HL Deb 15 December 1949 vol 165 cc1642-52

Clause 20, page 18, line 7, at end insert— ("(3) A person who has not been bound by and served under articles as required by paragraph (a) of section fourteen of the Solicitors Act, 1932, but has served as assistant to a justices' clerk, may be admitted a solicitor of the Supreme Court, subject to the following provisions—

  1. (a) the person to be admitted shall have had not less than ten years' service as such an assistant and, out of that service, not less than five years shall have been before the first day of January, nineteen hundred and sixty, and not less than the required number of years shall have been approved service;
  2. (b) for the purpose of the foregoing paragraph 'approved service' means service either as an articled clerk or with respect to which the person to be admitted has obtained from the Law Society a certificate under this section on an application made after he has had five years' service as such an assistant and before the said first day of January, and the required number of years of approved service is the number which that person would, apart from this subsection, be required by the said Act to serve under articles entered into at the date of that application;
  3. (c) the Law Society may grant a person a certificate with respect to service in any employment as assistant to a justices' clerk if they are satisfied that at the time of granting the certificate it is not practicable for him to serve as an articled clerk in that employment, and the certificate shall relate to any service by him in that employment after that time;
  4. (d) subject to the foregoing paragraphs, the Solicitors Acts, 1932 to 1941, shall apply, with any necessary modifications, in relation to a person's certificate under this section and a person applying for or obtaining such a certificate as if the certificate were articles of clerkship and the service to which it relates were service under those articles.")

5.21 p.m.


My Lords, this is a matter which gives rise to a much greater difficulty. I will tell your Lordships the position as shortly as I can. The Roche Committee recommended, and I think we must all agree, that ultimately the only satisfactory solution of this problem is that all justices' clerks should be qualified men; and I am sure we shall all subscribe to that as a goal to which we can look forward. But we have this difficulty; that we have to consider the existing people and deal gently with them. Where a young man is working as an assistant to a clerk to the justices, if his clerk to the justices is himself a solicitor, it is possible for the young man to be articled; and that is now being done. The problem arising is that if the clerk to the justices is not a solicitor, then, in the nature of things, it is impossible for the young man to become articled, because there is no one to whom he can be articled. This is not a fanciful case. I believe that in fifty-eight of the ninety boroughs, the clerk to the justices is an unqualified man. In places like Manchester, Leeds, Bradford, and many others which also are important, there is no one in the office of clerk of the justices who is qualified. It is possible to arrange for the young man to be articled to a qualified solicitor and the difficulty can be overcome in that way, but where there is no one to whom he can be articled the problem arises.

The Home Secretary took up the matter and asked various people concerned to go and see him. He was able to get in touch with the President and Secretary of the Law Society and one or two members of the Council, but he was not able to convene or call a special meeting of the Council of the Society. He did, however, get the consent of all the people he saw. The proposal is— and it confers on the Law Society a privilege, not an obligation—that if there is a young man now in the office of a clerk to the justices who has been there five years, they can, if they think proper, give him a certificate. Then, if he stays for another five years—and, of course, passes all his examinations and so on—he can be admitted a solicitor. The Law Society Council have the power to do that—I stress again that there is no obligation on them—if it is not possible for that young man to become articled in the ordinary way. In other words, if the clerk to the justices is a solicitor, or if there is a solicitor available, so to speak, then the ordinary machinery must operate. But if there is no solicitor available for the purpose then the Law Society may, if they think fit, grant this young man a certificate on the ground that he cannot get his articles because there is no one to whom he can be articled.

That was agreed by those concerned. I am most anxious not to represent that it has the approval of the Law Society, because it has not. It has the approval of the President and several members of the Council; but while they are perfectly willing that I should state that to your Lordships, they are equally anxious that I should not tell you that it has the approval of the Law Society. As it does not confer a duty on the Society, but only a privilege or power—and a power which exists for only the next ten years, when it will run out—I have no hesitation whatever in recommending it to your Lordships as a reasonable compromise. It was so regarded in another place; it appealed to both sides there. And although I do not seek to say that it was a Parliamentary bargain, in the sense of the bargain we were discussing a few moments ago, yet it was obviously assented to by all sides of the House. I believe it to be a workable compromise, and I hope your Lordships will agree to it. I beg to move that this House do agree with the Commons in the said Amendment.

Moved, That this House do agree with the Commons in the said Amendment.— (The Lord Chancellor.)

5.27 p.m.


