Lords Sitting of 14 March 1985

Preamble
The House met at three of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

EEC Consumer Ministers' Meetings
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether with reference to their Answer on the 31st January last (H.L. Deb. col. 737), consumer affairs items were included on the agenda of the internal market discussions on 11th February, and if so with what result; and whether quarterly meetings of the EEC consumer Ministers are now to be resumed.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, the new Commissioner Mr. Clinton Davis made a statement at the 11th February Council outlining what the Commission considered to be the priorities in the field of consumer protection. The other items of consumer interest discussed were the draft directives on product liability and doorstep selling. I think it is fair to say that some forward progress was made.
I understand that consumer affairs may be discussed by European Ministers again in May. Whether this heralds a move towards regular meetings I cannot say. That, as I believe the noble Baroness is aware, is not in my hands.
Baroness Burton of Coventry: My Lords, can the Minister help us further and so save the time of the House? Is he aware that following the meeting on 11th February a statement was issued headed,
"Internal Market Consumer Protection Council"?
In this, the statement made by Commissioner Clinton Davis was recorded. Does the Minister think he could put that statement in Hansard for us, which would save having to put down a written Question to obtain the same answer?
Lord Lucas of Chilworth: My Lords, I do not believe I can have that statement repeated in Hansard without its being in response to a Question. However, I can promise to see that the statement is made available in the Library.
Baroness Burton of Coventry: My Lords, I will put down a Question for Written Answer. Does the noble Lord not agree that it is more satisfactory for the House to see that statement? Does the noble Lord also agree that it was disturbing to read in the statement dealing with this meeting on 11th February:
"As was to be expected, the Ministers did not reach any agreement, but rather confined their discussions to indentifying the difficulties"?
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We on these Benches feel that we could identify those difficulties just as well.
Lord Lucas of Chilworth: My Lords, that may well be so, but I am sure the noble Baroness will recognise that there are some differing views among members of the Community. It is our desire that all those views should be reconciled before directives are made.
Lord Peyton of Yeovil: My Lords, can my noble friend say whether he shares the high hopes entertained by the noble Baroness for a meeting of Europe's consumer Ministers? Further, if such a meeting does take place will my noble friend do his utmost to ensure that the consequences are not limited to another cascade of paper competing for valuable space in wastepaper baskets?
Lord Lucas of Chilworth: My Lords, I am grateful to my noble friend Lord Peyton, but I think he will recall that there are only two member states who have specific consumer Ministers. Therefore, matters of consumer interest being referred to the Commission come from Ministers of a wider variety. As regards the amount of paper work, I think Commissioner Clinton Davis's statement makes it clear that he is interested in achieving unanimity of approach, which should in fact reduce the amount of paper work.
Lord Bruce of Donington: My Lords, is the noble Lord aware that discussions such as those which took place on 11th February tend to go on for an interminable time without any results being achieved? In order that your Lordships may give Her Majesty's Government the amount of support that they consider feasible in the circumstances, will the noble Lord give an account of the nature and extent of the contribution of the British representative in these discussions?
Lord Lucas of Chilworth: My Lords, I should be very pleased to do so, but I think it would weary the House during Questions if I were to embark upon it, understanding the conventions that apply. May I briefly say that the United Kingdom have been represented at ministerial level at all meetings, which is perhaps a little more than I can say for some other member states. From that I believe our input into the discussions has been considerable. I should perhaps remind your Lordships that we in this country enjoy a very high standard of consumer protection, a high profile on consumer affairs, and many of the Community's directives are culled from our own domestic legislation.
Lord Broxbourne: My Lords, can my noble friend amplify that part of his Answer to the noble Baroness which related to the directives on unfair advertising and doorstep selling? Does he appreciate—I can think of no conceivable reason why he should know, but convention forces me to put the question in this form—that these directives were under patient and diligent scrutiny six or seven years ago by the Legal Committee of the European Parliament, of which I was then a member, and indeed chairman?
Lord Lucas of Chilworth: My Lords, I recognise my noble friend's assiduous attention to these matters

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when he was a member of that committee. I am pleased that finally the Community has been able to agree a number of issues which were then before him. I believe that last week I answered the noble Lord, Lord Sainsbury, fairly fully on the question of doorstep selling. Progress on that continues. It was one of the matters discussed at the 11th February Council. We anticipate further progress during the course of this year. So far as misleading advertising is concerned, we adopted the directive in 1984. It has to be implemented by October 1986. The Government are presently consulting those bodies which will be affected by the directive.
Lord Sainsbury: My Lords, may I ask the Minister, who was so helpful the last time I asked questions on the progress being made, whether he can tell us anything about unit pricing for foodstuffs? Secondly, is he aware that the report of the House of Lords Select Committee on the European Community on unit pricing is due, I am informed, on Monday next? Will he take particular note of its last recommendation that until further research into possible costs has been carried out, the extension of mandatory unit pricing should be abandoned?
Lord Lucas of Chilworth: My Lords, may I first of all assure the noble Lord that Her Majesty's' Government will take note of the report of the Select Committee to which he referred? We have some reservations about unit pricing. We believe that it is better to complete agreement on package sizing before we move to unit pricing. As soon as we have achieved unanimity in that area, there may be some further point in moving towards unit pricing as we now understand the Commission's reading of that term.
Lord Mackie of Benshie: My Lords, is it not time that consumers had some protection against consumer protection?

Helsinki Agreement: Ottawa Conference
3.16 p.m.
Lord Avebury: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what preparations they are making for the British contribution to the Conference on Security and Co-operation in Europe experts' meeting on human rights and fundamental freedoms which starts on 7th May in Ottawa.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, the United Kingdom intends to play a full and active part in the Ottawa meeting, which we regard as an important element in the Helsinki process. We are engaged in close consultations with our partners and allies over the Western approach to the meeting. In our view, it should both consider the functioning of the human rights provisions in the Helsinki Final Act since these were first drawn up and look forward at possible new
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measures to advance the cause of human rights and fundamental freedoms in the 35 CSCE participating states. This approach reflects the mandate for the meeting agreed at Madrid in 1983.
Lord Avebury: My Lords, is the Minister aware that we all wish Mr. Gorbachev well in his difficult task and would also wish to extend to the Soviet people through him our best wishes for their future happiness and prosperity and for the restoration of good relations between the Soviet Union and the West? Does the noble Baroness also agree that, in preparation for the forthcoming meeting, one of the best things that the Soviet Union could do would be to declare an amnesty for those convicted of offences connected with the Helsinki monitoring group? In particular the freedom of Yelena Bonner, Andrey Sakharov, Anatoly Shcharansky and Yuri Orlov would do an immense amount to create a good atmosphere for the talks which will begin in Ottawa in April.
Baroness Young: My Lords, I note of course what the noble Lord, Lord Avebury, has had to say on this matter. As he will be aware, my right honourable friend the Prime Minister discussed human rights with Mr. Gorbachev as recently as December and he can be in no doubt of the views of Her Majesty's Government. At their meeting in Moscow on 13th March, my right honourable friend the Prime Minister drew attention to the importance of the Helsinki Final Act.
Lord Shinwell: My Lords, may we be assured that the Government appreciate the importance of this conference? It is even more important than the conference suggested for Geneva on the subject of a reduction in weapons. It is desirable, naturally, for every one of us that we get agreement on the control of weapons and avoid war, but the subject of personal freedom and human rights still remains, and it is a problem which is facing Russia as much as any other country in the world. May we be assured that our representatives understand the nature of the problem and will speak with authority and influence?
Baroness Young: Yes, my Lords, I can give the noble Lord that assurance.
Lord Brockway: My Lords, may I ask the noble Baroness whether non-governmental organisations will be able to give evidence to this conference?
Baroness Young: My Lords, on the question of giving evidence, I should have thought that one way the non-governmental organisations could make their views plain would be to get in touch with Members of Parliament or Members of your Lordships' House. The Government will of course be ready to take account of views that have been expressed.
Lord Avebury: My Lords, may I ask the noble Baroness, whether, in particular, she herself would be willing to hear representations from the groups concerned with religious freedom in the USSR and the anti-Semitism which has grown in that country over recent years in particular? Also may I ask whether Her Majesty's Government have it in mind to suggest to

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the Soviet Union that religious freedom is of paramount importance and that those who wish for religious reasons to emigrate from the USSR should be permitted to do so?
Baroness Young: My Lords, I think I have already made clear the importance that the Government attach to the Helsinki process and the seriousness with which we are taking this new conference. On the question of individual cases which are brought to our attention, I am sure the House will understand that I cannot give a commitment in advance about particular cases, but of course we shall have them very much in mind when representations are made.

Allotments: Records
3.21 p.m.
Lord Wallace of Coslany: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what records local authorities are expected to maintain in the management and renting of allotment plots for cultivation by tenants.
Lord Skelmersdale: My Lords, there is no statutory requirement for allotment authorities to maintain any allotment records. Each is free to decide for itself whether and in what form such records are kept.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that I fully anticipated his Answer? Is he aware that the records to be maintained are quite simple: the allotment site itself; the total number of plots; plots to let or on offer; vacant plots; waiting lists and notices to improve, or notices to quit. That is all that is needed. It is quite simple, quite elementary. Should any allotment society wish to do it themselves, they can do so. Is the noble Lord further aware that I have in my hand a quarterly report to a local authority of a joint meeting of allotment tenants representatives and councillors, giving all the facts in full detail, including financial ones, at a later stage? So there is no problem whatever and no expense to local authorities.
Lord Skelmersdale: My Lords, I do not know whether or not the figures on the piece of paper held out to your Lordships by the noble Lord, Lord Wallace, just now, and which I have not seen, are correct. If they are, of course there is no need for me to answer this question. However, as far as the noble Lord's first supplementary goes, I should expect authorities to keep records of the area of their allotment gardens and waiting lists of the people who apply for allotments.
Lord Graham of Edmonton: My Lords, does the noble Lord not appreciate that this is perhaps one of the most benign questions that he will ever be asked to answer? There is no malice or hidden intent behind it. Surely the Minister appreciates that. What my noble friend is seeking to do is to find not indifference but encouragement by the Minister, appreciating the non-
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statutory nature of what has been requested. Surely, what has been requested is to invite local authorities to keep, on a sound footing, records which would be valuable not only today but also for many years to come. Surely, the Minister can give modest encouragement to local authorities to provide this kind of information.
Lord Skelmersdale: My Lords, I am very grateful for the way in which the noble Lord, Lord Graham, has phrased this supplementary question. However, I have already made it quite clear what records I should expect local authorities to keep in this matter.

VAT Rebates and Stamp Duty
3.24 p.m.
Lord Monson: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will take advantage of the continuing weakness of sterling against most major world currencies to raise additional revenue for socially useful purposes by withdrawing the VAT rebates enjoyed by overseas visitors, and by increasing the rate of stamp duty on conveyances of residential property to those who are not United Kingdom citizens.
The Chancellor of the Duchy of Lancaster and Minister for the Arts (The Earl of Gowrie): My Lords, while not accepting that the pound is weak against most major world currencies, I can say that the operation of a VAT retail export scheme is one of the United Kingdom's obligations of membership of the European Community. Withdrawing the VAT rebates enjoyed by overseas visitors in order to raise additional revenue, for whatever reason, is therefore not legally available to Her Majesty's Government.
Stamp duty is a tax on documents, not on people or transactions. Although by custom duty on a conveyancing document is normally paid by the purchaser, this is not a legal requirement. The United Kingdom has entered into various international agreements which rule out discriminating taxation of this kind.
Lord Monson: My Lords, I thank the noble Earl for his informative reply. Nevertheless, would he not agree that it is bad economics for a nation to sell its goods and services, or indeed its assets, too cheaply to people from overseas, as seems to be happening to some extent at the moment? Is he aware that overseas investors are pouring over £100 million a year into British residential property, often to the detriment of indigenous house seekers? Would he not agree that if stamp duty on these transactions were trebled from 1 per cent. to a still modest 3 per cent., enough extra revenue would be raised to save the pound note; or to save one or two more historic houses and their contents for the nation; or to restore British diplomatic representation in such small but politically sensitive countries as Laos and the Dominican Republic; or to reverse the damaging cuts made in recent years to the BBC's External Services—to give just a few examples?
The Earl of Gowrie: My Lords, the noble Lord beguiles me with various tempting opportunities for the heritage, the Revenue, the World Service and all kinds of other things which are very dear to my heart. But unlike the noble Lord, I am rather keen on foreigners and they are certainly doing the economy in this country a lot of good at this moment.
Lord Bruce of Donington: My Lords, without wishing to invite the noble Earl to anticipate his right honourable friend's Budget Statement, may we have his assurance that when it comes to interpreting "socially useful purposes", as mentioned in this particular Question, the ambit of the Government will go rather wider than that proposed by the noble Lord, Lord Monson?
The Earl of Gowrie: My Lords, I shall look at what the noble Lord has said. I rather suspect that the second part of his supplementary question was not logically consistent with the first part; but I shall do my best.

Schoolchildren: Ethnic Minorities
3.27 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Swinton will, with the leave of the House, repeat a Statement that is to be made in another place on ethnic minority pupils.

Easter Recess
Lord Denham: My Lords, it may be for the convenience of your Lordships if I announce that it is proposed that the House should rise for the Easter Recess on Thursday, 4th April and return on Monday, 15th April. The House will sit at 11 a.m. on Thursday, 4th April.

Hong Kong Bill
3.28 p.m.
Baroness Young: 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.—(Baroness Young.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clauses 1 and 2 agreed to.
Schedule [Supplementary Provisions]:
Lord Avebury Lord Avebury moved Amendment No. 1:
In the Schedule, page 2, line 33, at end insert—
("(5) An order made under this paragraph shall make provision for a British National (Overseas) who cannot claim citizenship of any other country to be entitled to be registered as a British Citizen if an application is made for his registration as such a citizen.")
The noble Lord said: I beg to move Amendment No. 1 on the Marshalled List. In so doing, I wish first to remark that this is a question that has already been ventilated by the right reverend Prelate the Bishop of Birmingham in the Second Reading debate a short while ago. He then referred to the citizenship of St. Paul. In the days of the Roman Empire people could move freely from one place to another and, as far as I am aware, the Romans did not have the strict immigration laws that prevail throughout the whole of the civilised world today. Therefore, citizenship is, if anything, more important than it was in the days of St. Paul, when he was able to appeal to the protection of Caesar, as we hope that people who are given the new citizenships under this Bill will, in the last resort, be able to appeal to the protection of the Crown. But the protection that the Crown is able to afford to people on whom this new citizenship is conferred unfortunately is not parallel with that of Caesar. Therefore, I am afraid that we must depart from the analogy with St. Paul and look at more recent events in history.
One might do no better than to see what happened in the aftermath of independence in certain countries in East Africa where a former Conservative Government, in their wisdom, did allow certain people to retain British citizenship even though, at the time, they had no intention of leaving the country of their residence and coming to take up residence in the United Kingdom. I wish to underline the fact that I am instructed by the Council of Hong Kong Indian Associations, on whose behalf I hope that your Lordships will agree to this amendment, who say that those it represents do not want to come to England but wish to continue with their lives and their businesses in Hong Kong. Those were the very words used when I spoke to the council on the telephone this morning. It wants an assurance that, if things did not work out, these people would have "somewhere to hang their hats". That is what we did for an earlier generation of people from the Indian sub-continent whom we caused to take up livelihoods in another part of what was then the British Empire. All that we are now asked to give is the same kind of privilege as was conferred on the East African Asians. They want to know that if anything should go wrong in Hong Kong—I hope, of course, that this is a very remote eventuality—there will at least be somewhere, as the council puts it, to hang their hats.
I wrote to the Foreign Secretary on this matter. I received a reply from Mr. Richard Luce, expressed in his usual courteous way, seeking to allay the fears expressed by the Council of Hong Kong Indian Associations. He started by underlining the fact that no British Dependent Territories citizens would be left without a nationality or place to call their home as a result of the provisions of the Sino-British Joint Declaration on the future of Hong Kong and the related memoranda. He went on to state that anyone who, on 30th June 1997, was a BDTC by virtue of a connection with Hong Kong would be eligible to retain British nationality under a new form to be called British National (Overseas) for the rest of their lives. Even if such persons did not acquire this new status, he added, there would be no question of their being rendered stateless, because the Government intended that any such persons who would otherwise become

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stateless and children born after 1st July 1997 to former Hong Kong BDTCs, if they, too, would otherwise be stateless, would acquire British Overseas citizenship. But he did agree that there was a legitimate anxiety about potential statelessness among the future generations. This, he said, was a matter that the Government were looking into without having any commitment to prevent, through the opportunity that now exists in the legislation, this statelessness arising by some amendment in the law.
The Minister went on to refer to some of the provisions of the Chinese nationality Act and in particular Article 7, which says that aliens or stateless persons who are willing to abide by China's constitution and laws may acquire Chinese nationality upon approval of their application provided that they are close relatives of Chinese nationals, or that they have settled in China, or that they have other legitimate reasons.
In passing, I would observe that experts on nationality law who have examined the Chinese nationality law say that, if anything, it contains an even greater element of discretion than we have in ours. In our law, as your Lordships may recall from discussions on the 1982 Bill, the Secretary of State has a power to confer British citizenship on practically anyone he chooses. So, in a similar manner, the Chinese authorities may confer Chinese nationality on anyone they think fit. But the question is whether they would, in fact, do so.
It has been pointed out to me that if the ultimate intention was to allow people of Indian ethnic origin to take up Chinese citizenship, this could easily have been included in the agreement. I do not know anything about the confidential discussions that took place between our Government and the Chinese. I imagine, however, that the Government would have liked to tie up this loose end and that if the Chinese had been at all receptive, the provision would have been a mandatory one and not permissive—in other words, anyone born in Hong Kong or resident in Hong Kong and settled there at the time of the coming into effect of Chinese sovereignty in 1997 would ipso facto have been entitled to Chinese citizenship.
As I think the noble Baroness will agree, we find this provision in all the recent independence Acts on which I recall taking part in the debates, except perhaps that concerning Brunei, about which I am not sure. In almost every case that I can remember where a former dependency has become independent, the legislation has conferred the nationality of the newly-independent state on all those born in, or settled in, that territory at the time of independence. One would have thought that the Government might have pressed this strongly on the Chinese authorities and that the reason why it does not appear in the agreement is that they are not prepared to forgo the exercise of this discretion. The corollary of that is that they would prefer that these people should not be Chinese nationals and that they will continue to enjoy, if that is the word, the status of British National (Overseas) which is created under the Bill.
It is true that British Nationals (Overseas) who have lived in Hong Kong for seven years are granted the
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right of abode there by the Chinese under the terms of the agreement with the People's Republic. But that does not alter the principle that one country should not expect another to give a permanent home to its nationals and that British nationality is the only one in the world that does not carry with it the right of abode in the country of citizenship. Again, the parallel with East African Asians is very close. One objection raised is that separate provisions for the ethnic Indians would be racially divisive and would give preferential treatment to Indians against Chinese. That is not true, because some Indians in Hong Kong have Indian nationality and would not therefore be covered by this amendment. The decisive factor is whether any person now a BDTC in Hong Kong can claim another nationality as well as British National (Overseas) status, which is, in reality, only a travel document.
It has been a strong argument that the Government are confident that the Indian and other ethnic minority communities will want to remain in Hong Kong. And they do want to remain. The last thing that they want is to leave their businesses, which are mostly doing extremely well in the buoyant economy of Hong Kong. If the Government really are confident about the settlement that they have negotiated they will have no qualms in granting full British citizenship, which, as I say, would only be a safety net in the event that the agreement does not work out. Without such a safety net, it is likely that some of the business community will seek to take the opportunities now being offered of citizenship and settlement in other countries outside Hong Kong because they are afraid to stay there.
I should like to add a few words about the question of future generations. This, again, was a matter emphasised by the Council of Hong Kong Indian Associations in our telephone discussion this morning. The status of BOC does not confer any right of transmission to the descendants. The noble Baroness will, I think, agree that this is a matter of some anxiety. Even if one thinks that the citizenship we are now conferring on people of non-Chinese ethnic origin has any value at all, one has still to deal with the question of what happens to the children and grandchildren of those people in future generations. I was talking to one particular gentleman born in Hong Kong whose family consists of three sons and three grandsons. He told me that if a grandson had a further child born after 1997, that child would have BOC status but the child born to a BOC parent after 1997 is stateless because the status is not transmissible. This is again a matter of some anxiety to the Hong Kong Indian community.
I think this is the penultimate opportunity which we shall have of dealing with this important question. I do urge that even though the numbers are very small—we are talking about between 4,000 and 5,000 people, perhaps—we should not allow this Bill to depart until we tie up the loose end which is left over from the agreement and we give proper security to a small group of people who have been loyal citizens of the Commonwealth and who deserve to have their future properly safeguarded by your Lordships' Committee. I beg to move.
Baroness Young: The effect of the amendment which has been moved by the noble Lord, Lord

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Avebury, would be to open the way for any British National (Overseas), and thus anyone who is a BDTC by virtue of a connection with Hong Kong before 1997, and who cannot claim any other nationality, to register as a British citizen. As British citizens, such people would automatically acquire the right of abode in the United Kingdom under the Immigration Act 1971.
There are two aspects to this question: the problem of statelessness and the question of the right of abode. I will deal with the question of statelessness first because this, of course, was a question which exercised the minds of your Lordships quite considerably at Second Reading, and the noble Lord, Lord Cledwyn, and my noble friend Lord Geddes spoke extensively about it on that occasion. It may be helpful, therefore, if I set out the position on this point once again, and confirm what was read by the noble Lord, Lord Avebury, which he received from my honourable friend Mr. Luce.
The Government's position is that no former Hong Kong
BDTC nor any child born on or after the 1st July 1997 to such a person should be made stateless as a result of the amendments envisaged in the Bill. All former Hong Kong BDTCs will be able to acquire BN(O) status if they wish before the 1st July 1997. If they do this they will retain it for the rest of their lives. Any BDTCs who do not acquire BN(O) status and would otherwise be stateless—for example, if they are not Chinese nationals and hold no other nationality—will become British Overseas Citizens on the 1st July 1997. Children born on or after 1st July 1997 to former Hong Kong BDTCs who were Chinese nationals will of course have Chinese nationality. Children born to non-Chinese former BDTCs will acquire British Overseas Citizen status at birth if they would otherwise be stateless.
As I have indicated, during the Second Reading debate certain noble Lords also raised the question of what would happen to subsequent generations of children born to descendants of former Hong Kong BDTCs who held no other nationality—a point which was made by the noble Lord, Lord Avebury. On that occasion I said that the Government was as a matter of urgency looking at the problem of potential statelessness among future generations. The Government have now considered this problem further, particularly in view of the considerable anxieties expressed in your Lordships' House. We accept that there is considerable concern in Hong Kong among the non-Chinese BDTCs about the problem of potential statelessness in subsequent generations, and this is something which we take very seriously.
I think I must repeat the view previously expressed that it would not be proper as a general principle to grant British nationality indefinitely and without restrictions to the descendants of British nationals resident in a foreign country. However, we have decided that in the case of second generation children whose grandparents were Hong Kong BDTCs before 1997, and who would otherwise be stateless, it would be right to give them a similar entitlement to acquire British nationality to that which they would have had under the British Nationality Act 1981 if their parents and grandparents had remained BDTCs. I hope that the Committee will agree that this is a major
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concession, and I hope that it will meet the concerns expressed on all sides of the Committee.
3.45 p.m.
The relevant provisions of the British Nationality Act are contained in Section 17(2) and (3)(a) and (b) of the British Nationality Act. The provisions we envisage would be exactly parallel to these. They would provide that a minor would be entitled to be registered as a British Overseas Citizen on an application made within 12 months of the date of birth if, first, he was born stateless; second, one of his parents was a person who would have been a BDTC by descent at the time of his birth if it were not for the provisions to be made under this Act; and, third, one of his grandparents was a person who would have been a BDTC other than by descent at the time of the birth of the parent in question.
The general effect of this would be that a second generation child descended from a Hong Kong BDTC who was a BDTC otherwise than by descent would be entitled to be registered as a British Overseas Citizen. I should add that in the case of a child not so registered within 12 months of birth it would still be open to the Home Secretary, if he saw fit, to register him under Section 27(1) of the British Nationality Act.
I believe that the provision which I have just described will constitute an important additional boost to the confidence of the non-Chinese BDTC community of Hong Kong. It will provide an avenue for the continuation of a form of British nationality to the persons concerned until approximately the middle of the next century. If we look to the future, the Government believe that the right course for those who are permanently settled in what will then be a part of China ultimately is for them to become Chinese nationals.
I know that some concern has been expressed by those affected that they or their descendants will not be able to become Chinese nationals—again a point made by the noble Lord, Lord Avebury. However, the Chinese nationality law does provide in Article 7:
"Aliens or stateless persons who are willing to abide by China's constitution and laws may acquire Chinese nationality on approval of their applications provided that (1) they are close relatives of Chinese nationals, (2) they have settled in China, or (3) they have other legitimate reasons."
We are, of course, speaking of people who are by definition settled in Hong Kong, which by then will be part of China. The noble Lord, Lord Avebury, was critical of the Government in not getting a further agreement on this point. I accept that it will be necessary for the Government to undertake further discussions with the Chinese Government about how such persons might acquire Chinese nationality. Our aim will be to ensure that it is possible for the descendants of non-Chinese former BDTCs to obtain Chinese nationality if they wish to do so.
Before leaving this subject, there is one further point I should like to make. It is that the Home Secretary has discretion under Section 27 (1) of the British Nationality Act 1981, if he thinks fit, to register any minor as a British Overseas Citizen. It would of course be open to any future Home Secretary to make use of this provision in relation to the descendants of non-Chinese BDTCs in Hong Kong if he were satisfied that in any particular case the circumstances justified it.

