HL Deb 31 January 1985 vol 459 cc746-96

3.27 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

(THE LORD ABERDARE in the Chair.)

Clause 1 [Disciplinary sanctions for inadequate professional services]:

Lord Denning moved Amendment No. 1:

Page 2, line 27, at end insert— ("(d) direct the solicitor or his firm to make a contribution to the costs of the client.")

The noble and learned Lord said: This may look like a trivial amendment which is concerned only with costs. However, underlying it there is an important question of principle and policy. It also underlies Amendment No. 3, which your Lordships may think deals with a trivial matter—namely, that of appeals—and a later amendment, Amendment No. 58, which concerns the constitution of a committee.

Amendment No. 3: Page 3, line 41, leave out subsection (7) and insert— (" (7) Where the Council makes a determination or gives a direction under subsection (1), or refuses to make it, the solicitor or the client, as the case may be, may appeal to the Solicitors' Disciplinary Tribunal who may uphold, vary or reverse the determination or direction as they think fit.")

Amendment No. 58: Schedule 1: page 45, line 25, at end insert— (" "(8) A committee exercising disciplinary functions shall be constituted, both as to members and staff, separately from a committee exercising investigating functions." ")

All the amendments may look trifling and trivial, but underlying each there is a question of policy. Indeed, the same principle underlies the amendments being moved by my noble friend Lord Hatch of Lusby. Therefore, I should like to take your Lordships over the background of the principles which are involved.

Over five years ago the Royal Commission on Legal Services headed by Lord Benson, or Sir Henry Benson as he then was, made a valuable report as to changes which should be made in our legal services in the public interest. That took place five years ago. The Commission recommended, in particular, changes in the disciplinary and investigative machinery of the Law Society into complaints that are made.

Those recommendations were made over five years ago. It is now proposed that a new section should be added to the Solicitors Act 1974—Section 44A, which appears in the Bill. On Second Reading my noble and learned friend the Lord Chancellor said, "Do not let us interfere with the internal affairs of professional bodies like the Law Society. They can regulate their own discipline and affairs. Do not let Parliament interfere". I would take exception to that as a principle. Indeed, the legal services of this country are essential to the administration of justice. It is for that reason that the Royal Commission was appointed under the chairmanship of Lord Benson.

If noble Lords stop to think for a moment, they will realise that the Crown prosecutors, whom we shall shortly have, all those who defend in legal aid cases or the duty solicitors, all comprise the legal profession. Legal aid itself, which costs no end of money, and all those services are administered through the legal profession. It is essential and right that Parliament should consider the structure of these bodies and their disciplinary procedures. Indeed, in the licensed conveyancing part of the Bill the Government are sponsoring a council, together with all the committees and disciplinary committees of the new profession of licensed conveyancers, and are paying the costs of setting it up.

Therefore, I suggest that it is not an internal matter for the Law Society to regulate but one on which this Committee should form its own opinion. The point of principle which arises is as follows. In the past a tribunal simply dealt with the professional misconduct of a solicitor—that is, a disgraceful action or a dishonest action: perhaps going off with a client's money, forging a document or whatever it may be. A solicitors' disciplinary tribunal was appointed by the Master of the Rolls, with one of its members being a layman, which went into that matter judicially. If the tribunal found the solicitor guilty of professional misconduct it could strike him off, suspend, reprimand him or punish him for his professional misconduct.

Prior to this Bill there has been no recognised disciplinary machinery for other cases of misconduct which are called "inadequate professional services". These are services which do not come up to the standard which the profession expects. These inadequate professional services fall within the terms "negligence", "incompetence", "inefficiency", and the like.

There was no tribunal or any disciplinary sanction whatever for dealing with complaints by clients against solicitors who had been incompetent, inefficient, negligent or the like. Too often the committee would say that a particular case did not involve the professional misconduct that was being claimed; that it may be incompetence, inefficiency or even negligence and therefore the person must go to the courts for damages and not to the committee.

That was the position when Lord Benson's commission reported. It recommended that in future there should be an entirely different system. It laid down a test, which has been accepted in this new clause. The committee thought that that was the criterion by which bad professional work should be decided. At paragraph 25.25 the commission said: We think that the test should be the quality of work and service which could reasonably be expected of members of the profession in good standing in the normal conduct of their business". That is the test which this clause lays down as being the proper test: it is the quality of work which could reasonably be expected of a solicitor in good standing.

But how is it to be implemented? From reading this provision carefully, I am afraid that it advocates practically no change. I happen to know how that Professional Purposes Committee worked, and how it still works. It mixes up both the investigating and the disciplinary sides—one committee deals with it all. It receives the complaints on paper from the clients: it inquires of the solicitor and gets him to reply on paper. It thinks the matter out and says either that it is satisfactory or unsatisfactory, and it seeks to mollify the position. And there it rests.

Lord Benson's commission recommended that there should be this change, which is cardinal to its investigation. The investigatory side—that is, the men who go around and look at the accounts and make all the inquiries of witnesses, and so forth—should be separated from the disciplinary side, which is the adjudicating side. This is a separation which we have recognised in the Bill recently before us on the prosecution of offences; in it we say that the investigating process should be entirely separate from the disciplinary process. If the two are combined, we do not get a fair result. The investigating people will have a bias and their heads fixed in one direction. It is not right that the investigating people should also carry out the disciplinary proceedings—a principle which we recently upheld when dealing with the Prosecution of Offences Bill. At paragraph 25.42, it is said the members of the Professional Purposes Committee and the staff responsible to it should not be those responsible for the investigation process. Apart from the fact that these proposals are preferable from an administrative point of view, there is an important question of principle. The Professional Purposes Committee has a quasi-judicial responsibility to examine complaints dispassionately and to impose sanctions. It is important that its independent judgment should not appear to be prejudiced; this cannot be relied upon if its members and staff have already been concerned with the investigation process". That is the recommendation on the matter of principle of Lord Benson's commission. There is no acknowledgement of it at all in the new Clause 44A. One of my amendments seeks to implement the recommendation that there should be separation between those who investigate and those who adjudicate. That is one of the fundamental principles.

As I read new Clause 44A, it has no real adjudicating quasi-judicial capacity at all. No doubt there would be an inquiry and after that the committee would be involved. Mark you, at the beginning the clause talks about the council doing this. Under Section 79 of the 1974 Act the council acts by committees and appoints committees. So really the committee would do it. If the committee finds that there have been inadequate services or bad work, it can say that the solicitor will not receive the fees that he is claiming or that he ought to make good the bad work at his own expense. But—and this is the important point—no mention is made of orders as to costs in favour of a complainant who has been put to expense over this. That is quite contrary to the recommendation of Lord Benson. At page 348 the commission say: The cost of instituting disciplinary proceedings is heavy and we think that the Professional Purposes Committee should, in appropriate cases, have the power to require a contribution to the cost from those found to be in default". So there is the recommendation. That is why in my first amendment I say that it should have power to order costs. That makes the committee quasi-judicial at once. At the end of subsection (7)—and it is all a matter of principle—it is said that there is to be no appeal and the committee is to do what it thinks fit and, in other cases, what it thinks appropriate. Then there is to be no appeal from the committee's decision, although Lord Benson's commission recommended it. They recommended that there should be an appeal to the tribunal. In subsection (7) they give no appeal whatever.

No proceedings whatever should be brought in respect of these matters except if after it is made, the solicitor fails to comply with a direction then he can be taken before the tribunal. Those are the matters both of costs and of appeals, but underlying them is the principle that this should be a judicial inquiry by a disciplinary body which has power to award costs and from whose order there can be an appeal. That is the underlying recommendation of the commission of the noble Lord, Lord Benson.

Perhaps I may say in passing that in other disciplinary machinery, such as in the practising certificate of a solicitor, the society can withhold that if it wishes. Even with a current solicitor, under the new amendments, it can withhold it. That is a form of disciplinary measure and sanction, but there is an appeal then to the Master of the Rolls. Under this new licensing conveyancing machinery you will find, if you read the new machinery of this new profession, that in the later pages of this very Bill they have clearly distinguished between the investigating side and the disciplinary side. It is plain that in that new profession they are to be separated, and further they are not to have two tribunals, one committee and another committee; just one disciplinary and appeals committee to decide the matter.

In other words, in the licensing provisions the people drafting this Bill have followed out Lord Benson's recommendations for this new profession. Why should they not be carried out in regard to the existing provisions? I fancy that if my amendments were accepted, they would virtually carry out Lord Benson's recommendations. I have put them in that modified, almost verbal, form before your Lordships so as to get it operated in that way. On the other hand, I concede that underlying it there is the objection which my noble friend Lord Hatch of Lusby is raising: ought we to accept this whole clause as it stands when it really does not go anywhere near carrying out Lord Benson's recommendations? I beg to move.

The Lord Chancellor

I do not wish any disrespect at all to my noble and learned friend, who is a noble and learned friend in every possible sense of the word, but we have before us only Amendment No. 1 and I think that it would be more convenient to deal with the other amendments separately, because they raise totally separate points.

Amendment No. 1 would have as its effect to add to the powers of the Professional Purposes Committee, when considering a complaint of shoddy work, to enable it to direct the solicitor, or his firm, to make a contribution to the client's costs. That is an addition of paragraph (d) to the proposed new Section 44A. It is already intended that they should include the costs factor in any financial sanction imposed under the other powers the committee already has under the clause as drafted. It is therefore unnecessary, and I think on reflection that my noble and learned friend will not want to press this very much further.

Lord Denning

In view of what my noble and learned friend says I shall not press this amendment. They can probably bring it in in some other way.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 2: Page 2, line 33, leave out ("the services referred to in that provision") and insert ("his services in connection with the said matter").

The noble and learned Lord said: I think that I can call this the purest of drafting amendments. Unless someone wants me to expand on it, I beg to move.

On Question, amendment agreed to.

3.45 p.m.

Lord Hatch of Lusby moved Amendment No. 2A: Page 2, line 40, leave out from beginning to end of line 9 on page 3.

The noble Lord said: I beg to move the amendment in my name. The purpose of this amendment is to remove what appears to many laymen, and I understand many members of the legal profession, to be a constraint on the opportunity for clients—that is, the customers—to secure redress for unsatisfactory work performed by solicitors. I shall later be saying that this is not in any way an attack on the legal profession or on the solicitors' section of it. Rather it is an attempt to represent the interests of the customer's side, the consumer's side, and, if this clause is passed—I hope that it will not be passed, but here I am assuming that it is passed—to enable the client to have a fuller opportunity of putting forward, and getting an independent judgment from the Law Society on, the complaints that he makes.

The noble and learned Lord, Lord Denning, has already pointed out, from far greater experience and in much better language than I can command, the necessity of separating within the Law Society the functions of representation of the solicitor and the adjudicative function of hearing complaints. If that argument is accepted, then surely subsection (3) must be removed, because otherwise the Law Society is being reinforced in its power to determine which of the customers it will hear and who it will reject.

Because there is no written definition of what is unprofessional conduct so far as the solicitor's action is concerned, as the noble and learned Lord has pointed out, in contradiction to the recommendations of the Benson Commission, then it will be for the Law Society to continue to decide whether or not to accept the client's complaint. In doing so this clause appears to me to restrict the powers, or the practice, of the Law Society in accepting a client's complaint.

It refers to the powers not being used unless they are appropriate. Now, what is "appropriate"? "Appropriate" can be defined in many different ways. In particular, it is demanded that when the council is deciding whether an investigation would be appropriate it should have regard to the possibility of a civil action—presumably a civil action brought by the aggrieved client against the solicitor. But unfortunately one of the criticisms which has been widely levelled against the Law Society in relation to complaints in the past involving misconduct has been that of the practice of deferring investigations while civil proceedings remain pending; in other words, postponing them until it has seen what the court is to do.

However, many clients are not in a position to go to court; many clients cannot afford to go to court. In any case, surely it is far healthier for the legal profession that such complaints should be investigated within the legal profession itself or, as I shall suggest later, within a council which is independent of the Law Society, but which still has a legal power. I know that the Law Society has recently announced its willingness to investigate complaints ahead of court decisions, but the basic problem still remains. The fear is that the Law Society may find it far too easy to argue that it would not be appropriate to deal with a particular case because of the prospect of civil proceedings or because it considered that civil proceedings should be brought.

I draw to the notice of the Committee that the Legal Action Group and the National Consumer Council both agree that subsection (3), which I am attempting to have withdrawn, does not serve any useful purpose. If aggrieved clients are still forced to seek redress through the courts no advance will have been made. But in practice many clients will not be able to pursue their claims through the courts, yet the removal of subsection (3) will not prevent any claimant from using the court to seek redress, if he so chooses, instead of pursuing the matter through the Law Society.

In short, it is the consumer who should have the choice whether to appeal to the Law Society or to use the courts. It seems to me that this clause not only restricts that choice but restricts the power of the Law Society itself and its appropriate council to decide independently whether there are cases in which the consumer has a right to redress other than appeal to the court. I beg to move.

Lord Denning

I should like to support this amendment virtually on the same grounds as I moved mine. If the council is given this complete discretion to make an order only if it thinks it appropriate, and in the circumstances it thinks it appropriate, that will leave everything in the discretion of the council. It ceases to be a judicial or quasi-judicial body. It is given a discretion almost as if it were an administrative body under no control. That is contrary to the principles enunciated in Lord Benson's report. Therefore I support this as turning the council into an administrative body when it really should be a judicial or quasi-judicial body. The matter should not be left for the council to do what it thinks fit at its own discretion.

Lord Elwyn-Jones

I was wondering whether some of this anxiety might be removed if an addition could be made to subsection (3)(a). This subsection provides: the Council shall not exercise any of their powers under subsection (1) unless they are satisfied that it would in all the circumstances be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers the council may have regard"— then there follow the words to which I invite attention: to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings". The fear that has been expressed is that there may be a temptation—I will not put it any more strongly than that—to fob off the necessity of using the powers now given to the council by saying, "Have a go at civil proceedings".

I wondered therefore whether that fear might be limited by words such as: in deciding this the Council shall take into consideration inter alia the costs and delays which may be involved in civil proceedings". Those are the two worries which arise from the taking of civil proceedings. I merely put that forward as a suggestion for consideration.

Lord Maude of Stratford-upon-Avon

I should like to support the suggestion made by the noble and learned Lord, Lord Elwyn-Jones. It seems to me that the clause leaves a loophole which could be much to the disadvantage of some dissatisfied clients of solicitors. It is reasonable that I should give some evidence for suggesting that this is a danger.

I found in the last five years that I was a Member of another place that about two-fifths of all the cases that came to my constituency surgeries were concerned with complaints against solicitors by individuals. Lest it should be thought that the excellent firms of solicitors in Stratford-upon-Avon were responsible I hasten to say that nearly all of these complaints concerned Birmingham solicitors.

