§ 4.5 p.m.
§ Second Reading debate resumed.
§ Lord Elwyn-Jones
My Lords, perhaps we may now turn to less controversial matters—namely, the consideration of the newest of the recurring Administration of Justice Bills. May I on behalf of the House wish the noble and learned Lord the Lord Chancellor recovery from the accident which he recently suffered? I am bound to say that he looks dangerously well and we hope that may long continue.
As the noble and learned Lord has indeed indicated, this Bill is a mixed bag dealing with a number of matters which are nevertheless of concern to the individual when he finds himself in the web of the administration of justice. Sometimes Administration of Justice Bills are dismissed by the unwary as mere lawyers' law and therefore likely to be incomprehensible or, at any rate, of no real importance to anyone but lawyers themselves—so often and so wrongly deemed to be the sole beneficiaries of complex legislation like this Bill of 61 clauses and seven schedules. That would be a mistaken approach to this Bill. It will be the task of noble Lords to examine it to see what, if anything, it does to advance the fair, equal and efficient administration of justice and to improve it, as I believe we can and should.
As the noble and learned Lord has explained, Clause 1 gives the Law Society additional disciplinary powers to deal with complaints made against solicitors by their clients. I think it is right to say that it mainly implements the Law Society's own proposals, reflecting its own sense of duty to the public that the solicitors' profession serves. Clause 1 empowers the Council of the Law Society—in practice the Professional Purposes Committee—to direct a solicitor to remit, reduce or refund fees he has charged or obtained from the client where it appears that the professional services provided by him:were in any respect not of the quality that could reasonably have been expected of him as a solicitor.That definition provides no objective standard against which the action or inaction of a solicitor can be compared. However, it does indicate that after the Bill becomes law the Law Society will be able to investigate a wider range of complaints than it can do now. Perhaps the noble and learned Lord will confirm that the proposed formula which I have read out will, possibly for the first time, enable sanctions to be imposed for poor work falling short of the high 792 standard of work that the majority of the profession carries out.
The Bill provides, apart from a costs sanction against the solicitor, the power given to the Professional Purposes Committee to direct the solicitor to rectify errors or take other remedial action in the interests of the client. That is a very broad power. It would be useful to learn what measures are contemplated by the Law Society to give effect to that undertaking.
It is worth noting that the Bill provides that the Law Society is not to exercise these new powers if it would be more appropriate—that is the language—to expect the client to take civil proceedings himself against the solicitor. That is a pretty burdensome and heavy undertaking. A further question that, I think, arises is how the standard of the solicitor's work is to be adjudged. Perhaps, in the course of discussion and at various stages of the Bill, we may be enlightened about that.
The role of lay persons in the contemplated procedures is important, as the noble and learned Lord has indicated. The functions of the lay observer, as I know from the time that the office was created, has proved of value. I suspect that the House will welcome, as I do, the proposed appointment to the Professional Purposes Committee of one or more lay members who are neither solicitors nor barristers, to be nominated by the Master of the Rolls as full members of the committee. The question that may well be asked, however, is whether that amount of lay element goes far enough. No doubt we shall be considering this during our examination of the Bill.
There are other important provisions in Part I. Reference has already been made to Clauses 2, 3 and 4. I note, in particular, the power given in Clause 2 to require a solicitor to make available his files in connection with complaints. This, I submit, reflects the seriousness with which the Law Society has considered this matter.
Part II of the Bill, introducing a system for licensing conveyancers, is of importance to all house buyers and sellers. Contrary to the advice of the Benson Committee, as the noble and learned Lord has said, it brings to an end the monopoly on conveyancing that has been enjoyed by solicitors since 1804. The Bill implements the Government's undertaking given in another place in February 1984 by the Solicitor-General following a successful Second Reading of the House Buyers Bill, a Private Member's Bill, introduced by a Labour Member on 16th December 1983 with all-party sponsorship. A conveyancing committee composed of representatives of all the main bodies and organisations concerned with house transfer was set up. It was chaired first, as the noble and learned Lord has said, by Professor Harry Street, whose lamented death was a great loss to the law, and then by Professor Julian Farrand. Part II of the Bill, in effect, implements the recommendations of its report.
It is my understanding—this is, indeed, clear from the Bill—that the legal profession has wisely withdrawn its objections in principle to what is proposed in Part II. That is very gratifying. The House will nevertheless wish to consider to what extent the proposals in this part of the Bill strike a correct balance 793 between maximum competition and consumer protection. Many of the detailed safeguards are left to be dealt with by rules to be made by the Council for Licensed Conveyancers, with the approval of the Lord Chancellor. It will be important to ensure, for the protection of the public, that conveyancers are both experienced and qualified to carry out the work that they will now be able to do. In the initial period the council is to be set up by the Lord Chancellor, who will then be responsible for approving the final structure. From whom is it envisaged that the licensed conveyancer members should be drawn? Will the final scheme be brought back for some kind of parliamentary consideration and scrutiny?
The provisions of Clauses 9, 10, 11 and 16 are, I submit, vital to the quality of the proposed service to the public. However, until the council has been established and it has announced the standards of training and qualification that are to be achieved by the members of this new profession, it is not possible to say with assurance whether the public will be sufficiently protected. So we shall watch future events with concern. Will there be any public consultation on these matters, and will Parliament have any say in them? The Bill, after all, proposes the creation of an entirely new legal profession which, if this Bill is enacted, will be established by Parliament and its payment will be from public funds. But it will apparently be left to establish its own rules and standards, unaided and uncontrolled.
Clause 17 is of great importance from the public's point of view. The proposed rules must ensure that whenever a member of the public suffers loss by reason of negligence or dishonesty of a licensed conveyancer or anyone acting on his behalf, there will be available funds, either by way of insurance or from the council's own fund, to pay out in full the loss suffered by the complainant. Will the noble and learned Lord the Lord Chancellor be empowered to examine the rules made under the powers that this clause gives to the new council and the profession and to ensure that they are effective and comprehensive? Will the composition of the proposed council ensure sufficient representation on behalf of the consumer?
I do not leave this part of the Bill without noting Clause 28, which has wide social and political implications—political in a non-party sense, of course—in that the council may make rules prescribing the circumstances in which licensed conveyancers may be employed by recognised bodies to provide conveyancing services. How wide is the definition of recognised bodies likely to extend? Is it really satisfactory that such matters as this are left to the new council to determine, without the need for consultation or approval?
Part III of the Bill, dealing with legal aid, also has important provisions. It is concerned with legal aid complaints. It gives to the Solicitors Disciplinary Tribunal and the Senate Disciplinary Tribunal jurisdiction to deal with complaints about solicitors' and barristers' conduct in legal aid cases. The tribunals are given power to exclude those found guilty of misconduct from doing legal aid work and to cancel or to reduce fees or costs when a legal aid offence has been committed. These provisions give rise, however, to the 794 policy issue as to whether complaints against barristers and solicitors in connection with work carried out under the legal aid and advice arrangements, publicly funded, should be investigated and disciplined exclusively by the professional bodies internally or by an independent body. The use of the word "exclusively" is not happy in the circumstances, because already there is a lay presence on the disciplinary body. But this is a matter that the House will no doubt be wishing to consider. I hasten to say there is no reason to suggest that either the Law Society or the Senate is other than impartial and concerned with the good name of the respective professions it represents.
The provision in Clause 41, in this part of the Bill, which provides power for the Lord Chancellor to make regulations allowing a greater capital eligibility limit (that is not an easy word; I shall not ever use it again if I can help it) for advice by way of assistance, which is currently restricted to the green form limit, is obviously of considerable practical importance. We also approve Clause 42, allowing the backdating of criminal legal aid orders. Sometimes legal aid has to be paid unexpectedly, and it is right that this provision exists.
In regard to this part of the Bill, the organisation Justice suggests for inclusion in the Bill a provision that High Court judges should be given power to award legal aid to litigants in person. That does not exist at the moment, and there are cases where it seems a very desirable thing to have available. It also urges that the Bill should provide a statutory framework for a contingency legal aid fund, and also for a suitors fund. These are important matters which no doubt can be raised during the later stages of the Bill.
Part IV is impressively entitled, "The High Court and County Courts"; but the most important part of it is Clause 43, which, as it stands, has been almost universally condemned. The provisions of the clause will take away the citizen's right of appeal to the Court of Appeal from a decision of the High Court refusing an application for leave to apply for judicial review. The Times today carries a powerful letter from the members of the Editorial Committee which denounces this proposal in appropriately emphatic terms. If effect is given to this it will involve a serious curtailment of the right of those complaining that Government officials or public bodies have acted beyond their powers, or unlawfully.
This is particularly important, as has been submitted to me, in regard to the protection of rights of immigrants. It is often the only way to obtain an independent review of a Home Office decision before the decision is implemented. It is the only way to test the lawfulness of the decisions of the Immigration Appeal Tribunal. From other administrative bodies, such as planning authorities, there is an appeal to the High Court on points of law. Immigrants do not have this right. They have to rely upon judicial review to protect them from abuse of executive power or authority.
At the present time, if the High Court refuses leave for judicial review the applicant can appeal to the Court of Appeal and rightly to the Court of Appeal; not, if I may say so with great respect to it, to the Divisional Court. It is proper that the body given 795 overall supervisory power—namely, the Court of Appeal—should have this authority. Why is this right to be abolished? As far as I can understand, no evidence has been produced to show that the right of appeal to the Court of Appeal has been abused. There have been few such appeals in practice; and, as I have ventured to say, when they are made, frequently the issues raised are of major public importance. We submit strongly that it would be quite wrong to shut out access to the Court of Appeal in respect of judicial review.
A number of other questions will no doubt arise in our consideration of the many other clauses of the Bill. They vary greatly in importance. One, for instance, empowers every member of the Incorporated Company of Scriveners who has been admitted to practise as a public notary to administer oaths. No doubt that will give great satisfaction to the scriveners, and may indeed be a useful measure. But Clause 52—moving to the more important, perhaps—which proposes to shorten to three years the limitation period in libel and slander cases, is a proposal with which I agree. Someone who lets sleeping libellous dogs lie as long as that cannot have anything grievous to complain about if thereafter it is deemed that he is moving too late. As I have indicated in my observations, the Bill is good in some parts but it is bad in others. We shall try to make it better.
§ 4.27 p.m.
§ Lord Foot
My Lords, I allowed my name to be put down to speak upon the Second Reading of this Bill only with some hesitation, and my trepidation has not been done away with by discovering the high company that I am keeping when I look at the list of speakers. I do not know which is more unnerving: to be preceded by the Lord Chancellor and an ex-Lord Chancellor or to be followed by the noble and learned Lord, Lord Denning, and the noble and learned Lord, Lord Rawlinson of Ewell.
I have very few qualifications—indeed, scarcely any—to engage in this debate at all, except only that I am a solicitor by occupation and this Bill is, of course, largely concerned with the work of solicitors. I do not have the advantage of being an expert in conveyancing. There must have been a time, many years ago when I passed the solicitors' final examination, when I had some knowledge of real property, but it has never in the course of my practice been necessary for me to create a conveyance at all and I am not sure that I should recognise one if I saw it. Such is the way in which specialisation has taken over in my profession.