My Lords, I am sorry that it should fall to me to break up the universal harmony which has prevailed this afternoon, but I think this is an Amendment which we cannot possibly accept without standing on our heads. I should like your Lordships to consider the effect of this clause. For many years —almost, I think, for half a century—the education of a solicitor and his admission to the profession have been regulated by Statute, by regulations made not for the benefit of the solicitor, for whom I am not speaking now, but for the benefit of the public: so that when a man has received a certificate from the Law Society, the public resorting to him may know not only that he is a man who has passed all the necessary examinations but that he has been under the guidance of an experienced solicitor, to whom he has been articled and from whom he has learnt the business of a solicitor and those principles which actuate solicitors in the discharge of the duties of their profession.

The effect of this clause is that a man who is not a solicitor, working under a man who is not a solicitor, by passing certain examinations but never entering a solicitor's office at all or seeing any portion of a solicitor's business discharged anywhere, except so much as passes within the narrow limits of a magistrates court, can become a solicitor, and can hold out himself to the world as a person fit to discharge a solicitor's duties. At the time when he sets up his plate as a solicitor in the street of the small town where he lives, he may never have seen a will in his life, far less made one, or seen a contract for sale of land, or a trust deed or trust account. He has no knowledge whatever of the great majority of those things on which a solicitor is called upon to advise his clients. That we should do this at this stage, after all these years during which successive Councils of the Law Society, successive Lord Chancellors and successive Masters of the Rolls have tried to build up more and more the prestige of the profession and the security of the public resorting to members of that profession, seems to me a most lamentable thing.

Consider how it comes to us. I do not want to use extravagant language, but really this clause in itself is a Parliamentary outrage. Neither in its Long Title nor in its scope is this a Bill to deal with the qualifications of solicitors. Amongst other things, it is a Bill to deal with the qualifications of justices' clerks. To go on to say that because it deals with the qualifications of justices' clerks it therefore can deal, within its same compass, with the qualifications of solicitors is flying in the face of every doctrine that has ever governed Parliamentary time and procedure.

I fully agree with the noble and learned Viscount the Lord Chancellor that this subject is most difficult. It caused us great difficulty and trouble on the Roche Committee, and those of us connected with that Committee were all prepared to find that there would be considerable discussion on the matter here. We were always troubled as to the position of the unqualified man in the magistrates' clerk's office, and the consequent difficulty of reaching the goal which the Lord Chancellor—rightly if I may say so—has described as that of getting only qualified men to be justices' clerks. Therefore, I personally was by no means surprised at the decision which this House reached on this matter—which really came to this: that we gave to the unqualified man a ten-years' run. I think that is a fair way of putting it. At the end of that time, his prospects were to be cut off, but for ten years at least he was to have a chance, in special circumstances, of becoming a magistrates' clerk although he would have been unqualified.

That, however, has nothing whatever to do with what is going to happen to the assistant who does not become a justices' clerk. No argument has been adduced for turning him into a solicitor without his going through the ordinary steps that an ordinary solicitor has to go through. I find it difficult to understand how a proposal of this sort could have emanated from the present Government who, after all, whatever is said about them— and I knew that some quite nasty things have been said about them—do sincerely care, as I understand it, about seeing that those things which are done for the public by people held out to the public as fit to do them are, in fact, so done by people who are so fit. This completely retrograde step of going back to before the days of Bleak House is not only an innovation but a scandal.


Would the noble Lord deal with this point, for I am trying to follow him? There are the justices' clerks of whom fifty-eight are not qualified and thirty-two are. There is no difficulty about the thirty-two who are qualified. The young men who are with them can become articled and, although they do not have much to do with wills or land because their whole time is spent with the justices' clerks, they can become solicitors. So whether they can or not depends upon the accident of whether a young man's "boss," if I may use such a vulgarism, is or is not a solicitor.


I follow that and I am much obliged to the Lord Chancellor for his interruption. I have to face that. The first thing I would say about that—though it may be irrelevant—is that I do not myself approve of the process which has sprung up in recent years of articling pupils to solicitors who are not in fact carrying on solicitors' business. This idea that you might be articled to a magistrates' clerk who was a solicitor was a concession. It was a concession granted by the Council of the Law Society, and I suppose by the Society as a whole. I think it was illogical and I do not like it, but it has at least this advantage as against the unqualified man —that the person to whom you are bound is at least a solicitor. He himself has been articled and brought up in the traditions of the profession, and he can inculcate them into the boy who is articled to him, though he cannot provide the opportunity of seeing what a budding solicitor ought to see—wills, contracts, trust deeds, trust accounts and so forth. He cannot show him those, but he can teach him what the profession is and the kind of standards that have to be observed within it.