The problem that invariably came up was that where I thought the case was good and there was a genuine grievance, which was usually so, I would offer to take it up with the Law Society. I took it up with the Law Society and got virtually nowhere at any time, save occasionally the suggestion that the client might wish to sue the offending solicitor for negligence. I hasten to say that these were not cases of fraud or misappropriation, simply of negligence or, in many cases, extreme dilatoriness which had kept a case dragging on without remedy for year after year.

The suggestion that the aggrieved client should sue the negligent solicitor is useless on two grounds: first, as in many cases was so, because the client had lost a great deal of money as a result of the solicitor's negligence he or she probably had not enough money to start new proceedings.

The second snag was that in most of the cases where the client did wish to start proceedings he was quite unable to find any other firm of solicitors willing to undertake an action against the offending solicitors. That situation ought not to be allowed to continue.

Things got a little better after the lay observer was appointed but I only managed to get one case investigated by him and that took so long that by the time he came up with the report the client was dead.

It seems to me that the clause which it is suggested should be amended leaves the Law Society with the option of taking no action at all if it is possible for the client to take legal action. My experience of the Law Society is that it will grab that opportunity with both hands. I think something along the lines of what the noble and learned Lord, Lord Elwyn-Jones, has suggested is necessary.

Lord Mishcon

I noticed that the noble Lord, Lord Maude of Stratford-upon-Avon, who always contributes so worthily to your Lordships' proceedings, protected his old constituency by stating that the solicitors to whom he was referring were just outside it. I rise also to protect, I hope with a little more accuracy, the profession to which I have the privilege to belong. I have never in the whole of my professional experience found any firm of solicitors unwilling to take on a case of negligence against another solicitor if that firm of solicitors was satisfied that there was a reasonable case.

This is a matter of professional ethics. Any solicitor who behaved to the contrary would be denying one of the principal professional ethics of my profession—that he is there to tell the client what his legal rights are and, if it be a proper case to bring, on instructions to bring it.

4 p.m.

Having said that, perhaps I may be allowed to deal with what I think is the heart of this matter. It is perfectly true that in the old days many a client who thought that he had a grievance against a solicitor by reasons of bad work or delay found himself in difficulty when he applied to the Law Society for a remedy. Let me say in parenthesis that many of those cases—and I say this with all sincerity and seriousness—arose out of a mistaken idea by the lay client as to the reasons for what he thought were delays or for the fact that he was told he had a bad case when, in fact, he had a good one. The difficulty was that the Law Society then had this as its policy, and it was a necessary policy, without the Benson Commission recommendation and without this clause. There were civil remedies available; the courts were there to award damages; the Law Society was not. Therefore, the Law Society said, "Look, it looks as though you are alleging negligence. You are not alleging professional misconduct. This isn't for us. This is for the courts. Go to a solicitor and get advice as to whether you have a case."

This is the very thing that the Bill is now remedying, with the full agreement and support of the Council of the Law Society; and now questions of what we have called "shoddy work", I think, using shorthand English, will go to the Law Society by way of complaint. The only thing that the clause says is this—and this I say in answer to my noble friend Lord Hatch. It says that where the Law Society thinks that, taking into account all the circumstances of the client in regard to this matter—and questions of means may come into it, questions of long delay may come into it—it would be appropriate in that case to bring civil proceedings. That is a matter that the Law Society may take into account. It has not got to do so; it may take it into account. Therefore, in the normal case the Law Society Council will be using the powers granted to it under this clause and will be doing all the things that it can do under this clause in an appropriate case.

In my view, this is a proper way of dealing with the matter. Let me just say this in conclusion; I said it at Second Reading, and I meant it. Whether you are taking doctors, whether you are taking architects, whether you are taking solicitors, there is a long tradition of professional responsiblity in our professions. I can say in all sincerity that I know of no greater critics in regard to the proper, reasonable standards of work than members of the medical profession in regard to doctors, solicitors in regard to their profession, and architects in regard to theirs. If I have left out any professions that are equally worthy, it is only in order to abbreviate.

Lord Elwyn-Jones

May I make a brief intervention in respect of what has passed? In my experience, there was never any difficulty, if I may say so, in an appropriate case in finding a solicitor ready and willing to take proceedings against another. On the contary, some solicitors revelled in the process.

The Lord Chancellor

Perhaps I may say something now, because we are really getting into an awful muddle. May I start with a brief bleat of protest. This amendment was put down at 6.20 yesterday afternoon. As Thursday is Cabinet day, I saw it for the first time at 1.30 this afternoon, during the lunch hour. I read it carefully; so did my staff. We could not make head or tail of what was the purpose of it. I am still more baffled, after having heard the discussion which has gone round from all quarters of the Chamber. I should like to explain why it cannot assist the Committee to discuss it at very much greater length—although, of course, every noble Lord has a right to speak for as long as he or she likes—and why in itself the amendment does not make very much sense.

The first point is this. The noble Lord, Lord Hatch of Lusby, began by saying that he was acting in the interests of consumers, by which I suppose he meant the clients of solicitors. What he failed to explain to the Committee is that the whole purpose of the subsection which it is proposed in the amendment to omit is to give additional powers to the Law Society to act against their profession. In parenthesis, I simply say that my experience of all professions has been that there is no harsher critic of bad professional work than the professionals themselves. I am glad to see my noble and learned friend on the Cross-Benches agree with me.

Lord Denning

I should like to say that I saw a lot of the work of the tribunals of the solicitors and they are the harshest critics of their own profession of any. I have appeared before them and they are first-rate tribunals, I would say.

The Lord Chancellor

There is absolutely no truth in the suggestion that solicitors will not act against solicitors. It is a myth held by many laymen, but there is not a word of truth in it.

Having said that, let me get back to the clause from which it is proposed to omit a subsection. There are, I suppose, between 6,000 and 7,000 complaints against solicitors every year. They vary from the extremely trivial to the most serious and they vary over an enormous range of subject matter. Solicitors themselves carry out duties for their clients ranging from giving the simplest of oral advice at a short conference—which may, if misdirected, give rise to grave consequences—to the most complex of transactions, involving vast sums of money, sometimes millions of pounds.

The kinds of things that can go amiss are therefore extremely wide and extremely various. They can involve proceedings for misconduct in the most grave cases; they can involve general. taxation or remuneration certificate procedure—and I do not suppose that everybody understands what I mean, but those who sit opposite on the Front Bench do understand. They can involve negligence actions in which the courts must play a part, whatever my noble friend says—and I shall come back to that in a moment. They can involve everything from the most trivial matters to the most serious. The appropriate remedy varies almost inevitably from case to case.

The object of the procedural stage conducted by the department, by which I mean the permanent staff, is to try to sort out the complaints into various categories. If the matter is considered not absolutely frivolous, it will go to the Professional Purposes Committee. The Professional Purposes Committee is there to exercise these new powers against solicitors; and that is what the clause is about. It has to make up its mind what the appropriate remedy is likely to be. It may be that it wants to say to the client, "Get a certificate of remuneration"; it may be that it wants to say to the client, "Go and get your costs taxed". It may be so serious that it wants to say, "This is a very serious case of fraud or misconduct. This will have to go to the Disciplinary Tribunal". It may be that it says, "You are really claiming £2 million for negligence. We can't deal with that. It's far too serious. It has got to go to the courts". Incidentally, I must remind my noble friend Lord Maude that legal aid is available to the client who has no money and the case will lie, with legal aid, through the courts for an action for damages.

The new powers which are being given by this clause are really for relatively simple matters. They are new powers against solicitors, but they are for relatively short, summary cases which can be disposed of by a short and simple remedy. And if I may just say this to my noble and learned friend Lord Denning regarding his earlier but, I am sorry to say, irrelevant speech on the first clause, the fact of the matter is that the procedure which is envisaged in the new Section 44A is in fact far simpler than that envisaged by the Royal Commission. It is in fact in its simplicity that the difference is involved, and not in a difference of principle.

I cannot see any alternative to a subsection in this form. I take note, of course, of what fell from the noble and learned Lord, Lord Elwyn-Jones, but he will appreciate that I could not, sitting on this Bench and hearing it for the first time, form any really valuable opinion about it at all. What I will promise him is that my staff and I will carefully consider what he said and see whether subsection (3) can be tidied up or improved, either in the way he suggested or in some other way. However, I would suggest that we ought now to get on, because this amendment will not do. There is no way in which it can be accepted and I think it is unreasonable, for the reasons that I have given.

Lord Maude of Stratford-upon-Avon

I rise only very briefly to say that I really must put in some defence against those noble and learned Lords who have attacked me bitterly over what I said about solicitors. I wish to make it clear I did not say that any solicitor, in my experience, had flatly refused to take a case when asked to do so by a client. I chose my words very carefully. I said they had found great difficulty in getting a solicitor to act against another solicitor and the kinds of arguments with which they were invariably faced were that the case was not a very good one; that it would take a very long time; and they would be lucky if they got anything at the end of it. But the fact of the matter was that there was a very considerable unwillingness to advise the client to undertake proceedings even when, in my view, the case was very good. Anybody who thinks that this sort of thing does not happen really is not living in the real world at all.

Lord Edmund-Davies

I rise very briefly to voice one matter that is troubling me. Take a situation which is not unique or extraordinary. The provision in the new Section 44A is, according to the marginal note, Power of Council to impose sanctions …". Sanctions are imposed, inter alia, by way of ensuring by disciplinary methods that proper professional standards are maintained. Take the situation where the council come to the conclusion that the solicitor has acted in an unworthy way in one or other of the types of inadequate professional services which are adverted to in 44A(1), but the client is absolutely fed up with his experiences in the law. He makes his complaint and he starts the machinery going. He may have a cause of a civil action for negligence against the solicitor, but he says "I am not going to go on with the law. I am fed up with it".

Postulate a case where, even on a prima facie consideration of the material available, the council thinks this is a bad matter and something must be done—"We would like to do something which comes within (1)(a), (b), (c)"—or even the noble and learned Lord, Lord Denning's (d) were it there. Is it because the council comes to the conclusion that there is indeed a remedy possessed by the disgruntled and complaining client in the civil courts that he says, "I'm not going on"? Is the council to be divested of any disciplinary powers such as those indicated by the sanctions listed in (1)? I should like to know the answer to that question.

4.15 p.m.

The Lord Chancellor

It retains all sanctions but it retains a discretion to consider whether it is reasonable to select one or more of them. Quite obviously it was never intended that, for instance, an action for £10,000 for negligence could be dealt with under this clause at all. It has to go to the courts; and I would say quite frankly to my noble friend Lord Maude that I was not attacking him, or attacking him bitterly, but I have had 50 years' experience. I have sued solicitors—not myself, but for clients—for negligence and I have defended them against charges of negligence. In fact, it is not suitable for the summary remedies involved in this clause to go by this route at all.

I can quite understand what my noble and learned friend Lord Edmund-Davies is saying; but the answer is that the council must have a certain discretion, having regard, for instance, to whether it thinks the matter could be referred to the lay observer—I am sorry about my noble friend's experience of him, but he does work very well, and I appoint him—or whether it is to be referred to the negligence panel, or dealt with summarily by deducting something from the solicitor's bill, or whether he is to be told to get a certificate for remuneration under Section 56 (or whatever it is) of the Solicitors Act. The council must have a certain discretion and it is in fact to deal with just the sort of case that my noble and learned friend Lord Edmund-Davies is dealing with that it has been given this range of options, and it must retain this range of options. We are trying here to raise questions of principle which do not arise and to erect some sort of steam-hammer to crack a very large number of small globular objects.

Lord Foot

I have listened, of course, with the greatest care to what the noble and learned Lord the Lord Chancellor has had to say. Perhaps I may say at the beginning that, as a solicitor who has been in practice now for approaching 50 years, I agree with him absolutely that there has never been any difficulty in getting one firm of solicitors to act or to sue another firm of solicitors where they are asked to do so. But, listening to the noble and learned Lord the Lord Chancellor, as a solicitor myself, I was most desperately anxious to agree with him if I could, because I am anxious to believe—indeed, I hope to believe—that at long last a satisfactory remedy is being provided by this Bill for a client who makes a complaint against a solicitor.

I am afraid that I remain unpersuaded by the noble and learned Lord, for this reason. I think that there is here a perfectly legitimate criticism—and this is the substance of what was said by the noble Lord, Lord Hatch, and the noble and learned Lord, Lord Denning. When I read these provisions it seems to me that the basic criticism of them is that they are wholly permissive. If one starts to read from the beginning of Section 44A, one sees that it says that where there is "shoddy work"—again, I use the colloquial expression—then the council may do a number of things. Then when one comes to subsection (3), which is what we are discussing at this very moment, one sees that it says that the council, shall not exercise any of their powers under subsection (1) unless they are satisfied that it would in all the circumstances be appropriate to do so". The subsection continues: and in determining whether in any case it would be appropriate to exercise any of those powers the Council may have regard to this, that or the other.

The subsection is permissive from beginning to end. I do not have much enthusiasm for the Consumers Association; indeed, I think that in terms of Part II of this Bill in many ways the work of the association is open to much criticism. But while I have not much sympathy with the association in the ordinary way, I am bound to say that when it looks at these permissive provisions, and looks at them askance, I can understand its anxiety.

I believe that there is a widespread feeling among people who have studied this matter that the provisions, very welcome as they are in so far as they improve on what the situation was before, do not go far enough in two respects. One of them is that they are purely permissive, and the other is that we do not have the division of functions between the investigatory function and the sanctioning function of the tribunal, to which the noble and learned Lord, Lord Denning, has referred and to which he will no doubt in a minute or two be referring again. It may be possible that some of these difficulties could be met along the lines that were suggested by the noble and learned Lord, Lord Elwyn-Jones. Therefore I hope very much, because it is desperately important that we get it right now, that the noble and learned Lord the Lord Chancellor will be prepared to have another close look at this aspect before we reach the next stage.

The Lord Chancellor

I have already said that I shall do so.

Lord Hatch of Lusby

I should first like to apologise to the noble and learned Lord the Lord Chancellor for the lateness in putting down this amendment, which is entirely my responsibility. In view of that, I have every intention of withdrawing this amendment and of giving the noble and learned Lord the opportunity of studying the words that have been used in this debate, particularly those of my noble and learned friend Lord Elwyn-Jones. But before I do that, there are one or two things that I should like to say very briefly.

First, I have not in any way suggested at any time in my speech that there was any question of difficulty in obtaining the services of one solicitor against another. That is not my case and it never has been my case. Secondly, I appreciate what the noble and learned Lord the Lord Chancellor had to say about the attempt being made in this Bill, and indeed in this clause, to give additional powers to the Law Society Council in favour of giving redress to the client. The point that I am making—and I believe that this has been supported very widely on all sides—is that it may not be that the Law Society is the right organisation to fulfil this function.

