SOLICITORS (NORTHERN IRELAND) ORDER 1976 (Hansard, 15 March 1976)

§ The PARLIAMENTARY UNDERSECRETARY of STATE, NORTHERN IRELAND OFFICE (Lord Donaldson of Kingsbridge)
My Lords, I beg to move that the Solicitors (Northern Ireland) Order 1976, a draft of which was laid before this House on 25th February, be approved. You will remember, my Lords, that two years ago in this House you approved legislation on solicitors which was designed to consolidate and bring up to date the law regulating the profession of solicitors. The order now before you corresponds to a large degree to that legislation, and is, in fact, based on the proposed Solicitors measure in the Northern Ireland Assembly.
However, it contains some provisions which the Assembly had not considered up to the time it was prorogued. The general purpose of the order is to facilitate improvements in legal education and training; to revise the law relating to admission to the profession and conduct within it; to provide for the setting up of a compensation fund, financed by the profession, to relieve hardship resulting from dishonesty by solicitors or their employees; to authorise regulations to be made requiring solicitors to take out insurance against claims for negligence; and to make new provisions about costs for legal work outside the courts. My Lords, this is a most comprehensive measure which provides new safeguards for the public and meets the requirements of the profession. I will now deal with the order in more detail.
Part I, containing Articles 1, 2 and 3, is introductory and deals with the title, commencement and interpretation. Part II (Articles 4 to 25) deals with the qualification of solicitors, their admission to the profession and their conduct or discipline. Article 4 simply restates the qualifications which a person must possess in order to practise as a solicitor. Article 5 defines the requirements for admission of a solicitor, as to which the Law Society is empowered to make regulations under Article 6. In effect, the applicant must satisfy the Society that he has complied with these regulations, and also that he is fit to be a solicitor. Under Article 6 the Law Society of Northern 92 Ireland is given more flexible powers, exercisable by regulations subject to the concurrence of the Lord Chief Justice, for regulating the education, training, qualifications, conduct, experience and control of persons seeking admission as solicitors. Articles 7 to 13 deal with the appointment and duties of a registrar of solicitors and with applications for practising certificates, and contain provisions regarding the issue, the refusal and duration of these certificates. Article 14 confers upon a solicitor a right of appeal to the Council of the Society against the refusal of a practising certificate by the registrar. A further appeal lies from a decision of the Council to the Lord Chief Justice of Northern Ireland.
Articles 15, 16 and 17 deal with the suspension of practising certificates; Article 18 contains provisions in respect of evidence of the holding of a practising certificate; and Article 19 prohibits an unqualified person from acting as a solicitor. Article 20 imposes specific penalties on solicitors who practise as such without having a practising certificate in force, and Article 21 prohibits a solicitor from practising while he is an undischarged bankrupt or, if his suspension from practise has been terminated subject to terms and conditions, without complying with those terms and conditions. In Article 22 any unqualified person who wilfully pretends to be qualified to act as a solicitor is liable on summary conviction to a fine not exceeding £200. Article 23 recognises that an unqualified person may prepare a will, an agreement under hand only, a power of attorney or a transfer of stock without committing an offence, but if he carries out certain other specified duties in connection with the Land Registration Act (Northern Ireland) 1970 or dealing with personal or real estate, he may be liable on summary conviction to a fine not exceeding £200. Article 24 prohibits an unqualified person from acting in connection with the preparation of papers for probate, et cetera, and Article 25 provides that no costs shall he recoverable where an unqualified person acts as a solicitor.
I now come, my Lords, to Part III of this order, which deals with the professional practice, conduct and discipline of solicitors, and which covers Articles 26 to 54. Much of this Part substantially re-enacts existing law, but Article 42, which makes provision for lay observers 93 of the Society's complaints procedure, is new. The Northern Ireland Assembly did not have an opportunity to discuss this article, which goes rather further than the equivalent English provision. In the Northern Ireland order the lay observer's role will not be confined to the examination of complaints specifically referred to him. This extension of the observer's role is made possible by the smaller nature of the problem in Northern Ireland. Article 26 allows the Law Society to make regulations relating to the professional practice, conduct and discipline of solicitors. Restrictions on the conduct of practice of solicitors are contained in Articles 27 to 32, and the keeping of accounts by solicitors in Articles 33, 34 and 35. A point of note in this section is that Article 28(2)(e) is a new provision to allow solicitors to be employed by non-profit-making legal advice centres. I should indicate that when considering applications for directions under Article 28, or any waivers of the Society's practice rules or regulations and the terms on which they should be granted, the Law Society has agreed to work in close consultation with the Secretary of State, who in turn may consult with the Lord Chief Justice.
Article 31 would allow the Law Society to debar untrustworthy persons from employment in solicitors' offices. Articles 33 and 34 would allow the Law Society to require the accounts of solicitors to be kept in a standard form. Article 36 would allow the Law Society to intervene in the control of property by a solicitor, and Articles 37 to 41 deal with other details of this matter. I have already referred to Article 42, my Lords and Articles 43 to 54 deal in detail with disciplinary proceedings before the Disciplinary Committee. These provisions will have the effect of strengthening the machinery for investigating complaints and extend the power of the Disciplinary Committee, and solicitors will have a right of appeal to the High Court against the committee's decisions.
Part IV, my Lords, consisting of Articles 55 to 63, deals with the setting up of a compensation fund, and professional indemnity. The compensation fund would pay compensation to people who had sustained loss or hardship through the dishonesty of a solicitor or member of his staff, and could also provide a grant for a solicitor who suffers (or is likely to suffer) 94 hardship by reason of his liability to his clients because of an act or default of his partner or member of staff. The fund would be constituted by annual contributions from all established solicitors—those who have been in practice for more than two years. Schedule 2 sets out details of the fund. Article 63 is new, and would empower the Council of the Law Society to make regulations requiring solicitors to take out insurance against being sued for negligence, so that anyone who suffers loss I through the negligence of a solicitor and who sues him successfully will be sure of getting the compensation fixed by the court. Part V contains Articles dealing with the costs in non-contentious business; that is, business not connected with court proceedings. Article 64, which is a new provision, is the main Article here, and it could set up a committee to prescribe and regulate by order such remuneration. The remaining Articles in this Part deal with matters supplementary to this.
Part VI of this Order, my Lords, and the final one, deals with miscellaneous and general matters. Article 72 gives a solicitor some protection against a litigant who wants to proceed with frivolous or vexatious litigation. Generally speaking, once a solicitor agrees to act in a ease he must continue to act until the case is concluded, and cannot withdraw except with the permission of the court, to obtain which he must show good cause. This Article establishes that the refusal of a request for payment of a reasonable sum on account is a good cause. Articles 73, 74 and 75 deal with the Law Society; and Article 76 provides a time limit for the bringing of proceedings under Articles 22, 23, 24, 28, 30 or 31(4). Article 77 makes provision to relieve banks from any liability in respect of accounts of solicitors. I should like to draw your Lordships' particular attention to Article 78, which is an addition since the Assembly measure. This Article would give practising solicitors the powers of commissioners of oaths, as is the case in England.
Finally, my Lords, I should refer to the announcement made in this House on Thursday, 12th February, by the noble and learned Lord the Lord Chancellor that a Royal Commission has been established to inquire into the legal profession. The Prime Minister has since indicated 95 that the terms of reference given to the Commission will be amended to enable the scope of its inquiry to include the legal profession in Northern Ireland, and accordingly any further amendment of the law relating to solicitors may be considered in the light of recommendations made by the Commission. The provisions of the present order, however, represent a major and long-awaited reform of that field of the law in Northern Ireland, and I commend it to noble Lords. I beg to move.