As the noble and learned Lord indicated, this is a miscellaneous Bill, a miscellaneous bag. My comments, such as they are, will be limited to Part II of the Bill, which is of course the part which sets up the new profession of licensed conveyancing. I am not suggesting, on that account, that the rest of the Bill is either unimportant or, indeed, uncontentious. The noble and learned Lord, Lord Elwyn-Jones, has already drawn attention to the two references to this Bill which appear in The Times today: the very important letter by the members of the Editorial Committee of the publication Public Law on the 796 question of Clause 43, and then the comments that have been made by the Legal Action Group about the new powers that are being given to the Council of the Law Society under Part I of the Bill.
The noble and learned Lord, Lord Elwyn-Jones, quoted, very rightly, the words which are contained at the beginning of Clause 1 of the Bill, setting out the circumstances in which the new disciplinary powers which are to be given to the Law Society will become exercisable. Those words are as follows:Where it appears to the Council that the professional services provided by a solicitor…were in any respect not of the quality that could reasonably have been expected of him as a solicitor, thenthe powers which are vested in the council will apply. I agree that those words are dangerously imprecise. I agreed with the comment of the Legal Action Group when it said that those words provide no objective standard against which a complaint will be evaluated. We shall need considerably more explanation as to the justification for those words before we allow the Bill to go on to the statute book. Equally of course the Legal Action Group is concerned as to whether it is right that the disciplinary powers involving solicitors who are guilty of bad work should be left wholly in the control of the Law Society itself or whether they ought not to be passed on to some more independent authority. However, those are both matters which we shall have the opportunity to go into when we reach the Committee stage of the Bill.
As I say, my concern is for Part II of the Bill about the licensed conveyancing, and it is of a more general and fundamental kind. It is right to say that, for what it is worth, my view is that the whole concept of the institution of a new profession of licensed conveyancing is a mistake. I say that not because as a solicitor I am alarmed at the prospect of this new competition in the field of conveyancing, but curiously enough because I do not think that my profession need have any alarms on that score. I do not think that the new institution will work or that its elaborate structure will have any significant benefit for the public at large. I also think—and I believe this to be of some importance—that any hopes of benefit which the public may have been led to entertain will prove illusory. My opinion on that matter is one of no consequence, and one which will make no impression upon your Lordships.
However, what I have just said is substantially the view which was firmly arrived at by the Royal Commission on Legal Services under the chairmanship of Lord Benson. It is remarkable—is it not?—that when we come to present a Bill of this kind the expressed view of the Benson Commission which was set up to review the whole business of legal services and the capacity of the profession of the law to meet the demands placed upon it, should be put on one side.
I do not want to weary the House with quotations, but it is the fact that when the Benson Commission was considering this matter and after it had gone into the matter very thoroughly and in great detail, it summarised the conclusions at which it arrived and it summarised its argument for not establishing a new profession of licensed conveyancers in these words. I take leave to quote the words to the House because they express the matter very much more effectively 797 than I could. On page 265 of Volume One of the Benson Report it says this (and I leave out only the matters which are of minor relevance):It is convenient at this stage to summarise our views.(a) The main purpose of removing or relaxing the present restrictions on conveyancing would be to reduce charges by widening competition.As everybody agrees, that is the object which we are all trying to achieve. The report goes on to say:(b) Steps to simplify the land law and the progress of registration have been offset by the increasing need for advice on matters ancillary to a conveyance, such as planning, taxation and matrimonial law".That emphasises the fact that when someone undertakes the task of drawing up a conveyance, he needs to know very often a lot more than simply the way in which to formulate the document. If he is to advise his clients upon the implications of what they are doing, it may be that he will have to advise them upon various aspects of the law which have nothing at all to do with conveyancing. The report continues:(c) It is agreed by all but a few witnesses that the public should be protected in conveyancing transactions from incompetence, dishonesty and unfair dealings.(d) Subject to some improvements proposed in Chapters 22, 23 and 25, an adequate level of competence and probity is maintained by the solicitors' profession. This should be maintained in any alternative system.(e) A free-for-all, in which any person may offer conveyancing services without restriction, is unacceptable for the reasons given above".Now I come to the two concluding paragraphs:(h) In order to secure the necessary standards of competence and probity, it would be necessary to set up a new profession of non-solicitor conveyancers, subject to requirements similar to those affecting solicitors in respect of qualifying examinations and conditions of practice".The final conclusion is this:(j) Conveyancers working under the same conditions as solicitors would have equivalent overhead expenses. The effect of setting up a new profession to operate in a single field would be to dilute the service available but without creating conditions in which competition was likely to be effective in holding down charges".I hope that I am right in summarising the matter by saying that the view of the commission—albeit, as the noble and learned Lord the Lord Chancellor indicated, only by a majority—was that to set up an independent new profession of licensed conveyancers would contribute nothing to the problem which we are trying to meet and would be engaging in an exercise of futility. That makes this Bill—does it not?—a remarkable document, and particularly Part II. Unfortunately, my belief is that as things go and if this Bill reaches the statute book largely in its present form, as I suppose it will, I am afraid that the hopes that have been raised about the benefits to the public will not be realised at all.
If I am right, how does it come about that in this Bill we are presented with a very new profession which the Benson Commission said would serve no useful purpose? I am afraid that the answer to that question is that the Government have succumbed to the populist prejudice. When in a civilised society it is decided that certain services may be provided only by people who have reached a certain level of competence and qualification, and when those people have submitted to the disciplines of a profession or a calling, the populist prejudice is that that in some way is contrary to the public interest. Moreover, it is felt, in 798 some sort of sense, that creating a monopoly of that kind—if that is the correct word—is similar, which of course it is not in any way, to creating a monopoly in some commodity of which the public have need. It is a monopoly of qualification, a monopoly of expertise; and that is something which is not injurious to the public interest but is precisely in the public interest.
Having said all that, I fear that it is far too late in the day to hope—at any rate under this Government—that we can expect that Part II of this Bill will in the course of its proceedings through both Houses be abandoned or even substantially amended. In those circumstances, during the Committee stage of this Bill we shall have to try to do what we can to deal with some of the matters which are still uncertain. I would refer to only two of them.
One of the matters on which the Farrand Committee and the Benson Commission were agreed was that this limited system of licensed conveyancing should be limited to domestic conveyancing work; that is to say, dealing virtually in only the sale of homes and dwelling houses, or the disposition of interests in dwelling houses, Farrand assumed that that was what was intended, Benson assumed that that was what was intended, and they were wholly opposed to it being extended to cover work of conveyancing in other fields.
However, when one looks at this Bill there is no indication that it is going to be limited only to domestic work. We shall have to inquire into that. It may be of course that the Government will tell us that all that will be settled when we have the rules and regulations drawn up by the council. I suggest that that is not satisfactory at all. This most important matter as to what licensed conveyancers are to he allowed to do or not to do is something which ought to be decided here on the Floors of this House and the other House and not made a subject for subsequent regulation.
Another matter on which the Bill is at present uncertain is one which was considered by both the Farrand Committee and the Benson Commission. Both of them addressed themselves to the question as to who should have the power to prosecute a person who is not a solicitor for acting as a solicitor in drawing up a conveyance, or to prosecute a conveyancer who is not a licensed conveyancer for doing the same thing.
Both Benson and Farrand at least assumed—I think Benson recommended—that that power of prosecution and the decision as to whether a prosecution should be brought should no longer be on the shoulders of the Law Society in the case of solicitors, and should not be on the shoulders of the Council for Licensed Conveyancers in the case of licensed conveyancers, but should be transferred either to the police or to some prosecuting agents. They said that it had been for many years a deep embarrassment to the Law Society when they have had to prosecute people because nobody else would do it when those people were allegedly carrying out conveyances without being qualified solicitors. The Benson Commission said that it was high time that that situation was altered, but I can find nothing in this Bill which would deal with that at all.
Those are some of the matters to which some of us will want to return when we reach Committee stage. I 799 am afraid that I do not altogether share the feeling which the noble and learned Lord the Lord Chancellor expressed at the conclusion of his speech when he said that he hoped the Bill might prove uncontroversial.
§ 4.45 p.m.
§ Lord Denning
My Lords, this Bill has a great deal to do with solicitors. When I was Master of the Rolls I had a great deal to do with solicitors. I admitted 35,000 of them. I signed all their admission certificates by hand myself. They called me the father-in-law of all solicitors. What a numerous progeny!
This Bill divides itself into three parts. Part I deals with a matter which was not properly dealt with at all in my time. When complaints were made to the Law Society about the conduct of a solicitor they would be inquired into, but they would be pursued only if the evidence supported a charge of professional misconduct—that is, doing something disgraceful or dishonourable as a solicitor, such as making away with the funds, or mixing up the client's money, and so forth. It had to be something disgraceful and dishonourable. Then a charge of professional misconduct could be made before the tribunal, and then the solicitor could be punished by being struck off, suspended, reprimanded, or fined. That was the only machinery available within the Law Society to deal with the conduct of a solicitor.
Lord Benson's Royal Commission and Part I of this Bill seek to remedy that situation by saying that the Law Society can deal also with matters which are not of the quality which could reasonably be expected of a solicitor; in short, I put it, if he was negligent. I am afraid there were many cases of negligence which were put before the committee in the old days with which they could not deal because they involved not professional misconduct, but only negligence.
Now, what is the proposal here in Clause 1? The matter is not to go before that tribunal again, but is to go before a professional purposes committee of the Law Society itself—two lawyers and one layman—and that committee are to inquire into it. I should have thought that they ought to deal with it judicially or quasi-judicially, and then they would be able to find whether or not the solicitor was at fault. Further—and this is the important matter—they cannot award any damages. They can say that he is not to have the costs which he has charged, or he is to rectify an error; but those are the small matters.
A solicitor sometimes sues the wrong person. He has to amend and sue the husband, or whoever it may be. The Bill enables the Law Society to make him pay the cost of that. But more often it is a case of negligence. He has let the time go by and so his writ is out of date, or his case is dismissed for want of prosecution, all through his fault. The remedy for that is damages for the client. As I read Part I, this committee cannot give any damages. It can only rectify errors at the expense of a solicitor. It cannot give any damages. If it is damages which are suffered, the client must go to the courts of law, with all the expense, if you please, which that entails. The Law Society are not taking up that case at all. It is for the client himself to take up that claim for damages.
800 There are three tribunals dealing with the bad conduct of a solicitor. There is the Solicitors Disciplinary Tribunal, which is going to deal with this professional misconduct. There is the negligence committee, if I may put it that way, which can rectify his errors and say he is not to get his costs. There are the courts of law, which are to say when damages are to be awarded. What a three-tier avenue of complaint! I should like to see it much simpler. As a minor matter, I should like the middle committee, dealing with negligence, to say, "We cannot give you damages, but if you go to the courts of law, they probably will". Then the complainant may go to the courts of law. My comment on the first part is that it is a well-intentioned attempt to remedy an omission in the complaints procedure against solicitors, but I do not think it deals as efficiently as it should with remedies when negligence is found and established.
As to the second part, dealing with this new profession of licensed conveyancers, I agreed with every word that my noble friend Lord Foot said. This is to be a new profession. Councils will be set up and people will be expected to be educated, trained and qualified to enter this profession with a licence, I suppose at our universities and polytechnics. When they enter this profession they are to be under the discipline and control of a great new council. That council is to investigate their misconduct, their negligence, and to make sure that they have indemnities and insurance. It will also ensure that they receive practising certificates and that all charges are paid. I ask myself whether this will work. It will be a second-rate profession. When I asked how many youngsters will join this profession the Benson Commission said that it was a matter for speculation. It put the figure at about 100. I should think that would be about right.
