SCHEDULE THE CONVEYANCING OMBUDSMAN SCHEME (Hansard, 1 February 1990)

HL Deb 01 February 1990 vol 515 cc492-508 492

§ 1. In this Schedule "the scheme" means the "Conveyancing Ombudsman Scheme" established by rules made under section 40(1).

§ 2. The scheme may provide—

(a) for the Conveyancing Ombudsman to appoint his staff; and
(b) for the establishment and functioning of an independent body (whether corporate or unincorporate) to administer the scheme.

§ 3. The jurisdiction of the Conveyancing Ombudsman shall be determined by the scheme.

§ 4. The scheme may provide for the Conveyancing Ombudsman not to have jurisdiction to investigate complaints unless —

(a) the procedure for investigating complaints which is maintained by the authorised practitioner against whom the complaint is made has been exhausted; or
(b) the Conveyancing Ombudsman considers that the circumstances of the case are such as to justify his investigating the complaint before that procedure has been exhausted.

§ 5. The scheme shall require the Conveyancing Ombudsman to investigate any complaint which falls within his jurisdiction and which is properly made to him in accordance with the provisions of the scheme.

§ 6. The scheme may empower the Conveyancing Ombudsman, when investigating any complaint, to investigate the subject matter of the complaint as well as the way in which it has been handled by the authorised practitioner concerned.

§ 7. The scheme shall —

(a) confer on the Conveyancing Ombudsman power to require —

(i) information and documents relevant to any investigation under the scheme to be furnished to him;
(ii) the payment by an authorised practitioner of compensation where loss has been suffered by any person as a result of any matter in respect of which a complaint made against that practitioner has been investigated under the scheme;

(b) provide for an authorised practitioner against whom a determination has been made by the Conveyancing Ombudsman, on an investigation under the scheme, to be relieved of the obligation to comply with that determination on publishing, in such manner as may be required by the scheme, details of the determination and of the practitioner's reasons for failing to comply with it.

§ 8. The scheme may provide that compensation which the Conveyancing Ombudsman may require to be paid by virtue of any provision made under paragraph 7(a)(ii) is not to exceed a specified amount.

§ 9. Subject to paragraphs 10 and 11, a determination of the Conveyancing Ombudsman under the scheme which is, by virtue of the complainant's acceptance of it, binding on the authorised practitioner concerned shall be final and shall not be questioned in any court of law.

§ 10. Paragraph 9 does not apply where the authorised practitioner concerned is, by provisions of the scheme made by virtue of paragraph 7(b), relieved of the obligation to comply with the Conveyancing Ombudsman's determination.

§ 11. Where a determination of the Conveyancing Ombudsman is binding on an authorised practitioner, the Conveyancing Ombudsman shall, at the request of that practitioner, state a case for the opinion of the High Court on any question of law.

§ 12. Where a case is so stated the High Court may direct the Conveyancing Ombudsman to reconsider the complaint.

§ 13. A decision of the High Court under paragraph 12 shall be treated as a judgment of the High Court within the meaning of section 16 of the Supreme Court Act 1981 (jurisdiction of Court of Appeal to hear and determine appeals).

§ 14. No appeal shall lie from any decision of the High Court under paragraph 12 without the leave of the Court of Appeal.

§ 15. Nothing in this Schedule is to be taken as prejudicing the generality of the power to make rules under section 40.").

§ The noble and learned Lord said: I shall speak also to Amendments Nos. 186YA and 186ZB.

§ Clause 40 provides that the Authorised Conveyancing Practitioners Board must make rules, with the approval of the Lord Chancellor, to establish 494 and maintain a conveyancing ombudsman scheme to which all authorised practitioners will be subject. The clause as originally drafted only makes specific provision for the ombudsman not to have jurisdiction in certain circumstances and to appoint his staff. I decided that certain other functions should be set out, so that the board will have some guidance when it is drawing up the scheme as to the functions the ombudsman should perform and to place the scheme's operation on a sound legal basis. In addition, defining certain of the ombudsman's functions would be of assistance to applicants for authorisation who would know at least the minimum requirements of the scheme that they would be expected to belong, or be subject to. I therefore bring forward these amendments for consideration. I beg to move.