Regarding the subsection, the degree of discretion which is given, to which the noble Lord, Lord Foot, has just been referring, in the permissiveness of this provision as to whether or not a case will be taken up, will alarm many people, and it does not seem to give a completely objective view of the validity of such cases. It is for that reason that this amendment was put down on this subsection, particularly as included in this subsection are what might be considered to be guidelines. Why have these particular guidelines been put in paragraphs (a) and (b) of this subsection? Why is it suggested that these might be considered as reasons for it being inappropriate for the council to support the client? But with those comments, and with the assurance of the noble and learned Lord the Lord Chancellor that he and his staff will look at this matter before Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denning moved Amendment No. 3:

[Printed earlier: col. 746.]

The noble and learned Lord said: This point follows on what I was saying earlier. From reading subsection (7) as it stands, it is quite plain that neither of the parties can appeal or do anything about a direction. If a solicitor has been found guilty of bad work or unprofessional work and he is ordered to do something, he cannot appeal to anybody. Equally, the client, if the work has been found to be bad but the council say, "We are not going to do anything about it. We are not going to make any order" or "We do not think it appropriate to do anything", can do nothing about it and he cannot appeal. In other words, this clause emphasises, if I may so put it, the arbitrary nature of the council's decision.

It cannot be reviewed by anybody. No proceedings whatever are to be taken in regard to it. The only thing that can happen is that if a solicitor does not comply with a direction, a complaint can be made to the tribunal; but that leaves the direction as it stands. In other words, the direction, whichever way it is, cannot be appealed against. Again, following the recommendations of the noble Lord, Lord Benson, on this matter, I suggest that there should be an appeal on the lines that I have put down in this amendment. I beg to move.

The Lord Chancellor

It is always attractive to offer avenues by way of appeal; but I must emphasise that the purpose of this clause is to give the council a fairly summary remedy in relatively unimportant cases. For instance, it is not intended to substitute the powers of the council for the demand that a solicitor's remuneration be taxed; it is not suggested that the powers of the council should be substituted for the right of a certificate of remuneration to be obtained by the existing route; it is not suggested that it should substitute for an action for negligence; and it is not suggested that in grave cases the council should act in cases of professional misconduct. The objective is that shoddy work should have attached to it one or more of the additional sanctions placed in subsection (1), paragraphs (a) to (c). The idea that in every case either a solicitor or a lay client could appeal to some higher or outside tribunal would simply render the whole process that we are considering useless and ineffective. Therefore, I beg my noble and learned friend not to pursue this line of country.

Lord Denning

All I would say is that I am sorry if it is thought that this is only to deal with simple and trivial matters. It seems to me that it is an important new provision to deal with complaints by the public of inefficient and bad work by solicitors, and I believe it is undesirable that a decision of the council itself should be unassailable in any way. But as I have no support in any quarter, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Coleraine moved Amendment No. 4:

Leave out Clause I and insert the following new clause:

("Disciplinary sanctions for inadequate professional services.

1. After section 44 of the Solicitors Act 1974 there shall be inserted—

"Disciplinary sanctions for inadequate professional services

Power of Council to impose sanctions for inadequate professional services. 44A.—(1) Where it appears to the Council that the professional services provided after 19th December 1984 by a solicitor's firm in connection with any matter in which that firm had been instructed by a client were not of the quality that could reasonably have been expected of that firm, then the Council may determine that the costs to which that firm shall be entitled in respect of those services shall be limited to such amount as may be specified in their determination and direct that firm to comply with such requirements as appear to the Council to be necessary in order to give effect to their determination. (2) If that firm fails to comply with a direction given by the Council under this section. the Council may make a complaint in respect of that failure to the Tribunal. (3) A complaint made under subsection (2) may be made against all or such one or more of the partners of that firm as the Council may determine. (4) In considering any such complaint the Tribunal shall not exercise any of its powers under section 47 unless it is satisfied that the determination and direction made by the council under subsection (1) of this section were in all the circumstances reasonable. (5) The powers conferred on the Council by subsection (1) shall be exercisable in relation to a person notwithstanding that his name has been removed from or struck off the roll, and references to a solicitor—

  1. (a) in the provisions of this section so far as they relate to the exercise of those powers; and
  2. (b) if a complaint is made to the Tribunal under subsection (7), in sections 47(2) and 48,
shall be construed accordingly. (6) In subsection (1) 'client', in relation to any matter in which a solicitor or his firm has been instructed, includes any person on whose behalf the person who gave the instructions was acting.".")

The noble Lord said: Having listened to the debates so far in Committee, I can clearly see that I am by way of being a spectre this afternoon. Not only do I believe that the Council of the Law Society are making a grave mistake in seeking to take unto themselves the powers that they do, I also take the view that by taking the powers they not only go far enough to meet the legitimate complaints of consumer interests who are involved, but they really go far too far.

I ought to apologise to my noble and learned friend for the fact that I tabled this amendment only late yesterday morning. I certainly do not intend to seek a formal opinion of the Committee about it this afternoon, nor do I necessarily expect my noble and learned friend to answer all the points that I shall be putting to him about what is really a fairly substantial amendment. Nevertheless, my amendment reflects much of the thought that I put before the House on Second Reading a fortnight ago. My noble and learned friend said then that he was not able when replying to that debate to reply in any detail to criticism of Part I of the Bill. He had, I understand, expected it to be non-controversial. He hoped to explore matters raised in that debate in greater detail today.

4.30 p.m.

In broad terms, my reasons for bringing this amendment before the Committee today were given in my speech last week and I shall not repeat them today. But in detail, what I seek to do by replacing the Bill's proposed new Section 44A to the Solicitors Act 1974 by my own reflections is to effect amendments to the Bill's new section in six particular ways. First, if only because the full extent of the proposed sanctions was not known before the Bill was printed, I consider that the Bill should have been drafted to apply only in relation to bad professional work carried out after the date on which the Bill was first read in this House and ordered to be printed. My amendment so provides.

Secondly, I have related my proposed procedures to firms rather than to individual solicitors. This presents some difficulties but I suspect that where the Bill as drafted refers to, professional services provided by a solicitor", it may leave doubt as to whether the clause is apt to catch the bad professional work carried out not by solicitors themselves, but by their legal executives, their managing clerks and other supporting staff.

Thirdly, I have excised the words, in any respect appearing in page 2, line 5, of the Bill. They appear to me to be otiose and in operation likely to confuse. Either work is had or it is not; and I think the phrase in any respect quite unhelpful. This clause will be read by a great many lay people and they will not thank us if they are told that they need the help of a lawyer to understand it. The message appears to me in this clause that the Council of the Law Society should look after every little worry of every client who is dissatisfied by his solicitor. That is bound to lead to disappointment and, I should have said, some resentment.

Fourthly, I propose that the Council of the Law Society should have power to deal appropriately with solicitors' costs where shoddy work has been done. This is in line with the recommendations of the Royal Commission on legal services; and the Bar have this power. But I would omit the compensatory sanctions—those contained in subsection (1), paragraphs (b) and (c), of the Bill's proposed new Section 1. Benson did not recommend these. This is the central part of my amendment and I shall come back to it in a little more detail in a few moments. Fifthly, I would restrict to the Council of the Law Society the power to make a complaint to the Disciplinary Tribunal. I shall come back to this point also.

Lastly, I have provided that if the council makes a complaint to the Disciplinary Tribunal about bad professional work, it must satisfy the Disciplinary Tribunal that there has been bad professional work. In my submission, it cannot be sufficient for the council merely to prove that it has made a direction which a solicitor has failed to obey. It seems to me that this is what the Bill is trying to provide.

I believe that my amendment goes some way to plugging a gap which arises from the omission of any right of appeal in respect of a direction or determination by the Council of the Law Society. I think that I should also have provided a right of appeal but if I had done so it would have been exercisable only by the solicitor, not by the aggrieved client.

The question which I have to ask about Clause 1 concerns the nature of the governing body of a profession, such as the Council of the Law Society. Should it be first and foremost concerned to fight for the interests of its members, if need be against the public as its clients or against the Government; or should it try to sit halfway between the profession and the harsh outside world, adopting the role of the honest broker, the independent arbiter of propriety, the very model of enlightened public relations? I believe that the Council of the Law Society will best help the profession to thrive if it remains a professional pressure group; not if it joins in some corporative social scheme.

I do not for one moment suggest that the council should not have the high aspirations which all expect of those who practise the legal professions. It must keep the profession's house in order. It must on behalf of the profession discipline the black sheep; but first and foremost it should do so in the interests of its whiter brethren rather than in the specific interests of a wider duty to society or a narrower duty to the individual clients of individual solicitors. I consider that this sort of discipline should remain a domestic matter of the profession. It is for this reason that I would not give the aggrieved clients rights of appeal against any decision of the council, or the right to make a complaint under this section to the tribunal.

As regards the proposal that the Council of the Law Society should make what amounts to compensatory sanction awards to aggrieved clients, it seems to me that clients as consumers are not going to be satisfied that the Council of the Law Society should act as investigator, prosecutor, jury and judge in relation to their complaints. They will feel that the council is leaning one way against them; and solicitors for their part, if I know solicitors, will feel pretty certain that the council is leaning the other way in favour of the client against the solicitor. The functions of disciplining the bad solicitor and of providing compensation to the injured client are quite separate ones—to try to deal with them together as in this Bill seems to me to be a clear recipe for disaster. I spoke about this a fortnight ago and I shall not go over that ground again today but I consider that Clause 1 of the Bill will best go forward if it is pruned of all compensatory provisions and left as a strictly disciplinary measure. I beg to move.

The Lord Chancellor

I say quite frankly and sincerely to my noble friend that when he made his speech on Second Reading my heart absolutely bled for him. I know both from professional and for personal reasons how deeply one is grieved by attacks upon one's own personal performance, even if it does not affect one's honour. I had every sympathy with what he said, although I did not pursue the matter because it was not appropriate to a Second Reading debate. I think on reflection he will see that his judgment has been a little clouded by his personal experience.

The criticism hitherto which has been directed at Clause 1 of the Bill is that it does not go far enough; that one wants a much more severe system with perhaps a tier of appeal above it; and that the clause as it stands is far too permissive of the Council of the Law Society. My noble friend goes the other way. He says that this is far too draconian; that it is partly retrospective in its effect; and he has chosen to go the way of redrafting a whole new clause as an alternative to the existing clause which was, as I explained on Second Reading, proposed by the Law Society. With respect, I think that he is mistaken. I do not believe that this clause is too draconian. I must say frankly that—with the noble Lord, Lord Mishcon, in his Second Reading speech—we know a great number of professions. Some people have difficulty in defining what a profession is—and so do I. But there are certain characteristics that differentiate professions from businesses and to which professionals like ourselves attach great importance.

The first characteristic is that it should have itself control over the qualifications for entry into that profession. Those qualifications ought to be high, and in that the solicitors' profession is as honourable and as high as any. The second characteristic is that a profession lays down its own rules of conduct. That is to say, it sets up a standard of ethical conduct that is not contrary to the ordinary moral rules which govern ordinary decent people in any walk of life, but which also has a particular reference to the kind of life which a professional has to live, and may be special to it. It is therefore supplementary to and complemental of the ordinary rules of morals which decent people observe. That is also a mark of a profession.

The last resort is that the profession must have control of discipline, with actual powers in one way or another for enforcing that control by a professional tribunal such as the Disciplinary Tribunal, which is entirely independent of the Law Society, or the General Medical Council (which I believe is statutory but at any rate is a similar kind of body), or there is the case of the Bar, which is subject in the last resort to the visitatorial powers of the judges. We all have our different ways but we are all doing the same thing; a profession must enforce in an impartial way but with some degree of severity the kind of professional ethic and standard of competence (as we are becoming to realise) that we expect of one another. Far from being too draconian, the Law Society in this respect has got it quite right. They have got it right in a way that gives them supplementary powers against members of their own profession, but powers on which they are not bound to act in unsuitable cases.

I do not want to go into the drafting of my noble friend's amendment. I do not think that its drafting is as good as that which has been provided to me, but I must say just this: it is the Law Society and not my noble friend who have got this right. I will give one and an absolutely crucial example of why the Law Society have got it right and why my noble friend has not got it right. His amendment, as he was the first to recognise, moves the responsibility from the individual solicitor to his firm. That is what his amendment does. Speaking from outside the solicitors' profession, and as a member of the other branch, I find this proposed change very difficult to take. It is the independence of professional men, individually responsible for their professional actions, individually responsible for the advice they give, and individually responsible for their own work, which is fundamental to the profession as a whole as an independent body. It is that independence which my noble friend's amendment would overturn.

There are a number of other reasons against the amendment. I am told that it would leave the dissatisfied client without recourse where unsatisfactory work has been done by an assistant solicitor rather than by a partner. I am told that it introduces a time limit on the operation of the new jurisdiction, although that would bite only where a solicitor or his firm has provided a service worse than could be reasonably expected—a standard to which, I must point out, the solicitor has always been subject. Therefore, the substantive rights and liabilities of solicitors are not retrospectively affected by the proposed clause. Both the Law Society and myself consider it appropriate that there should be no time limit.

The amendment allows for the council's determination without effective enforcement. I hope I have made it clear that the amendment is unsatisfactory in principle and detail, and I hope that my noble friend, having heard my criticism of it, will not feel it necessary to press the amendment further.

Lord Coleraine

I am grateful to my noble and learned friend for dealing so fully with my little amendment. He will not expect me to share his view of the authoritarian manner in which the council of the Law Society should discipline its members, but I said before that I was not going to ask for the formal decision of the Committee this afternoon and, in the circumstances, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Hatch of Lusby

In opposing the Motion that Clause 1 shall stand part of the Bill, I will simply reiterate the major issues which have been raised incidentally through debate in Committee so far—in particular the major objection raised by the noble and learned Lord, Lord Denning. That is the burden of my opposition to Clause 1.

In the Second Reading debate on this Bill the noble and learned Lord the Lord Chancellor said that Clause 1 of the Bill, was demanded by the solicitors' profession itself through the Law Society, which is its accredited representative with my office".—[Official Report, 14/1/85; col. 824.] I do not believe that there would be universal acceptance that the Law Society is the only body which should be consulted, nor that the Law Society should be enabled to guide or govern legislation on this matter in your Lordships' House.

