HL Deb 22 October 1985 vol 467 cc968-9

5 After Clause 5 insert the following new clause ("Preparation of papers for probate etc. by unqualified persons. . For section 23 of the Solicitors Act 1974 there shall be substituted— "Unqualified person not to prepare papers for probate etc.

23.—(1) Subject to subsections (2) and (3), any unqualified person who, directly or indirectly, draws or prepares any papers on which to found or oppose—

  1. (a) a grant of probate, or
  2. (b) a grant of letters of administration,

shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, be guilty of an offence and liable on summary conviction to a fine not exceedding the first level on the standard scale.

(2) Subsection (1) does not apply to a barrister or duly certificated notary public.

(3) Subsection (1) also does not apply to any act done by a person at the direction and under the supervision of another person if—

  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 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 Lord Chancellor

My Lords, with this amendment I should like to speak also to Amendment No. 97.

97 Schedule 8, page 65, line 16, at end insert— ("Restriction on preparation of papers for probate etc. 4A. Where a person has committed an offence under section 23 of the Solicitors Act 1974 before the commencement of section (Preparation of papers for probate etc. by unqualified persons) of this Act, he shall not be liable after the commencement to be proceeded against in respect of that offence unles the act constituting that offence would have constituted an offence under section 23, as substituted by section (Preparation of papers for probate etc. by unqualified persons) of this Act, if it had been in force at the time when the act was done.".).

These amendments clarify the position of unqualified staff in solicitors' offices who undertake probate work at the direction and under the supervision of their solicitor employer. This matter was raised by my noble friend Lord Morris, I think, in the House at an earlier stage and by the noble Lord, Lord Mishcon. Unless I am mistaken, he raised the question too. I undertook at that stage to consider the matter further. The issue was returned to in the other place and these amendments were made.

The new clause puts beyond doubt the legality of unqualified staff preparing probate papers. Because the concept of supervision is not appropriate to the taking of instructions for a grant of probate, the statutory restriction in this respect is abolished so as to enable the solicitors' employees to take instructions without risk of committing an offence.

Amendment No. 97, to which I also speak, provides for transitional arrangements. I beg to move.

Lord Mishcon

My Lords—

The Lord Chancellor

I must put the Question, must I not, my Lords? This minuet becomes increasingly complicated.

Moved, That this House do agree with the Commons in their Amendment No. 5.—(The Lord Chancellor.)

Lord Mishcon

My Lords, I do not want further to complicate the minuet. All I wanted to do was to add to the tune by saying "Thank you very much" to the noble and learned Lord.

The Lord Chancellor

My Lords, I am much obliged to both noble Lords.

On Question, Motion agreed to.