§ Lord Mishcon
I briefly say that in general terms we support the amendment. However, there is one respect in which I ask the noble and learned Lord to consider whether there is an omission here that I tried to cover in Amendment No. 177B, which is now past history.
That amendment dealt with this detail, as the noble and learned Lord may regard it; but it is important. It empowered the board, where it was satisfied that the services provided by an authorised practitioner were not of the quality which could reasonably be expected of him or it, to do one or more of the following things. First, it could determine that the costs to which the authorised practitioner should be entitled be limited to such amount as may be specified in the board's determination and direct the authorised practitioner to refund or waive its or his costs. Secondly, it could direct the authorised practitioner to secure at his or its own expense rectification of any error. Thirdly, it could direct the authorised practitioner to pay compensation of up to £1,000.
As I understand it, the amendment tabled by the noble and learned Lord the Lord Chancellor and to which he has just spoken would only allow the ombudsman to require the payment of compensation and would not enable him to require either the refunding or waiving of costs or rectification of any error.
As the noble and learned Lord knows very well, the Law Society has a statutory power to require a solicitor to waive or refund costs or to rectify an error. It is a mystery to me at present as to why this board does not have precisely the same power. Perhaps the noble and learned Lord will consider what I have said and possibly review it so that the matter can come forward on Report with that suggested omission rectified.

§ The Lord Chancellor
Certainly I am willing to look at the matter raised by the noble Lord. We thought it right to set out those powers and of course compensation is a wide word. However, I shall certainly consider what the noble Lord said.

§ On Question, amendment agreed to.

§ Clause 39 agreed to.

495

§ Clause 40 [The Conveyancing Ombudsman Scheme]:

§ [Amendments Nos. 185 and 186 not moved.]

§ The Lord Chancellor moved Amendment No. 186YA:

§ Page 31, line 34, leave out subsection (4) and insert — ("(4) Schedule (The Conveyancing Ombudsman Scheme) shall have effect for the purpose of supplementing this section.").

§ On Question, amendment agreed to.

§ Lord Mishcon had given notice of his intention to move Amendment No. 186ZA:

§ Page 31, line 43, at end insert — ("(4A) Where the Conveyancing Ombudsman has completed an investigation he may recommend —

(a) that the Board consider exercising its powers in relation to the authorised practitioner with respect to whom the complaint was made;
(b) where the complaint involves the acts or omissions of a solicitor, licensed conveyancer, barrister or notary public, that the professional body concerned exercising its powers in relation to that person;
(c) that the authorised practitioner with respect to whom the complaint was made pay compensation of an amount specified by the Conveyancing Ombudsman to the complainant for loss, expense or inconvenience caused to him, as a result of the matter complained of; and
(d) that the Board pay compensation of an amount specified by the Conveyancing Ombudsman to the complainant for the loss, expense or inconvenience caused to him, as a result of the way in which the complaint was handled by the Board.").

§ The noble Lord said: This amendment deals with the recommendations that I have just spoken about with regard to the board. In the circumstances I do not intend to move it because the noble and learned Lord has kindly said that he will give consideration to the principles contained therein.

§ [Amendment No. 186ZA not moved.]

§ The Lord Chancellor moved Amendment No. 186ZB:

§ Page 32, line 12, at end insert — ("(11) It shall be the duty of the Conveyancing Ombudsman to inform the Board of any evidence which comes to his attention suggesting that there has been, or may have been, a breach of any of the rules made under subsection (1) or of the regulations made under section 37.").

§ The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

§ On Question, amendment agreed to.

§ Clause 40, as amended, agreed to.

§ The Lord Chancellor moved Amendment No. 186ZC: After Clause 40, insert the following new clause:

§ ("Compensation scheme

§ .—(1) The Board may, with the approval of the Lord Chancellor, make rules establishing a scheme for compensating persons who have suffered loss in consequence of dishonesty on the part of authorised practitioners or their employees.

§ (2) The rules may, in particular —

(a) provide for the establishment and functioning of an independent body (whether corporate or unincorporate) to administer the scheme and, subject to the rules, determine and regulate any matter relating to its operation;
(b) establish a fund out of which compensation is to be paid;
(c) provide for the levying of contributions from authorised practitioners and otherwise for financing the scheme and for the payment of contributions and other money into the fund;
(d) specify the terms and conditions on which, and the extent to which, compensation is to be payable and any circumstances in which the right to compensation is to be excluded or modified; and
(e) contain incidental and supplementary provisions.").

§ The noble and learned Lord said: It is already a condition of authorisation that an applicant has satisfactory arrangements in force at all times to cover adequately the risk of any claim made against him in connection with the provision of conveyancing services, however arising. I appreciate, however, that it is likely to be difficult for authorised practitioners to obtain insurance covering their own dishonesty. I have therefore put down an amendment which provides that the board may make rules establishing a compensation fund, to be financed from contributions from authorised practitioners, the purpose of which is to compensate persons who have suffered loss as the result of the dishonesty of an authorised practioner or his employees. The rules which the board may make are to be subject to the Lord Chancellor's concurrence. I believe that it is right that express power of that kind should be provided for. I beg to move.