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I hope that the measures I have described are sufficient to alleviate the concerns about statelessness on the part of non-Chinese BDTCs in Hong Kong. There will of course be a further opportunity to debate these matters when the Government bring a draft Order in Council before the House. But from the point of view of statelessness, I believe that the provisions of this amendment are unnecessary.
Before turning to deal with the question of the right of abode, I should mention that when I spoke earlier on of the description of the BN(O) status I may have missed out the word "overseas" when I was quoting a passage which explained the Government's position. I should like to correct that before going further.
I will turn now to the question of the right of abode. The Government do not believe that there is any justification for providing right of abode in this country to any group of BDTCs in Hong Kong who do not have it at present. The same would of course apply to British Nationals (Overseas) after 1997. The first reason for this is that the agreement itself guarantees the right of abode in Hong Kong after 1997 to persons who have been resident in Hong Kong for seven years or more and have taken Hong Kong as their place of permanent residence, and also to persons who before the establishment of the Hong Kong SAR only have the right of abode in Hong Kong. This would, I believe, cover all the non-Chinese BDTCs in Hong Kong unless they are only there temporarily and have a right of abode elsewhere. I believe that this provision is an entirely satisfactory guarantee of the right of abode in Hong Kong.
It has been widely recognised, not least in your Lordships' House, that the agreement provides a satisfactory framework in which the present way of life of all the people who live in Hong Kong can be maintained after 1997. The Government believe that it is a good agreement and that it will be effective. The people with whom we are now concerned—that is to say, the non-Chinese BDTC's in Hong Kong—are by definition people who have made their lives in Hong Kong, many of them the descendants of people who have lived in Hong Kong for many generations. Their personal and family connections are with Hong Kong, not the United Kingdom. To suggest now that we should give them the right of abode in the United Kingdom, exceptionally, is to suggest that we are not confident that the conditions in Hong Kong after 1997 will be such as to permit them to remain there. This is not the belief of the Government, nor do I think it is the general belief of this Committee.
The second reason why the Government are opposed to giving the right of abode in the United Kingdom to sections of the community in Hong Kong is that we do not think it would be right to discriminate in favour of one section of the BDTC population in Hong Kong. We believe that it would be deeply resented by other sections of that community who of course would continue to constitute the vast majority. In the Second Reading debate I think that some of your Lordships may have dismissed rather easily the feelings of the Chinese BDTCs who constitute the overwhelming majority of BDTCs in Hong Kong. I believe that most of them would argue that if we were to give the right of abode to any one section of the
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community, they should have it, too. For this reason the amendment now being considered would in my view be extremely divisive in Hong Kong, and divisive at a time when we should be doing everything we can to promote harmony and confidence.
I would say further that the fact that there should be no right of abode does not mean that it would be impossible for such persons to come to the United Kingdom. There are a number of avenues for BDTCs or BOCs to seek settlement in this country under the immigration rules. The same avenues would be open to BN(O)s. All such categories of people would, after settlement here, eventually be entitled to registration as British citizens under Section 4 of the British Nationality Act. In the unlikely event that any BN(O)s and BOCs came under pressure to leave Hong Kong and had nowhere else to go, we would expect that the Government of the day would consider sympathetically whether to admit them, on a case by case basis, in the light of their circumstances. The discretion to do this already exists in existing legislation.
The noble Lord, Lord Avebury, suggested that there was no provision on the agreement of Indians in Hong Kong to become Chinese nationals because the Chinese Government were not willing to have such a provision. This is not so. The Government did not seek such a provision. It is for the Indians in Hong Kong to apply for Chinese nationality after 1997 if they so wish. Article 7 of the Chinese nationality law clearly makes such applications possible.
This amendment goes to the heart of the Bill in a number of ways. I have spoken to the amendment at some length, and I hope that I have succeeded in convincing your Lordships that to pass this amendment would damage the Bill and would therefore damage the Government's plans for ratification of this agreement—an agreement which I think we all believe is an excellent one and much in the interests of Hong Kong and its people. We do not, I am sure, wish to put this at risk. I hope that, in the light of what I have said, the noble Lord, Lord Avebury, will feel able to withdraw his amendment.
Lord Cledwyn of Penrhos: The noble Baroness has just made a very important statement. It is clear that she has given very careful thought to the representations about statelessness which were made in the House in the Second Reading debate on 19th February, when the noble Lord, Lord Geddes, the right reverend Prelate the Bishop of Birmingham and I, and I think one or two others, dealt at length specifically with this point. What is more important is that this afternoon the noble Baroness has made what I believe to be a substantial concession on a matter which we in this Committee and the interested parties in Hong Kong itself have brought to the attention of Government over the past few months. The assurance of citizenship for the grandchildren of those who are British Nationals (Overseas), born after 1997—I understand that is the concession—is indeed a very welcome step. I should like to thank the noble Baroness and her right honourable and learned friend for the undertaking to extend to a further generation the right of citizenship. I am sure it will further improve the climate of confidence in Hong Kong,

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especially among the ethnic minorities. It is a practical move which we support very warmly.
There is one point which I and others made on the previous occasion that has not been completely clarified: namely, the position with regard to identity cards. The Committee will know, having followed these debates carefully, that there is a good deal of nervousness about this situation in Hong Kong. The Chief Secretary there drew attention to Section 14 of Annex 1 to the Sino-British Joint Declaration, which provides for the holding of permanent identity cards to be stated in future BN(O) passports as evidence of right of abode in Hong Kong; he has said that the Government would be discussing with the Chinese authorities the wording of the statement with a view to ensuring that BN(O) passport holders would not have to produce their identity cards for immigration clearance. That seems to me to be a very important point in regard to the holders. I understand that the objective will be to ensure that after 1997 a BN(O) passport holder will not need to produce an identity card in addition in order to establish right of abode in Hong Kong.
The noble Baroness was good enough to deal at length with the question of right of abode, but this is a slightly different matter upon which I am sure she will be able to enlighten us. If she says that this is a matter which will require further consultation with the Government of the Republic of China, I shall understand this perfectly well because I realise that a good deal more consultation needs to take place. Having said that, once again I should like to thank the noble Baroness for her helpful concession.
Lord Geddes: I am sure it will not surprise your Lordships that I have a great deal of sympathy with the general spirit lying behind the amendment of the noble Lord, Lord Avebury; but, with the greatest respect to him, I think it has been quite brilliantly trumped, if I may say so, by my noble friend on the Front Bench, with the gratifyingly welcome news of the extension to a further generation of British Overseas Citizenship. I thank her most sincerely for that. It is something that many of your Lordships and others have pressed for in past debates in the House. It is a significant step forward.
If I may say so also to the noble Lord, Lord Avebury, I am not at all sure that this particular amendment is in the right place. It seems to me to be an amendment that should rightly have been to the British Nationality Act itself. That is a very different subject on which many of your Lordships have held—and I am sure still hold—very strong views. This Bill seems to me to be the wrong place in which to put it. It has been mentioned that on racial grounds it might discriminate or would discriminate against ethnically Chinese. I raised the same point in the Hong Kong debate on 10th December, not on racial grounds but on purely moral grounds. It seemed to me to be quite indefensible to grant full British citizenship to an extreme minority and to exclude from that full British citizenship the majority of people with previously similar status. There never seemed to me to be any particular logic in that.
Others of your Lordships may disagree with my mathematics on the extension to the further
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generation of British Overseas Citizenship, but in round figures that seems to me to cover the period up to and slightly beyond 2050. There is some significance in the year 2050 because, even according to my simple arithmetic, it takes me 50 years beyond 1997. That surely is what the whole of this Bill is about. It is about 1997 and 50 years beyond that. It seems that the extension by my noble friend Lady Young of British overseas citizenship to a further generation has covered that point over the requisite period and, again, I thank my noble friend for it.
4 p.m.
My noble friend has mentioned, as, indeed, did the noble Lord, Lord Avebury, Article 7 of the Chinese nationality law. With respect, I think that Article 6 of that law also applies to an extent in that non-ethnic Chinese are permitted to apply for Chinese citizenship. I do not intend to detain the Committee any longer on this point. My views are well known from previous interjections in debates such as this. However, perhaps I should say that however unpalatable it may be, there must be trust on both sides. Nothing can be so totally buttoned up as to be absolutely safe. Life in itself is not safe. The Chinese have said—and certainly from my fairly extensive knowledge of the Chinese I would go along with it—that they will abide by the Anglo-Sino agreement, that they will abide by their own nationality law.
We are talking of a situation 65 years hence. I have my hopes, but who knows what kind of Government we shall have in this country then or may have had in the interim, let alone what kind of Government are in office in other parts of the world? I really cannot give my support to the amendment in the name of the noble Lord, Lord Avebury. I believe that it is misplaced and, if I may say so, I think that it is now redundant, thanks to the very welcome extension of British overseas citizenship which my noble friend on the Front Bench has mentioned.
The Lord Bishop of Norwich: Throughout the debate so far there has been the note as to whether a general matter of confidence is important. I should like to say a few words about that. I believe that much of the anxiety behind the noble Lord's amendment and much of the thinking behind the anxiety expressed by the Hong Kong Indian Association, which has also written to me, concerns confidence. Your Lordships may not have had the opportunity to read the major document entitled, The Arrangements for testing the Acceptability in Hong Kong of the Draft Agreement on the future of the Territory, but it is a very powerful document.
I believe that for the first time in this kind of political education there has been a tremendous attempt to discover what everyone concerned in Hong Kong really feels—the 5½ million members of that lovely part of the world, the 2½ million BDTCs, and, I should have thought, the 6,000 (but I bow to the figure of 4,000 put forward by the noble Lord, Lord Avebury) important Indian minority there.
I have been most impressed by the summary of conclusions on page 32 of the document. Lest your Lordships' Committee should think that somehow I have discovered this information in some mysterious way, I must own to the fact that only yesterday

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morning I left Hong Kong. Therefore, I have done my best to get accurate facts. They are probably not as accurate as those of the noble Lord, Lord Avebury, who telephoned Hong Kong this morning, but I have sought to get my facts as accurate as possible. Perhaps I may interject that famous names, such as that of the noble Lord, Lord Beaumont of Whitley, sitting next to the noble Lord, Lord Avebury, are still remembered with affection and trust throughout that glorious part of the world. Having arrived only this morning, I am still suffering slightly from jet lag.
If I speak for a little longer than normal, I ask noble Lords to forgive me. It is great to have come straight from Hong Kong to your Lordships' House. The attention that was given in Hong Kong to your Lordships' Second Reading debate on this Bill impressed me immensely. The debate went out live throughout the night, because Hong Kong is eight hours ahead of us, and the people listened to much of the debate on Hong Kong radio. They knew a great deal about what your Lordships said, which impressed me.
I return to acceptability, which I believe is the basis of confidence and the ground for confidence which makes this amendment either necessary or unnecessary. The report of the Assessment Office states that most of the people of Hong Kong found the draft agreement acceptable. The overall picture from the media was one of general acceptance, as was that of the principal representative bodies, which have unequivocally placed their support on record; and the overwhelming majority of organisations have also done so. Most individuals have said that they also find it acceptable.
The two matters that I wish to raise are, first, the question of nationality and, secondly, the anxiety as to whether the agreement will stick. I spoke to many people from all walks of life. I was in Hong Kong for a straightforward preaching conference, preaching every day, but I was able to see many people in between. One very sensible and senior Chinese in Hong Kong put the situation to me rather clearly. He said, "The confidence we have in Mr. Deng and the confidence we have in Prime Minister Thatcher are such that, so long as those two are running this show, this agreement will be all right". I thought that your Lordships' Committee would like to know that.
I now move from anything that approaches party politics to what I wish to say. I shall deal with the question of confidence. It was clear to me that the matter of the next generation worried the people in Hong Kong, and the noble Lord, Lord Avebury, was quite right in drawing attention to the children. One of those who sent in critical comments about the agreement said, "We do not care what happens to Hong Kong for our own sake. However, we worry for our children".
The major concession which the noble Baroness, Lady Young, has just announced will do a great deal to settle the anxieties among a very wide variety of people. At least everyone will be treated fairly and equally if this amendment is not agreed. However, I fear that if it is agreed, it will be divisive in Hong Kong, even though theoretically it may make us in this Chamber believe that we are caring for minorities,
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which is right. This House has always had a great sensitivity and tenderness towards minorities. However, the amendment seems to differentiate sharply between the smallest minority, the Indians, and the general minority of the 2½ million BDTCs.
Therefore, on balance, I believe that the major concession which the noble Baroness has announced today goes a long way towards quietening the anxieties that some people have. But I must underline that the general impression I received throughout the 10 to 12 days this month that I was in Hong Kong is that the agreement is sound; that it is the very best that could be produced; and that it has been received with much general acclaim. To go to the New Territories, to go to Sha-Tin, where 40 years ago, as a young chaplain at the surrender, I used to walk through the lanes and kick the stones away from the path, and to see this enormous new town, is to understand the confidence which the community has for the future of Hong Kong under the agreement which has now been discussed so fully.
Therefore, on balance, I think that this amendment should be resisted, but that words of encouragement and support to the people of Hong Kong should continue from this House because they are eager to know of our interest. I was rather naively asked the question: do you really care in the House of Lords? I replied that the number of noble Lords from all parties present during these debates shows that we care very deeply and that we want to support our friends in Hong Kong very fully. To quote most of your Lordships who have been to Hong Kong, we say again to them, "Kung Hei Fat Choi".
Lord Avebury: The attendance this afternoon does indeed, I hope, demonstrate to the people of Hong Kong the interest and concern which we feel about the welfare of all the people of that territory. I would think that they are going to be immensely encouraged by what they read in Hansard in the Minister's excellent speech.
With great respect to the noble Lord, Lord Geddes, this Committee is not engaged in a game of whist, or whatever it is he plays in his club, from which he gets the language that he employed in his remarks to the Committee. This is not an adversarial exercise, as the right reverend Prelate has just pointed out. We are trying to do the best we can for the people of Hong Kong all working together for what I should have thought was a common objective. We are getting fairly near it, as I judge from the remarks of the noble Baroness the Minister.
The noble Baroness made not one but two major concessions, for which we are all extremely grateful. There is the important question of the second generation, which has been alluded to by the right reverend Prelate. I am glad that he has emphasised the concern he discovered when he was talking to people in Hong Kong itself, and about which I have only heard on the telephone. However, I think it is well understood among your Lordships that there has been some nervousness, to put it at its lowest, which I hope the noble Baroness will have allayed.
The other point the noble Baroness raised which was of enormous importance was her saying that in the very unlikely event, as we all accept it is, that something goes wrong with the agreement, any future

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Government of this country would give sympathetic consideration to the situation of the few people we are discussing in this amendment this afternoon. I think that that was obviously as far as she could go.
I was not really expecting that the Government would accept the amendment as it stood, but I was hoping—and my hopes have been realised—that we would get some forthcoming response from the Government as a result of tabling the amendment. That was the object I had in mind, and that is the object which has been achieved. Although I must reserve the position until we hear what the Council of Hong Kong Indian Associations have to say when they have read Hansard, I believe that they will warmly welcome the assurances which the Government have given this afternoon. Therefore, I have pleasure in asking your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gridley Lord Gridley moved Amendment No. 2:
Page 2, line 43, at end insert—
("; and
(c) as to the public service of Hong Kong and persons being members or former members thereof (including provision for the discharge of obligations to, or otherwise compensating, such persons and for the apportionment of liabilities arising therefrom).").
The noble Lord said: In moving Amendment No. 2, prior to giving the motives which lie behind my objectives I should like to say something about the words in my amendment which I wish to be included in the Bill. I have used the words "public service", and my amendment states clearly "persons being members or former members thereof". "Public service" covers not only members of Her Majesty's Overseas Civil Service in Hong Kong but other officers who fall within that category.
The present situation on these issues in Hong Kong, as to who qualifies, is not dissimilar to the situation which was found by Her Majesty's Government when they granted independence to Kenya. In that case, in Statutory Instrument 1963 No. 1969, the Kenya (Compensation and Retiring Benefits) Order in Council, the schedule had the following qualification to make. "Entitled officer" was there defined as "an officer in the public service". It also includes, under Section (c), a member who,
"is a member of Her Majesty's Overseas Civil Service or Her Majesty's Overseas Judiciary, or a designated officer for the purposes of"
overseas service. I respectfully suggest, from what I have said, that when an Order in Council is made for Hong Kong covering compensation and retirement provisions it will probably follow, as and where appropriate, the provisions made formerly in relation to the Order in Council for Kenya.
4.15 p.m.
Having explained the use of the words "public service" in my amendment, I now wish to state my motives for moving it. In doing so there lies no criticism whatsoever on my part of Her Majesty's Government for what to date they have achieved in the Hong Kong agreement, and particularly in securing a joint declaration with the People's Republic
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of China. Nor do I not appreciate the courtesy and consideration shown me by my right honourable and noble friend the Minister of State in an acceptance at Second Reading of the points I made regarding the importance of stressing the safeguards for pensionable status and other obligations which lie at the door of Her Majesty's Government.
I must nevertheless emphasise that in no other case, so far as I know, where Her Majesty's Government have granted independence to her former territories have any Brithsh Government given 12 years' notice ahead of their intention so to do, and of course that is the case in Hong Kong. In that connection the situation does not appear to have been clearly stated as to the position of Her Majesty's overseas civil servants, or cognisance given-of the fact that they have to wait for 12 years in a career service for action in respect of their pensionable emoluments and status.
I accept and appreciate what my noble friend the Minister said at Second Reading, at column 507 of Hansard of 19th February, in her reply with reference to my desires regarding the safeguarding of the rights of public servants. But when my right honourable friend said that in respect of other territories these issues have generally been negotiated at the last moment before independence and signed after independence, I must emphasise that this is an anomalous position which has never applied hitherto and is now applying in Hong Kong, and in these circumstances Hong Kong is in a very special situation.
If my amendment is accepted it does nothing to fetter the hands of Her Majesty's Government in this Bill as to the manner in which it is drafted. It does not impose any time limit as to when Her Majesty's Government should act or exercise their obligations. The amendment seeks to include in the Bill what is obvious: that certain existing obligations and liabilities regarding pensions lie at the door of Her Majesty's Government. It seems to me appropriate that the words "discharge of obligations" are in the amendment which I have proposed.
In conclusion, I believe that this amendment would help Her Majesty's Government in retaining their public servants in Hong Kong—loyal servants of the Crown—in the most important work that lies before them in the 12 years ahead. There is valuable work to be done, and there are many difficulties which it will need the skill and devotion of experienced officers to overcome. I beg to move.
Lord Cledwyn of Penrhos: I was not surprised to read this amendment because the noble Lord, Lord Gridley has been a loyal advocate of this small group of public servants from the start. I was present at the debate on the agreement on 10th September when I recall that he spoke most strongly, and emphasised that there is a widespread anxiety among the expatriate staff in Hong Kong about the future of their pensions. I have also personally received representations about them since then.
In the Second Reading debate on 19th February the noble Lord made a further strong plea and asked for an assurance from the Government that Hong Kong expatriate officers would be treated on a par with other officers similarly recruited by the British Government.

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He called in aid a number of documents which he argued ought to place officers on the same footing as other officers recruited for overseas service. I took advantage of the Library to look at one or two of the documents to which he referred and it seemed to me that the noble Lord, Lord Gridley, has been making a reasonable case which deserves a careful response.
In the Second Reading debate on 19th February the noble Baroness replied that the agreement will ensure that serving officers in Hong Kong will continue on terms and conditions including pay and pensions as they will be on 30th June 1997. That was the reply she gave to the noble Lord, Lord Gridley, at that time. I thought it was a helpful reply, so far as it went. But perhaps the noble Baroness can clarify the position beyond doubt by answering this question. Will the Hong Kong expatriate officer be on the same footing as other officers recruited by Her Majesty's Government for service overseas? It may be that the previous reply of the noble Baroness conceded that point, but it would help me and other noble Lords if she will repeat it and if necessary elaborate it now so that it may be put beyond all doubt.
Baroness Young: I am sure we have all listened with great care to the amendment moved by my noble friend Lord Gridley. The purpose of this amendment seems to be to enable the Government to provide by Order in Council for matters relating to members and ex-members of the Hong Kong public service, particularly the payment of pensions and other benefits.
The first thing about this amendment is that it is not necessary for the purpose which I believe the noble Lord has in mind. The Government already have extensive powers to make provision for pensions and other benefits under the Overseas Pensions Act 1973. I hope that that answers the question that the noble Lord, Lord Cledwyn of Penrhos, has put. Moreover, in the extremely unlikely event that these powers were ever to prove insufficient in the case of Hong Kong, it would be possible to amend or add to them by means of an Order in Council under this paragraph as already drafted.
The Government remain fully alert to their responsibilities for seeing that adequate arrangements are made for the payment of pensions earned in the service of the Government. As I explained to my noble friend Lord Gridley when he raised this issue during the debate on the Second Reading, the Government consider that the agreement provides satisfactorily for the continuity of service by members of the public service in Hong Kong on terms and conditions, including pay and pensions, no less favourable than on 30th June 1997.
In the debate on 19th February my noble friend Lord Gridley made specific reference to the position of members of Her Majesty's Overseas Civil Service in Hong Kong, and asked that a binding agreement, such as a public officers' agreement, be provided for them between now and 1997. While the provisions of the agreement in relation to pay and pension apply to members of HMOCS in Hong Kong as much as they do to other civil servants, I take this opportunity to reiterate the response I gave my noble friend on that
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occasion; namely, that the Government recognise the particular concerns of HMOCS officers in Hong Kong, and will continue to keep their interests in mind in the 12 years leading up to 1997, including the question of a public officers' agreement. I do not rule out a public officers' agreement in due course: such an agreement may prove to be the best means of laying down the provisions to be applied to HMOCS in Hong Kong in respect of benefits payable after 1997. It is equally possible that in the unique circumstances of Hong Kong there may prove to be other ways of achieving these ends.
In due course there will need to be discussions with the Hong Kong Government on this subject. But I might sound one note of caution: if we wish to make arrangements which will be truly durable, and thus provide a real assurance for HMOCS in Hong Kong, we should not make them precipitately or without full consultation and discussion of the issues.
I hope I have said enough to indicate that the Government are firmly of the view that in current circumstances the pensions and benefits of the Hong Kong Civil Service, including members of HMOCS in Hong Kong, are not a subject upon which there is a need to legislate in the manner proposed in the amendment before the House.
I was grateful for the observations of the noble Lord, Lord Cledwyn. I think all parts of the House have in mind the needs of the Overseas Civil Service in Hong Kong and I hope that, with the assurances that I have given on the future provision of the public service in Hong Kong, my noble friend Lord Gridley will feel able to withdraw his amendment.
Lord Gridley: I greatly appreciate what my noble friend the Minister has said in response to my amendment. I will look at what she has said when I receive Hansard at a future date. I am a little upset as I feel that no notice has been given to a point I emphasised about the difference which exists regarding the granting of independence in Hong Kong. There is a difference between Hong Kong and everywhere else where Her Majesty's Government have given independence to territories for which they were responsible. As I emphasised, the case lies 12 years ahead from now and concerns the remaining officers in the service of Hong Kong, who may be 30 years old at this time. They may have anxieties. Goodness only knows, we do not want any of them to leave the service of that country and seek employment elsewhere. They are loyal officers and I believe they would be most distressed if that ever came into their consideration. Therefore, there is this point about waiting for something to be written into a legal document to give the assurance that my noble friend has given. I greatly appreciate what she has said. We will look carefully at her reply to my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule agreed to.
House resumed: Bill reported without amendment: Report received.