For a completely new profession to run efficiently there would need to be about 10,000 members, with fees and practising certificates, to run the show. If I were advising a young man after this Bill had passed, a youngster from a university or a polytechnic, I should suggest to him that he should study to become a barrister or solicitor and not waste his time just becoming a licensed conveyancer. Someone interested in the law would not get anywhere with this cheap, second-rate career as a licensed conveyancer. That is what I would tell a youngster at university, polytechnic or sixth form college. I would say, "If you are unlikely to get a degree, go to the Institute of Legal Executives. They are much better; they cover the whole field. If you do well there, then you can become a solicitor".
That is another avenue. There is already a first-rate Institute of Legal Executives. If a youngster going into law is not qualified for the higher ranks, let him become a legal executive. Why do we need a new profession, with this tremendous expense and paraphernalia? On the figures I have seen it will cost the country £200,000 to set it up. I forecast that it will not pay its way after that. I would be very surprised if it worked. Contrary to Lord Benson's recommendation, I am sorry that the Government have given way to the undue pressures which have been put upon them from some quarters. Those are my comments on the second part.
I am not at all satisfied with the question of legal aid in the third part. I have seen a great deal of legal aid.
801 One has to remember that legal aid can be used most oppressively against innocent people. Litigation is maintained by the state, at the expense of the state. It has to be defended by an individual, at his own expense. We have had cases of it. I should like to give two illustrations, because this is a wrong which is not remedied in this Bill. This is the place to look into the remedies and deficiencies of legal aid, but it is only tinkered with in Part III. My two illustrations show how legal aid has worked most unjustly and most oppressively when there is no remedy. Both cases have been to the Court of Appeal.
There was Mr. Kelly, an Irish labourer—I suppose the Irish always are labourers. In 1973, while he was at work, he had a cut on his head. He had it patched up and went back to work for the next six months. But after the next six months he got headaches, depression and all that sort of thing. After about three years he went to a solicitor and said, "I had a cut on the head three years ago when I was with London Transport. Can I claim damages? I have no money". The solicitor said, "Yes, there is legal aid". So he got legal aid. The solicitor called in medical experts, who said, "Your depression and your headaches are probably all due to the cut three years ago". So an action was brought against London Transport Executive. London Transport Executive brought in their medical experts, who said, "This is all nonsense. The man was not injured such as would cause anything of that kind".
So they fought the case. Because it was at LTE's own expense they paid £750 into the court. He would not take that. Just before the trial LTE paid £4,000 into the court. He would not take that. When it came before the judge, the judge hearing the case said that it was a bogus claim altogether. The trouble was that the man was a chronic alcoholic and that was the reason for his claim. The judge would not have any of the alleged depression, illnesses and the like.
There it is. The solicitors, counsel and the lawyers had all their costs out of the legal aid fund paid by the state. London Transport Executive had to pay £8,000 at their own cost. They did not get it back. No one ever gets anything back from legal aid. London Transport Executive asked, "Cannot we get anything out of the legal aid fund as we have been put to all this expense?". The Court of Appeal had to rule, "No". That was where a plaintiff received legal aid.
My other illustration is of a case where a defendant received legal aid. A man with quite a good photographic business in the north wanted to sell his business and he found a purchaser willing to pay £15,000—£5,000 cash down, with the other £10,000 to be paid in instalments. He let the buyer have the business, got his £5,000, but saw nothing of the £10,000. When the man sued for his £10,000 the defendant, if you please, got legal aid. "Ah", he said, "I was induced to enter into that contract by fraud and misrepresentation. I am not liable for the £10,000". That case went on at great expense with accountants. When it reached the trial, the door of the court, the case of fraud and misrepresentation collapsed absolutely. It could not be pursued. That plaintiff had to pay £8,000 costs—his own costs—which could not be paid from the legal aid fund or by anyone else.
802 Those are two illustrations which show that legal aid is used by some people—very few, I am happy to say—as a means of oppression against the innocent.
This Bill does nothing to remedy that. It has a complaints procedure. Under the old procedure if complaints were made to the legal aid complaints tribunal, all that could be done was that the solicitor or barrister was not allowed to do any more legal aid work. But few cases were ever taken before the complaints tribunal because the lay person had nothing to get out of it at all. This Bill remedies the situation a little. It says that in addition to striking a person off the legal aid list, one might be able to reduce the fee, or not allow him to receive a fee. That may help the legal aid fund, but it does not help the ordinary man. The old complaints procedure did not work. Whether this complaints procedure will do any good I do not know. But who will take it up? It is the legal aid fund that ought to take it up, for they are the people who allowed it all.
I wonder whether this complaints procedure is going to work. I should like to suggest—and I think that it may be appropriate, if this is the legal aid part of this Bill—that we should bring in a few recommendations which have been made by the judges in cases from time to time and, in particular, in one of the cases that I mentioned. I said that the proper remedy is that if the legal aid people lose a case and put the other side to cost, then the legal aid fund ought to pay those costs, just as would any ordinary litigant. That is one point recommended by the judges in the cases—a point not implemented in this Bill at all.
The other point is this—and it was mentioned in The Times newspaper at the end of last week. It concerns when legal aid goes to both husband and wife. They always get legal aid in all the matrimonial cases; they do not have money of their own. Usually the case is about access to children and custody, and the state pays for all of that, up to the Court of Appeal. But often the issue is about the matrimonial home. Who is to have it? Who is to stay in it? Is it to be sold or not? Is there to be a charge on it or not? In those cases, apart from the first £2,500, under the Legal Aid Act in (I think) Section 9 the legal aid fund has a charge on all property recovered or preserved. So when costs are incurred in regard to the matrimonial home the legal aid fund has a charge on the property. There are cases where it has exhausted the property and nothing is left for the people who have been fighting the case.
That injustice was noted by this House by Lord Lowry, in particular, in the Hanlon case in 1980, which came to the Court of Appeal, too. It has been repeated ever since. The Times last week, on 11th January, referring to Lord Justice Oliver, reported that his Lordship would only add a word of regret that the hope expressed in their Lordships' House in these cases by Lord Lowry in the Hanlon case and subsequently by the President of the Divorce Division and by the Court of Appeal in Simmons v. Simmons and in this latest case of Curling v. The Law Society had still not been fulfilled.
The judges have been protesting about this for five years. This is an obvious place for it to be done—in this Bill. May I say that it is not the first time. Time after time judges have made suggestions where the law needs reform and they have not been taken up or gone 803 into. That relates to the other, the second, case which I mentioned. This is the place, in the legal aid part of the Administration of Justice Bill, where the matter ought to be considered and dealt with. But it is not.
I shall not deal with the other, smaller points which there are in this Bill. But on the whole, while saying, "Let it go through its Second Reading", let us have a very careful look at it before it becomes law.
§ 5.4 p.m.
§ Lord Rawlinson of Ewell
My Lords, once upon a time, a debate on the administration of justice would empty this House as quickly as possible, but ever since the retirement from the Bench of the noble and learned Lord, Lord Denning, and his contributions and interventions in these debates, there is always the chance and the possibility of hearing his anecdotes and, of course, of getting his guidance, which therefore makes debates on the administration of justice very much more pleasurable now, apart from being very much more important debates for this House. A regular programme of law reform is essential. The administration of justice demands constant review. It needs vigilance; the law needs amending. And of course the Government business managers are greatly reluctant to give a Lord Chancellor any time at all to prepare or even to present any Bill. It is very shortsighted. because, after defence, the most important duty the state has—and it is a duty which it owes to the citizen—is to ensure that the administration of justice is as well and efficiently managed and as fair as possible. It should never be neglected and its importance should never be denigrated. I say that not as a lawyer but as a citizen.
The administration of justice depends upon the quality of judges and the number of judges available to administer the justice. It is quite obvious—and I say this now because this is what is not in the Bill as opposed to what is in the Bill—that there are not sufficient judges (certainly of the Court of Appeal) because there is seen regularly in the courts the employment of retired, sometimes very elderly, former judges. I would say that that is just not right. I say this with great deference to the individuals who are sought out from their retirement to assist the courts. They are persons whom I have known and respected for many years. But it is a matter of firm principle. When a judge retires, either by his own wish or because he has reached the age, he should not be brought back publicly to administer justice. Of course, it is very good for the Treasury. It is nice and economical. They can pay by the day. They do not have to appoint sufficient judges and pay those judges the proper salary. Parliament has set a very generous retiring age for judges—75 for the High Court and 72 for the lower courts.
I say again with great deference to persons whom I have known and admired that there are many remarkable individuals who retain the powers and the ability to continue and to perform with great skill and great wisdom. But the wishes of Parliament have been set out and they should be respected. It is not a question of diluting the quality by saying that there are not sufficient persons to appoint, for instance, to the Court of Appeal. There are many judges, puisne 804 judges, who are wholly fit to take on the duties of a Lord Justice of Appeal. Too often one hears the old cry, "Not so good as in my time!" From generation to generation it has always been said. "They aren't like they were when I was at it". In fact that is not true and I do not think it is said, but it should be quite clear that there are sufficient puisne judges who could succeed and who could take on the tasks of the Lord Justices in the Court of Appeal. I say at the end of a long career at the Bar that there are very high standards at the Bar in quality, intellectual quality and ability.
I only hope that this shortage of Lords Justice is not encouraging the present Master of the Rolls towards any development of appeals in writing to get away from the great tradition of oral argument in the British courts of law. Already, we have skeleton arguments being handed in. Of course, that is very helpful for the judges, but let there be no curtailment of oral argument. I hope that that is not the reason why there are not sufficient Lord Justices of Appeal presently appointed; because what we must see is open, public administration of justice in the interests of the appellant, who can hear everything said, and not a paper that is handed in. It is essential to hear everything said by counsel on one side and counsel on the other and to hear the arguments before the judges. I do not want to have any appellate process behind closed doors and based on written briefs. Of course, this does happen in the jurisdiction of the United States of America, but we have the demonstration here of justice in public.
In the administration of justice, it is not so much what is done as how it is done that is important, and the great lesson that tyro judges should be given is as to how they should try the case: that matters really even more than what judgment they come to at the end, because that can be put right in the Court of Appeal. And the training should be given to the judge who is about to come on to the judicial bench. I do not think the problem exists with the senior judges in the High Court, though perhaps it may with the circuit judges and perhaps there should be more extensive courses given before a person becomes a circuit judge. But there is no problem over recruitment to the Court of Appeal, and therefore I would ask the Government to ensure that we eliminate the re-employment of retired judges, distinguished though they are and good as is the service they can give, because we must honour Parliament's decision. There is a strict, though generous, retirement age and, even if we lose the services of these individuals with their perhaps exceptional abilities, it is not right to flout the will of Parliament.
