HL Deb 06 March 1956 vol 196 cc118-26

5.3 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Cohen.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

Clause 1 [Increase of annual contribution to Compensation Fund]:

On Question, Whether Clause 1 shall be agreed to?

LORD SILKIN

I do not wish to take up much of the time of the Committee on Clause 1, but it is the most important provision in the Bill and, on Second Reading, I took the liberty of expressing a few words of criticism about the method of collecting the contribution from solicitors. I specifically expressed my agreement with the principle, and it was only the policy of the fiat rate to which I objected. I then gave my reasons, which I will not repeat now. Since then I have had the benefit, not only of reading the debate which I had already heard, but also of receiving a memorandum from the Law Society. I want to say, frankly, that I am still unconvinced that the method of a flat rate is a fair one. I still feel that, if it had been possible, some assessment on the basis of turnover, the amount of money that passes through a solicitor's clients account, which, taking one year with another is a reflection of the size of the firm and its importance and the amount of business it is doing, would have been fairer.

I have not put down an Amendment, because the Law Society do not wish me to and one does not want unnecessarily to antagonise one's own professional organisation. I would only give this word of warning to the noble and learned Lord, Lord Cohen: that if he comes back in the future with a request for an increase of the contribution, I shall certainly on that occasion put down an Amendment to whatever clause is involved and really thresh out this question of a flat rate versus a levy in accordance with the means of the solicitor. On this occasion, since the maximum is only £10, having made my protest, I will say no more.

LORD COHEN

As the noble Lord, Lord Silkin, has not thought it necessary to repeat his arguments, I take it that your Lordships would not wish me to repeat in answer my arguments on the previous occasion. I would only say that if I could open to your Lordships the memorandum which has not convinced the noble Lord, I believe it would have a better effect on your Lordships generally.

Clause 1 agreed to.

Clauses 2 to 7 agreed to.

Clause 8:

Provisions relating to proceedings before disciplinary committee or court

8.—(1) The disciplinary committee may, for the purpose of hearing and determining applications or complaints under any of the provisions of the Solicitors Acts, sit in two or more divisions and, for the purposes of the hearing and determination of, and the making of an order on, any such application or complaint by such a division, that division shall be deemed to be the committee.

(2) The quorum of the disciplinary committee or a division thereof shall for all purposes be three:

Provided that— (a) an application or complaint may, with the consent of the parties thereto, be heard and determined by only two members of the committee or division;

LORD COHEN moved, in subsection (2), after "(a)" to insert: "unless any of the parties thereto objects,". The noble and learned Lord said: The Amendments that I have put down to this clause must be read together, and their object is quite simple. Under the original clause a quorum of two could operate only "with the consent of the parties thereto." The most common case where they would desire to act as two is, I think, where the respondent to the complaint does not appear, either because he knows that he has no answer or because he has already been convicted in the ordinary courts. The object of this Amendment is to dispense with the necessity of the express consent of the parties and to provide that the complaint may be determined by only two members of the committee unless any of the parties objects. I do not think that any question of principle is raised by these Amendments, and therefore I beg to move the first one.

Amendment moved— Page 6, line 4, after ("(a)") insert the said words.—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

I have already given the reasons why I suggest that the next Amendment should be adopted. I beg to move.

Amendment moved— Page 6, line 4, leave out from ("may") to ("be") in line 5.—(Lord Cohen.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Clauses 9 to 12 agreed to.

Clause 13 [Remuneration of Solicitors]:

LORD COHEN moved, in subsection (1), to leave out "A solicitor's" and insert: For the purposes of the remuneration of a solicitor, his The noble and learned Lord said: The reason for this Amendment is that, as the clause is drafted, it might have been thought that it had some relation to a bill of costs as between party and party payable to the other side. The point of this Amendment is to make it quite clear that this clause deals only with the remuneration of a solicitor from his own client. I beg to move.

Amendment moved— Page 9, line 29, leave out ("A solicitor's") and insert ("For the purposes of the remuneration of a solicitor, his").—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

The reason for this Amendment is that, because counsel have no legal claim to their fees, it might have been thought that the words "of a liability" did not cover counsel's fees. It was always the intention that they should be included, and, in the past, they have always been treated for this purpose as a liability. I beg to move.

Amendment moved— Page 9, line 31, after ("bill") insert ("(including counsel's fees)").—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

The reason for this Amendment is that there are cases where taxation is necessary, not as a result of an order of the court but as a result of a reference without an order of the court. Obviously there can be no objection to this change. I beg to move.

