SOLICITORS (SCOTLAND) BILL [H.L.] (Hansard, 19 December 1957)

§ LORD KEITH OF AVONHOLM
My Lords, I shall not often have the honour of moving a Bill in this House, but this is an occasion on which I think it is not inappropriate that a Bill should be moved from the Cross-Benches. The Bill may be described as a professional Bill, and it contains provisions that correspond to the statutory provisions of a number of learned societies. It has, I understand, been agreed with all the bodies which are interested in the purposes of the Bill. Before further reference to the provisions of the Bill, I should explain that it was only in 1949 that there was created by Statute the Law Society of Scotland. That Society, accordingly, is a much younger society than its sister society, the Law Society of England. But it runs on parallel lines, and with very similar powers. The ultimate control of solicitors in Scotland is, and has always been, with the Courts, and there is nothing in this Bill to change that. The Lord President of the Court of Session has, I understand, been consulted with reference to this Bill, the provisions of which have 1328 his approval. The Law Society of Scotland is, of course, the body immediately and directly concerned with the interests of the general body of solicitors in Scotland, and it is they who will operate the Bill if it passed into law.
I turn now to the Bill. It is, as your Lordships observe, an amending Bill—a Bill: to amend the law relating to solicitors and notaries public in Scotland, and for purposes connected therewith. More particularly it amends in some respects the provisions of the Solicitors (Scotland) Acts, 1933 and 1949. If I might supplement the Explanatory Memorandum attached to the Bill I would explain briefly some of the purposes and reasons for its clauses. Clause 1 deals with the admission of solicitors in Scotland. Much thought has recently been given to this question. It is felt that the existing provisions laid down in earlier Statutes are somewhat rigid, and what is proposed by Clause 1 is that practical training, legal education and the passing of examinations should be made a matter for Regulations prescribed by the Law Society with the concurrence of the Lord President of the Court of Session. This will provide more flexibility to meet modern conditions. It is a matter that has already been discussed with the Scottish universities. The clause corresponds almost exactly with a similar statutory provision in the English Solicitors Act, 1957.
Clause 2 deals simply with the enactment of a small admission fee on the admission of a candidate to the Society. Clause 3 gives power to the Council to withdraw a solicitor's practising certificate if he fails to comply with various statutory provisions and rules dealing with the keeping of accounts. These rules are designed to keep a check on solicitors in the matter of managing money of their clients coming into their hands. Clearly it is undesirable that a solicitor who does not conform to these requirements in the matter of accounts should be in a position to continue to practise as a solicitor, with probable embarrassment and loss to his clients. Accordingly, the clause proposes that in such circumstances the Council may … withdraw the practising certificate held by the solicitor, and such certificate shall thereupon cease to have effect and he shall be suspended from practice as a solicitor until he 1329 satisfies the Council that he is able and willing to comply with the said Rules and the said section thirteen. Clause 4 provides that the Keeper of the Registers of Scotland should receive a list of the solicitors holding practising certificates and that the list should be kept up to date from time to time. That is purely of technical significance, intended to keep the Keeper of the Registers advised of those solicitors who are entitled to deal with matters such as the registration of writs in the Land and Sasines registers.
Clauses 5 to 7 deal with matters of discipline. They provide for action to be taken in cases of professional misconduct, conviction for dishonesty, or a sentence of imprisonment of not less than two years imposed upon a solicitor. These clauses effect no substantial change in the law, but what they do is this. Previously the Council of the Law Society had to investigate the conduct of an offending solicitor and report to the Court. The Court then conducted what in effect was a second inquiry, and it was the Court who struck an offending solicitor off the Roll, suspended him from practising or imposed some other penalty. What is proposed in this Bill is that the Law Society should deal entirely with the matter in the first place, that they should have power to strike an offending solicitor off the Roll or impose some other penalty, and that then the solicitor should have a right of appeal to the Court. Again this is a procedure which corresponds with the practice in the case of the Law Society of England under its own Statutes. Clause 6 provides for the restoration of a solicitor to the Roll, with a corresponding right of appeal under Clause 7. Clause 8 merely introduces certain procedures to be followed in cases that come before the Discipline Committee.
Clause 9 is a clause for the protection of the clients of a solicitor who is struck off the Roll or suspended from practice. Such a solicitor must satisfy the Council of the Law Society that he has made suitable arrangements for handing over the papers of clients or trust papers or cash due to or held for clients or on trust. If he fails, the Council may invoke certain provisions of the 1949 Act, which give them power to take possession of a solicitor's papers, under an order of the Court if necessary, and put a stop on payment out of the bank account of the solicitor. 1330 Clause 10 saves the overriding power of the Court over solicitors.
Clause 11 is consequential on the discipline provisions of the Bill. It requires a solicitor who is struck off the Roll to be also struck off the Roll of notaries public, and that a solicitor who is struck off the Roll of solicitors at his own request shall also be struck off the Roll of notaries public. The clause also provides for restoration to the Roll of notaries public in appropriate cases. Clause 12 is introduced merely to clear up doubt about the power of notaries public to administer and receive oaths, affidavits and solemn affirmations in certain statutory matters.
Clause 13, again, is a clause for the protection of solicitors' clients. It requires every solicitor in private practice, with certain exceptions, to deliver to the Registrar not oftener than once a year an accountant's certificate in the prescribed form. That certificate is intended to disclose whether a solicitor's accounts are being kept in compliance with the Scottish Solicitors Accounts Rules made under the Act of 1949. These are designed to show a solicitor's dealings with his clients' money. This clause will be put into effect through rules made by the Council of the Law Society, but your Lordships will notice that in subsection (6) the clause cannot come into operation until such date as the Secretary of State may by statutory instrument appoint, which cannot be earlier than six months after the Council have notified the members of the Law Society of their intention to apply to the Secretary of State for an order. It is also provided, in subsection (4), that failure to comply with the rules or with the Solicitors Accounts Rules may be professional misconduct. That again is a provision which has, I think, been taken largely from one of the statutory provisions of the English Solicitors Act, 1957.
Clause 14 makes certain consequential amendments of the Acts of 1933 and 1949 and some other minor amendments of these Acts through the Schedules attached to the Bill. Clause 15 gives power to the Council to apply for the appointment of a judicial factor on a solicitor's estate if satisfied on investigation that his accounts are not in order, or that his liabilities exceed his assets; that is clearly a most desirable provision. Clause 16 provides 1331 that where a solicitor's estate is to be under administration by sequestration, trust deed or appointment of a judicial factor, and the monies in credit in the clients' bank account kept by the solicitor are less than the sums received by the solicitor on behalf of the clients, the total at credit is to be divided among the various clients in proportion to the sums received by them.
The object of that clause is to do away with what is known as the rule in Clayton's case. I am not going to weary your Lordships with an explanation of Clayton's case, beyond saying this: that it is a rule that has been established that, where you find a series of debits and a series of credits in one account, the credits that appear earliest in the account are set against the debits that appear earliest in the account. Accordingly, where the credits are less than the debits, one naturally finds a balance of debit at the end. The result might be, so it is thought, that if in the solicitor's clients' account the sums due by the solicitor to the clients are less than the sums that have been credited to the clients in the clients' account at the bank, the client at the top of the list might get payment in full and the client who comes in at the bottom of the list might get nothing at all. The object of this provision is simply to provide that an equitable proportionate division should be made of the total sum in the bank among all the various clients who are affected. Provision is made, however, that this will not apply to accounts which are earmarked in the name of a particular client.
Clause 17 is the last clause to which I think it is necessary to refer, and it is introduced for a somewhat curious reason. The clause provides for the rectification of the Roll of enrolled solicitors. At present, the only persons removed from the Roll are those who are removed at their own request, or who are struck off the Roll in respect of professional or other misconduct. I am told that there are thousands of names on the Roll of enrolled solicitors of people who have been dead for many years—in fact, some of them since before 1874. There are 17,000 names on the Roll, and most of the people, I understand, are dead. The purpose of this provision is the obvious one that it is desirable that there should be a live Roll of enrolled solicitors; and, 1332 accordingly, this clause makes provision for securing that result. I think that that covers everything to which I need refer in connection with the clauses in the Bill, and I beg to move that the Bill be now read a second time.