Schoolchildren: Ethnic Minorities
4.28 p.m.
The Earl of Swinton: My Lords, with the leave of the House, I shall now repeat a Statement on ethnic minority pupils which is now being made in another place by my right honourable friend the Secretary of State for Education and Science. The Statement is as follows:
"I wish to make a Statement about the final report, published today, of the Committee of Inquiry into the education of children from ethnic minority groups. Also published today is a guide to the main issues in the report written at my invitation by the chairman, Lord Swann, which I am arranging to be sent to all schools. Copies of both documents are available in the Vote Office.
"The Government are profoundly grateful to the chairman and members of the committee for their long and dedicated labours on an issue of crucial importance. We believe that we have a duty to the House, to the ethnic minorities, and to the nation as a whole, to declare immediately where we stand on this issue.
"The Government accept the committee's finding that many ethnic minority pupils are achieving below their potential and recognise the concern that is felt about this among their parents. We shall strive to improve the position through three broad lines of policy.
"First, under-achievement is not confined to the ethnic minorities. Many in the majority community could be doing far better, and I am determined that they, too, should be helped, wherever they are at school. As the House knows, our policies for schools are designed to raise the performance of all pupils and to tackle the obstacles to higher achievement which are common to all. These policies apply to all pupils irrespective of ethnic origin. As they bear fruit, ethnic minority pupils will share in the benefit.
"Secondly, we are determined to give ethnic minority pupils the same opportunity as all others to profit from what the schools can offer them. We are tackling the obstacles to opportunity, notably by promoting good practice in the teaching of English as a second language.
"Thirdly, we want the schools to preserve and transmit our national values in a way which accepts Britain's ethnic diversity and promotes tolerance and racial harmony. Whether or not a school contains ethnic minority pupils, its ethos and curriculum should promote understanding and respect among all its pupils for the different ethnic groups who now contribute to our national life.
"These three lines of policy are being supported by a number of measures. I have referred to the steps the Government are taking to raise pupil achievement generally. The need to take account of the ethnic diversity of our society has been written into the new criteria which will govern initial teacher training and the GCSE examinations, and will be incorporated in the objectives for the relevant subject areas of the school curriculum which we are formulating in co-operation with the education service. The same need lies at the heart of a group of
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projects, totalling some £1 million in 1985–86, which will be supported through the new education support grant scheme, and of some urban programme projects. I shall propose to the local authority associations that from 1986–87 onwards the in-service training grant scheme should include training dealing with the need to respond to ethnic diversity. Meanwhile, in English language and mother-tongue teaching the good practice endorsed by the committee will continue to be encouraged and disseminated by Her Majesty's Inspectorate and supported by grants made by my right honourable friend the Home Secretary under Section 11 of the Local Government Act 1966. These measures are essentially designed to change attitudes; they will not entail an increase in local authority expenditure as a whole.
"Policy for the good education of ethnic minority pupils needs information which is adequate to measure and secure progress. Some local authorities already collect information on pupils on an ethnic basis. As the committee's Interim Report recommended, I have been exploring with the education service and the ethnic minorities the collection of ethnically based statistics on school pupils. There are legitimate concerns and practical difficulties. I hope soon, however, that this work will come to a successful conclusion so that all local authorities can operate acceptable and mutually compatible schemes which respect confidentiality. The committee recommended that, without positive discrimination and without any reduction in the required level of qualification, an increase in the proportion of ethnic minority teachers should be sought. The Government accept this recommendation. I intend to consider with the education service and the ethnic minorities how it might best be pursued. I shall consult about the possibility of establishing acceptable arrangements for the collection of statistics on ethnic minority teachers and students in teacher training as the committee also recommends.
"We badly need more hard information about the effect on achievement of factors in and out of school. I intend to commission research which will look at these factors, and at the extent to which they contribute to under-achievement among pupils of all backgrounds; ethnic minority pupils would be one part of such a study.
"The report contains many detailed recommendations which I will consider in consultation with those concerned in the education service and outside it. I shall also consider what might be done in these matters in further education, which was outside the committee's remit. But to forestall unfounded fears or hopes the Government wish to make clear that they cannot accept four recommendations in the report. We do not intend to change the present statutory requirements for daily collective worship and for religious education in maintained schools. Nor do we wish in any way to call in question the present dual system of county and voluntary schools. It remains our policy not to extend mandatory student awards to any form of study which precedes higher education. And we see no immediate prospect of legislation to amend Section 11 of the 1966 Act.

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"These four matters are not at the heart of this issue. It is the policies and practical actions which I have outlined that offer the best prospect of mobilising the combined efforts of the education service to the vital, but difficult, task of reducing under-achievement at school and promoting good education in our multi-ethnic society".
My Lords, that concludes my right honourable friend's Statement.
4.34 p.m.
Baroness David: My Lords, I should like to thank the Minister for repeating that Statement. Of course, we welcome the report for which we have been waiting a long time, since it is four years since the Rampton interim report was published. We appreciate that it is not at all an easy task that the committee has had and I should like to congratulate them on the work they have done and on their stamina; and I think that we, too, are going to need some stamina to ready the report, which I understand is 840 pages long. I was pleased to read in the sixth paragraph of the Statement—and I quote:
"Whether or not a school contains ethnic minority pupils, its ethos and curriculum should promote understanding and respect among all its pupils for the different ethnic groups who now contribute to our national life".
A change of attitudes is all-important and it is important among the white pupils and the white teachers, too.
Education for all is what the report is asking for, I understand, and there is anxiety to get all pupils to their full potential; but it needs extra help and effort for the ethnic minority children to realise their full potential. Is the extra help, effort and finance going to be put into it? I am not clear from the Statement that there is this commitment. Does the Minister agree that the under-achievement of West Indian and Asian children is related to a number of factors, but particularly socio-economic factors, bad housing and unemployment being the main ones? These must be tackled if the Government are serious in facing up to the problem, and that again means providing enough resources. Is there a commitment to this?
I am glad to hear that initial teacher training will take account of the ethnic diversity of our society. This is overdue and, again, enough action has not been taken since the Rampton Committee recommended the same thing four years ago. In-service training is very important and that is mentioned in the seventh paragraph of the Statement where the education support grant scheme is referred to. But I question whether grants under that scheme will be adequate for the amount of in-service training necessary.
I am surprised that there is nothing in the Statement on pre-school education. This is vital for the ethnic minority children and particularly those whose first language is not English. Again, an increase was recommended by Rampton. The reference to Section 11 may be intended to cover this, but I ask the Minister what are the Government's intentions for the education of the under-fives of this group? It is satisfactory that there is to be monitoring and research. Will that cover school-leavers and the jobs they go into as well as success or the reverse at school?
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And will it also cover ESN schools where it has been suggested that a number of West Indian and Asian pupils, too, arrive when they really should not be there at all.
I am sorry that one recommendation is not to be followed, which is that mandatory awards should not be extended to any form of study which precedes higher education. The need to encourage this group of children to go into further education is all-important and they are not very likely to do it unless they have some financial help.
My final comment is this. I find the Statement bland. The need for further action does not seem to be felt. I believe that the situation calls for very special action. "As [our policies] bear fruit," the Statement says, "ethnic minorities will share in the benefit". If something much more positive is not to be the attitude of the Government, the pace of change and improvement will be very slow indeed, and that does not bode well for our multi-cultural society.
Lord Avebury: My Lords, is the Minister aware that we, too, are extremely grateful to the noble Lord, Lord Swann, and his committee for the hard work that they have put in over such a long time in producing this voluminous report, which obviously we shall have to study in detail before we make any conclusive remarks about it? Meanwhile, might I ask the noble Earl whether he would agree that the question of underachievement is an immensely complex one and requires a full-scale debate in itself, but that the committee were right when they pointed out that for schools to allow racist attitudes to persist unchecked constitutes a fundamental miseducation for their pupils, and that this must be dealt with as a matter of high priority by the education authorities in this country?
Is the noble Lord aware that we are rather disappointed by some of the specific comments he made? In particular (as is the noble Baroness) we are disappointed that the Government's policy continues to exclude extending mandatory student awards for any form of study which precedes higher education. Is this not contrary to the Government's policy of trying to encourage more ethnic minority teachers to be found? Would not the provision of mandatory awards for forms of study which precede higher education enable some ethnic minority pupils to undertake courses of study which would lead to qualification as teachers and thereby assist the Government in achieving the objective they have set themselves?
Am I not right in recalling that in fact the Government accepted the Rampton recommendation on the increase in the number of teachers from the ethnic minorities? Why is it only now that the Government are considering how that objective is to be achieved? What in fact have they been doing since Rampton to increase the number of ethnic minority teachers in our schools?
Finally, may I ask regarding daily collective worship and religious education why they have rejected the recommendations of the Swann Committee, without giving any explanation at all? Why have they not decided that, in the context of a multi-religious and a multi-ethnic society, some changes in the 1944 Education Act might be appropriate, after 41 years?
The Earl of Swinton: My Lords, I am grateful to the noble Baroness, Lady David, and to the noble Lord, Lord Avebury, for their reactions to this Statement. I am also delighted that they both paid tribute to the noble Lord, Lord Swann, and members of his committee, for the work which they have done on this report.
The noble Baroness, Lady David, asked a number of questions, as did the noble Lord, Lord Avebury, about the under-achievement. This is a very difficult question to answer, as I think the report states. Not all ethnic minority groups are in fact under-achieving. Some children from all ethnic groups are doing very well indeed and some are doing badly. The average performance varies from one ethnic group to another, but it is clear that many are falling below their potential. West Indian and Bangladeshi children, for example, tend to achieve at lower levels. Asian children, on the whole, on the other hand, are achieving at comparable levels to their white contemporaries in all subjects except English; but these are averages. As the report itself says on pages 59 and 60, some West Indian children do very well indeed and not all these are from middle-class homes. We shall obviously want to discover more about the reasons for these variations.
The noble Baroness, Lady David, asked a number of questions on matters which do not appear in the Statement but which are referred to in the report. I think I must respond to her in two ways. She said that we were not responding properly by dealing with this matter quickly, and appeared to be rather lackadaisical. I think it is some measure of the importance we place on this report that we are making a Statement at this stage. On the other hand, it is only three weeks since my right honourable friend actually received the report, and obviously there are many things which will require attention.
For instance, the noble Baroness mentioned the under-fives. My understanding is that the committee did not say a great deal in their final report on the education of that group of children. Nevertheless, the Government will be considering all the committee's recommendations in due course and this Statement is very much an initial response to the report, three weeks after it has been received. It is not the end of the matter. We shall be considering and consulting on many of the committee's findings and recommendations in the next few months. That goes for school-leavers as well and for the ESN schools.
The noble Lord, Lord Avebury, asked about the recommendation on mandatory awards and why we have not accepted this. It is a well-established principle that mandatory awards are paid to those on degree and degree-comparable courses. It would be wrong to breach this principle, with its considerable public expenditure implications, and to accord more favourable treatment to one particular group of students.
The noble Lord also asked me about the passage in the Statement which says that we are not prepared to change the law on religious assembly and education. I think there is a strong feeling in the country and among a great many parents that they are satisfied with the system and do not want change.
Lord Taylor of Blackburn: My Lords, may I say I am very pleased that this report has been published at last because I have been one of those who have been pressing for quite some time for it to be published. But, my word, when we get a report such as this, costing £24-odd, and ask the ethnic minorities to read it and participate in its findings, this is just crazy. I am very glad that there is also a brief report as well. I am sure that will be read, but as for the main one costing £24—it is impossible.
May I say that we really cannot comment here: the time when the Statement is made is not really the occasion for a debate. I hope that the noble Lord will at some time give us the opportunity of having a full debate on the report. May I say, from what I have read, and speaking entirely for myself, that I welcome most sincerely the Government's Statement about continuing the requirement for daily collective worship in schools. I think that is good; and long may it continue! Regardless of what the noble Lord, Lord Avebury, had to say earlier, I hope it continues for a long time. I also welcome the statement that we should continue with the dual system of education. Apart from that, I will say nothing at this stage and will leave it until we have the opportunity for a debate at a later time.
The Earl of Swinton: My Lords, I am grateful for what the noble Lord, Lord Taylor of Blackburn, said, particularly in relation to religious assembly and worship. A Statement like this, of course, is not the subject for a debate, and therefore I will not get into any arguments on the pros or cons. But on the question of whether £24 is too much money, it is jolly good value reading for £24, I think one would say. At least there is plenty to go at. Also, a report that has taken five years to produce is going to be a pretty massive document. I am grateful for the way in which the noble Lord welcomed Lord Swann's brief guide to the main issues. I am sure that everyone is grateful to Lord Swann for, in addition to having chaired the committee, having also done that.
The Lord Bishop of Norwich: My Lords, is the Minister aware that from these Benches I believe that his Statement, and particularly the four points of immediate rejection by the Secretary of State, will be received with great relief, because this is a living issue and not an issue which is designed to discourage or "uncare" for the ethnic minorities. The Church is deeply concerned. But, on a side wind, for the report, on pages 476–477, to suggest the abolition of the collective act of worship would be wrong and I believe that all of us on these Benches are most grateful for the immediate statement made by the Secretary of State and for the Statement now given by the noble Lord himself, who only a few weeks ago made that very robust answer concerning the collective act of worship, which also did a great deal to encourage churchmen throughout the country in their task of caring for people of all sorts who are under their care.
The Earl of Swinton: My Lords, I am most grateful to the right reverend Prelate for those words.
Lord Hunt: My Lords, I wish to make a single point about the act of worship in schools, and not having

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had a sight of the report, I rise with some diffidence. In defence of my noble friend Lord Avebury, I think that what he said in response to the Statement was not that it is his belief that this should be discontinued, but that there should be a modified form of service to take account of the great diversity of religions represented by the ethnic minorities and the majority community.
The Earl of Swinton: My Lords, I am grateful to the noble Lord, Lord Hunt, for saying that. Yes, of course, there is no reason whatsoever why the act of worship should not, in schools which have large ethnic minorities, take account of the fact that those children are there.
Baroness Lockwood: My Lords, I wonder whether the Minister feels that the three objectives to which he referred really do justice to this tremendous report from the noble Lord, Lord Swann, and his committee, to whom we are all very grateful. For instance, the first objective refers to the raising of standards in schools generally and, while all of us would endorse that, does the Minister agree that if we are to raise standards for the ethnic groups, this really implies positive action, because it means special action for the ethnic groups in such places as the inner cities of Bradford, Huddersfield and other places?
In the second objective the emphasis is on the promotion of good language practice and again, while one would endorse that objective, if we are to assist the ethnic groups to take full advantage of our education system, there are many other areas, such as the cultural backgrounds and the cultural inhibitions of some of the ethnic groups in the setting of the British culture, which, again, call for positive action. If one links this with the only reference in the Statement to funds—that is, £1 million from the education support grant in the year 1985–86—does the Minister agree that much more funding will be necessary if these problems are to be dealt with in an adequate way?
The Earl of Swinton: My Lords, I can only repeat what I said to the noble Baroness, Lady David. This is very much the Government's first reaction, and obviously all these questions will have to be looked at and decisions taken.
Baroness Seear: My Lords, while the weight of this report is rather formidable and the price is even more formidable, I should like to say how good it is to find the research material incorporated to such an extent in the report. Particularly on a subject of this kind, which arouses a great deal of discussion, to have inside the report the evidence on which the conclusions are based to the extent that it is here is very valuable indeed.
The Earl of Swinton: My Lords, I am most grateful to the noble Baroness, Lady Seear, and I am sure that the noble Lord, Lord Swann, will bask in pride at that.
Baroness Faithfull: My Lords, as a privileged member of the Swann Committee, perhaps I may very briefly pay tribute to the 22 members of the committee, 12 of whom were from the ethnic minorities and 12 from the indigenous population. All were British and all held posts of responsibility in this country. I should like to pay tribute to them for their magnanimity in the fact that over a long period we
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have found grounds for both disagreement and agreement, but we finally, after many years, produced a report with which, by and large, we all agreed. I should like your Lordships to pay tribute to the secretariat who had a very heavy job and did it very well. I should also like to pay tribute to the noble Lord, Lord Swann, our chairman. As is well known, and as has been stated before, he produced at the request of his right honourable friend the Secretary of State a brief guide to the main issues of the report.
I very much hope that in schools—and not only in schools, but also in the community at large—if people feel that they cannot read the whole report, they will at least read the heads of the chapters together with the recommendations which are at the end of each chapter. In that way people will get the flavour of the report together with the brief guide. I know that it is much to ask all schools and all teachers to read this volume, but it is quite easy for them to pick out the chapters which are very clearly marked and the recommendations at the end of the chapters. Finally, by their fruits ye shall know them. We look, after six years, to the Secretary of State to implement the recommendations of the report as soon as possible and practicable.
The Earl of Swinton: My Lords, it would be very churlish of me to point out that my noble friend has been totally out of order in making a statement on a Statement, rather than asking questions. However, I am sure that we shall forgive her after the five long years she has put in on this committee, and I am sure, too, that we wish to echo from all sides of the House congratulations to her, her colleagues and the noble Lord, Lord Swann, the chairman.
Lord Hatch of Lusby: My Lords, the noble Earl has said that he will be participating in the discussions within his department regarding this report, to which I would pay tribute just as he and Members on all sides have done. May I ask him whether he will take back to those discussions in his department one issue which I have raised before in this House? In associating myself fully with the congratulations that my noble friend Lady David paid to the section in which it is stated clearly that multi-cultural teaching will take place in schools where there are no ethnic minorities, may I ask him whether he will look again at the issue of Her Majesty's Inspectorate?
If I am not incorrect, until 1979 one of Her Majesty's inspectors was specially designed to look at and advise on international teaching. Again, I believe it is the case that after 1979 that practice was dropped. If this intention is to be followed through, would it not be at least a matter for discussion as to whether that practice should be renewed, as those of us who were associated with international teaching before this Government came into office know that the value of that inspector, with special responsibility for international teaching, was quite beyond praise.
The Earl of Swinton: My Lords, of course I shall draw the noble Lord's remarks to the attention of my right honourable friend. I at first thought he was going to suggest that there should perhaps be some multiethnic members of the inspectorate. I do not know whether or not there are any and I shall have to let the noble Lord know. But, of course, I take his point.

Administration of Justice Bill [H.L.]
4.58 p.m.
Report received.
Clause 1 [Disciplinary sanctions for inadequate professional services]:
Lord Coleraine Lord Coleraine moved Amendment No. 1:
Page 2, line 3, after ("provided") insert ("after 19th December 1984").
The noble Lord said: My Lords, it is some six weeks since I in effect moved this first amendment as part of a larger comprehensive amendment which I later withdrew. As it stands, Clause 1 of the Bill, which deals with the disciplining of solicitors for bad professional work, appears to me to be retrospective, and unfairly retrospective, in its operation. All that my amendment seeks to provide is that solicitors shall not be punished for work done before the publication of the Bill, at a time when there was no such disciplinary offence as bad professional work. But for two small points, there will be little more to say on my amendment than that. Unfortunately, I do not think that I can be quite as brief as I would wish.
When I spoke on the Second Reading of the Bill, I said that I had an interest to declare. Not only was I a solicitor, but some months previously I had been reported for the first time in my professional career to the Law Society, by a client who complained about some work which I had done. The complaint was being looked into by a member of the Law Society negligence panel.
My noble and learned friend clearly feared the worst for me. He took my words to heart, and two weeks later in reply to my amendment he told the Committee how his heart bled for me and stated that he said this quite frankly and sincerely. He thought that my judgment had been clouded a little by my personal experience. I should like to think that my noble and learned friend was wrong about that and, indeed, if I did not think so, irrespective of whether or not I declared an interest, I would not be standing here today moving this amendment. What in fact my noble and learned friend did not know at the time was that the Secretary to the Professional Purposes Department of the Law Society had already written to me to tell me that he thought from my client's prolonged silence that the complaint had been laid to rest.
The other, more substantial point to which I shall address myself this afternoon arises from the fact that in Committee the noble and learned Lord the Lord Chancellor indicated that he was not happy about what this amendment seeks to achieve. I think that my noble and learned friend felt that the disciplinary sanctions which the Bill provides only amount to new punishments for old offences. What my noble and learned friend said was that sanctions 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".—[Official Report, 31/1/85; col. 764.]
My noble and learned friend is clearly advised that Clause 1 does no more than provide additional remedies for bad professional work and that bad
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professional work is already a disciplinary offence. In my view this is not correct, except in the very limited case where bad professional work amounts also to professional misconduct. The trouble may be that the definition of "inadequate professional services" in Clause 1 is so widely drawn as to catch cases of gross professional negligence or misconduct at one end of the scale, and at the other end such small but possibly significant mistakes as sending a letter by second-class post which should have gone first-class.
My noble and learned friend is I think expecting the Council of the Law Society to use the clause to deal only with what are the latter and smaller cases of incompetence. In reply to an amendment moved by the noble and learned Lord, Lord Denning, my noble and learned friend said that there should be no rights of appeal against directions made by the Council of the Law Society under this clause. He said:
"I must emphasise that the purpose of this clause is to give the council a fairly summary remedy in relatively unimportant cases".—[Official Report, 31/1/85; col. 759.]
We have no compelling reason to accept that this is in fact how the clause will be put into effect. The consumer groups, for example, noble and learned Lords opposite who have put their names to the next amendment and, I think, the noble and learned Lord, Lord Denning, clearly hope and expect that the clause will be given a very much wider application. What is clear to me is that my noble and learned friend cannot say today how the clause will be put into effect. That is up to the Council of the Law Society. The Government may whip up support for this clause at the behest of the Council of the Law Society, but here they are acting only as the Law Society's poodle. My noble and learned friend may bark now but, later on, it will be the Law Society which will determine when and whom and what to bite.
To return to the argument of my noble and learned friend, I would submit that the Law Society has never had any powers over what my noble and learned friend refers to as "relatively unimportant cases". The powers of the Law Society have been exercisable only in the relatively rare cases where bad professional work amounted to professional misconduct. I can do no better here than refer the House to the words of the noble and learned Lord, Lord Denning, when, as Master of the Rolls, he was as he said, "father-in-law of all solicitors". Those words are to be found in the case of In re a Solicitor, 2 All England Reports 1972, at page 811. In that case, in response to argument that professional misconduct should be found only when a solicitor has been guilty of disgraceful or deplorable conduct such as to be condemned by the profession, the noble and learned Lord said:
"In my opinion negligence in a solicitor may amount to professional misconduct if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession".
That is what we understand the law to be today. Those words to my mind describe a far more serious measure of incompetence than is to be made out in the words of Clause 1. The words conjure up derelictions more grave than the relatively unimportant cases to which my noble and learned friend has referred. In my submission the clause introduces new offences and is unfairly retrospective. I beg to move.
Lord Denning: My Lords, I have much sympathy with the proposed amendment, but I would not go the whole way through it. This clause certainly deals not with relatively unimportant cases, but with cases of the first importance to the solicitor and to the client. Let me tell your Lordships of the kind of cases of which we had no end. They were to do with delay. We know that delay in winding up estates has caused a great deal of distress to many innocent beneficiaries. However, the delay of which I am speaking is the case, for instance, when an individual is injured in an accident or at his work. He goes to a solicitor to bring a claim, he gets legal aid, the solicitor starts a claim, but then delays it. We have had dozens and dozens of cases where there has been inexcusable delay and meanwhile witnesses may have died or valuable evidence may have disappeared owing to the delay of the solicitor.
The noble and learned Lord, Lord Diplock, in a great case said that it was a crying scandal that there should be this inexcusable and inordinate delay by solicitors. That is the kind of case which I envisage may come before the committee—not relatively unimportant but vitally important.
But here I say, let it be retrospective. If a solicitor has delayed for two years before this Bill is passed, surely he ought to be brought up for that as well as for the six months after it has been passed. As my noble friend said, in a way the answer is in point of law—the wrongdoing, the incompetence and the inefficiency is there all the time. This measure deals only with the remedy for it. Our law about restrospection allows such cases to deal with past events of that kind.
Let me say that, although I sympathise with it, I would be against the amendment as it stands, but I should like it to be made clear—I hope that the noble and learned Lord the Lord Chancellor will make it clear—that this is retrospective. It should not be left to lawyers to argue hereafter, but should be made clear on the face of the Bill that it is retrospective, if that is the intention. But I am afraid that I would not support the amendment as it stands.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, perhaps I may say, to begin with, that I never supposed for a moment that what I said on a previous occasion to my noble friend meant that I believed in any way that the complaint to which he referred was well founded. I have no idea whether it was well founded or not. My heart bled for him because I know from both professional and personal experience how very wounding it is to have even an unfounded complaint made against one. It was for that reason, and for that reason only, that I said that my heart bled for him.
I still think that he has misunderstood the nature of the clause to which he has proposed an amendment. I do so for this reason. As my noble and learned friend on the Cross-Benches said—although I am going to disagree with part of what he said—this does not set a new standard of conduct for solicitors. It emphasises the importance of performing the existing standard of conduct and it provides the client with a new remedy at the hands of the Law Society's Council. Therefore, there is no ground, in my judgment, for saying that in any objectionable sense the clause is retrospective in its effect. Of course, whereas the client might have had to
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go in for an expensive and risky taxation of costs in order to establish his point, or bring lengthy proceedings for negligence which, for a relatively small sum, might have established his point at enormous delay and cost to both parties, not only that of the client, it provides a relatively simple and speedy remedy for something which can only be enforced if the solicitor has done, by existing and pre-existing standards, something which is wrong. Therefore, I reject the theory that this is a retrospective clause. It is not a retrospective clause.
As regards the speech which we have heard from my noble and learned friend on the Cross-Benches, I think that he, too, has misread the clause. It is not for cases of the first importance. You need only see what the remedies are to realise that in those extraordinary cases where the solicitor has let a serious cause of action become time expired this could have no kind of application. Look at what you can do. You can limit the costs which he can charge; that is paragraph (a). You can direct the solicitor to rectify errors; not rectify the irremediable but rectify that which can be rectified. You can direct the solicitor to take remedial action at the expense of his firm. You can ask him to pay back part of the costs in excess of what his work was worth. You can ask him to remit part of the costs and waive his right to recover them. Those are the remedies provided by the new procedure.
With the greatest respect to my noble and learned friend, they are not designed to deal with the kind of case to which his professional reminiscences referred. He has misunderstood that. The clause is not retrospective. I cannot accept the amendment because it does not set a new standard for solicitors. It only gives a limited remedy for breaches of the standard which already exists. For those reasons I ask my noble friend Lord Coleraine not to press his amendment.
Lord Coleraine: My Lords, I thank my noble and learned friend for his kind words in explanation of what he said in Committee. Of course, I entirely accept what he now tells the House.
The noble and learned Lord, Lord Denning, said why he thought this clause should be retrospective. He quoted the case of a solicitor who might have delayed for two or three years running up to the time that this clause comes into operation. I agree that in normal circumstances it would be curious if the solicitor avoided the effect of the clause by saying, "It was all before it happened". I think that in such a case the solicitor would almost invariably have delayed for some considerable time after the publication of the Bill and I am quite certain that the Law Society would have taken account of what had gone before when finding that what happened afterwards was bad professional work.
The noble and learned Lord also said that the Bill should specifically say that the clause is retrospective. In fairness, I think I should say that, by my reading, paragraph 1 of Schedule 8 makes it quite clear that the Bill is retrospective in this sense and not necessarily in the sense put by my noble and learned friend. Having said that, and as from both ends of the House I have noble and learned Lords against me, for the time being, at any rate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 2:
Page 3, line 9, at end insert ("; in deciding this the Council shall take into consideration inter alia the costs and delays which may be introduced in civil proceedings.").
The noble and learned Lord said: My Lords, this amendment proposes to amend the statement of the powers given to the Council of the Law Society to impose sanctions for inadequate professional services and to remedy any faults which have occurred so far as is reasonable and practicable.
The noble and learned Lord the Lord Chancellor has just indicated the nature of some of the remedies that are provided. The House, however, may note that under subsection (3) of what is proposed in this new pattern of power,
"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—
(a) to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings".
It is feared that unless some indication is given that that should be very much a reserve remedy there may be a tendency not to use or apply the remedies that are provided for in the scheme to which I have referred. After all, to say that the client can avail himself of civil proceedings is all very well but it may be that those proceedings are costly and he is not in a position to undertake the expense himself, whatever possibility of legal aid there may be.
Additionally, of course, the taking of civil proceedings takes time and there would be a factor of delay when it may well be that remedying what is complained of is a matter of urgency. It was in view of those considerations that I suggested—indeed, the amendment repeats the suggestion—that the paragraphs I have quoted should read as follows:
"; it would be appropriate to exercise any of those powers the Council may have regard—
(a) to the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings"
but that there should be added the provision,
"in deciding this the Council shall take into consideration inter alia the costs and delays which may be introduced in civil proceedings".
We feel that an express requirement that those factors should be borne in mind will, at the very least, restrain too ready a reliance on the client himself trying to remedy the matter in civil proceedings. It would, therefore, perhaps make more effective and certainly clear the field for the council to use the intended remedies that are provided for on page 2 of the Bill and paragraphs (a), (b) and (c).
For that reason I move this amendment. It may well be that the language is not wholly acceptable to the careful and watchful eye of the noble and learned Lord the Lord Chancellor. Therefore, I am willing to accept any suggestion of improvement. However, the amendment sets out its purpose in, I hope, clear terms. I beg to move.
Lord Denning: My Lords, I would support the amendment. In this way the council will have considered the complaint of the client that the solicitor has been negligent, incompetent or inefficient, and
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then it has to decide what to do. There are these wide words in paragraph (c):
"direct the solicitor to take, at the expense of the solicitor or his firm, such other action in the interests of the client as they may specify".
Those words are very wide. The council may order, for instance, the solicitor to pay quite a substantial sum of compensation. Let us suppose that it orders the solicitor to pay a substantial sum of compensation to the client. Might that not be much better? All the proceedings will have been gone into—the incompetence, the inefficiency, and the like. That is much better than telling the client that he must go off to the courts and sue for negligence and the like.
Is it not better to have the council consider the cost and the delay that would be incurred by the client's going off to the court? Why not let the council itself take such action as is necessary in the interests of the client? I would support the amendment so as to enable the council to do that very thing.
Lord Campbell of Alloway: My Lords, I oppose the amendment. I may have misunderstood the position, but if the availability of an alternative remedy is to be taken into account, and that seems entirely reasonable, is it not right that costs and delays are an intrinsic part of all civil proceedings? That is a fact of life; it is inevitable. I do not quite understand what the amendment could conceivably add to the situation.
Lord Mishcon: My Lords, I wonder whether the noble and learned Lord, Lord Denning, will forgive me if I am wrong in the remarks that I am now going to make, but I make them having read the clause and having listened with my usual respect to what he said. As I understand it, this clause in no way gives the Law Society the power to award compensation. In no way can it award damages. I can well remember that this was discussed on an amendment which was previously before us and we decided, I think wisely, that it was not for this tribunal to award damages or compensation. That was a matter obviously for the civil courts.
All that the Law Society can do—and I shall certainly not detain the House by reading the subsections—in broad terms is to make the solicitor refund the whole or part of any amount paid by the client in costs. It can require him to remit the whole or a part of those costs, and it can make him waive part of those costs. But nowhere, as I understand it, does compensation come into this clause at all.
Having said that, perhaps I may now turn to the noble Lord, Lord Campbell of Alloway, who made the remark, which I suppose must generally be accepted, that civil proceedings, as a rule, cost a considerable sum, whether legally aided or not, and they impose delays. That is a generalisation with which none of us would quarrel. What the amendment of my noble and learned friend seeks to achieve is this.
The Law Society may have to look at a case of bad work, and it may say to itself: "What ought we to do which is just to the solicitor and just to the client? Ought we not to consider that this is rather a bad case and therefore a negligence action would succeed and ought to be brought? On the other hand, although in fact the negligence is there"—and I copy, if I may, from the earlier comments of the noble and learned Lord the Lord Chancellor on a previous