Amendment moved— Page 9, line 36, leave out ("ordered to be taxed") and insert ("referred to taxation"). —(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

This Amendment provides for the revocation of certain provisions of the Rules of the Supreme Court which are rendered unnecessary because, as a result of the introduction of subsection (1), the matter will be dealt with expressly in the Act. I beg to move.

Amendment moved—

Page 9, line 38, at end insert— ("Order LXV rule 27 regulation (29A) of the Rules of the Supreme Court, 1883, and rule 4 of the Rules of the Supreme Court (No. 1) 1936 (which amends that regulation) are hereby revoked.")—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

This is really a drafting Amendment, in the first place, to improve the English by substituting the words be for a gross sum instead of containing detailed items, but it involves the deletion of paragraph (a) of the proviso, because effect will be given to that proviso in the Amendment which I shall move in due course for the inclusion of a new subsection. I beg to move.

Amendment moved— Page 10, line 1, leave out from ("solicitor") to end of line 7 and insert ("be for a gross sum instead of containing detailed items: Provided that— ").—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN

This is again a drafting Amendment, and I do not think it needs any explanation. I beg to move.

Amendment moved— Page 10, line 13, leave out from ("bill") to ("and") in line 14 and insert ("containing detailed items,").—(Lord Cohen.)

On Question, Amendment agreed to.

LORD COHEN moved, after subsection (2) to insert: () if a gross sum bill is referred to taxation, whether under this subsection or otherwise, nothing in this subsection shall prejudice any rules of court with respect to taxation, and the solicitor shall furnish the taxing officer with such details of any of the costs covered by the bill as the taxing officer may require.

The noble and learned Lord said: The object of this Amendment is twofold. The first part makes it clear that the rights to be given to the client as a result of the grant of permission to deliver a gross sum bill are additional to the rights which he already enjoys of obtaining taxation of any bill, provided that he makes application within one month. The last part of the subsection is to make it quite clear that the solicitor will be bound to furnish the taxing officer with such details as may be thought necessary. I beg to move.

Amendment moved— Page 10, line 20, at end insert the said subsection.—(Lord Cohen.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14:

Qualification for office of solicitors who have been barristers.

14. Section seventy-two of the principal Act (which relates to the qualifications for holding certain offices of solicitors who have been barristers) shall have effect, in relation to any appointment to such an office made after the commencement of this Act, as if for the words from "that period" onwards there were substituted the words "the period of enrolment of a solicitor who before admission was a barrister shall be deemed to include any period during which he was in practice in chambers as a barrister in England."

LORD COHEN moved to leave out "during which he was in practice in chambers as a barrister in England," and to insert instead: after his call to the bar in England during which he is, for the purposes of this section, recognised by the Society as having been, or certified by the Attorney General as having in his opinion been, in practice or in employment as a barrister.

The noble and learned Lord said: Your Lordships may remember that in the course of the debate on Second Reading I mentioned that there was a point under discussion between the Law Society and the Bar Council as to the qualification of barristers, or as to the privilege granted to barristers to count as part of their qualification period for certain offices the period during which they had practised as barristers before they disbarred themselves and became solicitors. Doubts have been expressed by the 13ar Council whether it was sufficiently clear that this provision was to apply not only in the case of practice in England but also in the case of practice in the Dominions or Colonies overseas. The matter has been further discussed with the Bar Council, and as a result I beg to move the Amendment which stands in my name. Your Lordships will see that, in effect, it gives a right of appeal to the Attorney General from an adverse decision of the Law Society as to whether the solicitor ex-barrister has qualified, and it also enables them to take into account not only practice overseas but employment in certain capacities. We are informed by the Bar Council that this is entirely satisfactory to them. It is satisfactory to the Council of the Law Society, and I hope your Lordships will see fit to accept it. I beg to move.

Amendment moved— Page 11, line 11, leave out from ("period") to end of line 12 and insert the said new words.—(Lord Cohen.)

LORD SILKIN

As this Amendment is satisfactory to both eminent bodies, I suppose it is impertinent for anyone else to interfere. However, I should be grateful if the noble and learned Lord could explain exactly what is the position of a barrister who is disbarred and who subsequently becomes a solicitor. What are his rights? Is he able to count the whole of his service as a barrister in any subsequent qualification period?

LORD COHEN

I must refer back to Section 72 of the original Act.

LORD SILKIN

Since it has been subject to discussion between the two bodies, it would be useful to know exactly what has been agreed.