Can the noble and learned Lord say in his reply whether any other bodies—particularly consumer bodies; that is, client bodies—have been consulted in the same way as the Law Society before this Bill was produced? I am sure that the noble and learned Lord would accept that there is a body of opinion (with which he disagrees) that within this clause—and, if it would be for the convenience of the Committee, I will refer to Clauses 1, 2, 3 and 4 because they are all subject to the same objection—there should be provision for an organisation independent of the Law Society responsible for dealing with complaints against solicitors. I have not heard any convincing argument against the case for such a body.

I referred on Second Reading to the medical profession. I suggested that in the legal profession it would be healthier for both the legal profession and its relationship with the public if there were the same kind of relationship as that which exists with the British Medical Association and the General Medical Council—if an independent body was established. Indeed, I draw the attention of the Committee to Part II of the Bill, where there is provision for the Lord Chancellor to appoint a statutory council for licensed conveyancers. If that is the case, surely that would equally apply to the attempt made to strengthen disciplinary action towards what is commonly called shoddy performance among solicitors.

So, first, as a matter of principle, I oppose this clause because at present the Law Society would appear to have two conflicting sets of interest, that of the consumers and that of solicitors. If that is the case, it surely disqualifies the Law Society and lowers its own standing if it is to try to operate on both these fronts at the same time. Secondly, as a matter of practice the Law Society, as has been pointed out so often on both Second Reading and this afternoon, has on occasion shown itself to be inefficient in its handling of complaints. The Glanville Davies affair was only one of many cases—it is sometimes said that it is the exception—that could be cited in support of that assertion.

Nor have I heard any explanation as to why the recommendation of the 1979 Royal Commission on legal services—the Benson Commission—that written professional standards should be produced has not been pursued and why it is not the case that in this Bill we can assure the public that if they have a complaint against the performance of a solicitor then here are the written standards against which to measure their complaints.

As that has not been produced and included in the Bill, it seems to me that the whole of this section—namely, the first four clauses—should be opposed on the grounds that it needs to be rewritten: that there needs to be an independent body set up on the disciplinary side, and that there needs to be written standards for the conduct of solicitors as proposed by the Benson Commission. On all those grounds there is reason to suppose that the beginning of this Bill—the first four clauses—will not assist the fostering of confidence between the general public and the legal profession.

There is another side, too, which was made clear by the noble Lord, Lord Coleraine, in his Second Reading speech. He pointed out that there is a danger that, with the exercise of the Law Society's new powers, there could be a feeling among solicitors of a denial of the protection of the due process of law towards solicitors, and that this will promote defensive practices on the part of even the most conscientious and ethical of solicitors because they fear the heavy hand of the complaints investigators working for the very body that should provide for their defence. That, too, should be taken into account by this Committee when considering Clauses 1 to 4 inclusive.

Finally, I suggest that the Law Society should not, in all conscience, continue to promote this legislation while it is still unsure. It has appointed its own investigatory committee which could render all these clauses quite irrelevant if it finds in a sense which is opposed to them, as it could. The Law Society should not continue to promote this legislation while it is still uncertain as to what the recommendations of its investigating committee will be and while it is not certain as to what its rules should be. If a body similar to the British Medical Council were set up, that would then leave the Law Society free to do its real job of pursuing the economic development and other interests of its members.

For those reasons, therefore, I suggest that the Government should take back the whole of this part of the Bill and should look at it in the light of what has been said by the most eminent members of the legal profession (speaking, as I said, with a great deal more experience and eloquence on this matter than I am able to speak); and that they should consider whether, in the light of the criticisms that have been made, this clause, and Clauses 2 to 4, should not be entirely rewritten or left aside until the investigations within the Law Society are complete.

Lord Denning

May I say just one word on this? I have had a good deal of experience of the workings of the Solicitors' Disciplinary Tribunal, which is absolutely independent, and I believe that it has rightly commanded the confidence of everybody. The problem which has arisen, and has arisen before the Royal Commission, is dealing not with professional misconduct but with bad work—incompetent, negligent or inefficient work.

I have had experience, too, of the working of the Professional Purposes Committee, which deals carefully and sympathetically with all the complaints it receives. It takes them up with the solicitors concerned and gets them remedied as far as it can. In other words, I should like to commend the work which the Professional Purposes Committee has done under the existing regime.

The reason I raised points earlier is because the Royal Commission thought that the existing system gave rise to complaints among the public and the public were dissatisfied with the position, and the Royal Commission thought it ought to be remedied in the public interest. That is why it made the recommendations which I went through in discussing my amendments, which were well supported by the Royal Commission and which, simply by my amendments, I sought to have implemented.

I should like to say a word almost of compromise. It seems to me that even with the Bill as it stands it is open to the Law Society now to operate the principle which the Royal Commission recommended; namely, to have one investigating committee and another disciplinary committee. It can be separated even as it stands at the moment. That fundamental principle which was recommended by the Royal Commission can be implemented if, in the course of time, the Law Society feel that it is desirable and right, and is able to do it. Therefore, in the hope of such a reform being made, I no longer oppose the clause.

5 p.m.

The Lord Chancellor

Again, I point to the fact, with some sense of complaint in my voice, that this notice was given at 6.20 yesterday afternoon. But I think it must be clear by now to the Committee from the discussions that we have had, from the speech made by the noble Lord, Lord Hatch of Lusby, and from the speech which we have just listened to from my noble and learned friend on the Cross-Benches that there is really nothing in common among the three sets of critics of this clause—nothing in common at all.

With great skill, I thought, and with an advocacy which I would not have sought to emulate, the noble Lord, Lord Hatch, tried to call in my noble friend Lord Coleraine as an ally. That was, I think, his most audacious incursion into the field of advocacy, because, quite obviously, they are poles apart. My noble friend regards the Council of the Law Society as something of a tyrant over solicitors, and the thrust of the noble Lord, Lord Hatch, is that the Law Society is not to be trusted to keep solicitors in order. They are two quite inconsistent complaints.

My noble and learned friend on the Cross-Benches has a more subtle series of criticisms based on the fact that, instead of carrying out the Benson recommendations as they were originally proposed, there has been a long series of consultations with my department, with the Law Society and with others, as a result of which these proposals—which are modified and, I think, simplified—have emerged. But that of course has nothing whatever to do with the main thrust of the noble Lord, Lord Hatch. If he is to be taken seriously—and I do take him seriously—the noble Lord was 'really saying that the solicitors profession should no longer be a self-governing profession at all. That is the effect of it. Its business is to promote the interests of solicitors, says he; but that is not what professions are about. Those of us in this Committee who are members of a profession, whether it is the Bar, or architects or doctors, know what professions are about; and the essence of its being a profession is that it is self-governing.

I have sought in reply to an earlier amendment to indicate the minimum which that demands. If effect were given to the noble Lord's speech in any shape or form, solicitors would cease to be what I have always treated them as, believe them to be, and want them for ever to remain—an independent, self-governing and honourable profession. I believe that the great professions in this modern society of ours are part of the cement without which a free society can no longer exist. I regard this as a fundamentally subversive amendment.

But what is the most extraordinary thing about it is this. It purports to be an amendment in the interests of consumers, and the method chosen to promote the interests of consumers is to delete completely the proposals of this clause, which are all in favour of consumers—all in favour of the client—and give additional powers of discipline to the Law Society. The noble Lord seemed to complain of me because I treat the Law Society as the body representing the solicitors' profession. Well, I do, and so does the Solicitors Act 1974. This Bill is the Administration of Justice Bill. It is not about the abolition of the Solicitors Act 1974. This clause only alters or adds one clause to the existing Solicitors Act. But if effect were given to the noble Lord's philosophy, there would be no more solicitors and no more Law Society at all, except in so far as they were a group of people—a one-purpose pressure group—designed to promote only their own interests; and that is the last thing which a professional organisation ought to be.

The noble Lord, Lord Hatch, asked me about the consumers associations. There was as a matter of fact a prolonged series of consultations between the Law Society and the consumers associations and out of that emerged the main thrust of this clause. My department dealt with the Law Society, and I do not want to pretend anything else.

But I would for a brief moment, at the risk of boring the Committee, which I do not want to do, ask the Committee, who are the consumers of a solicitor's services? Are they the Baltic Exchange, the people who are prosecuted in magistrates' courts for careless driving, the people who want to make a will, the people who want to buy a house, or the maritime arbitrators? They all go to solicitors; and they go to solicitors for different purposes. I do not know whether barristers are not perhaps among the consumers of solicitors' services. After all, we have lived on their bounty most of our professional lives.

The noble Lord, Lord Hatch, has not thought about this problem at all. This is the real trouble and this is the real thrust of my opposition to his proposal to omit the clause. He does not know what professions are about, and until he learns that he will get nowhere.

Lord Hatch of Lusby

I listened with great appreciation to the noble and learned Lord, but it occurred to me that there are other professions—professions of which I have been honoured to be a member—which would never argue in this sense at all. Would he suggest, for instance, that the teaching profession should be self-governing, or that the NUT or any other teacher trade union should be the body established to discipline and control teachers? I am not suggesting for one moment that there should be a reduction in the work of the Law Society in so far as it represents solicitors. All that I am suggesting—and here I think that I am in tune with the noble and learned Lord, Lord Denning—is that there should be a separate, independent body when it comes to discipline.

That is not uncommon in other professions. I think that the noble and learned Lord the Lord Chancellor generalised far too widely when he talked about professions as though the only professions were the legal ones. They are not the only professions. Self-government is a question of degree and also of function. Self-government does not necessarily avoid or prevent the establishment of an independent body when matters of dispute between the public and members of that profession are at issue.

Lord Coleraine

I hope that my noble and learned friend will not mind if I extricate myself most gently from his suggestion that on this present debate the noble Lord, Lord Hatch, has in any way invoked my name in vain. I think that I can say that, standing at one end of the spectrum as a solicitor, and with him at the other end of the spectrum as a consumer, although we might disagree as to what should be done if Clause 1 did not stand part of the Bill, we are both in complete agreement that Clause 1 as it is at the moment is not likely to benefit either the solicitor or the consumer.

Clause 1, as amended, agreed to.

Clauses 2 to 4 agreed to.

Clause 5 [Preparation of conveyancing documents by unqualified persons]:

Lord Graham of Edmonton moved Amendment No. 5: Page 7, line 12, leave out subsection (3).

The noble Lord said: I begin with a declaration. I do not intend to be tiresome. I intend to move a number of amendments which I trust your Lordships will appreciate. All of them are designed to be constructive. Many of them will be seen to be probing amendments and satisfactory answers will certainly enable me to withdraw them. The Committee will recall that on Second Reading I declared my general support for the Bill, especially that part with which we are now dealing—the non-solicitor conveyancing clauses. I understand that it would be appropriate for Amendments Nos. 12 and 63 to be taken with this amendment. One is consequential and the other almost so.

Amendment No. 12: Clause 7, page 8, line 24, at end insert— ("( ) Nothing in this Part shall have effect to prevent any person from providing conveyancing services at the direction and under the supervision of a licensed conveyancer practising within the terms and conditions of his licence.")

Amendment No. 63: Schedule 8, page 63, line 10, leave out subparagraph (a).

Clause 5 makes amendments to Section 22 of the Solicitors Act 1974. Subsection (1) of that section declares in effect that an offence is committed by any unqualified person who drafts a document by which the title to land is conveyed or transferred. For the purposes of the Solicitors Act, the only person who is not an unqualified person is a solicitor. Subsection (2) of Section 22, however, specifies barristers and certified notaries public as being exempted from the ban imposed by subsection (1). That same subsection also exempts a public officer acting in the course of his duty and the clerk who writes or types out the engrossment of a Section 22 document. If my understanding is correct, the new subsection (2A), which this clause, through subsection (3), will introduce into Section 22 of the Solicitors Act from the date when this part of the Bill comes into force, means that exemption will also be statutorily accorded to any employee of a solicitor who drafts a Section 22 document in the course of that employment.

I am told that articled clerks and managing clerks have been drafting these documents for years. So the simple question wrapped up in my amendment is to ask why it is necessary for the law, after all this time, to spell out that it is all right for them to do so. The subsidiary question is, "Who has asked the Government to legislate in this way?".

With this amendment, I link the amendment to leave out sub-paragraph (a) in Schedule 8 to the Bill at line 10 on page 63. That will give Clause 5(3) retrospective effect. I wonder whether the noble and learned Lord the Lord Chancellor will speak about the need for retrospective effect now. I am anticipating satisfactory answers, and I shall not therefore press the noble and learned Lord.

I have introduced Amendment No. 12 following upon the Government's action in giving reasons for thinking it necessary to provide formally that someone working for, and under the direction of, a solicitor may prepare what I think can be conveniently described as Section 22 documents. The object of Amendment No. 12 is to provide that someone working for a licensed conveyancer may do likewise. It is possible that the drafting is not wholly appropriate. I am, however, trying to treat like with like. If the whole purpose of this part of the Bill is to introduce a new category, I am simply trying to give to that person the same rights as are given to others.

I may be told that I am being over-cautious and that subsection (4) of Clause 7, which has the practical effect, it seems, of adding licensed conveyancers to barristers and others as persons to whom the ban under Section 22(1) of the Solicitors Act applies, is, in law, sufficient to make the new subsection (2A) wholly applicable to supervised employees of licensed conveyancers. If so, there is no argument, and I shall he satisfied. I did, however, want to make sure. I beg to move.

The Deputy Chairman of Committees (Lord Jacques)

I should point out that if this amendment is agreed to, I shall not be able to call Amendments Nos. 6 and 7.

5.15 p.m.

The Lord Chancellor

I do not know whether it is my turn but perhaps it may be considered a suitable opportunity for me to reply. The noble Lord, Lord Graham, asked who it was who had asked me to put this subsection into the Bill. The answer can, I think, be given in this way. Paragraph 1.27 of the Farrand Report, with which the noble Lord will no doubt be familiar because it gave birth to Part II of the Bill, drew attention to the potential difficulties in which legal executives and unadmitted staff would be put if Section 22 restrictions were extended to take in the contract stage of a conveyancing transaction. That is where it comes from. As the noble Lord will remember from our Second Reading debate, one of the things that the Bill will do, if it becomes law, is to take in the contract stage of a conveyancing transaction. So the answer to the question, "Who asked me to?" is Farrand. The fact is that it gets rid of the difficulty.

I turn now to Amendment No. 12. The effect of subsection (3) of Clause 5 is to do what Amendment No. 12 wanted to do, but it is already done. As to Amendment No. 63, that is simply consequential upon one of the other amendments. I think therefore that I have dealt with the questions asked by the noble Lord.

Lord Graham of Edmonton

I am grateful for the answer that has been given. I shall certainly want to study what has been said. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris moved Amendment No. 6: Page 7, line 14, after ("person") insert ("including a Fellow of the Institute of Legal Executives").