§ Lord BELSTEAD
My Lords, the Northern Ireland Office has reminded me (and I am grateful for it) that this order represents what was originally a Northern Ireland Bill of the Stormont Parliament. Amended, it became a measure of the Northern Ireland Assembly in 1974 and went progressively through three of the five stages of the Assembly when the Executive came to an end. I mention that because, as is clear from the noble Lord's introduction, this really is a substantial order and we have to remind ourselves that in normal circumstances under the direct rule, orders reaching Parliament have received no scrutiny in Northern Ireland except within the relative Government Department. In this case this order has had considerable scrutiny for the reasons which the noble Lord and I have given. But I hope that the Government are considering this problem of substantial measures receiving perhaps some sort of scrutiny in Northern Ireland before they come to Westminster to see whether any solution can be found. I have mentioned this matter previously to the noble Lord but I take this opportunity of doing it again since, self-evidently, this is a time when I might do so.
My Lords, I am not a lawyer and therefore I confine myself to two questions with regard to the order. The first is that under paragraph 6, which the noble Lord has mentioned, the Law Society of Northern Ireland may make regulations as to the education and training of solici- 96 tors. I remember that some three years ago the Government received the Armitage Report, and we are grateful to Professor Armitage for it. Are any of the recommendations of the Armitage Report now to be put into effect as a result of this order? If the answer is, Yes, will that be bringing the training and education of solicitors in Northern Ireland more into line with the training and education of solicitors in Great Britain, or is that an entirely separate matter?
The other point is on Article 28(2)(e) which the noble Lord also mentioned which, in effect, legalises the establishment of law centres. I realise that this is a live issue at the moment. I understand that this facility has not been granted hitherto so far as Great Britain is concerned. The noble Lord in his remarks explained that in putting the provisions of Article 28 into effect the Northern Ireland Law Society would keep in close touch with the Lord Chief Justice and the Secretary of State. The question I should like to ask is this. Before Article 28(2)(e) was drafted, was the Northern Ireland Law Society in agreement with the drafting of the article? With those two questions I would support the passage of this order.