As the noble and learned Lord the Lord Chancellor said, there are different matters in this Bill, and I want to refer to some of them. Clause 43 refers to the right of appeal. Whatever does it mean, this withdrawal of the right of appeal with regard to judicial review? Why is it so? Where does this come from? Is this another matter of cutting down, as it were, the work of the Court of Appeal? This challenging of the Administration and the Executive is one of the greatest areas—I am not talking so much of what the noble and learned Lord, Lord Elwyn-Jones, said about immigrants and that particular aspect of the subject, but generally as a matter of principle—and one of the most important 805 facets of the law now. It is essential for the courts to be able to examine and look into what has been done by Ministers and the Executive. Why should this suddenly be removed from the appellate process? We must be very careful that in the administration of the Court of Appeal we are not always looking for speed or efficiency in some notional way and taking away from them the essential and very proper rights of individuals. I had experience of this in 1984 in an action which went from the judge to the Court of Appeal. The appeal was not allowed, but what the Court of Appeal said and indicated afforded a very substantial remedy—one which this particular applicant needed and required. So, my Lords, I cannot myself see any reason at all for the withdrawal of that right.
With regard to defamation actions, of course this is sensible and wholly correct. The Faulks Report has been with us now for many years. The law of libel does need examination and it got it from that report. The alteration of the limitation period is certainly correct.
I should like to turn to the main provisions of the Bill, the 28 clauses covering the provision of licensed conveyancers. I wholly agree with the noble and learned Lord, Lord Denning, who in turn wholly agreed with the noble Lord, Lord Foot. I have always believed that this was a false problem; it really was a nonsense, and Benson showed it was a nonsense. I am not a solicitor; but, like many individuals, I have moved house and therefore purchased and sold houses as and when I have moved. I certainly appreciated the importance of the conveyance being properly effected. I have understood the risks involved and the money involved, because usually the main asset of any person is in his property and I was determined that I would have competent and efficient experts to do the conveyancing. And to do that you will always have to pay. Thereafter if you seek to improve the house it is usually wise to have a competent surveyor to be able to oversee what is being done, but the purchase of the house is much more important.
When this problem was raised, as the noble Lord, Lord Foot, said, it was a populist attitude. It was beating the lawyers, I fear, because there had been complaints about the efficiency of solicitors' work and there have been complaints about the ability of the solicitors to police their own profession. But now it is going to be thrown open to these other persons. As the noble and learned Lord, Lord Denning, said, this is clearly a group which he will not recommend and I should not think anybody else would recommend the young man to go to; but of course you are obliged to erect an elaborate structure to protect the public. You have to ensure competence, and therefore you have to have an examination system. You have to ensure discipline, and therefore you have to have supervision and sanctions. You have to have public protection, and therefore you have to have insurance. All this is being erected with 28 clauses of this Bill. For what?—to create these "mini-solicitors". Like others who have spoken, I do not believe that they will make a haporth of difference. The structure that is being set up has got to be paid for. It will be reflected in the licensed conveyancer's level of fees. It might as well have been left to the solicitors. I personally would never dream of trusting such a vital asset to the 806 untested, or even tested, skills of a licensed conveyancer.
The scheme was, as the noble Lords have said, one of those media-presented "good things" to which elected representatives, alas, inevitably have to react. After a few years, I prophesy, they will not make a hap'orth of difference; though the political pressure on the Government was such that it had to be done; so here we have this Bill with 28 clauses taken up. I hope it has not filled up the annual opportunity of the noble and learned Lord the Lord Chancellor to engage in substantive law reform, because I am quite certain that this was forced upon him by a populist decision in Cabinet. I am quite sure that the noble and learned Lord, left to himself, would not have touched this at all: it was forced upon him by populist colleagues.
I do not expect him to reply to this or to make any comment about it, but I hazard that as a guess. I hope his substance has not been wasted because this has been forced upon him. I hope he will have the opportunity and that the Government's business managers will listen when he says that he has matters to bring before Parliament with regard to the improvement of the law, because, as I have said, that is of great importance to the citizen. It may not be so important to the politician but it is to the citizen and I trust that this Bill, most of which is taken up by something which is quite unnecessary, will not prevent my noble and learned friend being given the opportunity later in the Session to bring forward matters of law reform which are urgently required.
§ 5.18 p.m.
§ Lord Hatch of Lusby
My Lords, I venture into this galaxy of legal stars to address myself to two purposes, both of which may be said to represent the interests of the consumer as distinct from those of the legal practitioner. The first has already been referred to by my noble and learned friend Lord Elwyn-Jones, by the noble and learned Lord, Lord Rawlinson, and by other speakers: and I want to refer to it for a specific reason. It is the character of Clause 43, in Part IV of this Bill. It has been questioned on the whole issue of principle as to what can be the reason for the removal of the right of appeal. I would ask the noble and learned Lord who sits on the Woolsack whether he would be so kind as to spend a moment or two, during the time in which I have no doubt he will be replying to the criticisms that have been made of this clause, to reflect upon its effect on immigrants, as mentioned by my noble and learned friend Lord Elwyn-Jones.
I would draw to the attention of the noble and learned Lord who sits on the Woolsack the fact that at least two of the organisations which represent immigrants and the interests of immigrants—the Joint Council for the Welfare of Immigrants and the younger Immigration Law Practitioners Association—have drawn our attention to the special effects which the removal of this right of appeal will have upon immigrants. Immigrants, after all, are very often at the mercy of government officials and institutions, and the effect of the withdrawal of this right of appeal on the question of judicial review surely leaves them very much at the mercy—totally at the mercy—of a single judge in the High Court. I can assure the noble and learned Lord that this has caused considerable anxiety 807 among immigrant organisations and immigrants. I would draw to his attention this very special aspect of this Bill and ask him to address himself to those fears and, if possible, to set them at rest, or at least to give us an assurance that when we come to the Committee stage there will be either a very drastic revision of this clause or, as I would hope, its removal to allow the present situation to continue.
I would refer the noble and learned Lord to one particular case, the case of Karazzi, in which a student sought leave to apply for judicial review to challenge an immigration officer's decision to refuse entry. That leave was refused by the Divisional Court but given by the Court of Appeal, which eventually granted the relief requested in the hearing of the judicial review application. This is just one of many instances in which immigrants and potential immigrants feel that the removal of this right of appeal can leave them very much at the mercy of the executive authority without the right to argue their case and to be represented before the Court of Appeal, which has on occasions in the past shown that that right of appeal was necessary by in fact allowing the appeal.
The second issue that I should like to raise is much more general. I should like again to ask the noble and learned Lord who sits on the Woolsack whether, when he comes to reply, he will give us the benefit of his philosophical thoughts on the very vexed question, the admittedly difficult question, of the balance between self-government within a profession and independent judgment on the conduct of members of that profession. I feel sure that he will accept that this is a broad question but one of immense importance in our democratic system.
I was particularly struck by the reference made by the noble and learned Lord to the importance to the whole judicial system of public confidence. I would just suggest that although in Part I of the Bill there is an extension of the powers of the Law Society, that is not necessarily going to improve public confidence. The noble and learned Lord made reference to one particular case, which was obviously the Glanville Davies case, and there have been others which have raised public anxiety both as to the length of time that the Law Society has taken to redress the wrong done to clients of members of that profession and as to whether the Law Society itself is the right body to exercise disciplinary powers.
There is, after all, a suggestion that the Law Society is acting both as a trade union for its members and as a disciplinary court. I recognise that it is very common for clients who have lost their case to make false and wild accusations against the solicitors who have represented them, but this would surely not be a valid argument against the case that can be made for the judicial decision on the conduct of a solicitor to be taken by an independent body. After all, in the medical profession one has the British Medical Association and the General Medical Council. That kind of division of function in the legal profession is one which certainly many members of the public feel would give them a greater confidence in the validity and efficiency of the justice that they expect from members of the legal profession. In saying this I am not in any way suggesting that I am drawing on my 808 own experience. Any solicitor whom I have employed has given me excellent service. But I have come across cases at secondhand in which the actions of solicitors have been dubious, to say the least—and we all know of them. If they are to be judged only through their professional society, is this not likely to weaken the public confidence that we wish to be shown in the legal profession? I know there are two sides to this question, but it has been proposed—and it has been proposed from within the profession—that the profession itself would be strengthened if an independent disciplinary body were set up; and it has been suggested from a study of the legal profession that this would strengthen both the profession and public confidence.
I would ask the noble and learned Lord, in relation to Part I of the Bill, whether he would give us his thoughts on the case that the alterations that are promulgated in the Bill for the strengthening of the powers of the Law Society in its disciplinary actions would not better be taken beyond and outside the Law Society and placed in the hands of an independent body. I would suggest that there is at least a case to be made for this action to be seen as strengthening both the authority of members of the legal profession and public confidence in that profession. I hope the noble and learned Lord will lead us in our thoughts regarding the Committee stage propose amendments along those lines.
§ 5.29 p.m.
§ Lord Coleraine
My Lords, I propose to confine myself almost entirely to a consideration of and comments on Part I of the Bill which deals with the disciplining by the Law Society of solicitors who fail to produce good professional work. It strikes me that the proposed measures are an uneasy attempt to penalise a solicitor who does bad work by compensating his victim. There seems to be a danger here that we shall fall between all sorts of stools and nobody will be satisfied.
I should first declare an interest in two respects with regard to this part of the Bill. First, I am a practising solicitor; and secondly, for the first time in 25 years of which I am aware, some months ago a client went to the Law Society and said that I had been negligent. It appears to me that Clause 1 of the Bill could expose me to the risk of sanctions, so I do have an interest in what is being proposed now.
In fact, I received out of the blue a letter dated 10th October from a solicitor who wrote that he had been appointed by the Law Society as a member of the negligence panel to look into my former client's complaint. I replied to that letter, answering the allegations as I thought best, and heard not a word more from the Law Society or from the solicitor. Shortly before Christmas, I studied this Bill and I then wrote to the Law Society to ask what was going on and what my position was. My letter has been acknowledged but I have heard nothing more.
I intended to say not one word about the licensed conveyancer aspect of the Bill; but the words of the noble Lord, Lord Foot, started a train of thought in my mind. I would like to think that if we are to have licensed conveyancers, they will be under the same duty of care to their clients in all respects as solicitors 809 are who undertake conveyancing work in conjunction with other legal work. I wonder whether my noble and learned friend is satisfied that this will be the case.
Clause 1 of the Bill seeks to introduce a new section, Section 44A, to the Solicitors Act 1974. The marginal note for the new section refers to the imposition of sanctions for inadequate professional services, and the proposed heading refers to disciplinary sanctions. When we come to look at the sanctions we find that they all relate directly to the conferring of benefits on a wronged client. It seems to me that conceptually this approach must be wrong; to mix penalty with compensation must inherently be a mistake. The question will be asked: what sanction should be imposed on a solicitor whose incompetence is inexcusable and deplorable but which has caused little damage to the client? Or what will the council do in terms of making the solicitor put everything to rights for his client in a case where a small, uncharacteristic slip has caused untold damage and distress?
I listened with intentness to the noble and learned Lord, Lord Denning, who seemed to think that the powers which the Law Society are asking us to give them are very minor. It seems to me that the expense to a solicitor of securing the rectification of a mistake, or the expense of taking such other actions in the interests of the client which the council may specify, may be very great indeed.
I take it that the intention and the likely result will be that the sanction is related to the gravity of the transgression rather than to the measure of damage caused to the client. I do not believe that this would go down very well with clients who read the statute, see what is apparently on offer, and compare it with what the Law Society may in fact feel able to deliver.