The noble Lord said: As this seems to be day for confessions, I should like to apologise profusely to my noble and learned friend for tabling my amendments as late as I did. The fact that I beat the noble Lord, Lord Hatch of Lusby, by some 24 hours is no consolation whatever to me. It just will not do for Members of Parliament who believe that it is in the national interest that we try to get these Bills as correct as is humanly possible, to give civil servants and Ministers so little time to consider amendments. I suggest that Her Majesty's Government must also bear this very strongly in mind. They are invariably worse sinners than Members of Parliament in this respect. On so many occasions their amendments at Committee or Report stage come in at the last minute and we have to no time to consider many of them. That is quite wrong.

In passing, I should like to ask my noble and learned friend whether any consideration has been given by the authorities to a time limit after which Members of Parliament and Her Majesty's Government should not be able to table amendments to Bills.

I pass to the modest little amendment before the Committee. It is almost self-explanatory. As your Lordships' Committee will be aware, it is an amendment to the Solicitors Act 1974 for the purpose of recognising the Institute of Legal Executives. It would apply to fellows employed in solicitors' offices. The amendment does not specify the qualifications of the fellows in conveyancing, but the intention is that as the fellows in question would remain under the supervision and direction of a solicitor, this would be unnecessary. However, the Farrand Committee, at paragraph 2.35, makes plain that this position should be recognised in any legislation. I beg to move.

Lord Hatch of Lusby

I rise only to reply to the personal attack that has been made by the noble Lord, Lord Morris, on my conduct. I have already apologised to the noble and learned Lord. I would point out that I had only one amendment down on the Marshalled List; all the others were contained simply in opposing the Question whether clauses shall stand part. That requires no work from civil servants. I would point out also that everything I have said this afternoon was predicted in my Second Reading speech on this Bill.

The Lord Chancellor

I hope neither my noble friend nor the noble Lord, Lord Hatch of Lusby, bears any grudge against me for having pointed out the somewhat late period at which these amendments were put down. I would ask them to take into account the rather special position in which I find myself in relation to this Bill. Most Bills of this complication, and covering such a wide range of subjects, are run by Ministries with about six different Parliamentary Secretaries, Ministers of State and Ministers, in both Houses. But in regard to this Bill I am the only one; I am the boy who stood on the burning deck. If an amendment goes down at such a time and it happens to be a Cabinet day, I am in Cabinet and cannot read my brief. Although I issued a slight bleat of complaint, I hope no grudge will be borne against me, because I am in a rather difficult position.

May I now turn to Amendment No. 6, in the name of my noble friend? As a pure piece of draftsmanship, the amendment is of course superfluous, as I think he will have realised. The amendment merely provides that fellows of the Institute of Legal Executives are included in the provisions of Clause 5(3), exempting properly supervised persons from Section 22 restrictions. No such provision is needed, because the position of fellows is already covered by Section 5(3) as drafted. As all of them come within the definition of "a person" I think that can be set aside.

I must admit that if there were an amendment to the effect that an unqualified person should carry out conveyancing work under the supervision of anyone other than a solicitor or a licensed conveyancer, or persons such as notaries public (who live a mysterious existence which I have never fully penetrated)—if it were suggested that work should be carried out under the supervision of an unqualified person—the Government could not accept such an amendment. But as this is not what the amendment would do, and as it is superfluous, perhaps we can proceed.

Lord Morris

I am most grateful to my noble and learned friend. At this stage I want to make it quite clear to the noble Lord, Lord Hatch of Lusby, that I had no intention whatsoever of taking a swipe at him. On many occasions I have been sorely tempted so to do, but not on this occasion. All I said was that I draw no comfort from beating him by a mere 24 hours in setting down my amendments. I am most grateful to my noble and learned friend for his explanation, which I accept in its entirety. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 7: Page 7, line 15, after ("person") insert (", who is his employer or fellow-employee,").

The noble Lord said: I hope I can be brief. The sole purpose of this amendment is to clarify a position which the noble and learned Lord may agree needs a little clarification. The clause as it stands seems to mean that an unqualified person could do conveyancing for fee, gain or reward to himself or another provided he is directed and supervised by a qualified person, even if that person received no fee, gain or reward; and he may not be his employer or even a fellow employee. I believe that would mean that, in the case of solicitors and unlicensed individuals, it would cover much more than the noble Lord intends in this Bill. I therefore move this amendment so as to see that it is confined to direction and supervision by a qualified person who is the employer or a fellow employee of the unqualified person. I beg to move.

The Lord Chancellor

May I ask leave to consider this further? I find it hard to envisage circumstances in which real harm would result from leaving out the words which the amendment would insert, but there can be no objection in principle to the noble Lord's amendment. Therefore, if the noble Lord will agree to withdraw it, I will undertake to consider further whether there is a potential lacuna which can be filled.

Lord Mishcon

Let me tell the noble and learned Lord that I thank him for his promise to consider the matter further, and I shall in one second be asking the Committee's leave to withdraw the amendment. But, during that second, may I give him the example of someone who may say, "Well, I was supervised, you know, by a friend of mine, with whom I discussed this matter over coffee. He's not going to receive any gain or reward; perfectly true. He's not my employer; he's not my fellow employee. I come within this clause". I ask the leave of the Committee to withdraw the amendment, on the noble and learned Lord's kind undertaking.

Amendment, by leave, withdrawn.

Lord Morris moved Amendment No. 8:

After Clause 5, insert the following new clause:

("Probate work by legal executives and others.

.—(1) Section 23 of the Solicitors Act 1974 (restriction on person acting in probate matters when not qualified to act as a solicitor) shall be amended as follows.

(2) After subsection (2) there shall be inserted— (3) Subsection (1) also does not apply to any act done by a person, including a Fellow of the Institute of Legal Executives, at the direction and under the supervision of another person if it could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section.".").

The noble Lord said: I was concerned before I tabled this amendment as to whether this really went outside the scope of the Bill. However, as Section 22 of the Solicitors Act 1974 was being amended through this Bill I was advised that this might be a perfect opportunity to right a position with regard to Section 23 of that same Act. This amendment would, in the same way as the previous amendment, recognise the fellows of the Institute of Legal Executives—the old managing clerks in the profession—who work in the sphere of probate. As in the case of conveyancing, fellows of the institute carry on the practice of probate in a solicitor's office. They are obliged to do so by reason of examination and experience, and should be so recognised. Whether this serves any purpose, for the reasons my noble and learned friend stated on the previous amendment, I have no means of knowing, but no doubt I shall know very quickly. I beg to move.

The Deputy Chairman of Committees

Before proceeding with this amendment, I should put the Question, Whether Clause 5 shall stand part of the Bill?

Clause 5 agreed to.

The Lord Chancellor

May I, on rather similar lines, ask leave to consider this further? I agree that the provisions of Section 23(1) of the Solicitors Act should not apply to unqualified clerks working under the direction and supervision of a solicitor. If my noble friend would care to withdraw his amendment at this stage, I shall undertake to consider further whether an amendment is necessary to put the matter beyond doubt, and what form, if any, such an amendment would take.

Lord Morris

I am most grateful to my noble and learned friend, and I happily and readily withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 6: [Other amendments of Solicitors Act 1974]:

On Question, Whether Clause 6 shall stand part of the Bill?

The Lord Chancellor

I think there is an amendment. Perhaps the noble Lord has gone. I think he has gone, but there was down a proposal to oppose the Question, Whether Clause 6 shall stand part of the Bill?

The Deputy Chairman of Committees

The noble Lord has withdrawn it.

The Lord Chancellor

Oh, good.

Clause 6 agreed to.

5.30 p.m.

Clause 7 [Provision of conveyancing services by licensed conveyancers]:

Lord Mishcon moved Amendment No. 9: Page 8, line 10, leave out ("land") and insert ("a dwelling house or part of a dwelling house and the gardens or yards (including garages or outhouses) enjoyed and occupied therewith;").

The noble Lord said: On many occasions when the whole policy of this Bill in regard to conveyancing was discussed in your Lordships' House, in another place and by the Farrand Committee, the overwhelming thought in everyone's mind was that we were dealing with domestic conveyancing. I should like to refer to the Farrand Committee's report and to paragraphs 1.12 to 1.23. The committee gave considerable thought to the scope of the proposed licensing system. If I may paraphrase the paragraphs to which I have referred, they said that if one wandered out of the domestic sphere of conveyancing—about which everybody was troubled—there would have to be special consideration as to the qualifications and as to the protection that ought to be given to the public.

I can so well remember that in his eloquent Second Reading speech the noble and learned Lord the Lord Chancellor also referred to the problem of domestic conveyancing; indeed, no other type of conveyancing was dealt with.

The third place where this matter was considered was another place where the debate centred around a Private Member's Bill, and again the whole theme of the discussion and the debate was in regard to domestic conveyancing. It so happens that in paragraph 1.22 of the Farrand Report there is a definition of what that committee thought to be domestic conveyancing. I have incorporated that definition in this amendment to make it clear—as I believe would be the wish of the Committee and of the noble and learned Lord—that we are dealing here with domestic conveyancing. If at any future time any extension of this realm were to be given to unlicensed conveyancers, it naturally can be considered and proper rules made. It would not be sufficient, for example, if this were made a condition of a licence, because it would be a most unusual and almost unenforceable condition. Furthermore, it would be a procedure which was completely unlike the certificates which are granted—in other words, the licences which are granted—to solicitors to practise which of course never contain a condition that a certain type of work should not be undertaken. I beg to move.

The Lord Chancellor

This is a more substantial matter which I shall probe at a little greater length. It is quite true, as the noble Lord, Lord Mishcon, said, that the Farrand Committee assumed—rightly—that what we were primarily dealing with under the original Austin Mitchell Bill and its terms of reference, was domestic conveyancing. That is a perfectly fair comment to make. But it did not recommend that licensed conveyancers should be restricted to only domestic conveyancing work, however that expression is to be defined. Therefore, although it had its sights on domestic conveyancing, it was not restricted in that way.

The Bill is aimed at extending competition in the provision of conveyancing, subject to all necessary safeguards to protect the consumer. That is the essence of the Bill. Clause 12(3) therefore gives the council—and in terms of Part II of the Bill the word "council" has a different meaning to that which we have been discussing hitherto—power to impose conditions on licences restricting the kinds of conveyancing services which may be provided. The clause is intended to empower the council to restrict all licensed conveyancers—that is, the new profession—to domestic work if that is thought necessary and desirable in the interests of ensuring adequate consumer protection. It has that power.

Alternatively, I am advised that the council might choose to operate a two-tier system restricting some individuals to domestic conveyancing but permitting others to undertake commercial conveyancing, or some commercial conveyancing, as well, perhaps after taking a supplementary test. Therefore, the question is whether it would be right to impose a statutory restriction on licensed conveyancers of the type envisaged by the amendment. That would clearly have the effect of removing from the council any power to determine the scope of conveyancing services which might be provided by licence holders and that would be some obstacle to greater competition. The Farrand Committee recognised that additional tests of competence might be required if conveyancers were to carry out commercial as well as domestic work. Under the provisions of the Bill the council is required to prescribe examinations and practical training rules so as to ensure competence among licensed conveyancers.

It may be doubted why the council, if it so wished, should not therefore prescribe tests of competence sufficient to qualify licensed conveyancers to undertake commercial conveyancing. Obviously, the council would wish in those circumstances to pay careful regard to the Law Society's own examinations to determine what supplementary tests might be necessary to enable licensed conveyancers to carry out commercial work.

It would be fair—although one must never jump stiles before one comes to them or set up Aunt Sallys only to knock them down—to refer to the Farrand Report's rejection of a tiered licensing system, because it would be unfair for me to put this case unless I made some reference to it. In fact, the Farrand Committee did not consider in this connection a two-tiered system in respect of commercial conveyancing. Its rejection of a tiered system related to registered and unregistered land; new and secondhand houses; and leasehold and freehold properties. The report went on: We wished to provide for a conveyancer who would be in a position to offer the consumer a viable alternative to a solicitor". The Government firmly support that, and I would therefore ask the Committee and the noble Lord to reconsider the amendment because, as I have said, the council has power to limit the whole of the new profession to domestic conveyancing, however defined. Moreover, the Government do not wish to preclude the possibility of a two tiered system with a supplementary list of qualifications which would be necessary before granting any right to conduct other than domestic conveyancing. That is the explanation that I offer and put before the noble Lord.

Lord Mishcon

The noble Lord graciously accepts it in the same graceful way as it was put to him. I do not intend to press the amendment this afternoon. But I wonder whether it would clarify matters and possibly expedite further stages of the Bill if I endeavoured to answer some of the points made by the noble and learned Lord. I shall do so very briefly. First, I have no doubt at all that the noble and learned Lord of all people will know the extent to which the term "commercial conveyancing" can be applied. Indeed, it covers the most abstruse documents by way of lease, many intricate conveyancing transactions, conveyance to settlements, and so on and so forth. Of course there are company transactions involved and the investigation of title of commercial premises etc., which are also covered by the term "commercial conveyancing".

It is in no sense of endeavouring to argue for a monopoly that I am raising this amendment at all; it is really in protection of the public because of the skills that are undoubtedly necessary for that protection. I only wonder about two matters. First, I am concerned about whether a two-tier system (as it would eventually become) is sufficiently enforceable, because it would need an amount of invigilation in regard to what really happened in all the transactions that would be handled by a licensed conveyancer. That is the first difficulty.

The second difficulty is that, in regard to our responsibilities, we are leaving the protection of the public in a very wide sphere of legal work very vague, and we are merely saying that this will be a matter for the council to consider in due course. Whether it adequately considers, as one hopes it will, the degree of qualification that would be necessary, whether it looks at the Law Society examinations and the tests that are applied and the degree of skill and knowledge that is required, whether there will be the necessary degree of experience in practical work, and so on which a solicitor must have, are quite obviously questions that would be of some concern. I repeat, we shall be leaving the matter without any parliamentary guidance at all. Possibly I can leave it at that, ask leave to withdraw the amendment at this stage, and ask the noble and learned Lord the Lord Chancellor, with his usual courtesy, whether he would consider the points that I have made, which are a great worry to those who are trying to protect the public. This afternoon I am not arguing for monopolies.

Lord Simon of Glaisdale

I am not quite sure who is reconsidering this amendment. I rather think that it is both my noble and learned friend the Lord Chancellor and the noble Lord, Lord Mishcon. In view of that, perhaps I may make this suggestion. Would this form of words really do in any case?—because "a dwelling house" would include the plural, and therefore it would certainly cover the conveyancing of a large urban estate. It would certainly exclude office buildings and farms, apart from the immediate messuage to the farm building. But it would seem otherwise to operate very capriciously, and perhaps both my noble and learned friend and the noble Lord would consider that as well.