§ On Question, amendment agreed to.

§ Clause 41 [Advisory and supervisory functions of Director General of Fair Trading]:

§ On Question, Whether Clause 41 shall stand part of the Bill.

§ Lord Renton
I tabled a notice in the formal way saying that I would be opposing Clause 41. However, I can assure the Committee that my purpose is merely to probe and to discover exactly what it is that the Government are getting at in bringing in the Director General of Fair Trading.
Although there are references to him in Clauses 28, 29 and 30, to which I shall come later, it is not until we reach Clauses 31 to 42 which deal with conveyancing that we find the Director General of Fair Trading is primarily mentioned. It is not until then that we find what functions he is to perform, apart from those in the earlier clauses. We should consider what part he is to play and whether it is necessary.
Clause 41 requires the Lord Chancellor to obtain advice from the director on rules to be made by the Authorised Conveyancing Practitioners Board and on regulations made by him and binding on that board. Clause 41, in subsections (2) and (5), requires the director to consider the effect on competition of those rules and regulations.
It is also relevant to consider Clause 42, and I am sure I have the Committee's leave to refer to it, because that clause gives the director power to investigate any matter arising under Clause 41. The enforcement provisions under the Fair Trading Act are to apply to notices given by him before investigating matters under Clause 41.
We must acknowledge that the White Paper in Chapter 11 said that in order to secure competition in legal services the Director General of Fair Trading 497 would be given a part to play under the Bill. I wish to make it clear —I am sure I speak for all members of both branches of the profession —that we are not afraid of competition either from each other or from anybody else. Indeed, we are accustomed to it from each other and a very healthy thing in the public interest it has always been. However, in relation to conveyancing the Lord Chancellor and his department will have the co-operation of the advisory committee, of the Authorised Conveyancing Practitioners Board, of the Ombudsman in certain cases and of the Director General of Fair Trading. Each of those bodies will have its own bureaucracy.
I suggest that my noble and learned friend is going in for overkill by having this quadripartite supervisory machinery with regard to conveyancing practitioners. I ask him to consider whether that is necessary. Conservative Governments have always held themselves out as not wanting over-government, not wanting bureaucracy, not wanting statutory bodies to have overlapping functions; but that is exactly what we have here. It is sheer overkill.
The Committee may think that it is somewhat incongruous for learned professions to be informed that they are to be treated in just the same way as traders. We must lump it, I suppose, but I find it incongruous. It has never been considered necessary for us to be called a trade. A learned and liberal profession which provides a service to the people is what we have always tried to be and succeeded in being. My noble and learned friend should therefore consider that point.
Perhaps I may come to the earlier clauses where without previous warning the director is brought in. When I first read them I thought it must be the Director of Public Prosecutions, but I had not reached Clause 41. Let us look at Clause 28, which deals with the position of the General Council of the Bar. Under Clause 28(3) we find that: In the event of any question arising as to whether any provision is deemed to have been approved by virtue of subsection (2) —

"(a) the Lord Chancellor shall seek the advice of the Advisory Committee"—
we must accept that part— and the Director". In Clause 28(4)(a) we find: In the event of any question arising as to whether any provision of the qualification regulations or rules of conduct of the General Council of the Bar requires to be approved by virtue of section 26(3) or (4)—

(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director".
Very similar provisions relate to Clause 29, which deals with the Law Society and the grant of rights of audience. In subsection (3) of that clause we find exactly the same sort of thing: the Lord Chancellor shall seek the advice of the Advisory Committee and the Director". I want to shorten this so I will not read it all out. In Clause 29(4)(a) we find the same and it is analogous to Clause 28.
We then come to Clause 30, where we have the position of the Law Society in relation to the 498 question of "rights to conduct litigation". In subsection (3) we find: In the event of any question arising as to whether any provision is deemed" — I repeat "is deemed" in this case— to have been approved …

(a) The Lord Chancellor shall seek the advice of the Advisory Committee and the Director".
We have another reference of a similar kind to what has gone before in subsection (4)(a).
As regards these earlier clauses of Part II of the Bill, my noble and learned friend the Lord Chancellor will have to consult designated judges on some matters and the advisory committee, and the ombudsman is also given a part to play. When we are legislating in this radical and new way concerning the branches of the legal profession and others who are to be given rights of audience and to conduct litigation, we should make sure that we are not establishing an unnecessary top-weighted superstructure which will inevitably have to be aided by bureaucratic processes.
I hope I have brought to the notice of the Committee the problem which arises with regard to these matters. What we need to ask of ourselves is whether the expense and the amount of regulation and rule-making that will be required are going to secure any more competition than there is already.