I presume that the penalty aspect is paramount. In the new subsection (3) I see that the council of the Law Society are not to use their powers to order solicitors to compensate their clientsunless they are satisfied that it would in all the circumstances be appropriate to do so".I take it from the word "appropriate" that the sanction must be appropriate to the offence. But then I read on and note that in determining whether it would be appropriate to exercise their powers, the council may have regard to the existence of civil remedies available to the client. Compensation seems to be creeping back in, to share the Act with sanction. I cannot myself see how the question of civil remedy can really be relevant to the appropriateness or otherwise of the sanction.
It is my view also that the shadow of the proposed new section will hang menacingly across the practising solicitor's desk and result in a tendency for solicitors to practise unduly cautious and defensive law. By defensive law I mean of course the sort of law which a solicitor would pedal who had one eye over his shoulder the whole time, fearing and watching out for a stab in his back from his client, and in trying to prevent this taking steps and giving advice (probably at great length and confirmed at equal length in writing) which are likely to prove the safest in all the circumstances—and not necessarily the best steps.
By the nature of my practice, I have had as clients at least a fair share of people who are fed up with what they see as the poor treatment that they have received 810 from solicitors. There may have been a succession of solicitors appointed and instructed, one after the other, and perhaps there have been complaints made to the Law Society about one or more of them. When I first take instructions and hear all this, a warning bell rings in my ears. I say to myself, "There is risk here". But I generally try to do what I can. It may be all right, or I may join the ranks of discarded solicitors. But after reading the proposed Section 44A, I cannot help feeling that if anything like it becomes law then in future when that warning bell rings, I shall run for cover.
The Benson Royal Commission recognised the danger here. They said in their report, in paragraph 26 of Chapter 25:We have no wish to see the profession walk in fear of unreasonable or draconian measures".And they said also:A solicitor should not be inhibited from giving advice because of the risk of disciplinary proceedings".By and large, I felt that the Royal Commission recommendations struck about the right balance regarding the disciplining of solicitors. I shall say a few words about what they recommended because while it is clear that this Bill rejects all the recommendations in respect of what is called the solicitors' conveyancing monopoly, it may not be so clear that this Bill largely also throws overboard the spirit and substance of what was recommended on the matter of discipline.
Until now, the powers of the Law Society to discipline solicitors have been largely exercised directly by the power of the society to impose conditions on or withhold the issue of the practising certificates without which a solicitor may not practice. The Law Society asserts its authority in disciplinary matters also by prosecuting solicitors before the solicitors' disciplinary tribunal—an independent quasi-judicial body with powers to strike off, to suspend from practice, and to impose financial penalties on solicitors. There is not now—nor did Benson recommend—power in the Law Society itself to fine solicitors, nor to compel them to remit fees, nor make other recompense to dissatisfied clients. The only recommendation which the Benson Commission made which bears any resemblance to what is in Clause 1 of the Bill was that there should be a power to order a solicitor to remit or repay fees for bad professional work. In this they felt that the solicitors' branch of the profession should follow the Bar. That power was to be exercised not by the Law Society but by the solicitors' disciplinary tribunal.
Here I should mention the fact that under the Solicitors Act when the Law Society has exercised its disciplinary powers against solicitors, or when solicitors have gone or have been taken to the disciplinary tribunal, there have always been rights of appeal for such solicitors against the decisions made. Certainly where Benson proposed that there should be alterations, the commission in no way sought to deprive solicitors of rights to appeal against decisions—as seems to be the case in Clause 1.
It seems to me that the Benson report sought to express the view that the Law Society were essentially the architects of their own misfortunes and had it within their powers to put the profession's house in 811 order without the need for legislation. The Law Society was recommended to publish a series of professional standards so as to define the criteria by which good and bad professional work could be judged.
Perhaps more important, the Benson Commission strongly recommended the Law Society to state clearly that all complaints, unless patently misconceived or frivolous, would be fully investigated; whether the complaints were of professional misconduct alone or of bad professional work which might or might not also amount to professional misconduct or to actionable professional negligence, or to both. As I understand it, it was only in the case of professional negligence standing on its own, and which did not amount also to professional misconduct or bad professional work and for which the dissatisfied client had a right to sue his solicitor in the courts for damages, that the Law Society had no role to play.
The Benson Commission said, in effect, that it was only by investigating all complaints that the Law Society could be sure and could satisfy the public that what was apparently professional negligence standing on its own did not also amount to professional misconduct or bad professional work. The point, as I understand it, is that the Benson Commission found that the Law Society was not investigating complaints where it seemed that the complainant might have a remedy in the courts; even though in many such cases there was every likelihood that disciplinary sanctions might also be appropriate. I understand, and my noble and learned friend said today, that the Law Society is now starting to put into effect these particular recommendations of the Benson Commission.
I find it surprising, especially in the aftermath of the Glanville Davies business, that the Government should be giving these powers to the Law Society at this time rather than following in more close detail the recommendations of the Benson Commission. All in all, I fear that giving the Law Society these new disciplinary powers is not likely to lead to happy relations either between the legal profession and the society or between the profession and the public which it seeks to serve.
§ 5.42 p.m.
§ Lord Prys-Davies
My Lords, I am a practising solicitor, and that is my only qualification for intervening in this debate. Many of my fellow solicitors may not feel too comfortable with the main provisions of this Bill, but, for my part, I believe that in general it deserves the support of the House. I say that after having listened to the noble and learned Lord, Lord Denning, and the noble Lord, Lord Foot.
In my profession's weekly journal The Law Society's Gazette it is claimed that the Bill,will have the most profound effect on solicitors of any piece of legislation for the last 10 years".That is no doubt a reference to the Solicitors Act 1974. But, with great respect to the editor of the Gazette, that is an understatement. I believe that the consequences of Parts I and II will probably be more far-reaching than any other single piece of legislation (or solicitors since the great legislation of 1925.
812 It has just been explained how Part I provides greater protection for the public against what it described as "inadequate professional services", and it does this by granting new powers to the Law Society to award certain redress. Some will say that this is the one decent thing to come out of some of the publicised difficulties of the Law Society during the past year or two, particularly in its handling of the complaints of Mr. Leslie Parsons.
The definition of "inadequate professional services", as I understand it, is potentially wide, and will enable the Law Society to investigate a wide range of complaints; so that, henceforth, if the Law Society is prepared to consider the complaint—and it need not do so—a solicitor will be answerable outside the limits of the law of negligence and outside the limits of the disciplinary committee for the services he has given if those services, to use the words of the Bill,were in any respect not of the quality that could reasonably have been expected of him as a solicitor".That is a radical proposal or a major advance, depending on one's point of view, and it is therefore natural that solicitors should be seeking a precedent for it. I should be grateful if the noble and learned Lord the Lord Chancellor could indicate whether or not this proposal is unprecedented.
One may well ask why this kind of proposal was not incorporated in the Solicitors Act 1974. I think it is worth asking that question because I suggest that the answer appears to be that the attitude of the general public to all the professions is undergoing a fundamental change and that lawyers, accountants and members of the health professions are now expected to be answerable for their services outside the law of negligence. I have read the response to Part I of the National Association of Citizens Advice Bureaux and of the National Consumer Council. Like my noble friend Lord Hatch, who is not in his place, I note that their approval is qualified in one important respect. They are not satisfied that all complaints will be adequately and impartially examined as long as the examination is conducted by the Law Society itself. They believe—and I agree with them and also with the Legal Action Group—that the Law Society is being given a very difficult job, if not a virtually impossible one, to undertake. It is asked to undertake a vigorous and thorough examination of a complaint against one of its own members while it is also under a duty to advance and protect the interests of its members to whom it is accountable. There could be a role conflict—the Legal Action Group describes it as a fundamental conflict of interests—between the Law Society's duty to the complainant and the Society's duty to its member. It is unreasonable to put it in such a position.
It is therefore argued—and it has been argued this evening by my noble friend Lord Hatch—that the investigation of complaints against a solicitor should be undertaken by a body which is independent of the Law Society. In its briefing, the National Association of Citizens Advice Bureaux reminds us that the existing complaints machinery is the product of an earlier time, pre-dating the consumer movement. It is therefore argued that in 1985 the body which is charged with the job of investigating and adjudicating on a complaint should be seen to be independent. I 813 think it is right. I therefore suggest that the Law Society and my profession would be unwise to resist the pressures for further change in this area. I shall be very interested to hear the response of the noble and learned Lord the Lord Chancellor when he comes to reply to the noble Lord, Lord Hatch.
I turn now to Part II of the Bill. Clearly its effect will be to increase competition for house conveyancing work by permitting the new profession, licensed conveyancers, to buy and sell houses. It seems to me—and I am arguing against my own profession—that we want this new profession in order to bring about a much cheaper conveyancing service. It will help many people, and it will be seen to be responding to the financial needs and requirements of families. I do not see how any Government in a democratic country could be seen to be resisting that pressure.
The noble and learned Lord the Lord Chancellor has explained to the House that conveyancing is not a marginal subject. It affects many families once, twice or more times in their lifetime; and it represents the largest financial transaction in their life. It is also central to solicitors' practices, and often is the mainstay of their practice. For many solicitors this Bill will signal much harder times to come. I do not know what will be the knock-on effect on the profession. Clearly we welcome very much the setting-up of the Council for Licensed Conveyancers, but there is already concern that it does not have sufficient representation from the consumer movement. We want to be assured that the council will ensure adequate standards of service. If it fails—and this has been pointed out by the noble Lord, Lord Foot—this part of the Bill could work to the disadvantage of the consumer. I support very much the plea made by my noble and learned friend Lord Elwyn-Jones that when the council is established we should have an opportunity to consider the guidelines for training and qualification that will evolve.
Once the new system is working, solicitors will be aware that they are competing with a new profession. My hope is that the licensed conveyancers will not be unaware that they are also competing with solicitors with skills and a grasp of principle and ethics. In fairness to my profession and to lawyers, we should also note—and this point has not been made too often this afternoon—that it is generally recognised that more is required than just the introduction of the licensed conveyancer. I agree with the noble Lord, Lord Foot, that there is a need to introduce new procedures and to find ways and means of cutting down delay and ensuring that transactions proceed with due speed. I sincerely hope that the Law Society, which has been slow to move in the past, will press for new initiatives in this direction when the second report of the conveyancing committee is published.
Let me make this one comment and move on. If the Government are concerned with the costs of selling and conveying a house—and I accept that they must be so concerned—I would also ask them to consider the role and fees of the estate agents, some of whom do not possess any qualifications or skill. It appears to me that, very often, what sells a house is not the estate 814 agent but the condition of the house, its locality and prices within the locality.
Finally, I think there are two omissions from the legal aid part of the Bill. I followed closely the comments of the noble and learned Lord, Lord Denning, on this part of the Bill, and I would say this to him. Of course the legal aid procedures can be abused, but justice has a price. Any applicant ought to be able to pursue his remedies if the law provides such a remedy.
As I say, there are two specific omissions from this part of the Bill. If by chance or by design a person is libelled or slandered, legal aid is not available so that he may institute proceedings. That many of us believe to be a serious flaw. Nearly 10 years have elapsed since the Faulks Committee on Defamation recommended that legal aid should be available in defamation cases. Practitioners will know that if they are unable to achieve an early settlement they have to advise their clients to embark on a long and expensive litigation, which will usually cost no less than about £8,000, or else abandon the proceedings. But the defence of one's good name is as important as the defence of one's property.