Lord Foot

Perhaps I may add a few words to what has been said by the noble Lord, Lord Mishcon. Whether it is right or wrong to have a two-tier profession of the kind which is suggested, I suggest that it is an entirely new concept. I cannot think of any parallel to that proposition. I would suggest to the noble and learned Lord the Lord Chancellor that, if that is to be done and if we are to set up a two-tier system, surely that is not a matter that ought to be decided by the rules drawn up by the council; surely that is a matter that ought to be decided by Parliament; and surely, most of all, it is a matter that ought to be decided in this House as the Bill goes through, and ought not to be delayed beyond the next stage of this Bill.

Lord Mishcon

I am most grateful to the noble Lord, Lord Foot. I am also most grateful to the noble and learned Lord, Lord Simon of Glaisdale, who is trying to help both the noble and learned Lord the Lord Chancellor and myself. The spirit of the amendment still remains and what the noble Lord, Lord Foot, has said about the need to try to resolve this matter by the Report stage is very important. I shall do my best if the noble and learned Lord will do his best.

The Lord Chancellor

I shall do my best, although I am not sure how good it will be. As the noble Lord, Lord Mishcon, may know, without my disclosing anything which I should not, consumer protection has been my preoccupation from first to last in this exercise and I am very conscious of the strength of the first of the two points that he made. As regards the second point, I think I am right in saying—and this is a very difficult Bill to find one's way around—that anything which the council does in this line will have to be concurred with by the Lord Chancellor. So at any rate there is some accountability to Parliament involved in what is said.

5.45 p.m.

I would use the point made by my noble and learned friend Lord Simon of Glaisdale in this way. Quite obviously, if we are to go down this route at all, the complexities of what constitutes commercial conveyancing and what my noble and learned friend called the capriciousness of what might happen in a large urban property comprising a house and a good many other things, are obviously matters which would be very difficult to define by way of a section in a statute. It may very well be that, if we are to go down this road at all—and I do not withdraw or qualify at all my undertaking to look into this matter—it is almost inevitable that that matter will have to be dealt with by rules, and that parliamentary accountability will have to take place through the fortunate or unfortunate person who happens to be for the time being the Lord Chancellor.

Lord Mishcon

In view of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris had given notice of his intention to move Amendment No. 10: Page 8, line 10., after ("land") insert ("being or comprising a "dwelling house" within the meaning given so that expression by section 10 of the Matrimonial Homes Act 1983").

The noble Lord said: When we discussed the last amendment I tried to get up and speak to this amendment because I thought that they might be taken together, but that was not possible. I should like to draw the Committee's attention to the fact that both this amendment and that in the name of the noble Lord, Lord Mishcon, were tabled for precisely the same reason. The Law Society's brief says: There is nothing in the Bill to restrict licensed conveyancers to domestic conveyancing". I think that that is very important. When the noble Lord, Lord Mishcon, argued the virtues of his amendment he made it absolutely plain that there was no reason behind his thinking to maintain a monopoly. However, if one looks closely at the drafting, which is taken from the Law Society's brief, one will see that it takes out of the Bill the word "land". As such, that in itself is a Trojan horse; it will cause a great many difficulties.

The wording of his amendment is precisely the same as the wording in Section 10 of the Matrimonial Homes Act 1983, with the exclusion of one very important word, and that is the word "includes". It says "includes a dwelling house". That is of critical importance. I simply mention that fact to put it on the record and draw it to the attention of my noble and learned friend the Lord Chancellor. Bearing that in mind and bearing in mind what my noble and learned friend has already told the Committee and in particular the noble Lord, Lord Mishcon, I shall not press the amendment.

[Amendment No. 10 not moved.]

Lord Mishcon moved Amendment No. 11: Page 8, line 22, after ("conveyancer") insert ("in the course of the provision of conveyancing services").

The noble Lord said: I do not pretend that this amendment is of the same importance as the one which I moved a moment ago. It is a question of trying to clear up interpretation. If one looks at Clause 7(4), one sees that it could possibly be interpreted as enabling licensed conveyancers to do anything specified in Section 22(1) of the Solicitors Act 1974. That would include preparation of instruments relating to legal proceedings. It may be that the view which is taken is that the scope of permitted conveyancing services in subsection (3) effectively excludes such matters, but there are two reasons why that may not be so. Perhaps I may give them quickly.

First, there is nothing in subsection (4) to confine the acts in question to those specified in subsection (2). Secondly, it might be arguable that, for instance, to issue proceedings to enforce a contract for the sale or purchase of land might be regarded as a service: ancillary to, the disposition or acquisition of estates or interests in land"— in subsection (3). It would be helpful if the noble and learned Lord could confirm that he is personally satisfied that this could not be the correct interpretation. I beg to move.

The Lord Chancellor

What I can do at any rate is to assure the noble Lord, Lord Mishcon, that Clause 7 is not intended to enable licensed conveyancers to prepare instruments relating to the legal proceedings. The other points are rather technical, and I should like to consider them further before I give the noble Lord a definite reply. Certainly it is not our intention to allow licensed conveyancers to prepare instruments relating to legal proceedings.

Lord Mishcon

I am most grateful. In the circumstances I ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

Clause 7 agreed to.

Clause 8 [Establishment of the Council]:

Lord Morris moved Amendment No. 13: Page 8, line 29, after ("that") insert (", in accordance with criteria approved for the purpose by the Lord Chancellor,").

The noble Lord said: Some of your Lordships may remember that at the Second Reading I argued at some length that tighter criteria should be set out in the Bill. All this amendment does is to give the opportunity to the Lord Chancellor to approve the criteria laid down by the council. Under the Bill the council is left entirely to its own devices. Whereas it would be difficult to impose specific criteria under the Bill it seems necessary to ensure—and this is a proper role of Parliament—that the Lord Chancellor retains overall supervision over the duty under Clause 8(2) as respects both confidence and professional conduct.

There is nothing particularly new about this even within the Bill itself, although I most sincerely hesitate to suggest even more work for the Lord Chancellor to do. If one turns to Schedule 2 paragraphs 4(3) and (4) one sees that the Lord Chancellor, by virtue of the provisions of this schedule, takes upon himself the duty to approve various schemes under Schedule 2. I would suggest to the Committee that this strengthens this Bill and improves it considerably, and above all simply and briefly. I beg to move.

The Lord Chancellor

I do not think it makes a great deal of difference because, as I understand it, all the training rules and rules of conduct will require the Lord Chancellor's concurrence, and there is little point in also requiring the Lord Chancellor's approval for criteria within which the rules have been made, because that will follow. The larger embraces the smaller.

Therefore I would advise my noble friend that the amendment he has proposed, although unobjectionable in principle, is not acceptable, simply because it is taking two bites at a cherry when the single bite has already swallowed the whole fruit. If he would consider the matter in the light of that perhaps he may not feel it necessary to revert to the subject.

Lord Morris

I shall of course consider with great care what my noble and learned friend has said. I could not see the power within the Bill where the Lord Chancellor could perform this duty: hence the amendment. However, I shall look more closely when I have read his argument affecting this amendment. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 14:

Page 8, line 31, at end insert— ("( ) The Council shall as soon as practicable after the end of each calendar year beginning with the year in which this section comes into force make to the Lord Chancellor a report on its activities, and the activities of the committees established under the provisions of this Part of this Act, during that year. Every such report shall include a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of the Council's functions under any enactment. ( ) The Lord Chancellor shall lay a copy of every report made by the Council under this section before each House of Parliament, and shall arrange for every such report to be published in such manner as he may consider appropriate.").

The noble Lord said: The purpose and thrust of this amendment is designed to be helpful and constructive. This part of the Bill sets up what was described more than once on Second Reading as a new profession, and the machinery for which provision is made is substantial. The effect of setting it going will be literally incalculable. The whole exercise may be ineffective, or it may alter completely the practical and professional sides of the conveyancing process. We just do not know. We are at the beginning of what could be an adventure.

At the Second Reading on 14th January, the noble Lord, Lord Foot, said in his contribution that he was afraid that the hopes which had been raised about the benefits to the public would not be realised at all. The noble and learned Lord, Lord Denning, said of the new profession at col. 800: I ask myself whether this will work". In effect he left us in no doubt that he thought that it was not likely to work. On the other hand, my noble friend Lord Prys-Davies, who declared an interest as a practising solicitor, said at col. 813: Once the new system is working, solicitors will be aware that they are competing with a new profession". He gave me the impression that his answer to the doubts of the noble and learned Lord, Lord Denning, was that in his view the new exercise would work.

Parliament is both entitled to be regularly told how things develop when Part II of this Bill is in operation, and is also under an obligation to take an interest in the effect of setting up the new profession. We are not under an obligation merely to pass legislation, to cause things to happen; we are also under a duty to ensure that that which we believe it ought to be doing is being done.

It is for this reason that I should like the Committee to consider inserting into the Bill specific provision about the presentation of annual reports by the Council for Licensed Conveyancers to its sponsoring Minister and the onward presentation of those reports to Parliament, and their publication for the public.

The drafting of the two subsections contained in this amendment follow what seems to me to afford the most relevant precedent, which is Section 125 of the Fair Trading Act 1973, which covers the annual reports of the Director-General of Fair Trading. I acknowledge that the drafting may not be wholly suitable. What I seek in this amendment is to have your Lordships' support for the principle that the Council for Licensed Conveyancers should be accountable to Parliament, and of course we are accountable to the public. I hope that there is some sense in what I say and that the noble and learned Lord the Lord Chancellor will, in his wisdom, accept the amendment which I beg to move.

The Lord Chancellor

The noble Lord, Lord Graham, in his earlier sequence of amendments said that in that sequence at any rate his intention was that the new council and the new profession should be on the same footing as solicitors. I must point out that in laying upon the council the duty to report in the way he suggests he is laying on that council an obligation when no similar obligation is laid upon the Law Society and no similar obligation is laid upon any other professional body.

I must also point out to him that there is already ample accountability in the existing phrases of the Bill. All the rules have to have the concurrence of the Lord Chancellor, who is fully accountable to Parliament, and the annual accounts of the new council must of course be published. I think that gives an adequate amount of accountability.

There is only one other factor which I should ask the noble Lord, Lord Graham, to bear in mind: the cost of preparing, printing, and laying before Parliament a report of this kind annually would not be insignificant, and the cost would be borne not by the Treasury but by the new profession in the shape of higher subscriptions.

But with those considerations in mind, I ask the noble Lord to understand that while I fully accept that his amendment was designed to be helpful and constructive, as indeed it is, I do not at the moment feel inclined to accept it for the reasons that I have given.

6 p.m.

Lord Mishcon

I hope that the noble and learned Lord will not mind my reminding him, if he needs any reminder, that there was a recommendation about this in the Farrand report. I believe it is at paragraph 4.7, where it is stated that for the purposes of both the licensed conveyancers and the public a report should be made to the licensed conveyancers and to the Lord Chancellor and that it should be an annual report, including, presumably, the activities of the various committees.

The Lord Chancellor

I am grateful to the noble Lord, Lord Mishcon, for reminding me of that. I should have mentioned it in my speech. I had not forgotten it, but I have not accepted it.

Lord Graham of Edmonton

I appreciate the spirit in which the noble and learned Lord the Lord Chancellor responded to the sense of what I was trying to say. I am disappointed that he feels that my amendments would be too onerous or too costly. I can understand, although I do not accept, his argument that the amendments are not necessary because there are means whereby the public and Parliament can be made aware of the activities of the council other than by laying it down as a duty.

The noble and learned Lord rested part of his case on my earlier request for parity of treatment. We all know that in some amendments the noble and learned Lord will be able, with equal facility, to point out that exceptions to rules can be made.

I want to see as a general thrust that, as far as possible the new profession of non-solicitor conveyancers receives equity in legal matters. I take kindly what the noble and learned Lord has said, that the nature of my amendments may be unnecessary in the light of other ways in which the public can be made aware. In the circumstances I shall read very carefully what the Lord Chancellor has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Training rules]:

Lord Morris moved Amendment No. 15: Page 9, line 1, leave out ("may") and insert ("shall").

The noble Lord said: It is clear that at this late hour no one wishes to get into the usual "may" and "shall" argument. I tabled this amendment because I was puzzled why, by virtue of Clause 9, it should be mandatory upon the Council to, make rules relating to the education and training and the licensing of people wishing to practise as conveyancers and that it should only be permissive, by virtue of subsection (2) to prescribe and provide the matters mentioned within that subsection and similarly that the rules by virtue of subsections (3), (4) and (5) should likewise be only permissive. If these rules are so very important—and the degree of their importance is ascertained by the mere fact that they have been included in the body of the Bill—why should they be permissive, with no control other than through the council, and not mandatory? I beg to move.

The Lord Chancellor

My noble friend should bear in mind that this amendment, if it were passed, would compel the council not merely to prescribe the minimum standards of general education—that is O-levels and such-like—but also to recognise a course of study as being adequate for preparing candidates, as, for example, at the North London Polytechnic or the Polytechnic of Central London; prescribe post-qualification training for licensed conveyancers; charge fees; and make different provisions in relation to different classes of persons in those respects. In other words, they would be made to do all those things. I do not think it is desirable that they should be made to do all those things. I recognise the general fun of talking about "may" and "shall" but I think I have explained sufficiently why the word "may" is in the clause.

Lord Morris

Not for the first time I have learned a great deal from my noble and learned friend, and in the light of his explanation I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 16:

Page 9, line 14, at end insert— ("provided that no rule prescribing education or training to be undergone by persons who are licensed conveyancers shall come into effect prior to the date on which there comes into effect a training regulation made under section 2 of the Solicitors' Act 1974 for the purpose of prescribing education or training in relation to the provision of conveyancing services to be undergone by persons who have been admitted as solicitors;").

The noble Lord said: In an earlier debate I said that some of the amendments which I have put down are intended to offer what I consider to be desirable improvements. Some of these in the second group have the purpose of ensuring equality of treatment between licensed conveyancers and the solicitors with whom they will be in competition.

Nobody disputes that refresher training is a very good thing and is highly desirable. Every forward-looking organisation provides courses or occasional lectures and so on for the trades, skills or professions of its members or those who are otherwise its concern. Qualified licensed conveyancers could not but benefit from the education and training contemplated in Clause 9(2)(c) of the Bill. But that provision, if I understand it correctly, begins by empowering the Council for Licensed Conveyancers to make that education and training compulsory; it uses the word "prescribe". Section 2 of the Solicitors Act contains precisely similar provisions in regard to solicitors.