LORD COHEN

Your Lordships will remember that under Section 72 it was provided that: For the purposes of any statutory provision or custom whereby the qualification of a solicitor for holding any office depends upon his having been admitted and enrolled for a prescribed period, that period shall, in the case of a solicitor who before admission was a barrister, be reckoned as if he had been admitted and enrolled on the date on which he was called to the Bar. In regard to the original section which I have just read to your Lordships, the objection was felt that a barrister who had never practised at all as a barrister might be able to take advantage of that provision by referring back to the date at which he was called to the Bar. He might have been a gentleman at large or in business. It was always understood that the provision was meant only for the benefit of practising barristers. What I have said is still accurate. The objection to the original section was that the time in which a man was not practising could be counted. The clause as drafted was intended to limit it to the time in which he was practising. As drafted originally, it might have been read as "practising in chambers in England," whereas overseas the branches of the profession are often combined. The effect of the Bill, as amended, will be that, if the Society recognise him as having practised in chambers, that will be the end of the matter, and he will be able to count that period. If they reject it, he will still have, in effect, a right of appeal to the Attorney General, and if the Attorney General certifies that in his opinion the applicant has been in practice or in employment as a barrister, he will be able to count the period during which he has been in practice. I hope that that clarifies the position.

LORD SILKIN

Yes; it is perfectly clear.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

THE LORD CHANCELLOR moved, after Clause 16 to insert the following new clause:

Certain powers to be exercisable by statutory instrument

"17.—(1) The power conferred on the Treasury by paragraph (h) of subsection (2) of section four of the Solicitors Act, 1933, to prescribe revenues or funds for the purposes of that subsection (which exempts officers whose remuneration is defrayed out of certain funds from compliance with rules of the Council with respect to solicitors accounts) shall be exercisable from time to time by order made by statutory instrument.

(2) The powers to make rules conferred by section six of the principal Act and subsection (6) of section sixteen of the Act of 1941 (which relate to the procedure of the disciplinary committee) shall be exercisable by statutory instrument.

(3) For the removal of doubt, it is hereby declared that the power to make orders conferred by section fifty-six of the principal Act (which relates to the remuneration of solicitors in respect of non-contentious business) is exercisable by statutory instrument.

(4) The Statutory Instruments Act, 1946, shall apply to a statutory instrument containing such rules as are mentioned in subsection (2) of this section or such an order as is mentioned in the last foregoing subsection in like manner as if the rules or order had been made by a Minister of the Crown."

The noble and learned Viscount said: I beg to move the new clause which stands in my name on the Marshalled List. The general purpose of the clause is to provide for certain rule-making powers under the Solicitors Acts to be exercisable by statutory instrument. The subsections really speak for themselves. I will put them to your Lordships briefly. Subsection (1) refers to the power conferred on the Treasury under Section 4 (2) (h) of the Solicitors Act, 1933, and to the non-application of the rules which are made by the Law Society with regard to the keeping of clients' accounts to a solicitor employed as a public officer so far as regards monies received by him in the course of such employment. It seems right that a power of this nature should be exercisable by statutory instrument. In fact, those who care to do some research into the matter will find that the Treasury did it in 1947 with regard to someone in employment of that kind.

Subsection (2) refers to the rules of the disciplinary committee of the Law Society. Again, that is a matter, everyone will agree, that should be dealt with by statutory instrument and should obtain the publicity which a statutory instrument gets. The third subsection, as your Lordships see, is for the removal of doubt, and refers to the power to make orders in regard to the remuneration of solicitors for non-contentious business, which under Section 56 of the Solicitors Act, 1932, is exercisable by a committee consisting of the Lord Chief Justice, the Master of the Rolls, the President of the Law Society and the president of a provincial law society; and, in the case of registered land, the Chief Land Registrar and myself. There is an interesting argument concerning what the legal position is and whether these orders fall within the definition given in the Statutory Instruments Act. Did time permit, I should like to argue that matter before a Divisional Court consisting of the noble and learned Lords, Lord Evershed and Lord Cohen; but, in view of the time of your Lordships that I have already occupied, I shall leave it as a doubtful matter and ask your Lordships to put it right by legislation. The effect of subsection (4) of the new clause is to apply the provisions of the Statutory Instruments Act, 1946, to the rules of the disciplinary committee and to the solicitors' remuneration orders.

Amendment moved— After Clause 16, insert the said new clause, —(The Lord Chancellor.)

On Question, Amendment agreed to.

Remaining clauses and Schedules agreed to.

House resumed.