SOLICITORS (SCOTLAND) BILL [H.L.] (Hansard, 29 January 1976)

The Earl of SELKIRK
My Lords, I beg to move that this Bill be now read a second time. The noble Lord, Lord Hoy, is interested in supporting this Bill and we did, so to speak, toss a coin as to whether he should promote it or whether I should, because in this House we are not allowed to have more than one sponsor. I say this for two reasons: one is that I am glad to have his support and the second is to indicate that this is in no sense a Party Bill.
The Bill is promoted by the Law Society of Scotland and the purpose of it is to exercise closer discipline over its own members. The powers here are fairly strong, but I should say that allpractising solicitors are members of the Law Society of Scotland and the recommendation and support of this Bill is unanimous, in so far as anything can be unanimous in a council of 40. It is interesting that we in this country have long pursued the policy of expecting professions to exercise discipline over their own members. To a large degree this is not the practice on the Continent and many of your Lordships will agree, I am sure, that ours is a better practice. As in other professions solicitors should be responsible for ensuring that their own profession maintains the standard which they would like to see.
The explanation of this Bill will cause me a little difficulty and I will try to do it with such skill as falls to me. In the first place, there is no common thread in this Bill. It is a series of points by which the Society can be strengthened. Secondly, it is a clarification and strengthening of five previous Acts from 1933 to 1965.
Perhaps I should say one word about the growth of the Society itself. In 1933 the General Council of Solicitors was formed; it was only charged with the examination and admission of students, and it kept the roll of solicitors. This 1112 was slightly clarified in an Act of 1934 and the main Act came in 1949. The Law Society was then formed. The Bill to do this had been drafted before the war and indeed had been passed by this House, but it did not become law until after the war was over. At that time there had been added to it considerable duties in regard to legal aid. It was given fairly extensive powers and it was given the responsibility for issuing certificates. This Bill was extended in 1958, which gave power to the Society to strike off solicitors for misconduct. In 1965 further powers were given to make rules applicable to the manner in which clients' money should be kept.
In principle, this Bill is not greatly dissimilar from one passed in England in 1974 and. if I may deal with the details of the Bill, Clauses 1 and 2 deal with the case of solicitors who for one reason or another are incapable of carrying on their business. In such cases, the performance of their duties can be taken on by the Law Society; that is, they may take over the documents and, in the normal case, would hand over the business to one or other of their own members. Clause 3 entitles them to obtain reasonable expenses for their services.
Clause 4 strengthens the Act of 1958. It applies to the situation in which a judicial factor can be petitioned for. It can be petitioned for in any case where the accounting rules are not being fully or satisfactorily carried out. There is an addition to this in this clause: it is not only when they can show that they are not being properly carried out, but if the Council have reasonable grounds to assume that they may not be so carried out. If these powers should be wrongly observed, there is an appeal to the courts.
Clause 5 regulates the banks and other places in which clients' money may be deposited. Here I must declare an interest, because I am president of the Building Societies Association and one of the places in which money will be enabled to be deposited is in building societies. In general, the position is that they were entitled to put their money in banks. "Banks "as a word by itself is not very closely defined, so it is now restricted to banks which appear under the Protection of Deposit Act 1963, along with savings banks, Post Office savings banks and building societies. There will require to 1113 be a small technical amendment to this clause which, if I get your Lordships' permission for the Second Reading, I will move at a later stage.