§ LORD MATHERS
My Lords, I hope that it will not be considered inappropriate or in any way wrong for one of your Lordships' House quite unlearned in the law to venture to say something on this Bill. This obviously is a Bill concerned with solicitors, and I confess that I have made every endeavour during my lifetime to keep as far away from solicitors as I possibly could, although occasionally I have found solicitors very helpful indeed. I have had opportunities, in serving as a Member of another place, of being brought into contact with the Law Society of Scotland, and there I have found great helpfulness, and I pay tribute to the way in which that Society does its work.
This is an amending Bill, as the noble and learned Lord, Lord Keith of Avon-holm, said—and I thank him for the detail he has given us in his speech. It is, as a matter of fact, a kind of redding up of things affecting solicitors, and it seems quite appropriate that a redding up should be done at the end of the year, when we always try to get our affairs into some semblance of order. Those of us who work at a desk, and who are not particularly careful about how we set things aside or file them, take the opportunity at the end of the year to do something in the way of redding up. It is obviously a matter affecting solicitors in the domestic sphere of solicitors as a great body practising the law in Scotland.
The only question that I thought of putting to the noble Lord who is to reply for the Government is this. Here is an amending Bill, and amending Bills, with all the reference back to the Statutes that they are amending, are usually difficult to follow. I should like to ask whether this Bill may be looked upon as a precursor to a Consolidation Bill, which it seems to me, arising out of this amending Bill, has become necessary. So far as opinion on what is provided for in the 1333 Bill is concerned, I have had little opportunity of making contact with solicitors about it, but I have certainly found no objection taken to anything that is provided for here; indeed, the atmosphere I have found leads me to say that here is a Bill 'which is welcomed by those in the profession, and I am quite sure that they would wish this House to give it a speedy passage and enable it to become law as early as possible. I therefore support the Second Reading of the Bill.

