AMENDMENT TO COMMONS AMENDMENT No. 8 (Hansard, 22 October 1985)

§ Lord Silkin of Dulwich
My Lords, I beg to move this amendment. This is not, I hope, quite such an explosive proposal as the last amendment to which the House gave its attention, but it is not a purely semantic proposal.
986 The origin of the amendment is this: that in the provisions of the Bill at Clause 8 there is provided a general duty on 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". When one looks further forward, into Clause 16 of the Bill, to the code of conduct, one finds that the council, in making rules for regulating that profession, are to do so in pursuance of the general duty referred to in Clause 8(2). So it is an important clause, providing the confines within which the code of conduct is to be formulated.
The proposal of the other place is that in addition to a duty to ensure the standards of competence and professional conduct among such persons there should be also a duty to ensure that the conveyancing services provided by such persons are provided both economically and efficiently. In this House and elsewhere, as your Lordships will be aware, there has been much discussion on the subject of conflict of interest and the difficulties that could arise particularly in the case of a licensed conveyancer employed by the proposed mortgagee, a building society or a bank, and so on, and who is also employed by the purchaser. There can be little doubt that such a dual employment would improve the economics so far as the consumer is concerned and may well enable the transaction to be carried out more efficiently. But at the same time, there is the danger with which your Lordships are very familiar and which was adverted to at an earlier stage of the Bill by the noble and learned Lord the Lord Chancellor, that there might be a conflict of interest as a result of which the proposed purchaser might be placed in difficulty.
The purpose of this amendment which I am moving to the Commons Amendment is to make it quite clear that the requirement both of competence but more particularly of professional conduct is to have priority over that of economics and efficiency where there may be a conflict. If it were not for that, there is the possibility of the two being apparently equated in the clause should Commons Amendment No. 8 be carried. If the complaint was made that someone who acted as a licensed conveyancer for more than one party had acted to the detriment of the consumer—that is to say, the purchaser—he might say, "Well, what I did was plainly more economic so far as the purchaser was concerned. He got the work done much more cheaply, and that is my answer".
At the same time, it could well be that the answer would not be a satisfactory one if there was some question of conflict of interest as a result of which the purchaser might have been placed in some jeopardy. It is purely to guard against that possibility that it is proposed that those words should be added so that the degree of importance between the two considerations is clearly emphasised. I beg to move.

§ The Lord Chancellor
My Lords, I do not believe that there is a ha'porth of difference between the noble and learned Lord who has just spoken and myself as to the policy to be pursued. The clause, as it would read 987 with Amendment No. 8 but without Amendment No. 8A, is as follows: 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". I have added in the proposed Amendment No. 8. and that the conveyancing services provided by such persons are provided both economically and efficiently". As I understand it, that means that the council is under an equal obligation to fulfil both conditions; that is to say, that it has got to be for the adequate protection of the consumer and it has to be done economically and efficiently. The effect of inserting the words "subject thereto" is, I should have thought, unnecessary if it achieves the result to which the noble and learned Lord spoke and dangerous if it were construed, as it might be, in a different sense.
The amendment that I have proposed ensures that both conditions have to be fulfilled and if the council fails to do both it will be failing in its duty as provided by the amended Clause 8. If you put the words "subject thereto" into it, I think that it would be adequate, or might be considered adequate, if they protected the consumer in the more expensive of two ways. I believe that that would be the inevitable result that the courts would give it. I would therefore ask the noble and learned Lord not to press his amendment. My assurance to him is that I do not think there is a ha'porth of difference between us if we come to forget the terms of the two amendments and look at the policy that they are intended to achieve.

Lord Morris
My Lords, it is clear to me from Amendment No. 8 that the "and" in the wording is conjunctive rather than disjunctive. What concerns me about Amendment No. 8A is that it casts doubt on the conjunctiveness—what an awful word that is—of the word "and". I cannot see that it adds anything. It just confuses the issue.

§ Lord Silkin of Dulwich
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his assurance that there is nothing between us on the meaning and effect that we desire to produce by this clause. I hope that I am correct in taking him to mean by that that in the circumstances that I posited of a conflict of interest then the council's duty would be to seek to avoid such a conflict unless that conflict was unlikely to do any harm to the purchaser. If that be so (and I hope that I have understood the noble and learned Lord correctly) then what has been said in this short debate will have been noted and heard. In those circumstances, it is, I think, sufficient for me to ask leave to withdraw the amendment.