It would be grossly unfair either to make solicitors take refresher courses before licensed conveyancers are required to do so or to direct licensed conveyancers to attend courses when solicitors are still not obliged to do so. There is nothing which I can propose to protect solicitors from being put by the Law Society in a situation in which post-qualification training becomes compulsory prior to the time when licensed conveyancers are put in such a position by the Council for Licensed Conveyancers. But in this amendment I am trying to prevent the converse. What I hope and expect to happen, in the fullness of time, of course, is that solicitors and licensed conveyancers will attend, and be required to attend, refresher and updating courses organised jointly by the council and the Law Society. The statutory obligations to attend such courses will be exactly equivalent to each other and will come into force simultaneously. It is to encourage this that I have put forward this amendment to the Bill. I beg to move.

The Lord Chancellor

Of course we do not desire to see licensed conveyancers made subject to unnecessary restrictions in their capacity to compete with solicitors. I can assure the noble Lord that the concurrence of this Lord Chancellor—and maybe of subsequent Lord Chancellors, though I cannot always speak for them—will not be forthcoming for rules which might lead to that effect. I am sure that the two bodies, namely the Law Society and the council, will wish to have regard to each other's training rules. But it would be undesirable to make the new council's functions dependent upon what the Law Society may decide for its own members. I am not sure that that would achieve an object which would be within the target sights of the noble Lord, Lord Graham. The council might wish to cover matters which form part of a solicitor's qualifying examination by way of post-qualification training instead. That would be perfectly legitimate for it to do. On the whole, I do not think that it is desirable to fetter the freedom of manoeuvre of the new council in the manner which this amendment would achieve. I hope that the noble Lord, having heard that explanation, will not be too disappointed.

Lord Graham of Edmonton

I am not disappointed because I appreciate that there was not exactly a dilemma in my mind but a dichotomy in the very fresh legislation by which we are trying to ensure that the council is given clear advice from Parliament as to what we consider its functions ought to be; because one of the powers that we are giving to the council is to prescribe in the subsection what it is that we are saying should happen. Yet, by the same merit, as I understand it—and the Committee will appreciate that I am a million miles away from the familiarity which the noble and learned Lord and others in this Committee have with the legal profession—similar power to prescribe is in other legislation which affects solicitors and, to my knowledge, is not activated.

What I was anxious to avoid was that the new body would have laid upon it or take it to mean that it had to do something which solicitors were not under an obligation so to do. I appreciate what the noble and learned Lord the Lord Chancellor has said: that he is not anxious to interfere with the powers and duties which we are giving to the licensing body, the council. At the same time I take heart from the fact that he will understand that one needs, to ensure that the two bodies will be able, jointly and at the same time, to work towards the same end.

Also, I take the qualification which the noble and learned Lord made that it might be desirable for those who are going to be members of the new profession to do something more than existing solicitors have to do in order to be equal to the task. That is a choice which needs to be left in the minds of the new council. I am grateful for the words of the noble and learned Lord. I shall study them with care, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 9 shall stand part of the Bill?

Lord Mishcon

I should like to assure the noble and learned Lord the Lord Chancellor that I listened carefully to the replies that he gave to the noble Lord, Lord Morris, and to my noble friend Lord Graham in regard to the training rules. Obviously, the main point that the noble and learned Lord made was that his sanction in regard to these rules had to be given under Clause 34(1). The point that I want to raise is that the Farrand Committee gave a great deal of consideration, as he well knows, to the test of competence and to training rules. I believe that there were 29 separate recommendations which resulted from their very careful investigation of the qualifications that were necessary. All that I should like from the noble and learned Lord, if he can give it to the Committee, is this. May we have an assurance, so that it is on the record, that those recommendations will be very much in his mind when as Lord Chancellor he comes to consider the rules which are submitted to him for his approval?

The Lord Chancellor

I think I can give that assurance. I would expect, of course, that the council, who will bear the primary responsibility for these training rules, will have read the Farrand Committee's recommendations and will themselves pay very close attention to them. I am very anxious that the new profession should not be fettered unduly; but I can assure him that so far as I am concerned consumer protection is very much at the top of my priorities in this matter. Certainly, I think I can assure the noble Lord that I and those who advise me will pay very great attention to any deviation from the standards proposed by the Farrand Committee, although it is a matter of deliberate policy by the Government that the intitial draftsmanship of the rules shall rest with the council.

Lord Simon of Glaisdale

I have only one very small point. It has already been adverted to in passing. Subsection (2)(e), says that the council may, make different provision in relation to different classes of persons". That is one of the dearest phrases in Parliamentary counsels' library, and the fact that it means nothing at all endears it to them even more strongly. It enabled my noble and learned friend to say that, at any rate, it precluded changing the word "may" to "shall". But I do once again draw attention to this proliferation of absolutely meaningless formulae that come into Bill after Bill.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Issue of licences by Council]:

6.15 p.m.

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Mishcon

I have only a small point to make on Clause 11 stand part. I apologise for not having given the noble and learned Lord notice of this question. Therefore, if he merely says that he will be considering the answer, I shall be quite content. Knowing him as I do, however, he may well have the answer at his disposal. The question relates to Clause 11(1)(a). It is not clear why the applicant for a licence only has to show compliance with rules under Clause 17(1) on professional indemnity and not also under Clause 17(2) on compensation for dishonesty and matters of that kind. Under Schedule 2(2) to the Solicitors Act 1974, a solicitor has to pay his compensation fund contribution in order to obtain a practising certificate. Therefore, there seems to be some sort of difference in this treatment and I wonder whether the noble and learned Lord, if he has not got the answer available at the moment, could kindly look into the matter.

The Lord Chancellor

I think the best thing that I can say is that I will look into the matter.

Clause 11 agreed to.

Clauses 12 to 14 agreed to.

Clause 15 [Register of licensed conveyancers]:

Lord Graham of Edmonton moved Amendment No. 17:

Page 14, line 7, at end insert— (" ( ) If a licensed conveyancer is a person to whom section 28 of the Companies Act 1981 applies, the register shall contain in addition to his name and address the name and address of his practice. ( ) If a licensed conveyancer is an employee of another person of firm or of any body corporate, the register shall contain in addition to his name and address the name and address of his employer.")

The noble Lord said: Clause 15 deals with the register of licensed conveyancers. Clause 15(1) begins: The Council shall establish and maintain, in such form as the Council may determine, a register containing the names and addresses of all persons who for the time being hold licences in force under this Part". My amendment would insert here the words of its two subsections as printed in the Marshalled List. I suggest that the register must also show the name and address of the practice of a licensed conveyancer who operates his practice under a business name and the name and address of the employer of a licensed conveyancer who operates as an employee of somebody else and is not in practice on his own account. I believe that this amendment is self-evident. I beg to move.

The Lord Chancellor

The purpose of the amendment appears to be to ensure that the register of licensed conveyancers to be established by the council is comprehensive enough to enable someone inspecting it to locate the business name and address of a conveyancer practising by means of a company or as an employee of someone else. It is intended that the register will enable anyone to discover the location of a licensed conveyancer's practice or practices. While the existing Clause 15 does not provide for corporate practitioners or employed conveyancers specifically to register their practising addresses, the requirement on the council to maintain a register of all persons holding a licence will cover them, and therefore no additional provision is thought to be needed.

I think that there is no difference of principle between the noble Lord, Lord Graham, and myself on this. Clause 15 requires that the council establish and maintain a register and that it should contain the names and addresses of all persons who hold licences. It is intended that the information entered on the register will relate to the licensed conveyancer's practice. If, therefore, he is a corporate practitioner or an employed conveyancer, the register will plainly need to record the name and address of his place of practice accordingly; but I do not think that it is necessary to spell this out in legislation quite in the way suggested by the amendment. I consider that the council's function is quite clear and straightforward and I do not think that any further provision is required.

Lord Graham of Edmonton

The noble and learned Lord the Lord Chancellor is absolutely right. What he has just said on the record is sufficient for me, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Rules as to professional practice, conduct and discipline]:

Lord Elwyn-Jones moved Amendment No. 18: Page 14, line 30, leave out ("may") and insert ("shall").

The noble and learned Lord said: Here we return to the "may/shall" syndrome, if that is the right way of describing it. There are some circumstances where discretion ought reasonably to be provided in a provision, but there are others where the duty should be made mandatory to achieve what is provided in the clause. Here I submit that the mandatory rule should apply and that in Clause 16, dealing with rules as to professional practice, conduct and discipline, it shall be the duty of the council to make such rules in respect of the matters that are set out. It must be not merely a power, but also a clear duty, because this new profession must, from its very beginning, have rules and guidance as to professional practice, conduct and discipline, and they should be stated in a clear way at the very outset.

There is a further matter which it may be convenient for me to deal with under the rubric of the present amendment; namely, the extremely unsatisfactory ambit of what is suggested in the clause should be included in the rules. In my submission, what is provided for is wholly, or at least considerably, insufficient. The Farrand Committee made detailed recommendations as to what the rules should be, and if one looks at paragraphs 318 to 341, one sees them set out very helpfully and, if I may say so, very clearly. All that is provided for in the present clause are rules for regulating, in relation to any matter the professional practice, conduct and discipline of licensed conveyancers, including rules for regulating the association of licensed conveyancers with other persons in connection with the provision of conveyancing services to members of the public". That represents a very small selection from what the Farrand Committee's recommendations suggested.

Without belabouring the Committee with an examination in detail of paragraphs 318 to 341 of the report (which covers many pages indeed) it might be useful to identify, at the very least, some of the matters which should be governed in the rules: for instance, prevention of conflicts of interest; enforcement of undertakings; supervision of unqualified staff; confidentiality of communications with clients; conduct in relation to fees; and regulation of advertising practices. Unless those matters are got right very early in the history of this profession, I fear it might find itself in difficulties.

Accordingly, I therefore urge that the duty to make the rules should be imperative and act ab initio. Secondly, in indicating what should be the rules as to professional practice, conduct and discipline, careful regard should be had to the Farrand Committee, which after long deliberation set them out so helpfully, as I have said, in paragraphs 318 to 341.

The Lord Chancellor

Here we are, with "may" and "shall". I will certainly consider the point before Report. I think that "may" does mean "shall" in practice in the particular context, and if all the rules are shown to be inadequate, I can see future shadow Lord Chancellors saying to the Lord Chancellor, "Why did you let that through?" The Lord Chancellor has to concur with it all and is fully accountable to Parliament in general through this Chamber.

As regards the more general criticism which the noble and learned Lord made, I am not sure that I am with him the whole way. It is quite true that the Farrand Committee laid down a number of detailed prescriptions for the protection of the public which would be required of the new profession. I can quite understand that some people might think they were too rigid—and when this was under discussion I heard a good deal of criticism to the effect that they were too exacting—and I can quite understand people thinking, as the noble and learned Lord does, that we have left too much to the discretion of the council.

The policy has been—and this is a matter of policy—to leave it to the discretion of the council, with the proviso that the Lord Chancellor of the day will have to stand the machine gun fire from the Opposition Benches and perhaps even, as one looks round, from the Cross-Benches and from the Benches on my north-west. So the policy is to give the council the widest discretion within the limits of the clause under discussion, but subject to the accountability of the Lord Chancellor, who will have to concur in any rules which may be made. I suppose that his concurrence can be made conditional upon the rules being made a little more precise if they are thought to be insufficient.

Lord Foot

May I ask the noble and learned Lord a question? The second part of the clause says: including rules for regulating the association of licensed conveyancers with other persons in connection with the provision of conveyancing services to members of the public". May I suggest that rules of that kind, governing the regulating of the association with other persons, are of a different character from the rules referred to in the earlier part of the clause, which deal with professional practice, conduct and discipline? There was very considerable interest in the question as to what extent licensed conveyancers will be able to associate with other persons and who those other persons might be. The only question that I want to ask is this. Would it not be more proper for that matter of the right of licensed conveyancers to associate with other people to be decided by Parliament, and not left to regulations made by the Council for Licensed Conveyancers?

6.30 p.m.

Lord Simon of Glaisdale

I have only one very small point which arises out of the terms of the amendment. My noble and learned friend the Lord Chancellor said that he thinks "may" does mean "shall" here. By that, I think he meant that "shall" is intended. If so, an amendment will certainly be required because throughout Clause 15 and again in Clause 17 the word "shall" is used. It seems to me in those circumstances that the word "may" in Clause 16 must be construed as permissive.

Lord Campbell of Alloway

Having listened with great attention to what my noble and learned friend the Lord Chancellor has said, which I always do, would not the substitution of "shall" perhaps afford a convenient Mae West?

The Lord Chancellor

I am not sure that I fully appreciate the total implications of what my noble friend has just suggested. But my noble and learned friend on the Cross-Benches omitted to note that what I said was not that it means "shall" but that it means "shall" in practice, which is not quite the same thing.

As regards the suggestion of the noble Lord, Lord Foot, I should not like to go down that path very much, because if he is afraid that I would use this clause for letting through this gate the other great point of debate between the solicitors' profession and others in Parliament—the building societies and banks syndrome—he is quite wrong. I would not dream of doing that. It is not part of my intention in the least. It is quite a separate subject and I hope that we shall steer clear of it. If I started, however, to define a class of persons with whom the new profession should not associate, or might associate with, I am not at all sure that I should be quite so successful in avoiding the issue as I intend to be.

Lord Elwyn-Jones

Now that the noble and learned Lord has committed the heresy of saying that, in effect, "may" really means "shall", why not say so in the clause and substitute "shall" for "may"? I am reminded of the last time I had the honour of appearing as counsel before their Lordships. I was instructed by the Board of Trade to contend that the word "or", in a provision which concerned the owner of a ship or its master who poured oil in protected waters, also meant "and", and by a majority of three to two I persuaded their Lordships that that was so.

But I really do not see why we should push our judicial brethren into such extremities when, as is conceded, what is really meant here is that it should mean not "may" but "shall". I hope therefore that the noble and learned Lord will perhaps concede that before we leave this matter; and also that he will look again at the provisions of the clause in regard to the matters that have been discussed, in order to ensure that, at any rate, the most significant and most important part of the recommendations of the Farrand Committee should be included within the language of the clause. I therefore await with confident expectation that we shall have a little firming-up from the noble and learned Lord about his review of this clause.

The Lord Chancellor

I do not think that I can be asked to do much more than say in the friendliest possible way that I shall consider it, because all I have ever said at the moment is that "may" means in practice that they have got to. That seems to me to be quite enough to satisfy the most exacting requirement here, without going into the amendments which my noble and learned friend on the Cross-Benches suggested.

I have promised to consider that matter. It is a well-known parliamentary subject for debate; but I do not think it is a subject for serious quarrels between the two sides. I certainly will consider it in the friendliest possible way, but I would rather not be pressed into an absolute concession. As regards being tempted to spell out the persons with whom these gentlemen should not associate, I think that that is a very thorny path. Should they be allowed to associate with known criminals? I suppose you would have to say not. But the number of people they ought not to associate with will be very large and numerous, if one is going down that path.