§ Lord FOOT
My Lords, may I add two questions to those addressed to the noble Lord, the first of a general nature and the other specific. Unfortunately—and I apologise to the noble Lord, Lord Donaldson—I missed the opening sentences of his remarks. He may therefore have already answered my general question. It is this: speaking in general terms, does this order, as it relates to solicitors and the disciplining of solicitors, follow the pattern of the existing law in England and Wales in that regard? The noble Lord may have answered it when he was making his opening comments. It struck me as he was speaking that there was one way in which, apparently, the provisions introduced by this order differ from the provisions which prevail, so far as solicitors are concerned, in this country. It is in regard to the right of a solicitor to withdraw half-way through the course of proceedings. My recollection of the matter is that, according to our law, the circumstances in which a solicitor in this country can properly 97 withdraw from a case when it is halfway through is governed by case law. It is not a matter of any statutory enactment. The noble Lord indicated that this order contains a statutory enactment on this matter. He may not be able, without notice, to answer that question of detail: but perhaps he can give an answer to the more general inquiry.

§ Lord DONALDSON of KINGSBRIDGE
My Lords, I am grateful to both noble Lords for their acceptance of this order. May I first answer the two points of the noble Lord, Lord Foot. If he will do me the honour of reading Hansard tomorrow, he will find that I have referred to every case in which the order before us differs from the Solicitors Act passed in Parliament a short time ago. I shall have to consult about withdrawal. My impression was that this operates exactly the same as in England under the new arrangements here; but from what the noble Lord says I may be wrong about that and I will write to him. What is to happen in Ireland is made clear: you can withdraw only by giving good cause before the judge, except that now, under this order, if your client cannot afford to pay, that is a good reason to stop vexatious litigation.
The noble Lord, Lord Belstead, asked his usual question about scrutiny. I shall give my usual answer, which is that at the moment there are no firm proposals of this kind. That does mean there will never be. The Armitage Report has been very largely acted upon in Northern Ireland. The paragraphs under Article 6 are written with that in mind. There is no conflict of any kind. The system of training is, as I understand it, more or less the same as here. As regards the right of solicitors to be employed in a non-profit-making organisation providing legal advice, that, from my point of view, is the most interesting development in the whole order. Noble Lords will remember that two years ago when the noble and learned Lord the Lord Chancellor opened the Home Affairs debate on the gracious Speech, he promised that this would happen in England. We have got one going in Belfast now, and I think we are a pip ahead there of what goes on here; but it is a parallel development and is very important. 98 There had to be legislation because the Law Societies in both countries are very strongly against advertising and that sort of thing. I think that I have answered both noble Lords' questions.

§ Lord BELSTEAD
My Lords, was this introduced with the agreement of the Law Society?

§ Lord DONALDSON of KINGSBRIDGE
After at least a year's intense discussion.