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amendment—"only a very small amount of damage appears to have been done. Really ought we not to say to this client in the interests of both parties that we think that we ought to use our powers under this clause because the costs would be out of all proportion to the amount involved? Secondly, we also must take into account that we can give rough and ready justice immediately by making the solicitor, for example, give up part of his costs, whereas this poor client, if he is to pursue this remedy in negligence, which we think is there, will be delayed in his rights because either this solicitor looks as though he is obstinate himself or he may have an obstinate insurer who may decide to contest the case, and that seems to be completely wrong".
All that the amendment is saying—and it is a guide to the Law Society tribunal when considering these matters—is that it should see whether there is a civil remedy which can and ought to be brought, but, nevertheless, when considering that it should take into account—and we, Parliament, have said that that is a consideration which it ought to have in mind—the delay and costs that may be incurred when looking at all the circumstances of the case and the client concerned. That is why, in my humble view, this amendment has very great merit.
Lord Rawlinson of Ewell: My Lords, I agree with my noble friend Lord Campbell of Alloway. It does not seem to me to be at all necessary to import this provision into the Bill. Surely those gentlemen who are to administer this tribunal have good enough wit and sense, in addition to their professional experience, to know exactly what civil proceedings will entail. The Bill sets out that:
"The Council shall not exercise any of their powers … unless they are satisfied that it would in all the circumstances be appropriate to do so",
and I should have thought that we should leave the council to do that. I would not agree to inserting into the Bill further verbiage which I believe to be quite unnecessary.
The Lord Chancellor: My Lords, I think that my task has been rendered easier by the various contributions that have been made. I would accept the general thesis presented by the noble Lord, Lord Mishcon, on what the clause will do. It is not, with respect to my noble and learned friend on the Cross-Benches, a substitute for an action for damages for negligence. Painting with a broad brush, it is a "shoddy-work" clause which has a very limited number of rather limited remedies. I think, with respect to my noble and learned friend, that he has repeated the error which I sought to expose in the first amendment.
I would fully agree with the noble and learned Lord, Lord Elwyn-Jones, and with the noble Lord, Lord Mishcon, that the two factors which are contained in the amendment—the costs and the delays which may be involved in civil proceedings—are matters which the council ought to take into account. I think that it will as a matter of common sense, because it seems to me to be a matter of common sense.
I apologise in advance to the noble and learned
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Lord, Lord Elwyn-Jones, for introducing another Latin tag which usually causes him to break into Welsh, but the sin of this amendment, if I may put it, has been exposed, I think, by my noble friend Lord Campbell and my noble and learned friend Lord Rawlinson. It is that of expressio unius exclusio alterius. If you put in two particular relevant considerations, you give them preference over all others.
I fully agree that these are relevant considerations, but the council in giving its judgment in matters of this kind will want to look at all the circumstances of the case so far as they are relevant—the circumstances of the client and the nature and the history of the case. It will have to look into the whole matter to see whether the remedies which are given to it are appropriate or whether some other proceeding by the client would be also appropriate. But of course it will take into account among other relevant matters the two factors that are suggested in the amendment. I do not want to say anything to the contrary of that.
My view for what it is worth coincides with that of my two noble friends below the Gangway. It is that this amendment is unnecessary from the point of view that it suggests the obvious, and is potentially dangerous because of its failure to suggest that the council must take all relevant factors into consideration.
5.30 p.m.
Lord Elwyn-Jones: My Lords, the noble and learned Lord, Lord Rawlinson, describes this amendment as being mere verbiage. If it were mere verbiage, it would be far more lengthy, if I may say so, judging from my experience of verbiage in this House. However, there it is; I reject that critical view of the amendment.
I am most grateful to the noble and learned Lord, Lord Denning, for his support in regard to this matter. It seems to me that at any rate no harm is done by what is proposed. On this occasion I pardon the noble and learned Lord for breaking into Latin because I have already done so in the terms of my amendment, in which, fearing nothing, I took the liberty of mentioning for the first time "inter alia". However, I mention it as a serious matter, as indicating that other relevant factors would have to be taken into consideration besides the particular elements of costs and delays, which really are causing deep concern in the whole of civil litigation, and are sometimes, if I may say so, overlooked by those of us who are lawyers. There is no harm whatsoever in pointing out that this is no easy, reliable and safe remedy. This is why I have put down the amendment. I am grateful for the support it has received.
I doubt whether this is a matter upon which I ought to seek the opinion of the House. However, perhaps the noble and learned Lord, who took a rather more sympathetic attitude towards it than his noble friends who spoke against the amendment, will look at it again. There may be a more felicitous way of putting the matter and maintaining the safeguard. In the expectation—but with no certainty—that that will be done, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denning Lord Denning moved Amendment No. 3:
Page 3, line 44, leave out from ("Tribunal") to end of line 45.
The noble Lord said: My Lords, at the earlier stage, supported by the recommendation of the Benson Committee, I suggested that there should be an appeal available to the client who was refused redress, or to the solicitor who had been ordered to do something or other. The Benson Committee recommended that there should be an appeal. It did not find favour with your Lordships. On the other hand, I now draw attention to the last words of subsection (7). There is not only no appeal but if a direction is made by the council, for instance, against a solicitor, ordering him to do this, that and the other, there is no appeal against it and
"no other proceedings whatever shall be brought in respect of it."
I may add that with regard to a later amendment, and in one or two hence, my noble and learned friend the Lord Chancellor treats these directions as so important that they can be enforced like orders of the High Court—I suppose by writ of execution or by a committal for disobedience. That is coming. The directions of the council will be so important that they will be enforced like orders of the High Court. Yet, is there to be no appeal? Furthermore, this clause reads:
"no other proceedings whatever shall be brought in respect of it."
Does this exclude the courts having a judicial review of those proceedings, if the client is dissatisfied or has not been heard, or there was some misinterpretation of the law such as the very interpretation of those words to which I have referred—such other action as they may specify. If there is some dispute as to the law, is not an action for a declaration available? Is not a judicial review available if this council go wrong?
Therefore, I suggest that those words, if left in, would seem to take away any power of judicial review, any action for a declaration or anything of that kind. I hope they can be excluded so as at least to retain those other remedies if the council go wrong.
Lord Renton: My Lords, I should like to support the noble and learned Lord, Lord Denning, on this amendment. I cannot think why the words that he proposes to leave out were ever included in the Bill. They give rise to certain questions. Incidentally, I am not sure whether the proceedings referred to and which shall not be brought are proceedings against only the solicitor himself or are against any other person in respect of whom the solicitor may have been acting and against whom the solicitor on behalf of the client complaining has failed to obtain a remedy. That is one doubt which arises in my mind on these words.
There is a further problem to which their presence gives rise. It is this. As the noble and learned Lord has pointed out, there is no appeal against the decision of the tribunal, and the decision of the tribunal can only relate to the matters referred to earlier in this clause, as to which the council are given power to give directions, and so on. I suggest that if no other proceedings are to be brought—indeed, are to be prohibited by statute—in these circumstances there may be occasions when, instead of complaining to the tribunal, and knowing that if they do so they will not be able to bring any other proceedings, people may refrain from complaining to the tribunal and will try to
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seek another remedy instead. Therefore I think these are matters which we should bear in mind before deciding whether or not these words should remain in the Bill.
Lord Rawlinson of Ewell: My Lords, as I understand the ban on proceedings which is contained in these words referred to—"in respect of it"—"it" is a failure to comply with direction. As I understand that, it means that there will be only one route to deal with a failure to comply, and this is within the framework of these disciplinary proceedings. Therefore it seems perfectly appropriate that these words should be there and the proceedings should be proceedings which are involved in the processes which are set out in the clause. Therefore I should think it would be right to retain these words.
Lord Campbell of Alloway: My Lords, very briefly, yes, I accept entirely the interpretation that the noble and learned Lord, Lord Rawlinson, has put on "it", related to direction. But, although accepting that it is not really appropriate that there should be appeal, ought one not, with respect, to add to the clause as it stands,
"other than by way of judicial review".
Otherwise one can get into the position of Anisminic and the hospital case (whose name I have forgotten) and the South-East Asia Firebricks case and the problem of what are proceedings, and so on and so forth. It is only in the interests of clarification, accepting the analysis of my noble and learned friend, that I wondered whether my noble and learned friend the Lord Chancellor might think it worthy of consideration.
Lord Mishcon: My Lords, it is a fact, and one, I suppose, that mystifies the lay community, that lawyers can get up and make extremely clear speeches with varying definitions of what the average British subject would describe as fairly clear English. This is, I think, such a case. This new section, as I understand it, was meant—it was its whole purpose—to supply a short, sharp remedy so that the layman, the client, could go with a complaint to the Law Society in regard to shoddy work (to use shorthand English) and the Law Society could then make a direction telling the solicitor to do something. That direction is mentioned in subsection (1)(b) and (c). If the solicitor then fails to do what the Law Society has decided that he ought to do in its short, sharp justice, that is a disciplinary matter that can be referred to the tribunal.
What the clause says is that it would ruin, presumably, the whole short, sharp nature of this matter, including the disciplinary remedy that the Law Society would have available, if there were any other proceedings that could be taken in respect of the matter in regard to which the direction had been given. Surely, that must be right. Are we really envisaging that someone could go to the court for a judicial review as to whether the council took into account, in deciding that the work was shoddy, that there were possibly two or three ways in which the work could have been done? We are there envisaging costly and lengthy procedures which, obviously, this very remedy was meant to avoid. In those circumstances, and with deep deference, I cannot see the purpose, and certainly not the advantage, of the amendment.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, may I ask him for clarification whether he would agree that the instance he gave of three or four ways, and so on and so forth, could never be made the subject-matter of an application for judical review? Does he agree that judicial review is related to the substance of the natural justice of the proceedings, and that it is perhaps important to clarify that at all events there is that avenue in the rare case of need?
Lord Mishcon: My Lords, I was asked that question before I sat down, and so I remain standing to answer it. As I understand it, the noble Lord, most unusually, has wrongly interpreted the section, the nature of the complaint and the direction that would be given. It would be open to argument, at all events, that where the council did not take into account (and I repeat, as they should have done) arguments that might have been advanced as to the nature of the work and how it should be done, the action of the solicitor, and so on, it would be possible to ask for leave to go to the court for a judicial review, I imagine. All that this says is that the short, sharp procedure shall be a short, sharp procedure; and that if the solicitor, the member of the Law Society, does not obey the direction—he has full power to make representations before the direction is given—it will be a matter that any person can report to the tribunal, and will be a disciplinary matter.
The Lord Chancellor: Again, my Lords, my task has been rendered rather easier by two contributions made to the debate. The fallacy behind the amendment lies in the fact that my noble and learned friend Lord Denning has completely misunderstood the subsection and has misconstrued it in law. My noble and learned friend Lord Rawlinson of Ewell and the noble Lord, Lord Mishcon, are perfectly right in what they have said about it. The procedure envisaged by the clause viewed as a whole and by the subsection in particular is a self-contained procedure. The council of the Law Society can tell the solicitor under subsection (1) what he must do. He must disallow part of his costs, pay back part of them or take some remedial action. He then either does it or he does not do it. He is supposed to do it. If he does not do it, then the client goes to the tribunal, not as a court of appeal but as an enforcement agency.
The tribunal looks at the circumstances in which there has been a failure by the solicitor to comply with the direction. It may be that he has fallen ill with 'flu; it may be that some other calamity has overtaken him so that it is not possible for him to do it. So the tribunal either enforces the council's direction or it does not. But that does not affect any other remedy at all. Not at all does it stop the client going for damages for negligence. No, it does not. It says nothing of the kind. It simply says that if, for any reason, having invoked the short, sharp remedy, the solicitor does not comply, the client has the right to go to the tribunal to treat it as a disciplinary offence. If my next amendment is passed, the tribunal's order can be enforced as if it was an order of the High Court.
The real truth is that the amendment has its genesis in a simple misconstruction of the plain words of the subsection. I could not put it any better than my noble
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friend Lord Rawlinson of Ewell unless I adopted the words of the noble Lord, Lord Mishcon. Both said it, and said it very well.
5.45 p.m.
Lord Denning: My Lords, I suppose that I am guilty of misconstructions and the like. But the word "it" at the very end of the section is ambiguous. It can refer either to the direction itself or to the failure to comply. The interpretation that my noble and learned friend puts on it is failure to comply. An equally valid interpretation would be in regard to the direction. I proposed the amendment to make the matter clear. However, in view of what my noble and learned friend has said, I shall accept that "it" refers only to failure to comply. If so, there is no harm done whatever. In this respect, judicial review and any other proper proceedings lie if the direction is wrongly given either in matters of natural justice or in interpretation. On that basis, I withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 3, line 45, at end insert—
("( ) On the hearing of a complaint under subsection (7) relating to a direction given by the Council the Tribunal may, if it thinks fit (whether or not it makes any order on the hearing under section 47(2)), direct that the Council's direction shall be treated, for the purpose of enforcement, as if it were contained in an order made by the High Court.").
The noble and learned Lord said: My Lords, this amendment has already been referred to, in our last discussion. It is not quite right to describe it as a drafting amendment. It aims to secure beyond doubt what is implicit in what has gone before. The new Section 44A(7) would make a solicitor's failure to comply with the direction given, pursuant to the exercise of the proposed jurisdiction by the Professional Purposes Committee of the Law Society, a matter in which a complaint may be made to the Solicitors Disciplinary Tribunal. The amendment gives the tribunal power when hearing such a complaint to direct that, like orders it makes itself under its existing powers, the committee's direction shall be enforceable as if it had been made by the High Court. This gives the client access to the whole apparatus of enforcement from garnishee orders to the sheriff's officers, and secures his remedy in an appropriately simple way, although it is much to be hoped that he would not often have to go to such lengths. This provides the new remedy with the necessary teeth, if they are not already there. I beg to move.
Lord Mishcon: My Lords, I ask only one respectful question of the noble and learned Lord. If this has the effect of being an order of the High Court, is it not then appealable?
The Lord Chancellor: My Lords, I suppose the answer is that the order of the High Court would be appealable to the same extent as, but to no greater extent than, any other order of the disciplinary tribunal, under its existing powers. All that it does is to make the procedure complete as regards the short, sharp remedy. It does not alter the value of the

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tribunal's powers, which already have the force of an order of the High Court. I think that is the only answer I can give on the spur of the moment.
Lord Coleraine: My Lords, I should like for a moment to pursue the question of whether these powers are not already in the Solicitors Act, and if not what follows from it.
Section 47(2) of the Solicitors Act provides that the Solicitors Disciplinary Tribunal shall have power to make such order as it may think fit. Section 48 goes on to provide that the order of the tribunal shall be filed, and Section 48(4) provides that an order which has been filed shall be treated for the purposes of enforcement as if it had been made by the High Court. It seems to me that upon hearing a complaint under the new Section 44A of the Act the tribunal would have power to order the solicitor to do what the Law Society had directed him to do. Then if he did not do it the High Court powers of enforcement would apply and the aggrieved client or the Law Society could issue a warrant and have the wretched solicitor committed to prison. If this were the case, it would make the amendment quite unnecessary.
If I might digress slightly, there is another reason why it could be desirable that existing powers should be found to be apt to cover this point—or if they are not, Section 47 should be amended so that they are. It might well be that the tribunal, having heard the solicitor, would say that the Law Society's direction ought really to be varied in some way. The Law Society might not have phrased it correctly or satisfactorily. It is easy enough to make an order that someone shall not do something; orders that something shall be done are rather more difficult and require rather more care. The direction of the council may not have been altogether reasonable. The tribunal could then amend the direction and make an order in the amended form, and it would then be enforceable.
Taking up a point made by the noble Lord, Lord Mishcon, under Section 49 of the Act a solicitor has a right of appeal against an order of the tribunal. Under this amendment if the tribunal made no order but merely directed that the council's direction should be enforced as an order of the High Court, then, as I see it, the solicitor would have no right of appeal. If I am wrong about this, my noble and learned friend will no doubt be able to inform the House and I shall be satisfied; but if I am right I think he might give further consideration to this point. In my view, it would be wrong to expose a solicitor to the possibility of imprisonment for an offence for which he has not had a trial of any sort, for which there was nothing like rules of court to see that he has the normal right to defend substantive allegations of bad work which natural justice demands; and it would be wrong to deny the solicitor this right to appeal from the Tribunal.
The Lord Chancellor: My Lords, I must point out that this is the Report stage of the Bill and it is very highly inconvenient to ask a Minister to speak twice when he can only do so once except by leave of the House. It may be that I was to blame in answering the noble Lord, Lord Mishcon, and not turning through
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90 degrees to see that my noble friend was trying to speak. Otherwise, I think it is important that we should keep to the Report stage points.
I do not think I can give a full answer to my noble friend now, but I think the answer is as I said to the noble Lord, Lord Mishcon: that the words of my amendment—which is all we are discussing at the moment—give the effect of the finding of the tribunal under the enforcement procedure provided by subsection (7) the same force as any other finding of the tribunal which is made an order of the High Court under the Solicitors Act; neither more nor less. There is of course Section 49, and so far as I know there is nothing in my amendment to take it away. However, I shall ask those who advise me to write to my noble friend because it is perfectly right that he should seek reassurance on this point, and I shall try to put those who have shown an interest in the matter, or perhaps the House itself, in possession of what I tell him.
On Question, amendment agreed to.
Lord Coleraine Lord Coleraine moved Amendment No. 5:
Page 3, line 45, at end insert—
("( ) 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.")
The noble Lord said: My Lords, I can speak very briefly to this amendment. I know that my noble and learned friend will say again that I have misunderstood the section. However, at the moment the way things stand is that if a complaint is made to the Law Society, the Law Society will adjudicate it and make a direction. If the solicitor does not obey the direction, he will be taken up before the disciplinary tribunal and the question before the disciplinary tribunal will be not whether he has committed shoddy work but whether he has obeyed the direction. It seems to me—especially in view of the last amendment which we have just passed—that as committal for contempt may follow for continued contumely by a solicitor, if I may put it that way, it now seems to me that if the solicitor is going to be brought before the tribunal, the tribunal ought to be satisfied not merely that he has disobeyed the Law Society but that the direction of the Law Society was in the first place reasonable. That is the substance of my amendment. I beg to move.
Lord Morris: My Lords, I find this amendment somewhat eccentric. It appears to me that what the amendment is asking the tribunal to do is to rule whether the determination of its ruling and direction which it issues is in all the circumstances reasonable. I should have thought that if the tribunal itself ruled on the direction it would indeed agree that it was reasonable in the first place.
Lord Denning: My Lords, in a way I would support this amendment because it is an indirect way of trying to give an appeal which Lord Benson's Committee recommended. It is really saying: you should not have this direction given by the council without any appeal; it has to be enforced by the tribunal. At all events, you ought to be able to consider whether or not it is reasonable. Therefore in a way I support the amendment because it is a way of getting round what