§ 9 p.m.

§ The Lord Chancellor
My noble friend is speaking on clause stand part. The question is whether the Director General of Fair Trading should have a part in this matter. My noble friend knows that the statutory provisions arising out of competition law have been applied to the professions before. It is not a new thing. For example, in the past the Monopolies and Mergers Commission has had to inquire into certain rules of the legal profession.
The idea of this provision is that the Director General of Fair Trading, who has responsibility for the competition aspects of the law, should be in a position to tender appropriate advice on that aspect of any rules. The reason for that is the need to make sure that no rule inadvertently creates or confirms any kind of anti-competitive regime or has an effect such as distorting competition. That is the purpose of the clause. I believe it is appropriate to have the measure for that purpose.
My noble friend says that we have a tremendous number of these provisions but each has a distinct function. For example, there is the approval of rules in relation to rights of audience. The function of the advisory committee is to consider the rules from the point of view of their appropriateness in the interests of the public which the law is designed to serve and in the interests of securing adequate standards. The function of the director general is to draw attention to any aspect of the rules which may affect competition in the way that I have described. The function of the Lord Chancellor is to take account of all these considerations. The function of the designated judges is to ensure that the rules correctly provide what is appropriate in the interests of the proper and efficient administration of justice.
499 So each provision has a distinct function. We are not creating unnecessary consideration of these matters; we are providing for appropriate consideration of them and all to be done in conjunction with the ultimate decision that approves the rules in a case. So when the rules are approved they will not be subject to further inquiries under the competition law. That is quite an important matter. We are getting rid of the older way in dealing with these issues.
That is the function of the director general. I believe it is an appropriate function. I remind my noble friend that the director general commented quite publicly on the Green Papers. Some of the things he said were regarded in some quarters of the Bar as being particularly appropriate and acceptable. Therefore, he may well be a very considerable friend in important matters affecting the profession. He is an independent officer of wide experience in relation to these issues. He is able to warn against dangers whatever their source in so far as they affect competition.
One of the anxieties expressed earlier in the various debates that we have had was that competition should be fair. This is the primary responsibility of the Director General of Fair Trading. Trading may not be a word which particularly attracts my noble friend. Trading is sometimes regarded as an activity which is devoid of ethical standards, but I believe that trading in its finest sense is capable of applying to at least aspects of the professional way of life.

§ Lord Mishcon
I hope the noble and learned Lord will not think me facetious at this hour if I ask a perfectly serious question. The noble Lord, Lord Renton, has made a point as regards an issue which is hurting many professional people. If anybody had told the noble and learned Lord during his distinguished career as an advocate in Scotland that he was a trader, what would have been the effect of that remark on him?

§ The Lord Chancellor
All I can say is that I was vice-dean of the Faculty of Advocates when we had our first passage of arms with the Director General of Fair Trading. I did not object to his jurisdiction on account of his name. I was not particularly happy with some of the issues that he was seeking to pursue, but we nevertheless had an inquiry. No doubt when the fair trading legislation is considered and if there is any question of how appropriate his title is to his functions, that can be considered. We are dealing with a statutory officer and that is the description of his function. That function has a bearing on aspects of professional life.
I hope that my noble friend appreciates that we are not creating overlapping jurisdictions but jurisdictions which are capable of being brought together in one ultimate decision in approval of the rules or in the making of the regulations.

§ Lord Renton
I thank my noble and learned friend for his reply but I feel bound to say that I do not find it convincing. I wonder whether he will be so good as to answer this question. Bearing in mind the 500 way in which the Bar and the Law Society have abolished restrictive practices over the years, and bearing in mind the competitiveness that already exists in the two professions, does my noble and learned friend really think that there will be less competition in future if we do without the Director General of Fair Trading?

§ The Lord Chancellor
I do not profess expertise in the practical effects of competition law. That is the responsibility of the director general. I can only answer that question in relation to a particular case in the light of his advice. That is why we have these provisions for taking his advice. If the decision in relation to the approval of regulations is to have final authority it is right that competition matters should be taken into account before the final decision is taken. That is the purpose, and I believe it is an appropriate purpose. I hope that my noble friend will feel that it is appropriate.