Clause 6 gives, I hope, the answer to that woe of the world referred to by Hamlet, the law's delay, because it enables the Society to bring pressure to bear on solicitors who are guilty of delay. This is something which few people in the world from time to time would not like to see improved. Clause 7 deals with the appointment of lay observers. This is a matter which falls to the Secretary of State for Scotland and I very much hope that the noble Lord who will be speaking for the Government will find this appointment one which he can generally accept. The Secretary of State for Scotland, after consultation with the Lord President of the Council—that is the Lord President of the Court of Session—can appoint a lay observer who will examine the manner in which complaints are handled by the Society. He does not resolve the problems he merely sees that they are properly looked at and that their manner of examination is satisfactory. The terms of his appointment will be settled by the Secretary of State, and such fees, and so on, as may be necessary.
Clause 8 deals with professional indemnity. In some cases a client may sue his solicitor for professional negligence and it can happen that, having won the case, the client finds that the solicitor is unable to pay the compensation which may be due to him. This is grossly unfair to the client, but this clause enables the Society to cover this point by insurance in one way or another. Clauses 9, 10 and 11 deal with the training of apprentices and the issuing of practising certificates. I do not think I need go into that, except to say that under Clause 11(f), if a solicitor does not reply to a complaint or to the reporting of a complaint of a client by the Society, he may have his professional practising certificate withdrawn.
Clause 12 deals with the position of consultants and limits the field of their liability in certain cases. Clause 13 deals with what is called the effects of "covering"; that is, it sometimes happens that solicitors employ another solicitor who has already been struck off the roll. That will be prevented by this 1114 clause, except by special permission of the Law Society. These cases, of course can be appealed against to the Court of Session. Clauses 14 and 15 deal with discipline. First, the name of the Discipline Committee is changed to "Solicitors Discipline Tribunal ". The reason for that is to make it quite clear that the Tribunal is not part of the Law Society at all and acts in a judicial capacity. To this Tribunal will be appointed two lay members, who will be appointed by the Lord President of the Council and any meeting or session will be valid only if one at least of the two lay members is present. In this case the money will be paid by the Secretary of State, or at such level as will be approved by him.
My Lords, Clause 16 enables the Society to deal with any client account of a solicitor who has been struck off. Clauses 17 and 18 specify a slight change in the date of a solicitor being struck off. In such case, he will cease to be allowed to handle his clients' accounts from the moment of intimation of the fact that his name has been struck off. Now it is true, of course, that an appeal may run, but none the less a lien on any moneys in his hands is effective from the moment when intimation of striking off is received. It is possible that the court may order otherwise, but from that time onwards the solicitor cannot in any way operate that account, which is a safeguard which may be necessary in certain circumstances. Clause 19 to 21 are minor amendments which I do not think I need go into. Clause 22 increases the annual fees to the Solicitors' Guarantee Fund from £10 to £25—this is partly the result of inflation —and also increases the special fee which can be raised in any one year to £25, if it should appear to be necessary. I think this is necessary in view of the change in the value of money. Clauses 23 to 26 are consequential and relate to interpretation.
My Lords, I hope that this Bill will receive a Second Reading in this House. I think it is important that the profession should have the power to exercise discipline on its own members. I believe it is by far the most satisfactory way in which that discipline should be exercised. There is nothing that anyone holds more dear than the respect of his peers, and that, I am sure, is a view very strongly held in 1115 the profession of solicitors as, indeed, in other professions. I beg to move.

