Administration of Justice Bill [H.L.]

HL Deb 14 March 1985 vol 461 cc257-86

4.58 p.m.

Report received.

Clause 1 [Disciplinary sanctions for inadequate professional services]:

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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- 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 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 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 moved Amendment No. 7A: Page 7, line 15, leave out ("it") and insert—

1. ("(a) that other person was at the time his employer, a partner of his employer or a fellow employee; and
2. (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, 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 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 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, 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 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 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 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 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 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 moved Amendment No. 11:

[Printed above.]

On Question, amendment agreed to.

Clause 11 [Issue of licences by Council]:

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 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 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 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 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 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 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 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 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 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 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.