The second omission is of greater significance, in my view. Legal aid should be available in an appeal against a national insurance or a social security decision. I appreciate that if an appellant is a member of a trade union he may have some valuable assistance from his branch secretary, but in general, legal aid or assistance is not available, and without legal representation the disadvantage is enormous. As there is an appeals procedure within the social security system, we have an obligation to ensure that the applicant is properly represented. In general I support the main principles of the Bill, although there are points of detail to which we shall have to return.
§ 5.57 p.m.
My Lords, I hope that the lawyers among your Lordships will forgive a non-lawyer having the effrontery to contribute to this debate. However, I have always believed that the law, and indeed the administration of the law, is far too important a subject to be left to the experts. My only concern with regard to the Bill is in Part II—namely, the provision in the public interest of a framework to enable competent licensed conveyancers (who are not necessarily solicitors) to convey land. As the Bill itself suggests—and indeed the terms of the Bill use it—the issue of competence is absolutely central to the argument underlying the Bill.
I understand that by happy coincidence my views coincide closely to those of the Institute of Legal Executives—a body which has already been referred to by the noble and learned Lord, Lord Denning. It is my understanding that the Institute of Legal Executives has played a vital role in the development of the proposals leading to this part of the Bill in evidence that it gave to the Ferrand Committee, in its representation on that committee and in the special part that its members have played for many decades in the provision of high standards of education and training, backed by disciplinary arrangements for competent conveyancers and those who have practised as 815 conveyancers in the officers of solicitors since at least the 1890s.
I also find to my delight that I have followed a similar road to that of the noble and learned Lord, Lord Elwyn-Jones. However, I live in fear of the fact that your Lordships will find my route nothing as attractive as his. As suggested, this part of the Bill creates a new, separate profession, and as such it is encumbent, in my humble opinion, on Parliament to take very great care—its usual care—in its consideration of this part of the Bill.
Noble Lords will appreciate that under Clause 8 of the Bill there will be established a Council for Licensed Conveyancers. This body would be given almost exclusive control over licensed conveyancing. The council itself would make the training rules under Clause 9 and would be a totally independent self-regulating body. What does concern me, however, is the lack of clear criteria laid down under the Bill as to what standards of education and training Parliament considers are required for conveyancers, taking into account what the Ferrand Committee itself considered was required.
The rules under Clause 9 are permissive only and I believe that although the council should have a broad capacity to make the rules, they should have to do so within general but clear criteria. The tests to be applied for the recognition by the Council of pre-entry educational courses, of examinations, of refresher courses and of practical experience will determine the level of competence to be achieved by those who are allowed to convey land. I hope that in Committee reasonable and proper criteria for recognition will be stipulated by amendment to the Bill and that the Government will indicate these criteria in the course of this debate and their willingness to amend the Bill accordingly. I fear that otherwise the Bill will fail in its prime objective, which is not only to remove the present professional monopoly in solicitors to convey land—which I personally welcome—but also to protect the public, by virtue of these proposals, for the future. The Bill seems to me at least to be too general and too loose on this matter. Indeed, under Clause 11, I note that the Council may dispense with conditions to be imposed by virtue of Clause 12. But the conditions themselves do not deal sufficiently with the question of who is—and I quote from the Bill—a fit and proper person to practise as a licensed conveyancer".The issues of integrity, competence, ethics and standards are necessarily interconnected in the provision of reasonable professional standards outside monopoly. Moreover, Clause 12 also deals generally with circumstances after the initial grant of a licence—which may be too late. Of course situations will arise where licences must be terminated or suspended after they have been granted, but the protection of the public surely requires more in the way of prevention than of cure. Hence my concern for clear criteria to be laid down by Parliament in the rules under Clause 9.
Similarly, I believe that the code of conduct under Clause 16 needs to be more clearly presented by reference to sensible criteria. Indeed, I cannot see why the requirements for the code of conduct, even within the general duties laid down under Clause 8(2) of the 816 Bill, cannot be made more specific, such as, for example, by the inclusion of a general requirement to prevent conflicts of interest, and to provide adequate standards of competence, which are ascertainable from current knowledge and experience, as to what are the real pitfalls. I do not think that such matters should simply be left to the council itself if adequate protection for consumers is to be provided. The Government and Parliament cannot in my view opt out of clearer guidance to the Council on all this. The same issue arises in respect of the provision of Clause 17 relating to professional indemnity and compensation. Indeed, the insurers will need to know what competence is required. If the level is too low, insurance will be prohibitive with a corresponding increase in overhead costs which, believe me, the conveyancer will pass on to the poor public.
If the general criteria which I have indicated are specified in the Bill, the task of the Investigating Committee under Clause 20 (including complaints by the public) and of the Discipline and Appeals Committee under Clause 21 would be made that much easier and with less risk of the main objects of the Bill being frustrated. For if the Bill is to succeed, the public must have confidence that it will work effectively in the public interest and not to be found to have failed after it has been enacted. The quality of service reasonably expected of a licensed conveyancer under Clause 22 will, I assume, be the quality of the average class of conveyancer, including properly qualified legal executives and solicitors. It really would not do for failures to achieve these standards to be identified after the new licensed conveyancers have begun to practise, for by then members of the public would have lost confidence in the new system with all the adverse publicity and hardship for members of the public would be involved and for which mere compensations or insurance would not be enough.
Equally, intervention by the Council under Clause 27 is ex post facto and is, as far as I can see, unrelated to the tests of competence, except as regards the infringements of the rules for accounts under Clauses 18 and 19. Undue delay under paragraph 3 of Part I of Schedule 4 is of itself not enough. Incompetence and negligence are of equal or indeed greater importance. What is needed is prevention and cure, which brings me back to the point I made earlier about clearer criteria for the rules under Clause 9. The requirements for competence, quality of service and efficiency should be tighter but not so tight as to be capable of compliance only by solicitors. It is this balance which I believe the Bill is seeking to achieve and with respect I do not think in its present form it does so. Much useful thought in my view could be given to setting reasonable and required criteria to strike that right balance.
This brings me to a point which arises on Schedule 2, the constitution of the council itself, both in the initial period and subsequently. Those who are on the council will determine its future character and the standards it will set. I reiterate my point about criteria. Once the Bill is enacted, those on the Council will define its future course. I see nothing in the Bill to ensure the competence of those who will determine the competence of the licensed conveyancers, either initially or under the scheme (or as varied or revoked) 817 under paragraph 4 of Schedule 2. Surely some reasonable standard of competence and experience must be provided for those who would constitute the Council as appointed, elected or nominated. However, I feel sure that my noble and learned friend the Lord Chancellor will strive to achieve a well-balanced council both in the initial period and under a scheme, but I feel equally sure that some guidance should be given by Parliament on this vital issue.
There is only one further point upon which I should like assurance and clarification. That is a point which arises in Clause 28. I should like an assurance that this clause does not empower banks and building societies to practise licensed conveyancing. I do not think it does but I should be grateful for that assurance. Equally, I see nothing in Clause 28 to ensure that recognised bodies corporate are of significant means. I cannot help but feel that one would not wish to see £100 companies with £2 paid up capital with limited liability offering services to the public. I should hope and expect that the rules to be presented under this Clause would be such as to ensure full and complete protection for the public in this respect. My earlier points relating to criteria and standards equally apply to Clause 28 and indeed to Schedule 5.
I welcome the general framework of the proposals of this Bill, and as I understand it so do the Institute of Legal Executives. But I feel that the Bill should be constructively amended along the lines that I have suggested. I should be most grateful for an assurance on the matters that I have raised.
§ 6.9 p.m.
§ Lord Graham of Edmonton
My Lords, I apologise for having failed to put down my name on the list of speakers on time. I intend to be brief. I was here at the beginning of the debate and heard the introduction of the Bill by the noble and learned Lord the Lord Chancellor. I remember that he said that this Bill consists of a number of small, uncontroversial measures. From what I have heard, I am quite certain that in many parts of the Bill there is a great deal of controversy, which will emerge at the Committee stage.
The noble and learned Lord, the Lord Chancellor said that the Bill had no central theme. I believe that its central theme is seeking to put right what a great many people consider, rightly or wrongly, requires to be put right in the light of experience. As a Member of Parliament for a number of years and as a layman, I can assure the House that I was always distressed when constituents came to me with what they felt to be justified grievances, not against other individuals, but against the quality of the advice that they had received. Of course, they may not always have been in the best position to judge the quality of the advice that they received. We had access in Edmonton to a poor man's lawyer, a solicitor, who gave free advice. Mostly his advice was, "Go and see a solicitor". In fact, that was good advice. It was not simply a matter of keeping the profession going. One needed, frankly, to have the advice of those who were trained and knowledgeable. There is no doubt that the general thrust of the first part of the Bill is absolutely right.
818 From my experience of contact with the Law Society, I believe that it is as distressed as anyone else at the instances that come to its knowledge of members of the profession who show dereliction of duty in one way or another. I welcome therefore the first part of the Bill which seeks to give to the Law Society greater powers to ensure that members of its profession give value for money to the public. The early clauses of the Bill provide a new alternative to conventional litigation. There is no doubt that the ordinary member of the public—or the general member of the public, because I am not attempting, as we were trying earlier at Question Time, to define what is ordinary—is loath to seek the avenue of litigation in order to put right what he feels is wrong. It is not only a question of cost and of time; it is a question of the aura in which the law is held. Any opportunity to avoid going to law, which the early clauses appear to present, is to be welcomed.
The noble and learned Lord the Lord Chancellor, referring to the part of the Bill dealing with conveyancing, said that restrictions on competition—alleged to be the case at the moment in regard to Conveyancing—should be examined with the greatest care. That appears to me to be what we shall be seeking to do during the Committee stage. I listened carefully to the noble and learned Lord, Lord Rawlinson, who mercilessly castigated the whole concept of the conveyancing part of the Bill. I can only say that I echo the words of my noble friend Lord Prys-Davies, who declared that there is a mood in the country that the professions—the profession of solicitor is, of course one of them—are moving towards a state in which they require to be examined and challenged. No supporter of this Government, I suggest, would make a case against competition per se. If, as my noble friend Lord Prys-Davies said, solicitors are faced with more competion, I cannot imagine that many noble Lords on the Government side of the Chamber will object.
On the conveyancing clauses, I congratulate my honourable friends in another place, particularly the Member for Ipswich, Ken Weetch, and for Great Grimsby, Austin Mitchell, and many other Members of all parties who have played their part in reaching the situation that now exists. I believe that there will be found to be a great deal of common ground in the approach to those clauses. I should, however, be grateful if the noble and learned Lord the Lord Chancellor would deal in his reply with one or two points that arise directly from the Bill. I wonder whether the noble and learned Lord can say what he has in mind in regard to the composition of the Council for Licensed Conveyancers during what is called the initial period, referred to in paragraph 3 of Schedule 2.
There is understandably much concern among presently practising non-solicitor conveyancers that the council will, as did the Street-Ferrand conveyancing committee, consist overwhelmingly of solicitors and will not include people who are knowledgeable about present established practices who will need to seek acceptance by the council under Clause 9(4). Can the noble and learned Lord the Lord Chancellor say who will supervise the making of rules 819 by the council? How long will it take, after the Bill is enacted, for the council to be ready to begin operating?