§ Clause 41 agreed to.

§ Clause 42 agreed to.

§ Lord Mishcon moved Amendment No. 186A: After Clause 42, insert the following new clause:

§ ("Lord Chancellor's duty to report on effects on the Legal Aid Scheme

§ The Lord Chancellor shall report to Parliament, within two years of the Board first authorising a practitioner to provide conveyancing services, on the effect of authorised practitioners offering conveyancing services on the availablity of services provided under the Legal Aid Scheme.").

§ The noble Lord said: I hope that the brevity of my remarks will not belie the importance we attach to this amendment. There is grave concern about the effect the provisions of this part of the Bill may have on those whose duty it is —in many cases they regard it as a privilege —to look after legal aid. This amendment is not inspired by the Law Society. It is put forward by the National Consumer Council which is extremely worried about the effect the provisions of the Bill will have on the carrying out of legal aid work. It is in order that this may be reviewed, looked at and examined periodically that the amendment is put forward. It obliges the Lord Chancellor to report to Parliament, within two years of the Board first authorising a practitioner to provide conveyancing services, on the effect of authorised practitioners offering conveyancing services on the availability of services provided under the Legal Aid Scheme". I beg to move.

§ The Lord Chancellor
Whatever may be the superficial attraction of this new clause, I suggest that it should not form part of the Bill. Its origin lies in concern that the conveyancing activities of authorised practitioners might lead to a decline in the provision of legal aid services. Although I do not agree that there is real foundation for that fear, I doubt both the practicality of the new clause and whether it can serve any useful purpose. It will certainly be very difficult at the very least, in the time-scale provided for, to determine the exact impact of any one factor on the general availability of legal aid services. Indeed I am seeking to make some investigations at present in another connection in relation to the spread or distribution of these services.
501 In such a field it is difficult enough to assess the overall picture without claiming to be able to match any particular cause to any particular effect. I do not believe it would be right to put a provision of this kind into the Bill if it had the effect of suggesting that the provision of conveyancing services in the manner provided for in the Bill is in some way conditional. Parliament has already shown quite clearly in the 1986 Act that it considers that this kind of provision is the right way forward. I believe that that is appropriate.
I also believe that it is right to remind the Committee that I am already responsible to Parliament for the discharge of my general function to maintain the provision of legal aid. Against this background it would be anomalous to create a particular statutory requirement for a special report at a particular time on a particular aspect of that provision, no matter how much it may be in our minds during the debates on the Bill. Of course the method of Parliamentary Question and indeed debate and so on are all available in this connection. The Legal Aid Board has a statutory duty to report in relation to its activities.
I believe therefore that we have all the necessary machinery to enable your Lordships to have any facts that are available touching on the sort of concerns expressed in this clause without this addition to the Bill. I hope that the noble Lord will feel that we do indeed have such avenues of exploring these concerns from time to time —not just at a fixed period, but from time to time —and I am sure that the Committee believes that the Lord Chancellor particularly endeavours to answer your Lordships' questions fully and fairly.

§ 9.15 p.m.

§ Lord Mishcon
With that last observation I would not only agree but I should like to take the opportunity of congratulating the noble and learned Lord not only on his agility of mind when he stands on his feet, which all of us are noticing, but on the physical endurance that he shows in going through very long hours on the Committee stage of this Bill, retaining his courtesy throughout and a clarity of mind that is the envy of most of us. It was possibly with that in view that I hated the idea of anyone ever inferring that in the course of his brilliant legal career he was called "a trader".
Now may I just refer for a moment to what the noble and learned Lord has said. As I understand it, he feels that this should not form part of the Bill and he gave reasons for it. For the moment, if I may say so, I accept the reasons as to why it should not be a statutory provision. But may I take it from the noble and learned Lord's reply to this amendment that he would welcome the objective reports that came to him from the Law Society, for example, which would hear from practitioners whether or not their legal aid work was suffering, if it did not have to cease as a result of some of the provisions of this Bill? Do I take it from the noble and learned Lord's remarks that he would always welcome representations based on fact from the National Consumer Council, which, as I said, has anxieties? Would he always welcome 502 representations that are made based on these facts to see whether harm is being done to the legal aid scheme, which I know he values so much?