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I think is a bad prohibition (it is against Lord Benson's Committee) refusing an appeal either to the solicitor or to the client from the direction of the council. We can therefore get round that, and this is a way of doing it.
Lord Campbell of Alloway: My Lords, I oppose the amendment very briefly because if you do not have an appeal, and you do not intend to have an appeal, you ought not to try to get round it.
Lord Mishcon: My Lords, I do not think that I can usefully add anything except to repeat that this is not a power which is given to the Law Society to suspend a solicitor, to say that he has acted in a gravely serious manner. That is a matter for the disciplinary committee. It is purely a short, sharp remedy—where applicable—that he shall either pay back some costs, he should not charge some costs or he should put something right.
I thought we decided at another stage that to have two bites at the cherry is not the correct procedure here. One can well imagine that if these words were put in, any solicitor—and I speak with obvious respect to my colleagues and say, "There but for the grace of God might I go one day as a proud member of the Law Society"—could go before the tribunal not having obeyed the direction and possibly not have done so because he could go before the tribunal and then start the proceedings all over again by a debate as to whether the first decision was or was not reasonable. It means, in a few words, reopening the whole matter.
6 p.m.
The Lord Chancellor: My Lords, at the risk of my noble friend making again the suggestion that I was only a poodle for the Law Society—a suggestion which I rather welcome, because I like poodles; at the risk of facing that charge, which I believe in this case to be unjust—I must say to my noble friend almost what the noble Lord, Lord Mishcon, has said. It is not desired by this procedure before the tribunal that the tribunal should act as a court of appeal. The effect of his amendment is, in effect, to make it a court of appeal by ensuring that it should re-hear the case. That is not the intention.
My noble and learned friend Lord Denning this time got it right, but supported the amendment precisely on the grounds on which I asked the House to reject it. He originally thought it should be a court of appeal, but this is not the object of this procedure, which is a summary procedure dealing with relatively minor matters and in which obviously the tribunal, in making any order that it makes on the hearing of a complaint of non-compliance with the council, will want to hear all the circumstances in which the solicitor failed to comply with the direction of the council. It will try that with its customary justice, but it is not intended to re-hear the original complaint. I made that plain at a previous stage of the Bill, and the noble Lord, Lord Mishcon, has said it again now.
I think that if we took the contrary view it would be positive encouragement to a solicitor not to comply speedily, so that it would come close to giving him an appeal, which, as I explained in Committee, the society does not think is appropriate in these compara-
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tively small, straightforward cases for which the procedure is designed. There was little sign of support at the Committee stage for such an appeal, and I hope the House will stick to the view of the Committee. Perhaps my noble friend will not think it right to pursue the matter.
Lord Coleraine: My Lords, I think it is correct to say that we have been going over this ground for the whole of the afternoon and that there is no more to be said on this particular aspect of it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 4, line 10, leave out ("sections 47(2) and 48") and insert ("section 47(2)").
The noble and learned Lord said: My Lords, this amendment is purely drafting. It removes an unnecessary reference to Section 48 of the Solicitors Act from subsection (8) of the new Section 44A. Perhaps your Lordships will accept from me that this is purely drafting.
On Question, amendment agreed to.
Clause 5 [Preparation of conveyancing documents by unqualified persons]:
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 7:
Page 7, line 15, after ("person") insert (", who is his employer or fellow-employee.").
The noble Lord said: My Lords, on a previous occasion I moved this amendment, and the noble and learned Lord the Lord Chancellor was good enough to say that he saw the force of it and would be considering putting down an amendment at Report stage. He was not quite sure that my wording was right. In his great kindness, he has put down an amendment; it is the amendment which follows this one; namely, No. 7A.
If I may say so, I only have one query in regard to his wording; that is, the reference to "a partner of his employer". I should have thought that in every case I can think of employees of a firm would be employees of all the partners. I do not quite see why the provision for direction and supervision need include someone who is a partner of the employer but not actually in an employer-employee relationship with the person to be directed or supervised. Of course, the point of my amendment, and I believe, if I may say so, the point of the noble and learned Lord's amendment, is that this relationship is an essential part of the element of supervision and direction. That is the only comment I have to make, other than to express gratitude that he has brought forward this amendment as No. 7A.
[Amendment No. 7 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 7A:
Page 7, line 15, leave out ("it") and insert—

("(a) that other person was at the time his employer, a partner of his employer or a fellow employee; and

(b) the act").

The noble and learned Lord said: My Lords, I am grateful to the noble Lord, Lord Mishcon. He raised a valid point at Committee, and I promised to give it effect. This amendment, No. 7A, is the result. The original amendment of the noble Lord, Lord Mishcon,

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referred only to employer or fellow employee. I am advised that this might not provide for the situation where the person directing and supervising the unqualified person was not directly his employer but was a partner of his employer. The amendment accordingly differs slightly verbally from that of the noble Lord, Lord Mishcon. I note with interest and respect the point which he has raised. I would rather not reply to it at this stage. I shall take it into account and see what those advising me say about it, and write to him and anybody else who is interested. I beg to move.
Lord Mishcon: My Lords, I am much obliged.
Lord Morris: My Lords, I am not absolutely certain whether it is the same in the legal profession, but if I remember rightly—and this is going back about 100 years—articled clerks in an accountant's firm were not employed by the firm of accountants but were articled directly by contract to an individual partner in the firm. If that is the case within the legal profession as well, then, if I may say so with respect, the wording of the noble and learned Lord the Lord Chancellor is absolutely correct.
On Question, amendment agreed to.
Lord Morris 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 persons 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: My Lords, at the Committee stage my noble and learned friend the Lord Chancellor was good enough to suggest that he would like to have another look at this particular point. He referred to the fact that he agreed 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. This amendment refers to those clerks who by no means are unqualified, but, on the contrary, are perhaps only too well qualified. I re-tabled this amendment only in order to allow my noble and learned friend the Lord Chancellor the opportunity to tell the House the results of his reflections on this point. I beg to move.
The Lord Chancellor: My Lords, I am afraid that all I can tell my noble friend is that I undertook to consider further whether any amendment was necessary to deal with his point, and, if so, what form it should take. I say again at this stage that I do not disagree with the principle of the amendment, but I am afraid I must add that it is still under consideration. I am so sorry, but that is the best I can do at this stage.
Lord Morris: My Lords, I am most grateful to my noble and learned friend. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Provision of conveyancing services by licensed conveyancers]:
Lord Mishcon Lord Mishcon moved Amendment No. 8A:
Page 8, line 7, after ("to") insert ("domestic conveyancing services, that is to say").
The noble Lord said: My Lords, with the permission of the House, and I believe for its convenience, with this amendment may I speak to Amendments Nos. 9 and 9A.
Amendment No. 9: Page 8, line 10, leave out ("land") and insert ("a single dwelling house or part of a dwelling house and the gardens or yards (including garages or outhouses) enjoyed and occupied therewith;").
Amendment No. 9A: Page 8, line 18, at end insert—
("(3A) The Lord Chancellor may by order amend or further amend subsection (3) so as to extend the definition of conveyancing services to include any class of conveyancing services other than domestic conveyancing services if he is satisfied that such further rules have been made by the Council under this Part as may be required to ensure that licensed conveyancers seeking to provide any such class of conveyancing services comply with adequate standards for that purpose.
(3AA) Any order under subsection (3A) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").
Your Lordships may remember that at a previous stage of the Bill, and indeed on Second Reading, we were reminded that in another place the whole debate in regard to licensed conveyancers and solicitors and the monopoly was limited to the area of domestic conveyancing and nobody ever discussed the complications arising out of the conveyance of agricultural land, commercial leases, abstruse mortgages and settlements, and matters of that kind.
In addition, the Farrand Committee, upon whose recommendations this legislation is based, limited itself to a consideration of domestic conveyancing. When this matter was raised in Committee, with a view to limiting this to domestic conveyancing, the noble and learned Lord the Lord Chancellor—and I hope he will think that I justly and reasonably paraphrase his remarks—said that the objection to that was that in the future, if we did put such a limitation in primary legislation, the Council for Licensed Conveyancers would be debarred from extending the sphere beyond domestic conveyancing where the council was able to satisfy itself that, by examinations and otherwise, the tests could be made for the propriety of an extension of that boundary beyond domestic conveyancing.
That was a very reasonable statement for the noble and learned Lord to make. The only problem about it is that quite obviously, unless we as legislators set down the rules and the definitions, we are merely passing the buck, without accepting our responsibility, to those who will sit on this council to decide the areas where the extension should be made and the tests that should be put to those who are applying to extend the area beyond domestic conveyancing.
Therefore, although accepting the principle which the noble and learned Lord the Lord Chancellor laid down, this amendment, copying as it does almost word for word the definition of "domestic conveyancing" in the Farrand Committee report, goes on to say that the Lord Chancellor himself,
"may by order amend or further amend"
the relevant subsection,

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"so as to extend the definition of conveyancing services to include any class of conveyancing services other than domestic conveyancing services if he is satisfied"—
and that means that the Lord Chancellor must be satisfied—
"that such further rules have been made by the Council under this Part as may be required to ensure that licensed conveyancers seeking to provide any such class of conveyancing services comply with adequate standards for that purpose".
That is a responsibility of the noble and learned Lord the Lord Chancellor or any successor of his.
This amendment also provides that any order so made,
"shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament".
Your Lordships will well know that that is a very speedy procedure and I have recommended that procedure in my amendment, and not the positive procedure, in order that Parliament may speedily have its will in this connection.
I assure your Lordships that that is not a narrow desire by the Law Society to preserve what has been described as its monopoly in the realm of conveyancing. Representations have been made to me—and I am sure that your Lordships have also received similar communications—from those who are responsible for the ownership of agricultural land, general rural land and so on. They have said that, in regard to transactions where restrictive covenants, mineral rights and so on are involved, they look with the utmost disquiet upon suddenly encountering a licensed conveyancer who is not able to deal with the complex nature of these problems.
6.15 p.m.
It is not good enough to say that Parliament will give this discretion without any guidance, without overseeing it in any way at all, to a council, the names of whose members we do not know; and even when we know them, we will not know who they will be hereafter, respectable though I am sure they will be. By this amendment I hope that I have satisfied what the noble and learned Lord said last time was the limitation of the previous amendment which I put before the Committee. I beg to move.
Lord Simon of Glaisdale: My Lords, when the earlier version of this amendment was proposed in Committee I ventured to suggest that it drew the line in the wrong place, excluding matters from licensed conveyancers which ought to fall within their ambit and including matters that ought to fall outside their ambit. I gave some examples which I believe the noble Lord, Lord Mishcon, accepted as valid, because he withdrew his amendment in Committee and has represented it, taking account of those objections.
I hope that the noble Lord will allow me to say this. I mentioned to him afterwards that when I spoke I had omitted to deal with the instance of the shop with the dwellinghouse above. If I remember rightly, the noble Lord said—which did not surprise me—that that had been considered by the Law Society and that he thought it was all right. On thinking it over, I do not see why it is all right. It would be excluded by this amendment, and that small shop with the
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dwellinghouse above, which instance can be found all over the country, seems to me to involve a perfectly proper conveyancing job to be undertaken by a licensed conveyancer.
I have two other objections. First, I do not believe that this amendment is necessary. If it is not, it adds a great deal of verbiage, to use an expression which we have already heard this evening, to a complicated Bill; and unless it is necessary, in my respectful submission it ought to be left out. In particular, the word "land" is defined in the Interpretation Act in a way that very largely, but not entirely, for good reason, overlaps the interpretation in Amendment No. 9.
Finally, in my respectful submission, in the real world there is no need for this kind of demarcation. The owner of agricultural land with restrictive covenants and so on, such as the noble Lord mentioned, will go to his solicitor and not to a licensed conveyancer; so also will the owner of business premises, except the kind of minor business premises—a small shop—which I have mentioned. If that is so, then the real world will take care of this problem entirely, and therefore I would urge great hesitation on your Lordships in acceding to the plea for this amendment.
Lord Morris: My Lords, I would support the noble and learned Lord, Lord Simon of Glaisdale, in this regard. It is important to note in Amendment No. 9 that the word "land" is to be left out. It is substantially the point that the noble and learned Lord, Lord Simon of Glaisdale, made, that this could cause a tremendous number of problems.
I am certain that the noble Lord, Lord Mishcon, in no way meant to mislead the House when he suggested that he was following a recommendation in Farrand that the definition of a dwelling house in the Matrimonial Homes Act 1983 should be followed, because in his amendment in fact he is not. The definition in Section 10(1) of that Act reads:
"'Dwelling house' includes any building or part thereof which is occupied as a dwelling, and any yard, garden, garage or outhouse belonging to the dwelling house and occupied therewith".
The amendment of the noble Lord, Lord Mishcon, has slipped in two rather important words—"a single". In that respect it goes away from the Farrand Committee recommendation. I make that point only to ensure that noble Lords are aware of this particular point. I think that the inclusion of those two words could cause considerable problems to the fundamental purpose of this Bill.
Lord Foot: My Lords, I am not at all sure that I understand what the noble and learned Lord, Lord Simon of Glaisdale, is recommending that we should do. The noble Lord, Lord Mishcon, rightly started off, as I thought, by saying that the whole of the argument about licensed conveyancers, and so on, which has been taking place over the years when we had (I am afraid I have forgotten its name) the Austin Mitchell Bill in the other place—and then we had the Farrand Committee and also, of course, the whole of Benson—was on the basis that they were talking about domestic conveyances only. Is the noble and learned Lord, Lord Simon of Glaisdale, saying that he wants the words contained in Amendment No. 9 to be omitted altogether so that it would then be wholly at

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large and there would be no guidance given at all by Parliament as to what sort of conveyancing we are talking about? I do not not think that we are entitled to deal with the matter in that way.
There is obviously a difficulty in defining what is meant by "domestic conveyancing"; it is not an easy matter. The problem of defining a dwelling is one which, as I remember from my old days of wrestling with the rent Acts, has been the subject of considerable difficulties. But we were able to get over the difficulties in the Rent Acts. My recollection is that it is laid down clearly in the Rent Acts that it includes a shop with a dwelling place over. But it is not clear to me what the noble and learned Lord, Lord Simon of Glaisdale, is asking us to do, and it is not clear to me, either, whether or not he is addressing himself to Amendment No. 9A. It seems to me that Amendment No. 9A—and I can say this because I had not anything to do with the drafting—
Lord Simon of Glaisdale: My Lords, if the noble Lord will allow me to intervene, he having asked me a question, Amendment No. 9A is unnecessary unless the preceding amendments are made.
Lord Foot: My Lords, then I am still a little in the dark because I am not clear as to whether the noble and learned Lord is recommending that we should abandon Amendment No. 9. He nods his head. As I understand it, that would mean that we would go back to the beginning and we leave the definition of what we are talking about entirely open and at large, and give no guidance to anybody as to what we are talking about. I do not think that that is a satisfactory solution.
It appears to me—I was about to say this just now, and I say it because I had no part in drafting this amendment—that Amendment No. 9A is an extremely ingenious and satisfactory way of getting over the difficulty. It prevents the council from deciding this matter. It puts it in the hands of the Lord Chancellor to decide it in the light of experience and as time goes by, and that seems to me the sensible and practical way of dealing with this difficult matter.
The Lord Chancellor: My Lords, it gives me, to some extent, some moral satisfaction to announce that the poodle is now off his leash. The effect of these amendments, which were courteously and moderately proposed by the noble Lord, Lord Mishcon, is designed to restrict licensed conveyancers to undertaking domestic conveyancing work, but to give the Lord Chancellor power to relax the restrictions so as to enable licensed conveyancers to undertake other types of conveyancing where the council has made rules to ensure that they are competent to do so. The noble Lord, Lord Mishcon, as he reminded us, moved a less elaborate arrangement at Committee which was designed merely to restrict licensed conveyancers to domestic work with no provision for any relaxation of the restriction, and that amendment, as he told us, was withdrawn after discussion.
I do not think I could, not being a dab at conveyancing myself, enter into the rather recondite arguments which-have been taking place between the noble Lord, Lord Foot, and my noble and learned
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friend on the Cross-Benches. I had rather assumed that this group of three amendments either stood or fell together, and that is how, if I am allowed to, I can most easily deal with them.
I pointed out at the Committee discussion why no statutory restriction to domestic conveyancing was intended to be imposed by the Bill. It is intended to extend competition in the provision of conveyancing to a new group to be known as licensed conveyancers. Therefore, restrictions on competition must in principle be examined critically to ensure that they go no wider than is necessary for consumer protection. Prima facie, and at the outset, the amendment would put licensed conveyancers at a considerable disadvantage in competing with solicitors, upon whom no such restriction is imposed.
It is perfectly fair for the noble Lord, Lord Mishcon, to make the point that the Farrand Committee—and I quote only one sentence—acted upon the assumption that,
"Our recommendations are thus made on the basis that conveyancers will be restricted to undertaking domestic conveyancing work".
Therefore they did not consider whether a restriction to domestic conveyancing should be imposed; it was merely assumed that it would be.
The Government decided that there is no need—there is no need, I say—to impose a statutory restriction of that sort on licensed conveyancers. At Committee I said that Clause 12(3) of the Bill was intended to give the new council power to restrict all licensed conveyancers to domestic work if that was thought necessary. Having now been advised that that clause might not quite have that effect, I have accordingly tabled a Government amendment to put that matter beyond doubt.
6.30 p.m.
The council will have power to restrict licensed conveyancers to domestic conveyancing if it so decides. It will also have power under the Bill as drafted to permit some or all licensed conveyancers to undertake some commercial conveyancing, but as the amendments envisage, the council will obviously wish to make certain that its examinations for entry and practical training requirements are adequate to ensure their competence to do so. That will depend on what the council thinks is necessary. But there is no reason, so far as I can see, why the council should be prevented from following this course from the very beginning. I am advised that the Law Society's examinations do not contain any question or papers specifically related to commercial conveyancing as such, but that some knowledge of business tenancies and landlord and tenant law is nonetheless thought necessary. I am sure that the new council will wish to pay close attention to the approach taken by the Law Society in setting its own requirements.
I should perhaps say a word about the possibility of more than one class within the system—what I might call a tiered licensing system. If some licensed conveyancers wish to undertake domestic conveyancing only, it seems right that they should be able to choose that option. This might enable them, for example, to pay lower insurance premiums and to advertise themselves as domestic conveyancers. I see

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no harm in allowing some licensed conveyancers to express a preference for domestic conveyancing only in this way. The difficulties which the Farrand Committee foresaw related to registered and unregistered land or leasehold and freehold property, not to commercial and domestic conveyancing.
The Government consider this amendment to be an obstacle to greater competition and one which is not necessary to secure consumer protection. The power which is to he given and which was always intended to be given to the new council to restrict all conveyancers to domestic conveyancing remains and will be reinforced by my clarificatory amendment. On the other hand, if the council chooses to put in qualifications which are adequate to protect the consumer so as to widen the field of conveyancing which all or some of the licensed conveyancers may wish to undertake, that, too, is within the Bill.
I recognise the serious attempt which the noble Lord, Lord Mishcon, has made to deal with that possibility in that part of his group of amendments which gives the Lord Chancellor, whoever he may be at the time, power to extend the restriction which he seeks to impose on the council by a negative resolution order. I acknowledge that this is an attempt to deal with the problem, but I am bound to tell him that the Government stand behind the clauses as it is drafted in the Bill the object of which is, with due regard to consumer protection, to enlarge the field of potential competition.
Lord Mishcon: My Lords, I am obliged to the noble and learned Lord for the courteous way in which he has dealt with this amendment. But I am sure he will not mind my saying that it has left a difficulty for those of us who are concerned that Parliament should do its duty to see that this serious inroad is properly supervised and that it does so in legislation.
Surely there can be nothing wrong with a stipulation in this Bill which protects the public in this way: that the Council for Licensed Conveyancers can recommend that the area should be increased for those of its members who pass certain tests. Of course it is correct that it should be able to recommend that. But is it not right that Parliament or the Government—in this case the Lord Chancellor—should have merely a supervisory eye? That is all we are asking for. Where any extension of the kind mentioned takes place the Lord Chancellor makes sure that in his view—and there is nobody who can query it—the correct training and the correct professional rules of conduct are being imposed. Provided he is satisfied, it goes through under the negative procedure without any problem at all.
I know that it will not be regarded as exaggerated language if I say that I can only view this as a throwing off of proper responsibility. I regret that that should be the case so far as Parliament is concerned. In these circumstances and because I have in mind the proper protection of the public I must take the view of the House.
6.36 p.m.
On Question, Whether the said amendment (No. 8A) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 83.

DIVISION NO. 1

CONTENTS

Airedale, L.

Hutchinson of Lullington, L.

Amherst, E.

Irving of Dartford, L.

Attlee, E.

Jacques, L.

Aylestone, L.

Jenkins of Putney, L.

Beswick, L.

John-Mackie, L.

Briginshaw, L.

Llewelyn-Davies of Hastoe, B

Bruce of Donington, L.

Lloyd of Kilgerran, L.

Carmichael of Kelvingrove, L.

McGregor of Durris, L.

Cledwyn of Penrhos, L.

Meston, L.

Collison, L.

Milner of Leeds, L.

David, B. [Teller.]

Mishcon, L.

Dean of Beswick, L.

Nicol, B.

Denning, L.

Oram, L.

Diamond, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Falkland, V.

Foot, L.

Robson of Kiddington, B.

Gallacher, L.

Serota, B.

Graham of Edmonton, L.

Stewart of Fulham, L.

Harris of Greenwich, L.

Strabolgi L.

Hatch of Lusby, L.

Tordoff, L.

Hooson, L.

White, B.

Houghton of Sowerby, L.

Winterbottom, L.

Howie of Troon, L.

NOT-CONTENTS

Ailesbury, M.

Home of the Hirsel, L.

Alexander of Tunis, E.

Hornsby-Smith, B.

Auckland, L.

Hylton-Foster, B.

Avon, E.

Killearn, L.

Bauer, L.

Lane-Fox, B.

Belhaven and Stenton, L.

Lawrence, L.

Belstead, L.

Lindsey and Abingdon, E.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Bridgeman, V.

Macleod of Borve, B.

Broadbridge, L.

Mancroft, L.

Brougham and Vaux, L.

Marley, L.

Bruce-Gardyne, L.

Maude of Stratford-upon-Avon, L.

Caithness, E.

Cameron of Lochbroom, L.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Carnegy of Lour, B.

Molson, L.

Chelwood, L.

Morris L.

Colville of Culross, V.

Mottistone, L.

Colwyn, L.

Munster, E.

Constantine of Stanmore, L.

Napier and Ettrick, L.

Cork and Orrery, E.

Newall, L.

Cottesloe, L.

Polwarth, L.

Cox, B.

Portland, D.

Craigmyle, L.

Rankeillour, L.

Cullen of Ashbourne, L.

Rawlinson of Ewell, L.

Davidson, V.

Reay, L.

De La Warr, E.

Reigate, L.

Denham, L. [Teller.]

Renton, L.

Dilhorne, V.

St. Davids, V.

Dormer, L.

Sandford, L.

Ellenborough, L.

Sharples, B.

Elton, L.

Simon of Glaisdale, L.

Fraser of Kilmorack, L.

Skelmersdale, L.

Glanusk, L.

Stamp, L.

Glenarthur, L.

Sudeley, L.

Gray, L.

Swinfen, L.

Gray of Contin, L.

Swinton, E. [Teller.]

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vivian, L.

Halsbury, E.

Wilberforce, L.

Hardinge of Penshurst, L.

Young of Graffham, L.

Henley, L.

Zouche of Haryngworth, L.