There is one final point. The noble and learned Lord the Lord Chancellor dealt with the situation arising from Clause 50. The noble and learned Lord has pointed out, quite fairly, that when he announced his intention to raise the registration of court judgments from £10 to £50 as part of a move to reduce the number of those employed in the Lord Chancellor's department and to seek economies, this caused a great deal of perturbation. That was simple to explain. Raising the judgment debt to be recorded from £10 to £50 meant that debts from £10 to £50 that would normally be recorded would thereafter be excluded from the register. As the noble and learned Lord again fairly pointed out, a great many people, including the credit agencies and, also, I recall, the Retail Consortium and the National Consumer Council, made representations. The noble Lord, Lord Chelmer, and myself took a small deputation to see the noble and learned Lord the Lord Chancellor in November 1983. The noble and learned Lord was good enough at that time to authorise discussions, the outcome of which we see in the Bill. That outcome is that the professional organisations and consumer organisations are satisfied that there will at least be a more efficient and more satisfactory service.
It has to be borne in mind that credit is very big business today. Although millions of pounds might have been saved in the salaries of the Lord Chancellor's staff, I can assure the House that the credit agencies told me that many millions of pounds would be lost to their organisations which, in turn, would he passed on, so that we, the general public, would he the losers. I welcome very much this part of the Bill.
The National Consumer Council has properly raised reservations about the mechanics to cancel the registration of a debt once it is met. I assume that the council will ensure that amendments to meet its view are brought before the House at Committee stage. All told, I warmly welcome the Bill. It is better than the curate's egg because, in most parts, I find it very enjoyable.
§ 6.18 p.m.
§ Lord Mishcon
My Lords, I venture from these Benches to wind up what has been a most interesting debate on an important Bill, introduced with his usual skill by the noble and learned Lord who sits on the Woolsack—a skill evidenced often as much by what he did not say as by what he did say. I declare an interest and a sense of privilege in that I happen to be a practising solicitor who looks back over a number of years of active practice in that profession. All your Lordships would I think agree with one principle: that a well ordered and efficient profession is a very necessary buttress of our society and indeed of our freedoms. One looks therefore at Part I of the Bill with a feeling of responsibility to society at large—a sense of responsibility which I believe my profession has upheld with great dignity over a great number of years.
We are dealing with complaints, and participants in this debate have properly pointed out that the Law Society has itself suggested the complaint procedures which are in this Bill and the further disciplinary 820 measures which are in this Bill. I hope that the House would not conclude a debate on Part I without realising that this profession, far from being worthy in regard to general complaint, is indeed a profession which contributes an awful lot to society by its voluntary efforts, apart from the fact that that profession acts so often as the family guide and counsellor and occupies from that point of view such an important role.
It is pertinent to remember—the noble and learned Lord, Lord Denning, referred to legal aid and I know he will permit me to come back to what he said about that—that throughout the country there are solicitors, assisted definitely by members of the Bar, too, who sit on legal aid committees making decisions about individual cases. It takes up a very great amount of time. There are more than 1,000 solicitors who are members of the area and general committees. It is voluntary work. There are a hundred Citizens' Advice Bureaux which have rota schemes where solicitors attend in the evening and give free legal advice. There are about 5,500 solicitors in that service and there are, in addition, about another 500 solicitors who attend at Citizens' Advice Bureaux and do this without fee as honorary legal advisers. The same thing applies to the legal advice centres throughout the country. One envisaged only a little while ago in this House the duties that would fall in administration of the criminal law and in regard to legal aid—a 24-hour service voluntarily put forward by the solicitors' profession; a matter which is going to mean working certainly outside social hours and being on call at all hours of the day in order to see that our criminal law is administered properly and fairly.
And so it is an honourable profession. But there are people who err and there are people who unfortunately do not come up to the standards of care, and it is right that the public should know that the legal profession and your Lordships are careful of those matters and provide proper procedures. I should have thought it was a proper procedure that the Professional Purposes Committee of the Law Society should investigate those matters. It will have on it representatives from the laymen of our community, and they will have the right of say. They will be full members; they will not be observers as some of them are now. Furthermore, I think that your Lordships who are engaged in professions will know that there is no more stringent master and no more stringent tester of professional standards than the people who belong to that profession themselves. And so I personally have no fear, if I may say so, about the fairness and about the public seeing that fairness being administered.
When the noble and learned Lord, Lord Denning, referred to the compensation that might be awarded, I thought for one moment, to take his case logically, that he was going to say that the Law Society ought to be empowered to award damages in matters of negligence—a matter which I should have thought the public would have found an extraordinary situation in the sense that this was to be a tribunal that would award damages as though it were a court of law. Then at the end—as though, if I may say so, his logic told him that that could not be a right termination of his argument—he said that there should be an indication, as I understood him, by the Professional Purposes 821 Committee that a negligence action might arise or did arise. I should have thought, if I may say so with deep respect, that to pre-empt the judgment of a court by a declaration of a professional body that there was negligence for which damages could be claimed, merely leaving the court to decide the quantum, was something that upon further reflection—and I say this humbly—the noble and learned Lord himself would not advise.
Possibly it would be an appropriate moment to deal now with the point on legal aid which the noble and learned Lord raised. He referred, quite correctly, to the fact that he was deemed to be the father-in-law of my profession when he was Master of the Rolls. I am sure he does not want to be the wicked stepmother of the legal aid system, and for one moment I thought that he was going to deserve that title. To quote the case of Kelly v. London Transport Executive as an indictment of the legal aid system seemed to me not worthy of the noble and learned Lord.
I can remember, when I was very young in practice, that I was met by the opposite difficulty. There was no legal aid. I practised in a pretty poor neighbourhood. I found that I was up against this: that there were people who did have a case against the London Transport Board, as it was then, but the London Transport Board really profited from the fact that it knew perfectly well that this man could never bring an action against it; he could not afford it. I was made offers on people's behalf which I had to advise should be accepted only because they could not afford to bring an action and could not afford the risk of their home and everything they had. Therefore I had reluctantly to say, "You've got a case. You should get x by way of damages. A court would award it to you if only you could get to the court. But I'm sorry. You'd better accept this rather mean offer that has come forward".
I know that the noble and learned Lord, in taking the example of Kelly, knows this: first of all, there is a committee that has to examine whether or not there is a good case. Secondly, that committee usually—I might almost say in every case—will not grant the certificate for proceedings unless there is an opinion of counsel. In that regard, I did not think that the noble and learned Lord wanted to indict the profession of which he is such a luminary. No counsel would ever grant that certificate and no committee would ever pass that case unless there was a doctor who said that that cut on the forehead, or whatever it was, led to the depressions and all the other things which were being claimed for. Blame the doctor who gave the certificate, but do not blame the Law Society committee that awarded legal aid and do not blame the solicitor who conducted the case very properly if he had got counsel's opinion and that medical certificate. As the noble and learned Lord was fair in saying, these are but the minimal number of cases. The majority of cases mean that our citizens can have justice in this country regardless of means, and that is a much more sacred principle than the case of Kelly.
Having said that, I move to Part II of this Bill. I find myself personally, as your Lordships may imagine, very much in agreement with the opinions that were voiced so ably by my noble friend, as I should always wish to call him, Lord Foot, the noble and learned Lord, Lord Rawlinson, and the noble and learned 822 Lord, Lord Denning. But we have to face facts. This matter was discussed in another place. Much worse things might have occurred if one did not at least have a scheme where properly qualified people are supposed now to carry on the business of conveyancing if they qualify and if they obey the rules of their council. And so, not with a feeling that this was a solution of any problem or that it really helped the public of this country in conveyancing matters, I think that the Law Society has concurred with wisdom in this scheme.
But care must be taken in your Lordships' House to see that there are proper qualifications, that there are proper, reasonable professional rules to guide the future advance of this new profession. It is supposed to be the result of the free, unfettered law of competition. I as much as anyone in your Lordships' House want to see conveyancing correctly, economically and speedily carried out. It is not quite so much a matter of the professional way of dealing with it; it is a matter of our procedures, it is a matter of the terrific delays that occur in endeavouring to get searches from local authorities. It has many other implications as to the stage at which one enters into a contract, and obviously we shall all be awaiting with very great interest the final report of the Farrand Committee, to which reference has already been made.
However, are we to continue down the path of competition rules being the only matter that ought to be looked at when we look at the future of our professions? Of course, our professions are being looked at with a modern eye, but there are traditions which ought to guide us along the path which we are taking. I am speaking personally and I may be old-fashioned, but I can tell your Lordships that I look with the utmost distaste at the advancement of permission for advertisement by chartered accountants and solicitors on television, in newspapers and so on. If we are to go further down that road, please do not expect the same pride in saying, "I am a professional man; I have ethics to abide by and I serve the public". If we go too far down that road, we shall not get the sort of entrants into the profession whom we in the legal profession look to to supply our judges and the administrators of justice.
I move speedily to a clause which has evoked some correct passion in your Lordships' House—Clause 43. I shall say no more about it because so much has been said, and eloquently said. But the remedy of judicial review was, in the main, initiated in order that, if tribunals and Government departments acted unfairly, wrongfully, or unlawfully, they could be brought to book. If it is a recommendation of a Government department to the Government that there should be an enactment which limits the rights of the person who goes for a judicial review, one has to be very careful.
I very much appreciated, as your Lordships always do, the contribution by the noble and learned Lord, Lord Rawlinson. If the noble and learned Lord will allow me deferentially to say so, I thought for one moment that he was envisaging that this was a limitation of the right of appeal against the court deciding the judicial review. Of course in fact it is only the restriction of the right of appeal against leave. But the number of cases that we have had where there 823 can be two points of view on the question whether leave should be given and what it encompasses by this relatively new right of judicial review makes it absolutely essential that this should be a matter that can be looked at again by the Court of Appeal if the citizen wishes to appeal against the decision of the single judge.
I notice that the time is passing, and this has been quite a long debate. I want to raise only one matter which has not been touched upon at all during the course of this debate. In this little Bill—in fact, from the point of view of what it does historically, it is a big Bill—there is a provision about county court judgments and the ability of non-profit making organisations to do the registration of these county court judgments. Points have been raised about the question of the limitation of the amount of the judgment. That is not my point at all. I want to bring to your Lordships' attention the point that, if the non-profit making organisations take this on, although these provisions about registration will have the Data Protection Act, which we went through in this House with such care, and the Consumer Protection Act applied to their practices, the fact of the matter is that many registrations remain long after a debtor has satisfied the debt.
I took the trouble to look at some publications that raised this matter and to copy out a statistic. There were 911,296 registrations processed in 1983—a very frightening number. Only 37,834 showed notes of satisfaction, and that is only about 4 per cent. It cannot be true. The reason that these unsatisfactory matters remain is that the debtor is supposed to apply to the court for a certificate of satisfaction, pay a fee and then get the registration of the judgment wiped out. It is no wonder that either he does not know of the procedure or, having got rid of everything he had in order to satisfy the judgment, he is not inclined to pay even the small fee.
This obviously constitutes an injustice. I wonder whether the noble and learned Lord would not consider that, if we are dealing with county court judgments, there should he a provision in this Bill stating that, within a sensible period of the satisfaction of his debt, it is the duty of the judgment creditor to notify the registering authority that the debt has been satisfied. That would obviously be the most satisfactory way of ensuring that registration does not perpetrate injustices about the reputation of people who have been debtors.
My noble and learned friend, who always addresses your Lordships with such clarity and eloquence, ended by saying that this was a Bill that was good in parts and bad in parts. It will be our duty to ensure that the bad parts are rectified. However, there is much good in this Bill.
§ 6.37 p.m.
