be expensive. There may be a considerable change in the assessments and a certain amount of grievance may be felt. Surely we should be wise to diminish as far as we can the burden upon ratepayers who consider themselves aggrieved and who appear before these committees and Quarter Sessions. It does seem to me that that is in the public interest and as far as I am concerned I shall vote with my right hon. friend the Minister of Health in this respect, and resist the Amendment. Your Lordships have an enormous array of legal talent representative of the barristers in this House and they may yet state the other side. So far as the Government are concerned, they will not try to exercise any pressure upon noble Lords to vote one way or the other.

THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)

My Lords, the last observation made by my noble friend the Leader of the House made it possible for me to adopt a course which otherwise would not be possible and to make an observation which will not be in complete harmony with the main argument of my noble friend. I must say that I thought he showed as much judgment and consideration in leaving this matter to the general sense of the House as he showed courage in the general trend of his argument. I little thought I should live to see the day when in his old age, or almost approaching old age, I should detect in the person of my old and learned friend—Lord Haldane—one who has been a blackleg in his honourable profession. I had thought better of him.

VISCOUNT HALDANE

Twenty years ago I began.

THE EARL OF BIRKENHEAD

By an ancient arrangement almost singular to this country there is a division of function between the two branches of solicitor and barrister. Year after year proposals are made amongst solicitors that the two branches of the profession should be amalgamated so that solicitors and barristers would hereafter be indistinguishable. Year after year that proposal has been defeated, not by counsel. but by solicitors themselves, and it is obvious that they have defeated that proposal because of a clear realisation that such a change would be a disadvantage to the interests of solicitors, and so, of course, it would be. Consider the effect of releasing in competition with all the young men who become solicitors in one year that tremendous supply of ability which in that same year is called to the Bar, and equipping them with the right to go directly to the lay clients. The reason that solicitors will not agree to this is not that they do not realise the disadvantages of the present system: they are apparent. In, the first place, solicitors are denied the right of audience in the Superior Court. In the second place, they are denied the opportunity of attaining to high judicial rank. And yet, being fully aware of this disability, year by year, by growing majorities, the solicitors', branch refuses to be amalgamated with the Bar.

Your Lordships really must examine, as Lord Carson said, this proposition as a whole. If solicitors came before Parliament and the country and said: "We demand that we shall no longer be in a position in which we are precluded from the right of audience at the Bar and the right to attain to high judicial position," I do not know that it would be very easy to resist their demand. They do not do that. Here they come and say "We claim the right to retain all our special privileges and we also claim the right of inroad upon yours." I am not sure that my noble friend the Leader of the House has been very exactly advised, though I do not speak dogmatically, when the noble Marquess says that Quarter Sessions in some cases still have it in their power to allow audience to solicitors. Unless my recollection is altogether wrong they can only exercise that right where there is not a sufficient Bar. I am reminded that in Wales there were several Quarter Sessions where there was not a sufficient Bar and where consequently the magistrates have exercised this reasonable right. A justly indignant Bar, not tempted by the lure of adequate rewards but concerned in the vindication of a noble principle, descended upon those Quarter Sessions and obtained immediately, without protest and without resistance, the complete repeal of this peccant rule. As for the licensing committee, it is not Quarter Sessions. It is in. the same class as the business of the ordinary justice of the peace and nobody has attempted to deny the right of audience to solicitors there.

The real objection to this Amendment, which I think was negatived at one stage in the House of Commons, is that it has nothing whatever to do with the main purpose of the Bill. It may be a good or a bad Bill, but having totally failed to understand it, I may be permitted to discuss it in a negative spirit. Inasmuch as at least seventy drafting Amendments were introduced in the fugitive course of the Bill through the House I was left in a state of admiration of the agility and address of the noble Marquess, but lucid as he was in his exposition he failed, I fear, to convey to my mind an intelligent understanding of the measure. The proposal, as I have said, is unrelated to the main purposes of the Bill. It was introduced at a late stage, it is indefensible in itself, illogical in the method in which it is super-imposed upon a Bill to which it does not relate, and has not given sufficient consideration to a great principle which may one day require consideration by Parliament—namely, the fundamental relations of the two branches of the legal profession.