§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, the Bill of the noble Earl, Lord Selkirk, is a most useful measure and its general aims, as the noble Earl's admirable exposition of them has clearly shown, are to provide additional safeguards for ordinary members of the public. Some of these safeguards will be operated by the Law Society themselves, as guardians of the high standards of the solicitor profession in Scotland. Others will strengthen the existing statutory tribunal which considers formal complaints against solicitors. For the first time, however, it is proposed to introduce a lay element into the consideration of complaints against solicitors in Scotland and the Government welcome particularly the provisions giving effect to these proposals. The principle that justice must not only be done but must be seen to be done may have become something of a cliché but it is no less valid for that. It cannot be denied that there is a certain public suspicion of arangements for dealing with complaints which do not involve some external and independent consideration, and it is hoped that the proposals to appoint alay observer and to include lay representatives in the composition of the disciplinary tribunal will create public confidence in the machinery for considering complaints against solicitors.
The Government are also glad to see the arrangements in the Bill dealing with the question of indemnity for solicitors against professional liability. These provisions also provide, of course, a new and additional safeguard for the public. Your Lordships will have gathered from what I have said that the Government are fully behind the principles embodied in the noble Earl's Bill, and would be very glad to see your Lordships' House give the Bill a Second Reading.

Lord CAMPBELL of CROY
My Lords, I congratulate my noble friend Lord Selkirk on introducing his Private Bill. He is a lawyer I am not. The Scottish Law Society commends this Bill. We find a situation in which the legal 1116 profession in Scotland are recommending safeguards and remedies for clients where there are complaints against solicitors. In particular, as has just been mentioned by the noble Lord, Lord Kirkhill, the Bill introduces a scheme under which non-lawyers will play an important part in the procedure. There may be points for discussion at later stages in the Bill, or possibly need for some changes, but this is a measure which is needed in Scotland. Certainly a Bill of this kind is needed. Similar action has been taken in England and Wales. I believe this House can welcome this Bill as one which is not controversial, and which will improve the remedies open to members of the public.

§ Lord WILSON of LANGSIDE
My Lords, although my name does not appear on the list of speakers, may I be permitted to say that the House is in the debt of the noble Earl. Lord Selkirk, for his introduction of this very useful measure. Speaking as one who, prior to the Second World War, acquired the qualifications of a solicitor in Scotland but who has never, unfortunately, practised as such, and as one who since then has had a good deal of association with the solicitors' branch of the legal profession, particularly those working in the courts, I would say it is highly desirable that this Bill should, if your Lordships see fit, make speedy progress through this House, and indeed in the other place.

§ Lord HUGHES
My Lords, I wish to associate myself with the support for the Bill brought forward by the noble Earl, Lord Selkirk. I did not put my name down on the list of speakers because I had another commitment in the House and was not certain whether there would be a clash of time, but that clash has not arisen. My Lords, I was particular interested in two of the points made by the noble Earl in relation to remedies against delay and holding where a client has sued his solicitor and then finds he cannot get the compensation to which he is entitled. As did, I am certain, many millions of other people, I watched a programme on television the title of which, unfortunately, I cannot remember but which everyone talks about as the Esther Rantzen show. There were a number of rather distressing cases quoted on that programme about the difficulties 1117 of people—I think they were all English cases; I do not know whether that means it cannot happen in Scotland—particularly when they are seeking to sue a solicitor for negligence.
It seemed to be extremely difficult for some of these people to get a solicitor to represent them. It was argued that the principle arising was that dog does not eat dog. I do know whether I am right in this, but it seemed to me that some of the points put forward by the noble Earl touched on this. It seems as if the effect of this Bill at least would be to make it easier for people to get the same degree of justice when their complaint was against a solicitor as when it was in any other direction. I hope I am right in that assumption. I would be even happier if the answer were to be given to me that here is no such difficulty in Scotland.

§ Lord FRASER of TULLYBELTON
My Lords, I did not put my name down to speak either, but I should like to associate myself with the Bill which is now before your Lordships. With regard to the point just raised by the noble Lord, Lord Hughes, as I understand it, the clause giving power to the Society to deal with cases of undue delay is really intended to deal with cases where delay is not so great as to amount to professional negligence—something with which the Society already has power to deal. It is intended to deal with the sort of case where the solicitor has seemed dilatory and the client is dissatisfied, but it is not possible to "get him" for professional negligence. It extends the power of the Law Society to relatively less serious cases, but cases which may cause some trouble to the lay client. I would respectfully commend this Bill for your Lordships' approval.

The Earl of SELKIRK
My Lords, I am sure the noble Lord, Lord Fraser, is perfectly right in what he says. There is not only power to take up the question of delay, but if the solicitor does not answer the letter complaining about delay he can be struck off, or rather have his practising certificate withdrawn. I think this provision meets the point. And the noble Lord, Lord Hughes, is absolutely right: this indemnity service is vitally important. It is not a question necessarily of any criminal offence, but it may none 1118 the less be professional negligence for which the client can obtain no other remedy at all.
I am very grateful to the noble Lord, Lord Wilson. I did not even know we had a solicitor in this House; it adds greatly to the value of your Lordships' House that we should have one. May I thank Lord Campbell, too, for the support he has given. I am very glad the Government find that they are able to support this Bill, and very grateful indeed for what the noble Lord, Lord Kirkhill, said. I hope that if this Bill goes through this House the Government will consider seriously whether time can be given to it when it reaches the other place. It is something which is urgently needed in Scotland. May I also say it is something which is not wholly unconnected with the extended debate we have had over the last two days.