§ LORD SILKIN
My Lords, if my noble friend Lord Mathers felt it necessary to apologise to the House for speaking on this Bill, I find it necessary to apologise twice over: first, because I am not a Scotsman, and, secondly, because I know nothing about Scots law. I rise to say a word or so on this Bill, because I feel a great sense of comfort in having had the explanation of the noble and learned Lord, Lord Keith of Avonholm. I felt that he was putting forward for Scotland things which we in England had been doing for the last fifty years or more. Therefore, Scotland has had an opportunity of seeing how we have been doing these things. They have waited a very long time, and now that they feel satisfied we have been successful, they are trying it. It is one of the few respects in which we find that Scotland is lagging substantially behind England.

§ LORD MATHERS
Do not rub it in!

§ LORD SILKIN
I do not often have an opportunity.
The other point is one about which I find no mention in the Bill at all, except indirectly. I suppose that solicitors in Scotland do occasionally make default in payment of their clients. I think there is a slight suggestion of that kind in the Bill in the clause which deals with the Clayton case. There is a possibility, but in England we have dealt with it in such a manner as to ensure that the clients do not suffer. We have set up a fund to which all solicitors contribute, and from which, in the rare event of a solicitor making defalcation, the client is compensated. Is there no such fund in Scotland? There is certainly no reference to it in the Bill. Is it Scottish reluctance to make a contribution of a few pounds a year towards such a fund, or what is the reason that it has not been adopted 1334 in Scotland, if such is the case? I should be glad of an explanation.

§ LORD KEITH OF AVONHOLM
My Lords, may I, on a point of information, say that there is such a matter provided in one of the earlier Scottish Acts. There is a guarantee fund to be applied in the case of clients who suffer from defaulting solicitors. It was not necessary to bring the matter into this Bill.

§ LORD SILKIN
I am glad to hear that—it just shows my ignorance! Lastly, I should like to say a word to my noble friend Lord Mathers, who has been successful in keeping away from solicitors all his life. I would say that that is not necessarily a gain in his life; it may be a loss. Most people who go to solicitors do not necessarily go for the purpose of litigation; they go for friendly advice and help; and, generally speaking, get it. If more people went to solicitors they would keep out of the difficulties which they eventually get into, and on the whole I think they would get good advice. I was glad that the noble and learned Lord was able to explain what I thought was the one defect in the Bill, and I am certainly glad to hear that Scotland is coming on.

§ LORD MATHERS
My Lords, may I correct a wrong impression in my noble friend's mind? I have kept away from solicitors simply because I have kept out of trouble, so far as possible. Where I did require the help of a solicitor, I have got it in ample measure and have been well satisfied with it.

§ LORD STRATHCLYDE
My Lords, the purposes of this Bill have been so fully and ably expounded by the noble and learned Lord, Lord Keith of Avonholm, that any further explanation from me not only would be unnecessary but might well weary your Lordships. I feel, however, that your Lordships would wish to congratulate the Law Society of Scotland on securing so distinguished an advocate to place this Bill before your Lordships' House.
Your Lordships will no doubt wish me to indicate the Government's attitude to the Bill. I am glad to inform your Lordships that they are favourably disposed towards it. It seems to them to make useful amendments to the law, relating to solicitors in Scotland which will enable 1335 the profession to raise still higher the standard of its services to the public. Your Lordships will perhaps excuse me from saying more than that at this time. As a chartered accountant, I have learned to walk warily where the law is concerned, and therefore I do not propose to comment on any of the details of the Bill. But perhaps the noble and learned Lord will be able to take the noble Lord, Lord Silkin, to task for suggesting that Scotland ever lagged behind England. I hope your Lordships will give this Bill a Second Reading.

§ LORD KEITH OF AVONHOLM
My Lords, I do not think there is anything which calls for a reply on my part.