Hives, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.44 p.m.
[Amendments Nos. 9 and 9A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 8, line 22, after ("conveyancer") insert ("in the course of the provision of any conveyancing services").
The noble and learned Lord said: My Lords, if I may, I will speak to Amendments Nos. 10 and 11 together.
Amendment No. 11: Page 8, line 22, leave out ("doing that act") and insert ("providing those services").
These amendments are designed to clarify the extent to which licensed conveyancers are exempt from the provisions of Section 22 of the Solicitors Act 1974. The noble Lord, Lord Mishcon, expressed some concern at the Committee stage that Clause 7 was unclear on this point. I undertook to consider the matter further. These amendments are the consequences of those considerations, and I therefore beg to move.
Lord Mishcon: My Lords, I am much obliged.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
[Printed above.]
On Question, amendment agreed to.
Clause 11 [Issue of licences by Council]:
Lord Mishcon Lord Mishcon moved Amendment No. 12:
Page 10, line 17, leave out ("section 17(1)") and insert ("subsections (1) and (2) of section 17").
The noble Lord said: My Lords, at the previous stage the noble and learned Lord the Lord Chancellor was good enough to say that he would look into a question I raised by means of an amendment which was worded in precisely this form; namely, as to why an applicant did not have to comply with subsection (2) as well as with subsection (1). I have not had the benefit of hearing from the noble and learned Lord, I am sure for very good reasons, but I have put down the amendment again in the hope that he will find it possible to agree to it. I beg to move.
The Lord Chancellor: My Lords, I entirely understand the noble Lord's concern that the council should ensure that adequate arrangements have been made to compensate clients who suffer loss through the dishonesty or fraud of licensed conveyancers before a licence is issued to any applicant. There is, therefore, no issue of principle at stake here. However, I do not think that an amendment is required to achieve the aim which noble Lords have in mind. In fact, Section 10(1) of the Solicitors Act, which relates to the issue of practising certificates, requires the applicant to comply only with indemnity rules, in much the same way as Clause 11 does in this Bill in respect of licensed conveyancers.
The provision in Schedule 2 to the 1974 Act merely provides that contribution shall be paid at that time. The council has adequate powers to do the same—to require a similar procedure under Clause 10 of this Bill. The fact that Clause 11 does not refer also to compensation rules reflects the difference between
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securing adequate insurance, which may have to be arranged in advance by individual licensed conveyancers and then checked by the council, and simply paying a contribution or levy to the compensation fund on the day when the licence has to be renewed.
Accordingly, it is necessary to give the council power to satisfy itself that adequate insurance arrangements have been made. The council can ensure that compensation fund contributions are paid merely by requiring licensed conveyancers to include the necessary sum of money with their application. There is thus no need for the amendment which would duplicate provision already present in the Bill and which would lead to a disparity between the statutory requirements imposed on solicitors and those imposed on licensed conveyancers.
Lord Mishcon: My Lords, I would hope that the noble and learned Lord would give me an opportunity of looking into this reply, which, of course, I have heard for the first time in regard to the point that I made. In the circumstances, may I have the permission of the House to withdraw the amendment?
Amendment, by leave, withdrawn.
Clause 12 [Conditional licences]:
The Lord Chancellor The Lord Chancellor moved amendment No. 12A:
Page 12, line 7, leave out ("issue a licence to the applicant") and insert (", on issuing a licence to the applicant under section 11, issue it").
The noble and learned Lord said: My Lords, this is purely drafting, designed to make clear that subsection (2) of Clause 12 confers on the council the power to impose conditions on a licence which has been issued under Clause 11. As at present drafted it might appear that the council has a separate power to issue licences under Clause 12(2). I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 12B:
Page 12 line 8, at end insert ("; and the Council's decision in any such case to impose any particular conditions under this subsection may he made by reference to such criteria of general application as may have been determined by the Council.").
The noble and learned Lord said: My Lords, the amendment gives the council the power to impose the same condition on all licences if it so wishes. When we were discussing earlier whether or not licensed conveyancers should be restricted by statute to undertake domestic conveyancing only, I said that while I saw no case for such a statutory restriction, I had tabled an amendment to ensure that the council had power to restrict all licensed conveyancers to domestic work if that was thought necessary.
This is the amendment to which I was referring. It provides the council with the power to impose a particular condition on all licences by having reference to criteria which it has determined should apply to licensed conveyancers generally. Without the amendment, the council might have been obliged to consider every application individually before deciding whether or not to impose a condition restricting a licensed conveyancer to domestic work only. If it did not do so, it could have been open to the

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challenge that it was not exercising its discretion properly.
The amendment therefore puts beyond doubt the council's power to impose a blanket restriction to domestic conveyancing on all licensed conveyancers should it think that is desirable or necessary. The amendment will enable the council to impose other conditions on all licensed conveyancers which it considers are both necessary and desirable in the interests of ensuring adequate consumer protection. For example, it might wish to require all licensed conveyancers to submit accountants' reports more frequently than once a year. As I said at the Committee stage, it was always intended that the council should have the power to impose such conditions as a restriction to domestic conveyancing on all licensed conveyancers. This amendment gives effect to that, and I beg to move.
On Question, amendment agreed to.
Clause 16 [Rules as to professional practice, conduct and discipline]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 13:
Page 14, line 30, leave out ("may") and insert ("shall").
The noble and learned Lord said: My Lords, may I speak also to Amendments Nos. 14 and 15 simultaneously?
Amendment No. 14: Page 14, line 31, leave out ("in relation to any matter").
Amendment No. 15: Page 14, line 33, leave out (", including rules") and insert—
("(2) Rules made by the Council under this section may provide").
These amendments require the council to make rules relating to the professional practice, conduct and discipline of licensed conveyancers. Clause 16 previously empowered the council to make such rules. The council is not, however, also required to make rules regulating the Association of Licensed Conveyancers with other persons. This has been left as a discretionary prohibition since the council may in any event choose to prohibit such association outright. The amendment deals with concerns voiced at Committee stage by the noble and learned Lord, Lord Elwyn-Jones, by the noble Lord, Lord Mishcon, and by my noble friend Lord Morris. I undertook to consider it then and I now bring forward amendments which will achieve the aim while not obliging the council to make rules regulating the Association of Licensed Conveyancers with other persons. The council might wish to prohibit such association, and making the whole of Clause 16 into an obligation would prevent this. I beg to move.
Lord Morris: My Lords, I just wanted to make the point to those who might think it is only marginally less impertinent to agree with the Lord Chancellor than it is to disagree with him. The reason why my name is coupled to his is simply that I tabled this amendment before he did. For the first time in my life, I was
accused of being both "girlish" and "coy" by the Clerks and I was advised that I should not take my name away from this amendment. That is the only reason why your Lordships see this rather strange coupling.
The Lord Chancellor: My Lords, I am glad to be associated with my noble friend. I do not find it strange at all. I am very glad to see his name there.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
[Printed above.]
The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
[Printed above.]
The noble and learned Lord said: My Lords, this amendment is also consequential. I beg to move.
On Question, amendment agreed to.
Clause 20 [Preliminary investigation of disciplinary cases]:
Lord Mishcon Lord Mishcon moved Amendment No. 16:
Page 18, line 18, at end insert—
(" (iv) has in any respect failed to observe the standard of professional conduct that could reasonably have been expected of him as a licenced conveyancer; or").
The noble Lord said: My Lords, with the permission of the House, I shall also be speaking to Amendment No. 18.
Amendment No. 18: Clause 22, page 19, line 40, at end insert—
("or
(d) has in any respect failed to observe the standard of professional conduct that could reasonably have been expected of him as a licensed conveyancer.").
Clause 20 of the Bill deals with the establishment by the council in regard to licensed conveyancers of an investigating committee, and that investigating committee is called upon to carry out a preliminary investigation of cases which are mentioned in the clause. I think it is highly desirable (and I mean this as a compliment to the new profession of licensed conveyancers) that there shall be built up around them a code of professional conduct which they will regard as sacred, as we do in the solicitors' profession. But I noticed, and therefore brought an amendment forward at Committee stage, that there was not in the investigation that was to be carried out by this Committee provision for a case of unprofessional conduct.
What I sought to do at the Committee stage was to take a definition of an offence against the consumer which I borrowed from the Consumer Credit Act. I was reprimanded, I think quite correctly, by being told that that was rather inappropriate and indeed was not a matter which seemed to affect the legal profession and therefore should not be passed on to the licensed conveyancer. So, upon second thoughts and in order to meet that criticism, your Lordships will see that there is now a matter which can be investigated by the investigating committee; namely, that the member has failed to observe the standard of professional conduct which could reasonably have been expected of him as a licensed conveyancer. I beg to move.
The Lord Chancellor: My Lords, as the noble Lord, Lord Mishcon has said, the amendments would, in a

285
different form, achieve a similar effect as two different amendments moved by the noble and learned Lord, Lord Elwyn-Jones, at Committee which were defeated on a Division. Their effect would be to add to the circumstances in which the investigating committee and the discipline and appeals committee can exercise their powers. The Bill currently provides that these committees may exercise their powers in cases concerning a licensed conveyancer who has been convicted of a criminal offence, failed to comply with any conditions attached to his licence and failed to comply with any rules made by the council. In addition, they can exercise their powers following a complaint from or on behalf of a member of the public about a licensed conveyancer. The amendment would give the committees specific power to act in cases concerning a licensed conveyancer whose general conduct is alleged, or proved, to fall below the professional standard which could reasonably have been expected of him.
The advice which I have received is that the amendments are unnecessary. Unprofessional conduct will be effectively covered by rules of conduct under Clause 16. Breach of these rules will thus be investigated and dealt with by the committees in the exercise of their powers relating to licensed conveyancers if they have failed to comply with the rules made by the council. That is our view. Our view is that the best way to deal with unprofessional conduct is surely through the rules of conduct which the council will now be required to make under Clause 16, and through the other rules relating to the manner in which accounts are to be kept.
7 p.m.
Since the code of conduct will be made in rules, breach of it will automatically attract the powers of the committees under Clauses 20 and 22. I would remind your Lordships, since the noble Lord reminded me on a previous amendment, that the Lord Chancellor's concurrence is, of course, required for these rules. That is the same approach as that taken by the Law Society. The power to discipline solicitors whose conduct does not meet the required standards arises from the unwritten code of conduct which binds solicitors, and not from express statutory provision. I suggest that this is a more satisfactory, and perhaps more even-handed, way of regulating unprofessional conduct, and I would therefore ask the noble Lord not to press this amendment.
Lord Mishcon: My Lords, that is a very generous invitation from the noble and learned Lord that I should not press this amendment. If I may say so, I regret the advice which the noble and learned Lord has confided in us that he had in regard to this matter, because I was hoping that this would not be an amendment that was opposed. It is one thing to have a series of rules brought in to guide a profession, and quite another to find that conduct has occurred which has not been provided for in those rules but which the profession itself would regard as not being in accordance with the standards that it would expect of its members. That is a rule that certainly applies to my profession and to others, and I had hoped that we
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could start off by giving the investigating committee the power to look into complaints where the standard of professional conduct, without necessarily coming strictly within the rules, did not comply with the standards which one would expect.
I do not think that this is a matter which I ought to press, and if the noble and learned Lord ever asks me to do something, then if I can possibly comply with his request, I do so. He has asked me to consider withdrawing the amendment—I do. But I know he will permit me to say that, if on the advice I receive I have to come back to it in some way hereafter, he will not think that I have misled the House in any way. My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, in moving that further consideration on Report be now adjourned, I think it would be useful if I were to tell the House that we will not reassemble for this Bill before eight o'clock.
I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Weights and Measures (Solid Fuel) (Carriage by Rail) (Amendment) Order 1985
7.3 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth rose to move, That the draft order laid before the House on 25th February be approved. [14th Report from the Joint Committee.]
The noble Lord said: My Lords, I beg to move that the draft order standing in my name on the Order Paper be approved. I do not think it will be necessary to detain your Lordships very long over this order. It forms part of an exercise to update certain penalty provisions in secondary weights and measures legislation. It would amend for the second time the original order of 1966 dealing with the carriage of solid fuel by rail. The first amending order in 1979 was necessary to reflect technological advances which enabled a whole train of permanently coupled wagons to be weighed while in motion. Where the whole consignment was to be delivered to a single customer, the document giving details of the load was no longer required to itemise information concerning each wagon as in the 1966 order, but could refer to the train as a unit. It was an offence for the seller to fail to hand the simplified document to the railway authority before the train departed. It carried the same penalties as failure to provide an itemised train bill.
The order before your Lordships' House this evening is mainly concerned with bringing up to date the maximum penalty which a court may impose, if the seller is convicted of failing to pass on the necessary documentation. The 1966 order prescribed a fine not exceeding £100 or, in the case of a second or subsequent offence, £250. Conviction could also lead to imprisonment for a term not exceeding three months.
Since then, fines for offences in primary legislation have been increased to take account of inflation, most recently in 1984; and the distinction between first and

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subsequent offences and the penalty of imprisonment for this type of offence was abolished by Section 18 of the 1979 Weights and Measures Act. Accordingly the present draft order will, if approved by your Lordships, increase the maximum fine for contravening the documentation requirements for coal trains to £2,000, and the offence will no longer be punishable by imprisonment.
Article 2 of the order before us this evening includes a small amendment which is also necessary to the wording of Article 2 of the 1966 order. As I have indicated, the 1979 amending order set aside the requirement in the 1966 order for the train bill to identify the individual wagons and allowed instead for whole trains of permanently coupled wagons to be documented as a single unit. The amendment to Article 2 is simply to make it clear that failure to comply with the simplified documentation provisions introduced in 1979 is no less an offence than failure to comply with the more detailed requirements in the original 1966 order. I am not aware that the present wording has caused any difficulties, but since the opportunity to clarify this point has arisen I should like to put the matter beyond doubt.
I think your Lordships will appreciate that this order is essentially a tidying-up of one or two loose ends. Although we have had consultations on these proposals, they have not elicited any adverse comment.
Finally, I am sure that your Lordships will wish to know that this order was considered by the Joint Committee on Statutory Instruments, but the committee did not draw the special attention of your Lordships' House to it. My Lords, with that explanation, I beg to move the draft order.
Moved, That the draft order laid before the House on 25th February be approved.—(Lord Lucas of Chilworth.)
Lord Bruce of Donington: My Lords, the House will be grateful to the noble Lord for having given an explanation of this very brief order. As the noble Lord has already assured the House, the matter has been considered by the Joint Committee on Statutory Instruments which reported this order under the heading of,
"Draft statutory instruments to which the Joint Committee do not draw the special attention of both Houses".
In those circumstances, it would be extremely ill-advised of me to make very heavy weather of it.
However, I think it is necessary and very appropriate that we in this House should pay some regard and, indeed, tribute to the members of the Joint Committee on Statutory Instruments for the vigilance that they extend over these matters, so that your Lordships' House and Members of another place do not have to consider them in very great detail.
As to the first part of the order which is under review, and which deals with amendments to the Weights and Measures (Solid Fuel) (Carriage by Rail) Order 1966, it proposes
"(a) at the end of Article 2 there shall be added the words:
'or, in the case of any such train as is mentioned in Article 1(ii)(d) above, Article 3A below' ".
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In the process of investigating this matter, I did indeed turn up the statutory instrument concerned, which is No. 955 of 1979. In Article 5 of that instrument I found the words:
"After Article 3 there shall be added the following article—'3A. In the case of any such train as mentioned in sub-paragraph (d) of Article 1(ii) above, the information included in a train bill shall be the following'."
From that it is quite clear that the amendment now proposed, to add a provision at the end of Article 2, ought in fact to have been incorporated in Statutory Instrument 1979/955. As the noble Lord said, all it does is to clear up the matter: but I think he will agree—and for the sake of the record perhaps he ought to agree—that this item ought to have been added to Article 2 of the 1966 order under the instrument of 1979. I do not cavil at that unduly, but knowing how the Civil Service works, and particularly having seen "Yes, Minister" and having thoroughly enjoyed it, whenever I see the words "to make it clear". I know perfectly well that this is "Civil Service" for rectifying what was probably a previous omission. I do not make much of the point, but we in this House have a justified reputation for being meticulous in these matters and perhaps therefore it ought to go on the record.
So far as the second part of the order is concerned, your Lordships will observe that Article 2(b) states:
"in Article 5 for the words 'one hundred pounds' onwards there shall be substituted '£2,000'.
I now turn to Article 5 of the statutory instrument. I must say that if one interprets the word "onwards" in terms of the end of Article 5, one does, as the noble Lord has already indicated, eliminate the words,
"in the case of a second or any subsequent offence £250 or to imprisonment for a term not exceeding three months or to both".
Those words are now eliminated. The term "onwards" appears to be rather indefinite. I assume it means "onwards" towards the end of the article. But I am curious to know why an offence, which at one time attracted a fine of £ 100, or on any subsequent occasion £250, or imprisonment for a term not exceeding three months, is now suddenly amalgamated together for an overall fine not exceeding £2,000.
I do not know the reason for that. I was not in Parliament at the time and I do not know what inspired the authors of this order, whom I have every reason to believe were members of my own party, as there was in power a Government of my own party, to incorporate the threat of a term of imprisonment not exceeding three months. Nor do I know what internal memoranda within the Department of Trade and Industry have suddenly eliminated this dire threat of imprisonment. Is it to do with the size of the prison population, or what? Why is an offence which in 1966 apparently led to imprisonment now suddenly being "absolved" with an overall fine of £2,000?
I am a very humane person and I do not like to send anyone to prison for any reason whatsoever, save for the most despicable of crimes. Why the change of mind? I ask the question because, like many others of your Lordships, I like to know which way the Civil Service mind works. How did it accomplish this transition from a fine of £100, or £250 in the event of a subsequent offence, and imprisonment of three months, to an overall fine of £2,000 to cover the whole

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issue? Is the offence now less serious; or are the personnel different; or is the social climate different? What has inspired the change?
I am quite sure that the noble Lord will be able to supply very satisfactory answers. From this side of the House I see no reason why we should object to the order in any way, and we should certainly be with Her Majesty's Government in this respect in enforcing the particular regulation. But curiosity very often elicits useful information, and in recording our entire support for the order before the House, we sincerely hope that the noble Lord will be able to throw a little light on the way in which the mind of the Department of Trade and Industry works in matters of this kind.
Lord Lucas of Chilworth: My Lords, I am most grateful to the noble Lord, Lord Bruce of Donington, for his welcome of the order which I have moved this evening. I am grateful to the noble Lord—I am nearly always grateful to him—particularly on two counts. Perhaps I may endorse his remarks with regard to the work that the Committee on Statutory Instruments performs. Indeed, it saves us all a great deal of time and looks into some of the intricacies with which perhaps we are not quite so familiar. I am also grateful to the noble Lord for his acceptance of the provisions that have been added by virtue of the order.
With regard to the interpretation of "onwards", I would suggest that the noble Lord's remarks adequately represent a true and faithful interpretation which I can only endorse as being totally correct. I am grateful also to him for that. The noble Lord asked me specifically about the change in the penalty in that imprisonment was removed. He asked me two questions. The first was whether I could shed light upon how the Civil Service mind works. I have left out the words "in matters of this kind", which the noble Lord added to that, because I have to admit in relation to this matter or to any other concerned with the first part of his question that I do not know.
He then went on to ask whether I could shed light in the same regard on why the Department of Trade and Industry had removed the imprisonment penalty. It was in fact eliminated to bring the order into line with the amendment made to the 1963 Act by virtue of the 1979 Act, in line with Home Office policy to remove such penalties from this type of offence. So the Department of Trade and Industry, which I have the privilege to represent this evening, has fallen in line with the Home Office. I hope that that answers the questions of the noble Lord, Lord Bruce of Donington.
On Question, Motion agreed to.
[The Sitting was suspended from 7.19 until 8 p.m.]

Administration of Justice Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 21 [The Discipline and Appeals Committee]:
Lord Mishcon Lord Mishcon moved Amendment No. 17:
Page 19, line 17, at end insert—
("and
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(c) allegations or complaints made by any person about a licensed conveyancer where the Investigating Committee have refused or neglected to refer such allegations or complaints to the Discipline and Appeals Committee under section 20.").
The noble Lord said: My Lords, Clause 21 provides that the council—and we are dealing with the Council for Licensed Conveyancers—
"shall establish a committee, to be known as the Discipline and Appeals Committee, for the hearing and determination of—

(a) cases referred to them by the Investigating Committee under section 20; and

(b) applications and appeals made or brought under sections 23 to 25".

At Committee stage I moved an amendment which was based on my submission to the Committee that it was wrong that members of the public should not have the direct right of complaint in order to see that a disciplinary committee considered it where the investigating committee had decided not to refer it to the appeals committee. The analogy, of course, is with my own profession, where the layman has a complete right to see that a complaint made about the conduct of a solicitor is investigated by the appropriate committee.
On that occasion we were met by two arguments, and I shall now deal with them. The noble and learned Lord very courteously agreed to look at the matter again, but it is only fair to say that he did not accompany his words with any degree of optimism with which he wished me to go away. The arguments were two-fold. The first was that so far as solicitors are concerned there is some sort of analogy but there is not (and this was admitted) the exclusive right to pursue complaints to the adjudicating body with the shutting out of lay complainants from the process altogether. I could not see how that exclusive right could ever be held to be proper, having regard to the analogy which was made, as I say, with the solicitors' profession.
The other argument used was that there were lay members of this investigating committee who would be able, as it were, to see the layman's point of view and would thus be enabled to see that justice was done in regard to any complaint made when there was a question of referring it further. I have no doubt that lay members and, indeed, official members of any such committee would endeavour to do justice; but again I must point out that the same situation exists with my own profession. The effect of Part I of the Bill is that there will be substantial lay membership of the Professional Purposes Committee of the Law Society Council, but still the layman is able to make a direct complaint if the investigating committee decides not to proffer one itself as a result of a preliminary investigation.
It must be wrong that an investigatory committee should at the same time be an adjudicating committee. In my view, when we are starting with a new calling—that of the licensed conveyancer, which all of us wish well, but we do not know how this new profession will turn out—it is absolutely right that exactly the same type of procedure for the registration of complaints, for the making of complaints and for ensuring that complaints are at least heard should be available in regard to the public and the new profession. I beg to move.
The Lord Chancellor: My Lords, the noble Lord, Lord Mishcon, in moving his amendment, very fairly said that it was moved in Committee, and that although I promised to look at the matter again I did not open the door to hope very wide. The amendment which we are discussing would empower the Discipline and Appeals Committee, in the new structure, to hear and determine any allegations or complaints against licensed conveyancers which the investigating committee had turned down and declined to refer to it.
Since then I have examined other legislation; in particular, the Insurance Brokers (Registration Act) 1977, the Dentists Act 1957 as amended, and the Medical Act 1983. All these provide for a two-tier system of investigatory and disciplinary committees. None provides for an automatic right of access to the disciplinary committee, as envisaged by the amendment. Such a provision would not be welcome. It would remove the major purpose of the investigating committee; namely, to carry out preliminary investigations of cases to determine whether or not the matter ought to be referred to the Discipline and Appeals Committee for a hearing. It is not intended that the investigating committee should exercise any real judicial function except where the allegation or complaint is manifestly unfounded, or where it is clear that the allegation or complaint, even if substantiated, would not constitute a disciplinary offence. Apart from those two cases, it is envisaged that the investigating committee will refer every case.
Therefore, the fear which lies behind the amendment
that members of the public might have genuine complaints blocked by the investigating committee is. I should have thought, unjustified. As I have said, the double committee system is not novel, and similar arrangements can be found in other legislation covering insurance brokers, dentists and medical staff. None of those statutes provides access to a second committee in cases where the investigating committee is satisfied that there is no case to answer or no disciplinary offence has been committed, even if the allegation were substantiated. Indeed, even the Solicitors' Disciplinary Tribunal is empowered to dismiss a complaint without requiring a solicitor to answer the allegations where it is satisfied that no prima facie case is shown.
Thus it is thought that an amendment of this character would introduce an unnecessary procedure. It is not anticipated that the Investigating Committee will act as an adjudicating body such as the Professional Purposes Committee may be. The Investigating Committee is a sieve. Only in cases where the facts alleged are manifestly unfounded or do not amount to a disciplinary offence if proved will the Investigating Committee decline to refer a case. In all other circumstances, where there appears to be a need for a full hearing, the committee, having collected the facts together into a coherent form, will refer the case to the Discipline and Appeals Committee.
The Professional Purposes Committee of the Law Society has not, as I think the noble Lord said, hitherto included lay persons. The situation is now being remedied, as the House will recall, by Part I of this Bill. But the Investigating Committee will from the outset contain a significantly greater element of lay representation. It will thus be far less vulnerable to any charge
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that it is acting to protect the profession rather than the consumer. I hope that, on the assurances that I have given, the noble Lord, Lord Mishcon, will not press his amendment, although I well understand the reasons which have led him to propose it a second time.
Lord Mishcon: My Lords, I am afraid that from my point of view—and I have listened with great care to the courteous reply of the noble and learned Lord—a matter of very distinct principle is involved. We are setting up a new service. It is absolutely vital for the public to know that, if they have reason to complain about the behaviour of a member of this new service, they do not have to take the decision of an investigating committee as final but in regard to any refusal or neglect, if they so wish, they are entitled to refer their complaint to the disciplinary committee directly and say, "Please, we think that it is an offence that you should look at". Of course, it could find that there is no prima facie case and say so, and that would be the answer to it.
Is there any reason why there should be a differentiation in regard to precisely the same sort of work that is done by solicitors—and I am talking about conveyancing—in regard to any complaint or disciplinary procedure of this kind? It cannot be right, in my submission, to make that difference. Furthermore, it seems odd not to be able to quote a parallel with a profession which is doing precisely the same work but to quote a parallel with insurance brokers, doctors and medical staff. I cannot follow the niceties of the argument in the way in which the noble and learned Lord, with such capability, presents it. In those circumstances, I have no alternative but to ask that the opinion of the House be taken.
8.13 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 43.

DIVISION NO. 2

CONTENTS

Airedale, L.

Irving of Dartford, L.

Aylestone, L.

John-Mackie, L.

Cledwyn of Penrhos, L.

Llewelyn-Davies of Hastoe, B.

David, B.

Lloyd of Kilgerran, L.

Dean of Beswick, L.

Mishcon, L.

Diamond, L.

Nicol, B. [Teller.]

Elwyn-Jones, L.

Oram, L.

Falkender, B.

Pitt of Hampstead, L.

Foot, L.

Robson of Kiddington, B.

Gallacher, L.

Selkirk, E.

Graham of Edmonton, L. [Teller.]

Serota, B.

Simon of Glaisdale, L.

Gregson, L.

Stewart of Fulham, L.

Hall, V.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Strauss, L.

Hutchinson of Lullington, L.

White, B.

NOT-CONTENTS

Abercorn, D.

Caithness, E.