§ The Lord Chancellor
My Lords, I should like to begin by thanking the noble and learned Lord, Lord Elwyn-Jones, for the kind personal reference with which he began his speech. I am suffering from a slight disability, but I hope that neither my attention to the speeches nor the quality of my performance during the debate has suffered unduly from it. If it has, then I can only apologise.
824 This is an extraordinarily difficult debate to which to reply. For instance, if I were to pursue my noble and learned friend Lord Denning into a critique of the working of the legal aid system as a whole, it would require a speech in itself. It is quite true that legal aid can be oppressively used. It is true, as the noble Lord, Lord Mishcon, has just said, that it was designed to remedy a perceived injustice; and there is always an inherent difficulty in inequalities of wealth when you come to litigation, whether you are a plaintiff or a defendant. Very often plaintiffs have to pay up in cases in which their claims are less than justified; defendants may have to pay up because they know that their plaintiffs cannot satisfy the costs if they get judgment against them. I have known that to happen—and the opposite is often true.
However, I do not think that this is either the time or the place to enter into a general critique of the system, or to argue whether or not the taxpayer should pay the cost of two estranged spouses arguing about a home, the value of which does not meet the cost of their argument. It is possible to take two views about that.
Equally, if I were to pursue my noble and learned friend Lord Rawlinson into the field of the Court of Appeal, of recruitment to it and of the use of retired judges, I should find myself off the main track of this debate. There would be much to say about that, and much I should like to discuss with him. The question of judicial administration under a rapidly increasing load of work, and with a profession at the bar half of which is under ten years' call, is a great deal more difficult than I think my noble and learned friend has quite appreciated.
The best thing I can do is to try to speak not quite off-the-cuff but at any rate in general terms about the kind of criticism to which this Bill has been subjected. Of course I start with Part I. The first thing to remember about Part I was said by one noble Lord in reply to my noble friend Lord Coleraine. The first thing we have to understand about it is what I said at the beginning; namely, that is was demanded by the solicitors' profession itself through the Law Society, which is its accredited representative with my office. It is only for the reasons that I gave that it is incorporated in a Government Bill. It is not an attempt by the Government to impose a discipline on solicitors which they have not asked for themselves.
If I may pursue that for a moment, I think that the noble Lord, Lord Hutch of Lusby, quite understandably is a little confused as to the various safeguards that the public have in the case of the legal profession—safeguards which are more stringent in many ways than those which apply to the medical profession, to the dental profession or to some other professions. To begin with, there are the criminal courts and the civil courts. I would agree with the noble Lord, Lord Mishcon, that actions for negligence have to be brought in the courts; and equally that professional misconduct, which is not simply a wrong against an individual client who may have been defrauded but a wrong against the profession of which the miscreant is a member, should be dealt with by the Disciplinary Tribunal. I must say to the noble Lord, Lord Hatch of Lusby, that that tribunal is independent of the Law Society. It is not set up by the Law Society. 825 It consists in fact of two solicitors and a layman, and it works independently.
What is proposed in Part 1 is to some extent a departure, and I think it was the noble and learned Lord, Lord Elwyn-Jones, who pointed this out. In both branches of the legal profession there has been a growing feeling that some work is too shoddy to be paid for, without necessarily giving rise to negligence, and ought to be the subject of some form of professional discipline. That may be right or it may be wrong, but it is in my perception a growing opinion in both branches of the legal profession.
In the case of the solicitors' profession it applies mainly to non-contentious business; that is to say, it does not apply to contested litigation so much as to conveyancing and probate work which is non-contentious. The proposal is not that the Disciplinary Tribunal but that the Professional Purposes Committee, which will contain laymen and on a substantial scale, should look into this business and apply the kind of sanction which is put into Part I of the Bill. Personally, I think it is a good thing. Personally, I accept that the Law Society was right in asking for these powers: and I do not think it just to suggest that the Government are trying to impose it on an unwilling profession. I think it is a genuine attempt on the part of the Law Society to raise standards, particularly in the field of non-contentious business.
That brings me to Part II of the Bill. I must remind those who have castigated Part II—which included the noble Lord, Lord Foot, my noble and learned friend Lord Rawlinson, and I think my noble and learned friend Lord Denning—of the genesis of Part II, which was referred to by the noble Lord, Lord Graham of Edmonton, in his speech. There was a Bill before the House of Commons which would have allowed a wide range of non-solicitor conveyancers to practise for reward. I do not think that everybody who supported that Bill realised what the noble Lord, Lord Mishcon, has in fact reasserted, and which I should like to endorse; namely, that although consumer choice and the competition on which it is based are a good way of buying meat or groceries, they are not necessarily the best way of buying professional services, partly because the customer does not always realise how much work goes into acquiring the necessary skills and partly—and this is the more important of the two factors—because a defect in conveyancing work (which can involve, as I think the noble Lord, Lord Foot, pointed out, knowledge of matrimonial, taxation and planning law as well as of property law) may not turn up until years and years afterwards.
Therefore, it is no good comparing the person who seeks the advice of a doctor, of a solicitor or of a dentist with the housewife who judges the produce of her butcher by quality, price or willingness to effect a home delivery. It is a much more complicated business. I do not think that everybody who supported that Bill in the House of Commons quite took in the importance of an independent, vital and skilled legal profession in the field of consumer protection.
Whatever happened, the Government—and I think with the assent of the Opposition—entered into certain commitments as a result of that legislation. We were in honour hound, having entered into those commit 826 ments, to do what we had promised to do. What we had promised to do was to set up what subsequently became the Farrand Committee. That committee was a committee whose composition was not, I think, criticised at the time, and I do not think could have been criticised at the time. They came, for this purpose, to a virtually unanimous conclusion, which was that with certain safeguards it was possible to license conveyancers who would be sufficiently qualified to justify competition with the solicitors' profession.
That committee came to that conclusion, and the only criticism to which I was subjected when I published the report was that the provisions for qualification suggested by the Farrand Committee were too stringent. That was the criticism that had come from the supporters of the Austin Mitchell proposal. So what could I do? Should I ask Parliament to state in advance what the qualifications would be? If so, I think I would have been bound to put in the detailed qualifications in the Farrand Report—and I do not know where we would have got in either House on that—or else I had to do the thing which the Farrand Report had recommended me to do, and that was to set up a council and to say in the Bill that the council would set out the qualifications and the standards of competence and conduct which would be expected. Of course, in doing so the council would, I hope, pay the greatest attention to the qualifications and standards proposed by the Farrand Committee.
That is why the Bill is, in Part II, somewhat vague. I do not think that I need apologise for having taken that course, because I have done my best, whatever my private expectations might have been, both to honour the obligations of the Government, given clearly in the House of Commons to the proposers of the original Bill, who withdrew their Bill on the faith of those qualifications, and to try to carry out the essence of what the committee had proposed. That is why Part II of the Bill takes its present form.
The legal aid provisions are simply designed to deal with complaints, not about the legal aid scheme in general—although I think that my noble and learned friend Lord Denning seemed to think that this was an appropriate moment to remedy something about which he has long had strong feelings, and spoken about boldly, publicly and forthrightly, as he always does—but about complaints against individual practitioners who give service which is less than adequately good. I think we were quite right in both cases to say that those complaints are so similar and analogous to professional misconduct of a more general kind that the two types of complaint overlap, and they should be dealt with by the same bodies. Where that will take us, or how often they will be reprimanded or deprived of remuneration or struck off the list of those thought suitable for legal aid work, I cannot predict; but I am sure that in itself is an improvement in the present system.
I ought to say a word about Clause 43. I had originally intended to enter into an exposition of it in my opening speech, but my opening speech became so long that by the time I arrived at the passage in question I gulped twice and thought I would reply at the end of the debate so as not to tire the House indefinitely. The point is that I agree with what the 827 noble Lord, Lord Mishcon, said about it. There were moments when both the distinguished authors of the letter to The Times and some critics in this House were overlooking the nature of what is proposed.
I agree with those noble Lords who have said that the development of judicial review out of the old writs of certiorari, mandamus and prohibition has been one of the startling developments of the common law in my lifetime. It has shown that the old lady is quite capable of picking up her skirts and breaking into a gentle trot from time to time. We have all been the better for it. But from the earliest days, before the recent developments, it had always been a two-stage procedure. In the old days one applied for a rule nisi, which meant that one was allowed to go ahead but one could not go ahead without a rule nisi. Nowadays, and translating it from dog Latin into plain English, one needs leave from the single judge before an appearance before a Divisional Court.
What is at issue is not whether there should be an appeal from a decision of the Divisional Court (which there should be and is) but whether there should be an appeal from a refusal to grant leave to go ahead at all. I should like to point out to those who have criticised Clause 43, which says that one cannot now go to the Court of Appeal—and I do not conceal from my noble and learned friend Lord Rawlinson that I am concerned with the delays in the civil work of the Court of Appeal—that I am concerned to cut down its work as far as possible.
Clause 43 says that one cannot go to the Court of Appeal from refusals of leave. I do not exclude, and have not excluded from my thinking, the possibility that there may be some other recourse. Noble Lords who are expert in this branch of the law will know that in criminal appeals one goes to a single judge first and then to the full court. Within the High Court, and by the rules of court, it may be possible to hammer out some further recourse. But to take up the time of the Court of Appeal with an automatic right of appeal against leave seems to me to be, prima facie, rather an excessive indulence.
I take some strength for my provisional conclusion in that respect from the figures for 1984. I am talking about cases started in 1984, not about disposed-of cases which may have been left over from 1983. There were only 37 such appeals during 1984. Two of them are still outstanding, and are therefore sub judice. But the other 35 have all fallen by the wayside, either because the appeal was withdrawn—either in the Court of Appeal or after leave was given for the Court of Appeal in the Divisional Court—or because the case was dismissed on its merits by the Divisional Court, or because the Court of Appeal refused the appeal. That means that, apart from the two which are still outstanding, all 35 fell by the wayside after having wasted an enormous amount of judicial time.
It is possible to ride on a gallant palfrey, armed cap-à-pie, with the weapons of chivalry, and say that immigrants and whatnot ought to be allowed to appeal from a refusal of leave, and to appeal only to the Court of Appeal and nowhere else. But there is a danger of making oneself a trifle ridiculous about erecting this into a grand issue of principle. Although I have said 828 what I have said deliberately, about not excluding another recourse inside the High Court through a procedure which would work by the rules of court, at the moment the Government have a stronger case than has hitherto been made. Too much has been said about Clause 43.
I believe that I have dealt in one way or another with a good many of the speeches which have been made. I look forward to the Committee stage, because then I may be able to explore some of these matters in greater detail. I can say, because it has just now come into my mind, that I think it was my noble friend Lord Morris who wanted an assurance that Clause 28 does not allow banks and insurance companies to carry out conveyancing. It has not that intention, and I do not think it has that effect. It was designed to permit licensed conveyancers, new style, to operate as corporate bodies. It has nothing to do with the other issue, which concerns the solicitors' profession.
As to the extent to which licensed conveyancers would be liable for damages for negligence in the same way as solicitors, I can only say that I suppose that it would be for the courts to decide in the end; but it has never occurred to me that they would not. I think that would probably be the general feeling of the legal profession.
Having said that, it is difficult for me to know how long to go on. Perhaps I ought now to sit down and to thank noble Lords for their attention and for the part they have played in the debate, which has greatly interested me.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.