Lord Foot

May I revert in a sentence or two to the point that I was trying to make? I cannot regard the noble and learned Lord's answer to that as entirely satisfactory. Would the noble and learned Lord regard it as satisfactory, for example, that it should be permitted to the Law Society to make their own rules as to who they might associate with and then present them for the approval of the Lord Chancellor? The noble and learned Lord says, "It is all right. You need not worry. I shall not permit licensed conveyancers to associate with people whom they should not associate with". But, of course unhappily—and this is one of the disasters of this life—the noble and learned Lord will not be with us for ever; and should this very important matter of whom licensed conveyancers should be allowed to do business with, and to work with, be left to the discretion of the Lord Chancellor at some future date? I suggest that it ought to be spelled out in the Bill. I hope that the noble and learned Lord will, at any rate, be prepared to consider that possibility.

The Lord Chancellor

I do not think that I can be tempted further to go down the primrose path. A lot of water will have flowed under the bridge before a future Lord Chancellor has to consider the matter. But I cannot conceive of any responsible Lord Chancellor—and may they always be responsible—allowing licensed conveyancers to associate with inappropriate persons.

Lord Elwyn-Jones

Regardless of that interesting point, I understand that between now and the Report stage the noble and learned Lord will look to making "may" read "shall". We shall then return to the matter, unless we achieve complete satisfaction on that point. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris had given notice of his intention to move Amendment No. 19: Page 14, line 34, leave out from ("conveyancers") to end of line 36.

The noble Lord said: On consideration, this somewhat clumsily drafted amendment raises points of principle which might better be considered when we consider whether Clause 28 shall stand part of the Bill. In the light of that, I shall not move this amendment and I shall also not move the following three amendments.

Clause 16 agreed to.

Clause 17 [Professional indemnity and compensation]:

[Amendments Nos. 20 to 22 not moved.]

Clause 17 agreed to.

Clause 18 [Keeping of accounts and establishment of client accounts]:

Clause 19 [Interest on clients' money]:

On Question, Whether Clauses 18 and 19 shall stand part of the Bill?

Lord Mishcon

I wonder whether I may draw the attention of the noble and learned Lord to the fact that these clauses which deal with accounts rules—which are of equal importance the Committee may feel to rules which lay down codes of conduct, and so on—are mandatory. The word "shall" if I read the Bill correctly, is there. I have no doubt that the noble and learned Lord will take that into consideration when he considers the speech that was made by my noble and learned friend Lord Elwyn-Jones.

I also rise because under Clause 18(2) it is apparently left to the council, although of course with the concurrence of the Lord Chancellor, to specify the institutions which shall be authorised for the purpose of accounts for clients' moneys held by licensed conveyancers. Of course solicitors are governed by Section 32 of the Solicitors Act 1974; and solicitors—and very advisably so it may be thought—have to keep their clients' moneys at banks which are defined as banks for the purposes of the Protection of Depositors Act 1963, or, by an amendment not yet in force, recognised banks under the Banking Act 1979. I do not have to emphasise the point to the Committee that the protection of clients' moneys is of the utmost importance with regard to consumer protection. The greatest of care has to be taken over the designation of the institutions where clients' moneys are to be kept.

I wonder whether the noble and learned Lord the Lord Chancellor could indicate the criteria which he thinks should be applied for this purpose, bearing in mind the need for full security for clients' moneys, the availability on demand and effective control of such accounts under the rules. I would point out in passing, for example, that moneys deposited with building societies present two problems; first, it usually cannot be withdrawn save on some requisite period of notice; and, secondly, there is a maximum amount that one can deposit with a building society under its rules, and therefore there is a multiplicity of accounts if that maximum is in any way exceeded.

If I have thrown something at the noble and learned Lord somewhat unfairly by raising the matter on clause stand part, of course I shall be content, not having given the noble and learned Lord notice of this although I believe that the matter has been raised with his department through other media. If it is unfair for me to ask for a comprehensive answer at this stage, I shall be more than delighted to wait for the noble and learned Lord's convenience in doing so.

The Lord Chancellor

I think the best thing I can do is to promise to write to the noble Lord; otherwise I am sure to make a mistake about this.

Lord Mishcon

I am most grateful.

Clause 18 and Clause 19 agreed to.

Clause 20 [Preliminary investigation of disciplinary cases]:

[Amendment No. 23 not moved.]

6.45 p.m.

Lord Elwyn-Jones moved Amendment No. 24:

Page 18, line 18, at end insert— (" (iv) has engaged in practices which are deceitful or oppressive, or otherwise unfair or improper (whether unlawful or not); or").

The noble and learned Lord said: Clause 20 which we are now considering provides for an Investigating Committee set up by the Council for Licensed Conveyancers to undertake the preliminary investigation of complaints and then, where it is appropriate, to bring the complaints before the Discipline and Appeals Committee which is provided for in Clause 21 of the Bill. Clause 20(1)(a) provides three kinds of allegations which are to be investigated; where a licensed conveyancer: (i) has (whether while a licensed conveyancer or not) been convicted by any court in the United Kingdom of a criminal offence which renders him unfit to practise as a licensed conveyancer; or (ii) has, while holding a licence … failed to comply with any condition to which that licence was subject; (iii) has failed to comply with any rules made by the Council". In an earlier discussion we asked for a greater particularity or a wider range to be covered by the proposed rules; but at the end of the day it must be conceded that not all suitable contingencies can be covered. What is proposed in this amendment is that there should be added a general class: (iv) has engaged in practices which are deceitful or oppressive, or otherwise unfair or improper (whether unlawful or not)". and have in that "catch-all" provision the covering of all the contingencies likely to require preliminary investigation with a view to later disciplinary action. These words are not conjured out of the vast deep of an Opposition mind in this House. They are to be found in Section 25(2)(d) of the Consumer Credit Act 1974. There is that useful precedent for the sort of considerations that are required for the protection of consumers.

I therefore move that there should be included in the clause, as a category of conduct that ought to be subject to investigation and punishment if it is established, the conduct of a licensed conveyancer who is engaged in practices, which are deceitful or oppressive, or otherwise unfair or improper (whether unlawful or not)". I beg to move.

Lord Denning

May I say a word in favour of this amendment? This deals with licensed conveyancers and requires that there will be an Investigating Committee which is separate from the disciplinary committee—one of the things that I shall be stressing when we are dealing with solicitors. There will be an Investigating Committee. Surely that Investigating Committee, without any difficulty whatsoever, ought to be able to inquire into the matters which are in this amendment. It can then see whether after its investigations further proceedings ought to be taken by way of disciplinary measures or whether the matter should be abandoned altogether—in other words, there should not be any limit on the matters to be investigated if it shows that a person is not to be suitable as a conveyancer.

Lord Morris

May I ask the noble and learned Lord, Lord Elwyn-Jones, one question? Is this clause contained in the regulations and in the disciplinary code of the Law Society?

Lord Elwyn-Jones

I think there is a general clause concerning unprofessional conduct but I cannot recollect at the moment whether that is particularised. I am told by my noble friend Lord Mishcon, who is a king-pin in all matters affecting solicitors, as the Committee by now well knows, that that umbrella covers any possible misconduct that might come before the authorities.

The Lord Bishop of Norwich

Will the noble and learned Lord also answer one very simple question on his amendment? There are the words "has engaged", but there is no time factor built into this subparagraph (iv) to be added and debated. Would it be any period stretching back into the early murky life of a young and still inexperienced conveyancer? Could mercy be tempered with justice in this particular case?

Lord Elwyn-Jones

One can assume that the Investigating Committee will be made up of men of a generous and kindly disposition who will not go to absurdity and go back to ancient times in the career of a man. These tribunals, as we heard earlier, although they can be severe, are also on the whole pretty merciful. I think we can rely upon their basic common sense and fairness not to push matters to an absurdity.

Lord Campbell of Alloway

I am grateful to the noble and learned Lord for referring to the Consumer Credit Act, which includes such a provision. But with the greatest of respect, is it not rather a far cry from the consumer credit situation to examining the conduct of professional people for the purpose of instituting disciplinary proceedings? If there is a difference, is it not undesirable that in that context there should be a wholly subjective right? The words "whether unlawful or not" throw the degree of subjectivity wide open. It is doubly subjective, perhaps, because the word "unfair" is in a sense subjective; but there are cases on what is unfair from a legal point of view. With respect, is this wording not a little too wide, even in respect of preliminary disciplinary proceedings?

Lord Mishcon

Perhaps I may deal briefly with the very proper point raised by the noble Lord, Lord Campbell of Alloway. Are we not here dealing with the question of protecting the consumer? We have called him the consumer; we could call him the client or the customer. If there is anything wrong by way of the generality of this wording, and if it be blameworthy because it is subjective, then Parliament in its wisdom would surely not have put it in the Consumer Credit Act, as it has done. After consideration by Parliament, this wording was regarded as proper to insert in the Consumer Credit Act. I should have thought that it was a very sensible form of words to use in this Bill, where we are trying to protect the consumer.

Lord Foot

If the words "unprofessional conduct" have governed the conduct of solicitors for so long, and have apparently worked perfectly well, would it not be preferable, in place of the words proposed, to refer simply to unprofessional conduct by licensed conveyancers?

Lord Morris

That would appear eminently sensible to me. I find it somewhat puzzling that the words recommended in the Law Society's brief, which they were kind enough to send me, as being suitable for the professional practice of licensed conveyancing do not match up with the wording which they find suitable for their own disciplinary affairs, and so on. I should have thought that what was sauce for the goose was sauce for the gander.

Lord Mishcon

I apologise to the Committee for rising again on this amendment and promise that it will be the last time I do so. Since there has been a reference to the solicitors' profession, I may say that there is a whole host of precedents, in regard to a very old profession, as to what constitutes unprofessional conduct from the point of view of solicitors. There is as yet—and I say this with the utmost respect in my voice—no history of that tradition in the new profession we are founding. Furthermore, there is as yet no set of professional rules which govern them for submission to the Lord Chancellor for his approval. That is the reason, I should have thought, for the difference.

The Lord Chancellor

I have listened with fascination to this discussion. This was one of the amendments which appeared on the Marshalled List for the first time at 3 p.m. on 30th January and which I saw for the first time at lunch-time today. If I may intervene in this discussion, I should have thought that the words, deceitful or oppressive, or otherwise unfair or improper (whether unlawful or not)", may be very suitable in respect of an unfair trading practice but are not necessarily best suited to a profession. When we were in the Army we were accused or court martialled under a somewhat similar provision: contrary to good order and military discipline. I believe that the solicitors have now something known as unprofessional conduct. I forget what the Bar has; I believe that it is conduct unworthy of a barrister.

At any rate, the thought that I have at the moment about this amendment—and it is a thought that has ocurred to me since lunch-time today—is that it is not really necessary. It is clearly desirable to enable the Investigating Committee and the Discipline and Appeals Committee to deal with instances of improper practices. I would hope that the council will make rules under Clause 16, which we have just passed from, which would be appropriate to the special situation of the new profession of licensed conveyancer, and that the equivalent to the military phraseology of good order and discipline, whatever it may turn out to be, will be specified in those rules—which will require the concurrence of the Lord Chancellor—rather than be predetermined by the Director-General of Fair Trading in another statute dealing with a different body of men and women.

Lord Elwyn-Jones

Our feeling about this matter is that at the very launching of a new profession there should be a provision of this kind in the Bill. In the circumstances, we consider it right to seek the view of the Committee.

On Question, Whether the said amendment (No. 24) shall be agreed to?

6.56 p.m.

Their Lordships divided: Contents, 52; Not-Contents, 73.

Airedale, L. Cledwyn of Penrhos, L.
Amherst, E. Collison, L.
Attlee, E. David, B. [Teller.]
Aylestone, L. Dean of Beswick, L.
Beswick, L. Denning, L.
Birk, B. Diamond, L.
Bottomley, L. Elwyn-Jones, L.
Brockway, L. Elystan-Morgan, L.
Bruce of Donington, L. Ennals, L.
Carnock, L. Foot, L.
Gallacher, L. Monkswell, L.
Graham of Edmonton, L. Morris of Kenwood, L.
Greenway, L. Mulley, L.
Gregson, L. Nicol, B.
Hooson, L. Phillips, B.
Howie of Troon, L. Pitt of Hampstead, L.
Hutchinson of Lullington, L. Ponsonby of Shulbrede, L. [Teller.]
Jacques, L.
Jeger, B. Simon of Glaisdale, L.
John-Mackie, L. Stedman, B.
Kagan, L. Stewart of Fulham, L.
Kilbracken, L. Stoddart of Swindon, L.
Llewelyn-Davies of Hastoe, B. Tordoff, L.
Lloyd of Kilgerran, L. Underhill, L.
Lockwood, B. Wells-Pestell, L.
Mclntosh of Haringey, L. White, B.
Mishcon, L.
Abercorn, D. Kinnoull, E.
Abinger, L. Lauderdale, E.
Alexander of Tunis, E. Lindsey and Abingdon, E.
Auckland, L. Liverpool, E.
Avon, E. Long, V.
Bauer, L. Lothian, M.
Belhaven and Stenton, L. Lucas of Chilworth, L.
Beloff, L. McAlpine of West Green, L.
Belstead, L. Macleod of Borve, B.
Bessborough, E. Margadale, L.
Boyd-Carpenter, L. Marley, L.
Brabazon of Tara, L. Maude of Stratford-upon-Avon, L.
Bridgeman, V.
Broxbourne, L. Merrivale, L.
Bruce-Gardyne, L. Mersey, V.
Caithness, E. Molson, L.
Cameron of Lochbroom, L. Morris, L.
Campbell of Alloway, L. Mottistone, L.
Campbell of Croy, L. Mountevans, L.
Colville of Culross, V. Mowbray and Stourton, L.
Colwyn, L. Munster, E.
Cork and Orrery, E. Napier and Ettrick, L.
Cottesloe, L. Norwich, Bp.
Crathorne, L. Orkney, E.
Denham, L. [Teller.] Penrhyn, L.
Elliot of Harwood, B. Plummer of St. Marylebone, L.
Elton, L.
Gardner of Parkes, B. St. Aldwyn, E.
Glanusk, L. Salisbury, M.
Gray of Contin, L. Sharples, B.
Hailsham of Saint Marylebone, L. Skelmersdale, L.
Swinfen, L.
Hayter, L. Swinton, E. [Teller.]
Henderson of Brompton, L. Trumpington, B.
Henley, L. Ullswater, V.
Hood, V. Vaux of Harrowden, L.
Hylton-Foster, B. Wynford, L.
Ingrow, L. Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Trumpington

My Lords, I beg to move that the House do now resume. In doing so, I suggest that further consideration of the Committee stage of this Bill should not resume until after five minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.