That is some excuse for this practice. It is a bad practice, but it is far too late to go back on it now. I entirely agree that it is illogical and that I cannot logically defend it. I can only make the palliating excuse that I have just made. I regretted it when the procedure first started and I regret it now. We cannot go back on it, but why should we immensely increase it? I do not want to say anything derogatory of unqualified clerks, for they are men of integrity and honour, well versed in the duties of a magistrates' clerk, but they are not suitable people to teach young candidates to become solicitors. They have nothing whatever to do with teaching solicitors. They know nothing whatever about it. They are completely ignorant of all the niceties of a solicitor's business and they seem to be completely unsuitable for the purpose.

I do not want to take up much more time about this. I have made such remarks as I wish to make, but I would add this. In the first place, this Amendment, I humbly suggest to your Lordships, is completely outside the scope of this Bill. No suggestion of that kind was ever made in all the discussions on this matter which took place when the Bill was passing through this House—which, after all, is a most appropriate place in which to make such a proposal, where it could have been discussed at length by people who knew something about it. It was put down on the Order Paper in another place on Monday last and it was discussed by them and accepted on Tuesday—an Amendment containing completely revolutionary proposals which amend the Solicitors Act and of which there is no sort of hint in the Bill from start to finish. Everything was done in the expiring hours of an expiring Session of an expiring Parliament. I urge your Lordships not to allow yourselves to legislate at this "agonising" moment. I wish to pay every respect to the Lord Chancellor's argument—I hope he realises that I understand the logical difficulty I am in—but I do urge your Lordships not to allow yourselves to be jumped by threats (because that is what it comes to) into accepting this Amendment at almost the last expiring moment of the Session.

5.38 p.m.


My Lords, I do not like to keep silent on this matter lest it be thought that I approve of or agree to this Amendment. Indeed, I have the authority of my learned friend the Master of the Rolls—who is, after all, the highest authority who has to deal with solicitors —to say that he regards this Amendment with considerable misgivings. I entirely agree with the noble Lord, Lord Schuster, in what he has just said about this matter being altogether outside the Bill. It is true that the Bill is intended to deal with justices' clerks, but this is not giving justices' clerks a qualification; it is altering the qualification of a solicitor. It is said by the Lord Chancellor that it will affect only a small number of people. I hope the Lord Chancellor will not mind my saying that that seems to me to be very much like the argument so often adduced that "It is only a little one." However many people it affects, it surely is a most alarming departure.

I am sure your Lordships will understand that, whether a lawyer be a solicitor or a barrister, practical experience is by far the most important part of his training. The articled clerk has to serve three years if he has a university degree, or five years if he has not. A barrister does not have to serve but, if he is going to be a practising barrister, he of course goes into Chambers, and until he has read in Chambers with another barrister he is not fit to conduct a case in court at all. It is only by experience that one fits oneself to carry on a profession. The difference between the assistant clerk to a qualified or an unqualified justices' clerk is this. In the ordinary way the great majority of justices' clerks are not confined merely to being justices' clerks; they are practising solicitors. They may have in their office a man, be he young or be he old, who acts as their assistant and may act as their deputy if they are away. If he is clerk to a qualified solicitor he will have the opportunity of seeing his principal's profession in the same way as any other clerk sees his principal's profession. But the unqualified justices' clerk, the man who is not qualified as a solicitor, is nothing but a justices' clerk.

It is suggested that men who have been clerks to unqualified justices' clerks and who will never have seen the practice of a solicitor's office are to be allowed to qualify as solicitors. With that there comes the result that directly they are qualified they can at once proceed to practise as advocates before the particular court to which they have been assistants, and can hold themselves out as fit to do the ordinary work of a solicitor. I say that they will not be fit to do the simplest thing in that respect if they have never had the ordinary experience, the practical experience. They will, of course, have to pass examinations (and that they may do), to show that they have some knowledge of law. But that is a very different thing from knowing how to apply it to the practical work of a solicitor's office. It seems to me that if we accept this Amendment we shall be doing a most remarkable thing.

As I understand the present position with regard to solicitors, it is that if a man has been serving a qualified solicitor for ten years he can apply to the Master of the Rolls to grant him exemption from the preliminary examination. That examination is one of a general character to see if he has the general knowledge. There is a certain amount of Latin, and so forth, connected with it, and sometimes the Master of the Rolls grants exemption from part of the examinations, very often only from Latin, or something of that sort. But that man will have been ten years in a working solicitor's office and he will have to take out articles and serve his articles before he is admitted as a solicitor. I do not know whether a man covered by this Amendment has still to pass a preliminary examination; he may have to. But here it is suggested that he need not have any knowledge of a working solicitor's office; the only thing of which he will need to have practical working knowledge is the work of a magistrates' clerk. To say that that would qualify a man to be a solicitor is, I think, saying something which it is very difficult to justify. I consider that this is a most retrograde Amendment. I cannot think how it came to be passed. I refer your Lordships to the long title of the Bill. How it is covered by the long title of the Bill. I do not know. It comes as a great surprise both to myself and to the Master of the Rolls, and I venture to think that we ought to insist that it should be taken out of the Bill.