LORD OLIVIER

My Lords, I am in this matter very much impressed, as I always am, by the practical wisdom of the Leader of the House. The learned Lords who have spoken for the legal profession have presented us with the usual position in which we laymen are when we go to the Law Courts. Before having access to the Courts we are confronted at the portals with two angels, one a solicitor and the other a barrister, and we are told that until these two can agree as to the toll which they will take we cannot have access. There is a long standing debate between the two professions as to how the business shall be apportioned between them, and I think it is very healthy indeed that occasionally the Legislature, led by the practical common sense which we have here this afternoon, should cut the Gordian knot. So, with regard to a matter of common sense, the adequate advice of a solicitor should be sufficient for the Quarter Sessions to take. I am therefore satisfied to follow the advice of my Leader and support the subsection.

LORD CHARNWOOD

My Lords, after we have heard some of the great sages of the law on this question I am afraid it may seem almost impudent for me to speak as the ordinary "Justice Shallow" who has to sit on these appeals at Quarter Sessions. But I feel so strongly on this subject that I will risk that. I wonder if all your Lordships at all realise what extraordinarily complicated and difficult questions rating appeals are apt to involve. That is particularly the case in a manufacturing district. One can hardly conceive a question more unintelligible to the ordinary man than the question of what the rating of (for example) a pottery should be. And I may observe that in our county, at any rate, it is not at all from the class of poor men, for whom the Leader of the House spoke, that these appeals are apt to arise. They are more apt to arise from some fifty or sixty manufacturers, fairly well-to-do and acting in combination. I think I can safely say that justices at Quarter Sessions find this the one and only part of their duty on which they doubt their own capacity for giving justice. I really doubt in the case of a poor man how we are to do justice unless he has skilled assistance equal to that which the rating authority on their part are certain to have.

It has been said that solicitors, after all, are a very highly capable profession. I have very good reasons for holding au enormously high view of solicitors as a profession, but if I understand the matter at all a solicitor is a man who constantly has a very large number of petty matters under his consideration which require to be dealt with day by day. The distinction between him and a barrister is, I take it, of this kind, that he is not in a position in which he can put aside all these matters which arise daily and devote his mind thoroughly to some one puzzling legal question. I may be right or wrong as to that. but at any rate I am sure that justices in Quarter Sessions generally, at any rate in counties where appeals from manufacturing districts are apt to come before them, would regard with a great deal of alarm anything which might result in our having less skilled assistance.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, if my noble friend in charge of the Bill had taken up a rigid attitude on this Amendment my difficulty would have been very great, but, as it is, I am quite at liberty to say that I sincerely hope that the Amendment will be adopted. In saying that I do not speak only as a member of the Bar. That side of the question has been fully stated. As one who had long experience at Quarter Sessions I should like to confirm what Lord Charnwood has just said, that the rating appeals are perhaps the most complicated cases with which Quarter Sessions have to deal. Many special points are raised which require skilled advice in order to deal with them, and if Quarter Sessions had not the assistance in rating appeals of advocates who are fairly skilled in that special branch of the law they would, I believe, be put in real difficulty. The subsection that it is sought to strike out applies not only to the committees of Quarter Sessions, who practically, for this purpose will be Quarter Sessions, but also to the Recorder, who will have no committee, and who himself will be the Court of Quarter Sessions. Therefore to adopt this subsection would be to make a substantial change in the law, which, I venture to submit, had better not be made on a Bill directed to another subject. I thought it right to say this in view of my

Resolved in the negative and Amendment agreed to accordingly.

Clause 69 [Repeal, construction of references, &c].:

THE MARQUESS OF SALISBURY

My Lords, there is a drafting Amendment in Clause 69 which I beg to move.

Amendment moved— Page 65, line 6, after the second ("the") insert ("first").—(The Marquess of Salisbury.)

Bill passed, and returned to the Commons.