Avon, E.

Cameron of Lochbroom, L.

Beloff, L.

Campbell of Alloway, L.

Belstead, L.

Carnegy of Lour, B.

Brabazon of Tara, L.

Chelwood, L.

Brougham and Vaux, L.

Cork and Orrery, E.

Bruce-Gardyne, L.

Cox, B.

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Craigmyle, L.

Lucas of Chilworth, L.

De La Warr, E.

Marley, L.

Denham, L. [Teller.]

Morris, L.

Denning, L.

Munster, E.

Dormer, L.

Polwarth, L.

Ferrers, E.

Rankeillour, L.

Fraser of Kilmorack, L.

Rawlinson of Ewell, L.

Glenarthur, L.

Reay, L.

Gray of Contin, L.

Renton, L.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Swinton, E. [Teller.]

Henley, L.

Teynham, L.

Home of the Hirsel, L.

Trumpington, B.

Hornsby-Smith, B.

Westbury, L.

Lane-Fox, B.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.21 p.m.
[Amendment No. 18 not moved.]
Clause 28 [Provision of conveyancing services by recognised bodies]:
Lord Morris Lord Morris moved Amendment No. 19:
Page 23, line 38, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, the amendment standing in my name, namely Amendment No. 19, provides to substitute the word "may" with the word "shall". I have tabled this amendment for the very simple reason that I am certain that the provisions of Clause 28, which enable licensed conveyancers to incorporate themselves on the very sound grounds that they invariably would, on the understanding that incorporating themselves—with limited, rather than with unlimited liability—is a more convenient form and indeed a cheaper form of commercial endeavour than any other. If this is the case, then I believe that it should be mandatory upon the council that they make rules prescribing the circumstances in which licensed conveyancers form themselves into bodies corporate, rather than permissive because I believe that they invariably will incorporate themselves in this particular form. I beg to move.
The Lord Chancellor: My Lords, there are two rather different aspects to this group of amendments, Amendments Nos. 19, 21, 22, 23 and 24, which are really associated together.
Amendment No. 21: Page 23, line 41, leave out ("involving the provision of") and insert ("exclusively providing").
Amendment No. 22: Page 24, line 2, leave out ("involving the provision of") and insert ("exclusively providing").
Amendment No. 23: Page 24, line 8, at end insert—
("; and
(c) not being, or associated with, a business providing loan, insurance or estate agency services.").
Amendment No. 24: Page 24, line 9, leave out ("may") and insert ("shall").
I think the first point is clearly misconceived. Under these amendments the council would be required to make rules relating to conveyancing by recognised bodies (as they are called). However, it would be wrong to require them to make such rules because it is the intention of the Bill to enable the council to refuse, or not to permit, corporate practice at all. Therefore, "may" is clearly right in this connection and "shall" is clearly wrong.
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The second aspect of the amendments is the prohibition on recognised bodies offering wider house transfer services or being associated with businesses providing insurance, estate agency or loan services. This is quite a separate issue. The Farrand Committee did not recommend any such statutory bar; indeed it commented that:
"if"—
and I emphasise the word—
"the potential conflicts of interest can be overcome, we would encourage associations of this sort".
It then went on to recommend that the council should make rules to preclude conflicts of interest arising out of any association that it wished to permit. The Bill follows that recommendation. It enables the council to make rules regulating any associations between licensed conveyancers and others in the provision of conveyancing services, whether by individuals in partnership or by recognised bodies.
It is of course essential that the rules ensure that the consumer does not suffer from conflicts of interest arising from the provision of a wider range of house transfer services. I hope the requirement for the rules to secure the concurrence of the Lord Chancellor will provide an adequate safeguard. But subject to the overriding need to ensure that consumers do not suffer from conflicts of interest, it is surely desirable to enable propective purchasers to obtain as wide a range of services from one source as possible.
Furthermore, there is to be no statutory bar on licensed conveyancers practising in partnership, as distinct from corporate form in association with other professions. Nor, I am advised, is there any statutory bar on solicitors forming such associations. I believe I am right in saying that they may not in fact do so, but that is not as a result of a statute. Therefore it is thought that at this stage it would not be right to put an unnecessary fetter on the way in which recognised bodies can operate. I therefore suggest that these amendments are undesirable, first on principle because it might be desirable to prohibit corporate practice altogether, and secondly for the reason that I have just given.
Lord Graham of Edmonton: My Lords, I wonder whether I may have guidance. Are we discussing not merely Amendment No. 19 but also Amendments Nos. 20, 21, and 22? If we are discussing only Amendment No. 19, then I understood the noble and learned Lord the Lord Chancellor to make reference to the case against accepting Amendments Nos. 21, 22 and 23. I certainly support what the noble and learned Lord, the Lord Chancellor, said and I wish to say something but I wish to say it at the proper place.
The Lord Chancellor: My Lords, I am grateful to the noble Lord. He is quite right to raise the point. I hate to say that "my instructions were"—one gets into the ways of advocacy very easily on these occasions—that these amendments were being taken together. However, as I pointed out, there are two separate issues. It is a matter for the House. Amendment No. 19 raises the first question of principle which I raised. If the House wants the amendments moved separately, only one has been moved and my noble friend Lord Morris will be free to move the others in due course and to speak to them.
Baroness Trumpington: My Lords, just in case there is any misunderstanding, I think I am right in saying that Amendment No. 20 which the noble Lord mentioned is not included in this batch.
Lord Graham of Edmonton: May I ask how many are included in this batch, my Lords?
The Lord Chancellor: My Lords, I think Amendment No. 20 has already somehow mysteriously been dealt with. However, as I was told, the batch includes Amendments Nos. 19, 21, 22, 23 and 24. But when my noble friend moves, Amendments Nos. 19, 21, 22, 23 and 24, the noble Lord will be quite entitled to make any point he wishes to make on that.
Lord Morris: My Lords, in the light of what my noble and learned friend has said with regard to this particular amendment may I say that I spoke only to this amendment. Though I understand the reasons why my noble and learned friend suggested that it might save the time of the Committee to speak to Amendments Nos. 21, 22, 23 and 24 together with this amendment, I deliberately did not do so. In the light of the first point that he made in response to this amendment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor: Though I am having some difficulty in tracing the point, I have an idea that Amendment No. 20 has somehow already been disposed of.
Baroness Trumpington: My Lords, I do no think that Amendment No. 20 has been dealt with.
The Lord Chancellor: My Lords it will now be moved by the noble Lord, Lord Mishcon.
8.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 23, line 40, leave out (", or join in the forming of,").
The noble Lord said: My Lords, I am most grateful. Your Lordships have I think been reminded, in view of the preceding amendment, that we are dealing with Clause 28, which provides:
"The Council may make rules prescribing the circumstances in which licensed conveyancers … may form, or join in the forming of"
I emphasise those words on purpose—
"bodies corporate to carry on businesses involving the provision of conveyancing services to members of the public".
I am not dealing with the point about bodies corporate. Nor am I dealing with the point about it being wrong for licensed conveyancers to form bodies corporate to carry on businesses involving the provision of conveyancing services. My worry is that these provisions are so widely drawn, and that they do not ensure that control of, and responsibility for, recognised bodies will remain with fully accountable individual licensed conveyancers.
I remember well that the noble Lord, Lord Morris, raised this matter at Committee stage on 31st January. The noble and learned Lord the Lord Chancellor, if I may be permitted to say this, answered him really on
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the question of limited liability but did not deal effectively—I hesitate to use these words—with the main thrust of the amendment. It is that same thrust upon which I am now concentrating. One of the doubts that has occurred to those who are advising me on some of these amendments arises specifically because of the inclusion of the words,
"or join in the forming of".
Obviously, various folk could be attached to the joining part in the forming of a body corporate. The one reason for moving this amendment—there is only one—is to confirm in this Bill that it is essential that such bodies, if formed, would be effectively controlled by licensed conveyancers. I beg to move.
Lord Morris: My Lords, with respect, I would support the amendment. The problem that the noble Lord, Lord Mishcon, has raised is a real one in the real world. It is simply a question of what the Americans call agency capture. When bodies corporate or individuals are joined together in the forming of a body corporate to provide the services of licensed conveyancers to the public, you have qualified licensed conveyancers and, for want of a better term, moneyed men who may join them in the formation of a body corporate to provide those services. The control of these particular bodies corporate will belong to those who provide the initial capital of the company rather than to those who are professional men providing a service to the consumer. I may be totally wrong, but this is the very danger that the noble Lord, Lord Mishcon, is trying to avoid in the general public interest.
Lord Simon of Glaisdale: My Lords, as I read the clause as it stands at the moment, I understood that "may form" meant that only licensed conveyancers could constitute the body corporate but that the addition of the words,
"or join in the forming of"
meant that others might. To leave out those words means that the body corporate is exclusively comprised of licensed conveyancers. I did not understand, however, whether that was the intention of the noble Lord, Lord Mishcon. I thought that the noble Lord merely wanted the licensed conveyancers to be in control. If that is all that he wants, has he not gone too far?
The Lord Chancellor: My Lords, the amendment would provide that only licensed conveyancers could participate in the establishment of a recognised body but it would not prevent them subsequently selling their shares to unqualified persons. I cannot believe that this, at any rate, would be exactly what the noble Lord, Lord Mishcon, would want. It would not restrict the services that the bodies could offer.
The council, under the Bill as drafted, has adequate powers in Clauses 16 and 28 and Schedule 5 to control these matters. It can hold licensed conveyancers responsible for the actions of their unqualified associates and it can withdraw recognition from a body corporate that fails to comply with the rules. Any rules made will (again I say) require the concurrence of the Lord Chancellor. The question is whether it is appropriate to impose a statutory bar on persons who

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are not licensed conveyancers joining in the formation of recognised bodies. There is no such statutory bar on partnerships either in respect of solicitors or in the arrangements proposed in the Bill for licensed conveyancers.
There is a new point that I had not really fully considered when I prepared these remarks. I gathered from what the noble Lord, Lord Mishcon, said that his concern was not so much the formation of these recognised bodies, if ever there are any, but their control. The fact that under the present amendment it would be possible for a perfectly viable body of licensed conveyancers to form a recognised body but then sell all its shares to unlicensed persons is a matter that I rather think I should look at more carefully than I have done. If I may do so, although I cannot accept this amendment in its present form, I shall give the noble Lord, Lord Mishcon, an opportunity at a later stage of putting down something different, or the same again.
Lord Mishcon: My Lords, the noble and learned Lord, Lord Simon, and the noble and learned Lord the Lord Chancellor have completely interpreted the purpose of my amendment. I am most grateful to both of them. It is purely and simply to see that control is vested—that is the essential part—in the licensed conveyancers in regard to any body that may be formed. I am most glad to accept the offer of the noble and learned Lord to look at this matter (I hope I am not wrong in saying) with sympathy, in the hope of putting into the Bill wording that is better than the wording in my amendment. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris Lord Morris moved Amendment No. 21:
[Printed earlier: col. 293.]
The noble Lord said: My Lords, it would, I think, be convenient if I was to speak to this amendment and to Amendments Nos. 22 and 23 together.
Amendments Nos. 22 and 23: [Printed earlier: col. 293.]
It will be clear to noble Lords that these amendments raise the issue of conflict of interest. Amendment No. 21 provides that the phrase within Clause 28 "involving the provision of should be substituted by the phrase "exclusively providing". In the Second Reading debate, my noble and learned friend the Lord Chancellor made it clear to me in an assurance that he gave that Clause 28 does not allow banks and insurance companies to carry out conveyancing. My noble and learned friend went on to say:
"It has not that intention, and I do not think it has that effect".—[Official Report, 14/1/85; col. 828.]
This point was reiterated by my noble and learned friend in the Committee stage of the Bill. Furthermore, he suggested that the issue of conflict of interests had to be faced in the future, and this has now been done by the Farrand Committee in their second report which came out recently. This, of course, is the report of the conveyancing committee headed by Professor
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Farrand. It was interesting to note that in that report the conclusions were divided into different classes, if I may use the term. There were primary recommendations, strongly recommended recommendations, and recommendations which should be considered, if I remember rightly.
I found it somewhat astonishing that one of the strongly recommended recommendations was that conveyancers should combine or act with estate agents. In view of the fact that this was a majority view, I fail to understand how they could strongly recommend it when it was not the view of the whole committee. Furthermore, those members who took a different view (the minority) namely the Law Society, the National Association of Estate Agents, and the Royal Institute of Chartered Surveyors, did not share that view. Indeed, the Institute of Legal Executives, although they are not actually mentioned, subscribed to the minority view on this different point. I find it difficult to understand why this should be a strongly recommended recommendation.
The reason why the minority did not agree with this recommendation was solely that they saw a serious conflict of interest arising in these particular circumstances. More particularly, they saw it in those instances where they would be acting on behalf of the purchaser rather than the vendor of the property. It was put to the committee that the lay vendor needed legal advice which was independent, that there would inevitably be conflicts between the interests of clients and the interests of solicitors, and that the estate agents would be concerned to receive their commission on completion of sale.
This circumstance is very simple even for me to see: if a member of the public were to go to an estate agent who also offered conveyancing services it would be very much in the interests of the estate agent to bring as much pressure as possible upon the conveyancer not to be as thorough as he ought in the conveyancing work so that the estate agent could lay his hands on the commission as soon as possible. I am not suggesting bad faith here but this is a pressure which would undoubtedly arise. In Committee I argued the point relating to insurance companies and building societies. This is the sole purpose of this amendment, because it is a real fear which will arise.
I am fairly certain that my noble and learned friend the Lord Chancellor will rely very heavily indeed on Clause 34(1) of the Bill, but it is very important that Parliament takes a view on this particular point because I think there is a danger to the consumer. I beg to move.
Lord Graham of Edmonton: My Lords, I very much hope that your Lordships' House will consider very carefully the case which has just been made. In general, I start off by supporting the premise upon which the Bill rests: that there is a case for licensing non-solicitor conveyancers. We are attempting to make certain that the dignity and integrity of the new profession is such that we as parliamentarians are satisfied that it is in the best interests of everyone concerned. The noble Lord, Lord Morris, made particular reference to the consumer and ultimately it is the consumer of services, the client, about whom we

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are concerned. Clause 8, on the establishment of the Council for Licensed Conveyancers, says:
"It shall be the general duty of the Council to ensure that the standards of competence and professional conduct among persons who practise as licensed conveyancers are sufficient to secure adequate protection for consumers".
8.45 p.m.
I will refer in later amendments to a satisfactory definition of "consumers". As I read the Bill and as I read the purpose of Amendments 21, 22 and 23, the precise objective is to prevent banks, building societies and other lenders together with insurance companies, brokers and estate agents from investing in or setting up these recognised bodies. Those particular bodies by means of subsidiaries would thus be prevented completely from offering conveyancing services to their existing customers or to the public generally in conjunction with services which they now provide and which, pursuant to the recent Green Paper, they will probably be providing.
With great respect, in my view the case has not yet been made for denying those institutions the use of licensed conveyancers. I have no brief for any body to which I have referred, and I rely simply on papers which have been passed to me which I have read and in which I have been interested; so I have no other interest to declare in that respect.
As I see it, in recent years in public life we have seen movements towards—if I may use a clumsy phrase—the breaking up of hitherto established monopolies or relationships. One is seeing the opening up to a wider number of people access, properly protected—as under this Bill—to competence and expertise which up till now had been channelled somewhat narrowly. I should have thought that if we are moving to one-stop shopping or one-point access to various types of expertise, if we are about to embark upon providing the public with options—which is the whole raison d'être of this Bill—when we are talking about the other professions and businesses to which I have referred there really should be an opportunity of combining in the way which is set out in the Bill (which has been criticised) and permitting those institutions to offer conveyancing services to the public.
To the best of my knowledge, most of these people—certainly building societies—have not considered methods other than the use of proper conveyancing services as hitherto defined. I should certainly have thought that they ought to be provided with the option.
The noble Lord, Lord Morris, fairly raised the possibilities of conflicts of interest. Quite clearly, whether or not they are going to exist to a greater degree in the future remains to be seen. The legal profession has been very jealous in guarding its good name in regard to the charge that cosy relationships exist between the legal profession and others. I would suggest that the professionals involved in building societies, insurance companies, estate and property companies would equally wish to guard their integrity.
I have here a page from The Law Society's Gazette, dated 20th February 1985. In an article the society goes to some pains to discuss the whole issue of the possibilities of conflict. Above the article, the Gazette states:
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"Reproduced below is the text of a memorandum delivered to the Lord Chancellor on 21 December 1984".
This is a memorandum by the Law Society, whose standing in these matters is well respected and understood. The conclusion in that memorandum by the Law Society to the Lord Chancellor in respect of these matters says:
"The use by a lending institution of a subsidiary company to provide conveyancing services would give no better protection to borrowers than they would have if the services were provided by solicitors directly employed by the institution itself.
"Conflicts of interest arise from economic reality; they are not resolved by legal constructions that do not change the underlying economic facts. The economic unity of groups is recognised in many branches of the law.
"Conflicts of interest are a matter of increasing public concern. Other professions are facing up to the problems that they present. The legal profession should not be moved backwards".
As I read those words, I thought that quite clearly there are in all our professions people with responsibility who recognise the importance of making sure that any arrangements which this House and Parliament make are not capable of being attacked on the basis that we have been loose in defining precisely the consumer interest and bodies. The noble Lord, Lord Mishcon, on earlier amendments, was moved to say that his prime concern was control; in other words, how we make sure that the various bodies which are involved in this business are controlled. Of course, the main control is the manner in which the council is able and willing to exercise its function. I should have thought that the amendments, which I certainly understand are well meant, are not necessary in the light of the current practices among the professional bodies.
The Lord Chancellor: My Lords, I am afraid that, under a mistaken apprehension, I already explained, in the discussion on Amendment No. 19, why these particular amendments are not acceptable to the Government. The discussion on them has ranged a little more widely than I had anticipated, and I think I must therefore remind the House of what I said last January and establish what I believe to be the present situation. When the Austin Mitchell Bill was going through we undertook to set up what subsequently became the Farrand Committee. Part II of this Bill is our view of how the recommendations of the Farrand Committee ought to be brought into effect, and it is therefore the implementation of a pledge.
At the same time, announcements were made in relation
to quite a separate issue by members of the Government, including my honourable and learned friend the Solicitor-General and I think the Prime Minister and others, and maybe myself. They were made in regard to a further issue which had been raised at the same time but which was quite separate; that is, whether in-house solicitors employed by banks and building societies could be allowed to undertake, on behalf of potential customers of those institutions, conveyancing transactions. The Government's attitude was then made quite plain: that we favoured such a change, which was strongly resisted by the solicitors' profession. That related to solicitors and not to licensed conveyancers, as I understood it, because there were at that time no licensed conveyancers: there were solicitors; and there were in-house solicitors employed by banks and building societies. I do not