5.44 p.m.


My Lords, I can speak again only with the leave of the House, but I should like to do so. I think it is a great pity, if I may say so with the greatest respect to the Lord Chief Justice, that communications about these matters are not made to me. I think it is a great pity, for instance, that the Master of the Rolls did not communicate with me, or that the Lord Chief Justice did not convey to me the views of the Master of the Rolls and of himself.


The last thing that I should wish is to be disrespectful to my noble and learned friend. I heard this only at lunch time to-day, and I was sitting in court until I came down here. That was the first I heard of it.


Even at lunch time I should have liked to hear about it. I hear all these things very late indeed. I confess I did not know about it. I was not consulted about it. I wish I had been, but I was not. Even if it is only an four or so, indeed only a few minutes before the debate takes place, I do think it would be much better, if things of a rather important nature are going to be said, that I should be made aware of them. I must say I regret that I was not so informed. The next thing I want to say is that it does not seem to me that the Lord Chief Justice has met the difficulties of the case one little bit. So long as the principle that a man can be articled to a whole-time jus- tices' clerk who happens to be a solicitor is accepted, that man never sees anything except the inside of that particular court. That is all he does, and he is in exactly the same position as the man who is employed by a justices' clerk who is not a solicitor. If you accept the one, how can you reject the other?

I quite see the case for saying, "We will not allow either, because their practices are not wide enough; what is wanted is a general survey." I understand that case. But I cannot understand the case for saying, "You are employed in one line of business through a whole-time justices' clerk, who does nothing else whatever. But he happens to be a solicitor, and therefore you can get yourself articled to him and so become a solicitor. But if he is not a solicitor then nothing ought to be done." The work is exactly the same. If the test is to be the fact that the work has not a wide survey, what about the case of a solicitor to a railway company, or a solicitor to some sectional business, who sees nothing except that particular type of work? He does not see wills or land settlements; he would not be brought up in that particular aspect. What about the case of a Town Clerk? The principle is that so long as a man is a solicitor he can have anybody articled to him, no matter how one-sided his business may be. If you accept that principle, I cannot see any logical ground for saying that there should be any difference, in cases where the circumstances are exactly the same, except that in one case the employer is not a solicitor and cannot have anybody articled to him.

This matter has been argued as though it imposes a duty on the Law Society. It does not do so at all. It merely gives them a right, a power. They need not use it unless they like. Of course, it involves the question of the character of the young man in question, the nature of the business in question, and the kind of man by whom he is employed; but if the Law Society think that the circumstances are such that it is a proper case for the exercise of their right, then they have the power; and no one can compel them to do otherwise if they think it right to say, "We will give this man a certificate." The effect of the certificate really is the same as though he had had Articles. He has to pass all the examinations and do all the other things. I may say that directly a barrister passes his examinations he is let loose on the public to advise on anything. I remember that the first case in which I appeared after passing my examinations was a case in the Chancery Division. Heaven help those who employed me! I regret to say that I lost the case, but I was entitled so to practise. A solicitor passes an examination which, by repute, is said to be stiffer than the Bar exam; and I cannot see why we should not extend to him the same courtesy that solicitors always extend to us by saying we are learned in all branches of the law. I very much hope your Lordships will support me in accepting this Amendment, thereby retaining this Bill.


My Lords, by this Bill as a whole we are ensuring, at any rate, that after 1960 none but qualified solicitors and barristers shall be justices' clerks. Let us remember that if this Bill fails, we have lost that improvement in the law which I believe is agreeable to everyone in your Lordships' House. All we are now doing is providing for a temporary period and for a temporary number of people. It sounds odd at first hearing that a person should be articled to a man other than a qualified solicitor and so gain the qualifications of a solicitor, but, of course, that can be done only in a case where the Law Society give the certificate. As the noble and learned Viscount who sits on the Woolsack has pointed out, it is left in the discretion of the Law Society whether or not they give it. They, after all, are the professional body responsible for seeing that the right sort of person is admitted to that profession. The period of articles has never been an absolutely firm one. In the case, I believe, of men who have served through the war, the period of articles has purposely been shortened, to save them time. Variations have otherwise been made from time to time. All I would say on the Amendment is that as for a permanency we are getting what we all want—only a fully qualified solicitor or barrister after 1960—for the sake of a temporary period we should not endanger the passing of this whole Bill by dividing against this particular Amendment, though some of us may not think it is drawn quite in the way that we ourselves would have drawn it.

On Question, Motion agreed to.