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think that anything that was said by the Government related to estate agents as such.
At any rate, what I promised your Lordships at the end of January was that I would not use this Bill as a subterfuge for inserting the Government policy in relation to in-house solicitors by a back-door route: that this Bill was not the instrument by which it would be done, and, if it were done, it would be done openly and above-board by a piece of primary legislation. I am speaking absolutely off-the-cuff, and therefore I may be misleading the House; but I think not.
I think that strictly from the statutory point of view a bank is not in the same position as a building society. A bank tends to be a limited company, and I suppose by altering its memorandum of association it could enlarge its objects. A building society is governed by statute and would require primary legislation before it could allow itself to use anybody it its employment for the kind of purpose envisaged. I do not know what is the position as regards estate agents, so I would not venture to say. But I reiterate, so far as I am concerned, that I do not intend this Bill to be used as a subterfuge to tackle the second issue as to whether in-house solicitors should be employed for conveyancing purposes. I hope the House will recognise that that is sincerely meant.
On the other hand, of course, if by any chance the Government were to introduce legislation to deal with the second issue, as they have announced their intention to do, if the question of conflict of interest could be resolved one would necessarily have to reexamine the problem of licensed conveyancers, the new profession, if by that time it has come into existence. That would be only consistent, and therefore I cannot go further than what I have said: that I do not intend that this Bill should be used as a subterfuge. If we are going to do the other thing—and that depends, in my view, on whether the conflict of interest points can be satisfactorily resolved—then it will have to be done by a separate piece of legislation; and then, of course, we shall have to reconsider the position of licensed conveyancers—or whatever Government are then in power will have to consider the position of licensed conveyancers. I have, however, explained why these particular amendments are not acceptable.
The prohibition on recognised bodies offering wider house transfer services or being associated with businesses providing insurance, estate agency or loan services is a slightly different issue. The Farrand Committee did not recommend any statutory bar; quite the contrary. As I think my noble friend said, the committee commented that if the potential conflicts of interest could be overcome it would encourage associations of this sort. It then went on to recommend that the new council should make rules to preclude conflicts of interest arising out of any association that it wished to permit. The Bill follows that approach by enabling the new council to make rules regulating associations between licensed conveyancers and others in the provision of conveyancing services, whether individuals in partnership or recognised bodies.
It is of course essential that the rules should ensure that the consumer does not suffer from conflicts of interest arising from the provision of a wider range of house transfer services. I should have thought that the
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requirement for the rules to secure the Lord Chancellor's concurrence will provide an adequate safeguard here. But, subject to the overriding need to ensure that consumers do not suffer from conflicts of interest, it is surely desirable to enable prospective purchasers to obtain as wide a range of services from one source as possible. Furthermore, there is to be no statutory bar on licensed conveyancers practising in partnership as distinct from corporate form in association with other professions. Whether or not that is desirable is a matter about which more than one opinion can be held, but it is not raised in this Bill.
Nor, am I advised, is there any statutory bar on solicitors forming such associations, although I think that there are practice rules prohibiting it. It would therefore not be right to put such a fetter on the way in which recognised bodies can operate. I am afraid that that is as far as I can take this amendment this evening. It raises rather wider issues than I had originally thought. I cannot take it further than I have done. I have tried to be as frank as possible with the House.
9 p.m.
Lord Morris: My Lords, I am greatly comforted by the words of my noble and learned friend the Lord Chancellor in—and I do not think that I use too strong a word—his undertaking with regard to this issue. I shall of course read what he said with very great care; but I believe that his argument with regard to these matters is, as I said initially, a source of comfort. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22, 23 and 24 not moved.]
Clause 30 [Modification of existing enactments relating to conveyancing etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 24A:
Page 25, line 21, after ("69") insert (", 75(1)").
The noble and learned Lord said: My Lords, in moving this amendment, I should also like to speak to Amendments Nos. 24B, 24C, and 24D.
Amendment No. 24B: Page 25, line 23, after ("(iii)") insert (", (xiv)").
Amendment No. 24C: Page 25, line 24, leave out ("and").
Amendment No. 24D: Page 25, line 25, at end insert—
("and
( ) sections 4(3) and 6(2) of the Matrimonial Homes Act 1983,").
These are technical amendments. Clause 30 modifies existing legislation relating to conveyancing which refers to "solicitor", to provide that such references shall be construed as referring also to licensed conveyancers. The amendments add a further four such references to the existing list in Clause 30 which have been brought to our attention as being appropriate. I beg to move Amendment No. 24A. The remaining amendments are consequential.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 24B, 24C and 24D:
[Printed above.]
On Question, amendments agreed to.
Clause 34 [Rules]:
Lord Morris Lord Morris moved Amendment No. 25:
Page 26, leave out line 25 and insert ("before being made, be submitted to the Lord Chancellor for his approval either as submitted to him or subject to such modifications as he thinks fit, but where the Lord Chancellor proposes to approve such rules subject to modification he shall notify the modification to the Council and consider any observations of the Council on them.").
The noble Lord said: My Lords, your Lordships will be aware that Clause 34 of the Bill provides that:
"Any rules made by the Council under this Part shall be made with the concurrence of the Lord Chancellor".
This is an extremely important clause upon which a great deal of the Bill hangs. I am not in any way suggesting that the present distinguished incumbent of this office would ever be accused of being shy in coming forward, but there is no doubt that the Lord Chancellor's Department would be under considerable pressure in practice if the council was unanimous in, say, its agreement over a series or block of rules and the Lord Chancellor's Department voiced doubts about it. It would be very difficult for the department to interfere with this decision-making process.
The purpose of my amendment is to ensure that my noble and learned friend the Lord Chancellor does not just concur with rules that are submitted to him, but is also given the power to modify those rules which, I understand, he does not have in the Bill. My construction of Clause 34 may be quite wrong on this point, but I believe that the amendment makes it quite clear that this is the case. Without wishing to delay the House any further at this very late hour, I beg to move.
Lord Simon of Glaisdale: My Lords, I hope that the noble Lord, Lord Morris, will forgive me if I say that what he is doing is to substitute six-and-three-quarter lines for three-quarters of a line in order to tell the noble and learned Lord the Lord Chancellor to do what he would do in any event. Every year we produce three of these enormous volumes of legislation. Anything that we do to add to them is not well done; anything that we can do to lighten them is well done. I hope that the noble Lord will not press his amendment.
Lord Airedale: My Lords, with respect, I entirely agree with those remarks. What would happen in practice would surely be that the noble and learned Lord the Lord Chancellor would say, "I do not concur with the rule which you propose; but if you care to modify it and return it to me, I might concur with that". Then the desired result would be achieved.
The Lord Chancellor: My Lords, I rather agree both with my noble and learned friend on the Cross-Benches and with the noble Lord, Lord Airedale. It is of course a mistake to suppose that in the Lord Chancellor giving concurrence to rules or withholding his concurrence, he will not have any negotiation and discussion with the council. He will explain to the council what he objects to, if he objects; he will explain to the council what he wants put in if he thinks that there are omissions. To that extent I wholly agree with what has just been said.
I cannot help thinking that there might be a confusion between the powers of scheme-making, which are provided in Schedule 2, and the powers of
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rule-making which are provided in the clause under consideration. The scheme-making powers come into effect before the council exists and the result is that the Lord Chancellor not only can but must be in a position to modify and draft for himself up to a point. The rule-making aspect which we are discussing is exactly as my noble and learned friend Lord Simon and the noble Lord, Lord Airedale, said. It will be the subject of discussion at official level between officials of the Lord Chancellor's Department and the new council, and they will arrive at a modus vivendi. I think therefore that it is not desirable to impose this particular wheel on the council's coach and on the Lord Chancellor's postillion position behind it. I think on the whole that we are better without it, to be honest.
Lord Morris: My Lords, no one could agree more with the sentiments of the noble and learned Lord, Lord Simon of Glaisdale, than I do. My rather pathetic defence is that I did not draft this clause myself. However, as I have taken responsibility for it, I accept his strictures. I also entirely agree with what the noble Lord, Lord Airedale, said, but what was more important was that I wanted to hear it from the mouth of my noble and learned friend the Lord Chancellor rather than from him. Having heard that, I am happy and reassured by my noble and learned friend the Lord Chancellor. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 25A:
After Clause 34, insert the following new clause:
("Provision for building societies
. At any time after the coming into force of this Part of this Act the board of directors of a building society may by memorandum in writing alter the rules of the building society so as to enable the building society to instruct licensed conveyancers or authorised bodies to act on behalf of the building society in the provision of conveyancing services.").
The noble Earl said: My Lords, I put in this new clause in order to draw attention to an amendment which is necessary and which flows directly from the purpose of Part II of this Bill. The way to see it most easily is that the normal procedure of building societies is that when someone has agreed, or wants, to take a loan he asks to see a solicitor. When it is found that he is one of the solicitors on the list, which of course is almost universal, he can be instructed to act on behalf of both the building society and the borrower. That is the normal procedure, and it is both simple and economical.
The difficulty is that a great many of the building societies, which of course are mutual, have strict rules which were drawn up in the middle of the Victorian era in the manner of those days when things were regarded very strictly. They insist that their mortgages should be drawn by a solicitor. That means that they cannot use licensed conveyancers, and they will be excluded from any of the operations with some of the largest building societies.
One may say that it is an easy business just to change the rules of a building society. However, that is not so. It is much easier said than done. There are nearly a dozen or so building societies with a million members, and one, the Halifax, has two million. They reckon that it would cost a large part of half a million pounds in order to incorporate a rule of this character in their rules.
They of course will not do that. The result is to a considerable extent that licensed conveyancers will not be able to get the benefit of this business. The building societies inevitably handle a large proportion of the purchase of houses, and it is curious that almost alone among the things we buy houses are bought almost entirely by lent money. Therefore the licensed conveyancers would be substantially excluded from a large measure of business.
It is essential that this situation should be dealt with in one way or another. I do not necessarily press the wording of this amendment, but I ask the noble and learned Lord the Lord Chancellor to realise that this is a matter which requires fairly quick operation in order to give the licensed conveyancers a chance.
I suspect that the Lord Chancellor is going to say that this is a Bill which deals with licensed conveyancers and does not deal with building societies, and therefore it is not a matter which he feels he wants to deal with himself. The other point he will make is that it is imagined, rightly or wrongly, that there will be a building society Bill next year. Of course no one knows whether or not there will be, but this is a matter which requires action fairly quickly if the licensed conveyancers are to have a chance.
May I ask my noble and learned friend on the Woolsack whether he will consider this, although it is a small matter, as an important one both for the building societies as such and for the licensed conveyancers themselves? If he cannot take this on in some form in this Bill, will he, at a fairly early date, pass this information to the Treasury, which is the body which deals with building societies? I beg to move.
The Lord Chancellor: My Lords, clearly there cannot be any objection in principle to what my noble friend has proposed. It is clearly desirable that a building society should be able to instruct licensed conveyancers as well as solicitors to carry out the society's side of mortgage transactions. I understand that not all the societies will find themselves in the difficulties that my noble friend has described, although he is understandably concerned at the position of those which, without amending legislation, will be put to unnecessary expense and inconvenience. I understand, without making any promises—I hope I shall not be construed as making any promises—that there may be a building societies Bill next Session. I doubt whether it will be in force in time early enough to avoid the difficulties described. What I will do if my noble friend will allow me, is to give further consideration to whether a suitable amendment can be included in this Bill. I understand that it probably would be within the scope of the Bill (this would be a matter on which I would have to take advice) or the building societies Bill, if one is produced next Session. If this Bill were to be amended the necessary provisions could not be moved until it reaches another place. I take it that my noble friend would not find that an insuperable objection should he decide, on that kind of assurance, to withdraw the amendment.
9.15 p.m.
The Earl of Selkirk: My Lords, I thank my noble and learned friend for what he has said. I would add
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one point—that the building societies concerned are some of the largest. I guess that there are probably nearly a dozen, each with about 1 million members, so it is a considerable matter which would seriously affect the position of licensed conveyancers. I am extremely happy to accept what my noble and learned friend has said and I am grateful for it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 [Interpretation of Part II]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 26:
Page 27, line 6, at end insert—
(" "consumer" means any person for whom services are or are sought to be supplied in the course of a business carried on by a licensed conveyancer and who does not receive or seek to receive those services in the course of a business which he himself carries on;").
The noble Lord said: My Lords, your Lordships may recall that at Committee stage I had down an amendment for consideration seeking to introduce a definition of "consumer" into the Bill. In going through the Bill I found the following references to consumers in the text. First, Clause 8(2) lays down that,
"It shall be the general duty of the Council to ensure that the standards of competence and professional conduct among persons who practise as licensed conveyancers are sufficient to secure adequate protection for consumers".
Secondly, Clause 20, on pages 18 and 19, which concerns the Investigating Committee which will make preliminary investigations of complaints about licensed conveyancers, refers to consumers in subsection (5). This provides that where it appears to the Investigating Committee that an allegation or complaint which it is investigating ought to be referred to the Discipline and Appeals Committee, and that it is necessary for the protection of the consumer to do so, the Investigating Committee may take certain action.
Another reference to consumers appears on page 47. In Schedule 2, paragraph 4(4) describes a scheme under which the members of the Council for Licensed Conveyancers are to be elected and it is required that there shall be at least two persons on the council who represent the interests of consumers.
All these references are in parts of the Bill which relate to the orderly organisation of those who are now known as non-solicitor conveyancers into the new profession of licensed conveyancers, and their recognition. Licensed conveyancers will compete with solicitors in the provision of conveyancing services. This Bill provides for the rules under which they will compete, and, as the noble and learned Lord the Lord Chancellor said when he made his opening contribution to the Second Reading debate, the restrictions on competition must be examined critically to ensure that they go no wider than is necessary for consumer protection.
To a substantial extent the restriction will be laid down by the Council for Licensed Conveyancers in just the same way as any member of any profession has restrictions placed upon him by the governing body of his profession. Since Clause 16 has been debated, it directs that the council shall make rules which

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constitute a mandatory code of conduct and shall do so in pursuance of a general duty referred to in Clause 8(2). As I have reminded your Lordships, that duty is to ensure that standards of professional competence among persons who practice as conveyancers are sufficient to ensure adequate protection for consumers. Thus we have the parameters within which the council will work.
The noble and learned Lord the Lord Chancellor will surely have the support of the whole House for his statement that restrictions on competition must go no wider than is necessary for consumer protection. The whole House, I would expect, is likely also to support the direction that the council must ensure adequate protection for consumers. Note, my Lords, that protection must he adequate but restrictions must go no wider than is necessary.
The amendment which I am asking your Lordships to consider is designed to avert difficulties for the council when fulfilling the responsibilities and duties imposed on it by this Bill. It is designed also to ensure that the Bill shall—and I use that word carefully, rather than "may"—be interpreted in complete accord with the intentions of Parliament. The amendment defines the word, "consumer". It might be said that everybody knows the meaning of that word and that no definition in this Bill is necessary. But, in fact, the word "consumer" in the sort of context in which it is used in this Bill does not have a self-evident meaning. Indeed, in the course of the past two decades it has come to be used as what I suggest can be conveniently described as a term of art. That is why it needs to be defined within its own context.
Probably the first recognition of the existence of a segment of society which could be described as composed of "consumers" happened when a departmental committee was set up with terms of reference requiring it:
"to consider and report what changes, if any, in the law and what other measures, if any, are desirable for the further protection of the consuming public".
That was the second part of the terms of reference of what we now remember us the Molony Committee on Consumer Protection.
That committee's final report, published in July 1962, began by recording that, as a basic task, the committee had to decide upon a definition of a consumer. Paragraph 2 of the report provided the decision:
"we regard him as one who purchases (or hire-purchases) goods for private use or consumption".
The Molony Report was the foundation of the Fair Trading Act 1973. There is a comprehensive definition of "consumer" in Section 137 of that Act. It is:
"any person who is either (a) a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them, or (b) a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them, and"—
(here we leave the subscriptions: what follows applies to both of them)—
"who does not receive or seek to receive the goods or services in the course of a business carried on by him".
In my amendment I am suggesting to your Lordships that this Bill should contain a definition of "consumer" in effectively the same terms as the "services" part of that definition in the Fair Trading Act. The noble and learned Lord the Lord Chancellor may respond by telling the House that he is satisfied that the definition in the Fair Trading Act can be properly regarded as constituting a definition of "consumer" for the purposes of this Bill. If that should be so, and goes on record by means of the Official Report of today's proceedings in this House, that may well be satisfactory to your Lordships, and if that should be so, it will certainly satisfy me. Meanwhile, I beg to move.
The Lord Chancellor: My Lords, if accepted this amendment would have a somewhat bizarre effect. The word "consumer" appears in two places in Part II of the Bill which are relevant to what I am about to say. Clause 8 requires the Council:
"to ensure that the standards of competence and professional conduct … as licensed conveyancers are sufficient to secure adequate protection for consumers.".
The amendment provides:
"'consumer' means any person for whom services are or are sought to be supplied in the course of a business carried on by a licensed conveyancer and who does not receive or seek to receive those services in the course of a business which he himself carries on.".
It would clearly, therefore, remove from the council any duty to ensure that those involved in commercial conveyancing were protected from incompetent or dishonest licensed conveyancers. That cannot be what the noble Lord desires. I dare say it would hurt large organisations such as ICI rather less than it would a small shopkeeper; but it would clearly be unacceptable for a small shopkeeper, as my noble and learned friend Lord Simon said in connection with another amendment earlier this evening, buying a shop with domestic premises attached.
It is difficult to see, therefore, that this amendment can possibly be desired. The word "consumer" also appears in Schedule 2, where provision is made for the membership of the council to include at least two persons who represent the interests of consumers. It could be that the amendment is designed to ensure that such persons represent the lay person rather than a corporate body which receives conveyancing services; but, if it means that, it is doubtful whether any such distinction is particularly useful or desirable at all.
For those reasons, and because it would remove the small shopkeeper and others in small businesses from protection by the council, and also because the restriction on consumer representatives in Schedule 2 does not seem desirable, I do not see myself able to accept the amendment in its present form.
Lord Graham of Edmonton: My Lords. I appreciate the problems in the wording of the amendment, as courteously pointed out by the noble and learned Lord the Lord Chancellor, but I take heart from his final remark that the amendment is unacceptable to him in its present form. I should like to proceed on the premise that there is in fact a place in the Bill for a more precise definition of the term "consumer". With three references in three different contexts in the Bill, what I have sought to do, in a clumsy and clearly, tonight, in an unsuccessful way, is to try to understand words in other legislation which will be looked upon as

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defining the word "consumer". It is not unknown in this House to use for one Bill definitions that have been accepted as for another.
However, I do not in any way quibble at anything that the noble and learned Lord the Lord Chancellor has said as to the problem the present wording would cause. I shall read very carefully what he has said and perhaps there may be another opportunity to raise this point again. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Jurisdiction and powers of Senate Disciplinary Tribunals in relation to complaints against barristers]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 28, line 24, leave out from (" (1) ") to ("any") in line 25 and insert ("The jurisdiction of a Senate Disciplinary Tribunal to hear and determine charges of professional misconduct against barristers shall include jurisdiction to hear and determine, as a charge of professional misconduct,").
The noble and learned Lord said: My Lords, we now turn to the question of legal aid discipline, which is dealt within Clauses 37 and 38, and if I may, with the leave of the House, I should like to speak simultaneously to Amendments Nos. 27, 28, 31 and 32.
Amendment No. 28: Page 28, line 28, leave out subsection (2).
Amendment No. 31: Clause 38, page 29, line 5, leave out ("a legal aid complaint, or").
Amendment No. 32: Page 29, line 6, after ("barrister") insert (" (whether pursuant to section 37(1) or otherwise) ").
These amendments make it clear that the jurisdiction of a Senate Disciplinary Tribunal to deal with legal aid complaints may be exercised as part of the tribunal's existing jurisdiction to hear and determine charges of professional misconduct, rather than as a separate, new jurisdiction.
Your Lordships will remember that Clauses 37 to 40 inclusive empower a Senate Disciplinary Tribunal and the Solicitors Disciplinary Tribunal to hear and determine legal aid complaints. These amendments, I think, are technical in nature and relate solely to the senate. A Senate Disciplinary Tribunal's existing jurisdiction is to hear and determine charges of professional misconduct.
The intention behind this part of the Bill is that legal aid complaints should be viewed as seriously as complaints of professional misconduct generally and should be treated in the same way. The approach presently taken in Clauses 37 and 38 does not in terms achieve this end. It is in fact preferable and procedurally more apt to ensure that legal aid complaints can be heard and determined as charges of professional misconduct.
These amendments therefore provide that a Senate Disciplinary Tribunal has jurisdiction to hear and determine, as charges of professional misconduct, legal aid complaints. This approach means that a tribunal will automatically have, in dealing with a legal aid complaint, all the powers it has on the hearing of a charge of professional misconduct and subsection (2) of Clause 37 can therefore be removed. By virtue of Clauses 37 and 38, a tribunal will of course be able to
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cancel and reduce legal aid remuneration or exclude a barrister from legal aid work. I beg to move.
On Question, amendment agreed to.
9.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
[Printed above.]
The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 29:
Page 28, line 35, leave out from ("fees") to end of line 36 and insert—

("(a) otherwise payable under or in accordance with Part I or Part II of the Legal Aid Act 1974, or

(b) otherwise chargeable as mentioned in section 5(1) of that Act (payment for advice and assistance otherwise than through client's contribution),

in connection with services provided by the banister").
The noble and learned Lord said: My Lords, these are Government amendments, and in moving Amendment No. 29 I should like to speak simultaneously to Amendments Nos. 30, 33 and 34.
Amendment No. 30: Page 28, line 38, leave out subsection (4) and insert—
("(4) Accordingly, in so far as any of sections 4, 5, 10(1) and 37(2) of the Legal Aid Act 1974 (which relate to remuneration for legal aid work) has effect in relation to any fees reduced or cancelled by an order under subsection (3), it shall so have effect subject to the provisions of that order.").
Amendment No. 33: Clause 39, page 30, line 1, leave out from ("costs") to ("under") in line 3 and insert—

("(a) otherwise payable under or in accordance with Part I or Part II of the Legal Aid Act 1974; or

(b) otherwise chargeable as mentioned in section 5(1) of that Act; or

(c) otherwise payable").

Amendment No. 34: Page 30, line 6, leave out subsection (4) and insert—
("(4) Accordingly, in so far as—

(a)any of sections 4, 5, 10(1) and 37(2) of the Legal Aid Act 1974; or

(b) any provision made by virtue of section 1(1)(b) of the Legal Aid Act 1982,

has effect in relation to any costs reduced or cancelled by an order under subsection (3), it shall so have effect subject to the provisions of that order.").
These amendments relate to phrases contained in Clauses 37 and 39. They enable both a Senate Disciplinary Tribunal and the Solicitors Disciplinary Tribunal, in dealing with legal aid complaints, to order the cancellation or reduction of remuneration for legal advice and assistance, as well as for civil and criminal legal aid. The group of amendments will enable these two tribunals—the Senate and the Solicitors Disciplinary Tribunals—to order the reduction or cancellation of fees and costs in respect of work done by barristers and solicitors under the green form scheme.
When these tribunals take over the jurisdiction to hear legal aid complaints, it is intended that they should be able in an appropriate case to order the reduction or cancellation of a barrister's or a solicitor's legal aid remuneration. Clauses 37 and 39 presently refer to Sections 10 and 37 of the Legal Aid Act 1974 and Section 1 of the Legal Aid Act 1982, but not to Sections 4 and 5 of the 1974 Act, which are the provisions governing remuneration of green form work. These amendments therefore make it quite clear

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that the tribunals are able to reduce or cancel green form remuneration. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
[Printed above.]
The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.
On Question, amendment agreed to.
Clause 38 [Exclusion of barrister from legal aid work]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 31 and 32:
[Printed above.]
The noble and learned Lord said: My Lords, these amendments are consequential not on the amendment to which I have just been speaking, but on the one before. I beg to move.
On Question, amendments agreed to.
Clause 39 [Jurisdiction and powers of Solicitors Disciplinary Tribunal in relation to complaints against solicitors]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 33 and 34:
[Printed above.]
The noble and learned Lord said: My Lords, Amendments Nos. 33 and 34 are consequential on the immediately preceding one. I beg to move.
On Question, amendments agreed to.
Clause 41 [Eligibility for legal advice and assistance]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 35:
Page 32, line 2, leave out from ("1974") to end of line 11 and insert ("in subsection (1) the words "and (in either case) his disposable capital does not exceed £765" shall be omitted, and in subsection (2) paragraph (b) shall be omitted.").
The noble and learned Lord said: My Lords, this is an important amendment. Clause 41, as it stands, allows the noble and learned Lord the Lord Chancellor to provide a different capital limit for the purposes of advice and assistance by way of representation, which is commonly designated as abwor—unattractive as that word has become—from that laid down for advice and assistance under the green form scheme.
At present the capital limit—that is to say, the level at which liability to make contributions in respect of legal aid arises—for a single person for both schemes (representation and green form) is the low limit of £765—not much, after all, to have saved in a life time. Indeed, that that should be regarded as the capital limit making payments eligible is really a remarkable reflection on this day and age. There are additional allowances for those with dependants but, on the point of substance that I raise, that is not a great deal of assistance.
The unsatisfactory nature of the contradictions inherent in the present arrangements has long been recognised and criticised by lawyers, Citizens' Advice Bureaux and others. Many elderly people particularly have a small amount of savings—for instance, £1,000—which they regard as put away, sadly and mainly, for their own funeral. Heaven knows, we know how funeral expenses increase year by year. That amount, however, is enough to make them ineligible for free legal advice, and they are expected to pay when they consult a solicitor on the green form scheme the full cost of so doing.
On the other hand, the capital limit for legal aid for proceedings, below which no contribution from capital is required, is £3,000. The Lord Chancellor's Legal Aid Advisory Committee in its latest report, the 34th Report 1983–84, has carried out, at the request of the noble and learned Lord the Lord Chancellor, a review of the financial conditions for eligibility for all forms of legal aid and advice. Its conclusion is that, while an income test should remain for green form and representation, the capital limit should be abolished altogether.
The relevant part of the report of the Lord Chancellor's advisory committee reads:
"The present capital limit for advice and assistance is substantially lower than the free capital limit for legal aid and the green form dependants' allowances for capital do little to narrow the gap. The difference between the two limits has traditionally been justified by the small cost of green form bills which allows people to pay out of capital without hardship. Nevertheless, it is anomalous that a person who is held to be able to afford to contribute nothing from capital to the cost of legal aid can nevertheless be required to pay the full cost of advice and assistance from capital, especially bearing in mind that by contrast the income contribution provisions for advice and assistance are so much more generous than those for legal aid".
The report goes on to acknowledge the strength of the practical arguments for a total disregard of capital in legal aid assessments, but acknowledges the uncertainty as to the probable cost. The report then says:
"For green form assessments the case for total disregard is all the stronger. The cost of disregard would be modest and simplification of administration has extra merit".
Those are powerful and, in my submission, irresistible conclusions. The amendment which I move carries out the proposal of the noble and learned Lord the Lord Chancellor's own Legal Aid Advisory Committee, and it would surprise me greatly therefore if he were to find it possible to oppose this amendment. I beg to move.
The Lord Chancellor: My Lords, the Bill as drafted permits regulations to provide for the capital limit for assistance by way of representation to be different from that for advice and assistance. That is, in effect, a tidying up of a loose end in the legal aid assessment system. The amendment radically alters the nature of the entire clause by abolishing capital assessment altogether for both advice and assistance and assistance by way of representation.
Apart from any merits the proposal might have, the Bill is not, I should have thought, an appropriate vehicle for such a fundamental change. However, without turning it down flat, which I do not want to do, I must tell the noble and learned Lord that it is less than a month since the Advisory Committee on Legal Aid published its broad review, undertaken at my

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request, of the financial criteria for the grant of legal aid and advice and assistance. The change which this amendment seeks to effect covers only one of its many recommendations and it would, therefore, pre-empt any comprehensive study of the committee's proposals.
I shall be considering all the advisory committee's recommendations in due course and I shall have to consult my colleagues who also have departmental spending interests to defend and Treasury interests to defend. I must be allowed, after the result of that, to make my own selection of priorities rather than pick out one which may or may not commend itself to the Government. After only a month of consideration I do not think that the noble and learned Lord is fair in pushing me thus far this evening. I am not being horrid to him—at least I hope I am not—but this proposal cannot he accepted, at any rate not tonight.
Lord Elwyn-Jones: My Lords, I confess that I find the noble and learned Lord's answer disappointing, though basically his attitude is undoubtedly one of goodwill. I believe that this particular issue in this proposal is separate and identifiable. There is discrimination against the poor people who have to rely on the green form schemes, early use of which prevents and inhibits much subsequent litigation. It seems to me that it is very important that this matter should be put right immediately. Therefore, it being a matter of such urgency and importance I think the opinion of the House should be sought and, if it is successful, it may well be of assistance to the Lord Chancellor in his own endeavours in regard to another Department of State. Accordingly, I again move the amendment.
9.43 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 24; Not-Contents, 40.

DIVISION NO. 3

CONTENTS

Airedale, L.

Irving of Dartford, L.

Cledwyn of Penrhos, L.

John-Mackie, L.

David B.

Kilmarnock, L.

Denning, L.

Llewelyn-Davies of Hastoe, B.

Diamond, L.

Mishcon, L.

Elwyn-Jones, L.

Nicol, B.

Foot, L.

Phillips, B.

Gallacher, L.

Pitt of Hampstead, L.

Gifford, L.

Ponsonby of Shulbrede, L. [Teller.]

Graham of Edmonton, L. [Teller.]

Stewart of Fulham, L.

Gregson, L.

Strauss, L.

Hutchinson of Lullington, L.

White, B.

NOT-CONTENTS

Abercorn, D.

Campbell of Alloway, L.

Avon, E.

Carnegy of Lour, B.

Beloff, L.

Chelwood, L.

Belstead, L.

Cox, B.

Brabazon of Tara, L.

Craigmyle, L.

Bridgeman, V.

De La Warr, E.

Brougham and Vaux, L.

Denham, L. [Teller.]

Bruce-Gardyne, L.

Dormer, L.

Caithness, E.

Glenarthur, L.

Cameron of Lochbroom, L.

Gray of Contin, L.

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Hailsham of Saint Marylebone, L.

Renton, L.

Selkirk, E.

Henley, L.

Simon of Glaisdale, L.

Hives, L.

Skelmersdale, L.

Home of the Hirsel, L.

Swinton, E. [Teller.]

Hornsby-Smith, B.

Trumpington, B.

Marley, L.

Tryon, L.

Morris, L.

Westbury, L.

Mottistone, L.

Young of Graffham, L.

Rankeillour, L.

Zouche of Haryngworth, L.

Reay, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.51 p.m.
Lord Denham: My Lords, I think the general feeling in the House is that we have probably gone as far as we can usefully go tonight.
I therefore beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Gosport Borough Council Bill
Brought from the Commons, read a first time, and referred to the Examiners.
Lloyds Bank (Merger) Bill
Brought from the Commons, read a first time, and referred to the Examiners.
National Bank of New Zealand Limited Bill
Brought from the Commons, read a first time, and referred to the Examiners.
Surrey Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments were considered and agreed to.

London Docklands Railway (No. 2) Bill
Reported from the Select Committee without amendment.
House adjourned at eight minutes before ten o'clock.