§ The Lord Chancellor
Certainly I welcome the information that is given to me by the Law Society from time to time, in particular in relation to any matters touching the concerns that the noble Lord has expressed, and certainly the same for the National Consumer Council. The National Consumer Council has, I think, taken the view that what we are doing here in the general pattern of it is the right way forward. That is a view that has affected my own thinking about what we ought to do.
I welcome any reports that they put in, or indeed any other factually-based reports that from time to time we receive, including the reports from the Legal Aid Board and the like. The noble Lord can therefore take it that I shall be extremely concerned, as I think I have shown in the papers that we put out about these matters. I have shown a concern for the solicitors' network and the provision of legal services generally, and I have done what I believe is reasonable to look after that point of view while still endeavouring to give members of the public the service in the conveyancing field which it appears that they desire.

§ Lord Mishcon
Having regard to what the noble and learned Lord has been pleased to say, I ask leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 43 [Preparation of papers for probate etc.]:

§ Lord Prys-Davies moved Amendment No. 186B:

§ Page 34, line 5, at end insert— ("provided that in the case of any body falling within paragraph (c), (d), (e) or (f) or any person or body falling within paragraph (g) that body or person has been authorised to provide probate services by the Authorised Conveyancing and Probate Practitioners Board (in this Act referred to as "the Board")").

§ The noble Lord said: The object of this amendment is to ensure that any body wishing to prepare papers for probate would have to be authorised to provide probate services by an independent body. We have in mind the Conveyancing Board, which we suggest could be renamed the Authorised Conveyancing and Probate Pracitioners Board.

§ We have seen that under the provisions of this Bill relating to conveyancing services it will simply not be enough for a would-be authorised conveyancing practitioner to be a bank, a building society or an insurance company. Each bank or other body wishing to provide conveyancing services must be individually authorised by the board. It is just as important, in our view, in order to safeguard personal representatives and beneficiaries, that those wishing to provide probate services should be individually authorised by an external body, the conveyancing board. Of course one appreciates that a relevant distinction can be drawn between conveyancing services and probate services. Thus, for example, a bank which is an executor is not a 503 client of the bank. Nevertheless, we think that the need for authorisation is just as great as for conveyancers.

§ I say that because the scope for negligence and delay in the administration of an estate, or for dishonesty, is probably much greater in the course of the administration of an estate than is the case during a conveyancing transaction. Estate funds may not be placed on deposit, income on estate funds may not be accounted for, and assets may not be called in when they should have been. So we say that those bodies wishing to administer estates should have to satisfy an external body that they will, and can, comply with the requirements of the Bill. This amendment is supported by the Law Society. I beg to move.

§ The Lord Chancellor
I consider that one must have regard to whether or not it is necessary to establish a board's authority in relation to the system or authorisation in respect of probate practitioners. So far as banks and insurance companies are concerned, many of whom already undertake trust corporation business, we are merely extending to them the right to prepare applications for probate and letters of administration. Banks and insurance companies are already subject to authorisations under statute and are prudentially regulated. Although building societies do not at present undertake trust corporation work, it seemed reasonable to include them in the list of those who might, as they too are regulated in such a way that one could presume they were fit and proper organisations.
Further protection is provided to the client by the requirement that all new probate practitioners must belong to a complaints scheme which makes the requirements prescribed by regulations made by the Lord Chancellor. I do not think it necessary to require these organisations to be authorised by the board.
As far as the other classes which will be authorised are concerned, these will be subject to scrutiny by the advisory committee and the President of the Family Division as well as by the Lord Chancellor. I have been giving some further thought, in the light of these amendments, as to whether or not the clause goes far enough in regard to the authorisation of these new classes. For example, is it necessary to make specific provision with regard to revocation of authorisation? I am also considering whether the legislation should set out certain standards of competence and conduct, to which the Lord Chancellor, the advisory committee and the President should have regard when considering applications from these other classes.
I would not wish to put an unnecessary authority into this particular field if it can be appropriately avoided. So far I believe we may be able to deal with the matter on the lines that I have suggested. I hope that in the light of this explanation the noble Lord will feel able to withdraw his amendment.

§ Lord Prys-Davies
I am very pleased that the noble and learned Lord the Lord Chancellor has come 504 some way towards meeting these very genuine concerns of the Law Society. I therefore beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Mishcon moved Amendment No. 186C:

§ Page 34, line 11, leave out ("may") and insert ("shall").

§ The noble Lord said: I think it follows from what the noble and learned Lord has just said that it is very important, indeed essential, that there should be regulations made by the Lord Chancellor for these probate services. Therefore it follows that the word "shall" should be substituted for "may". I beg to move.

§ The Lord Chancellor
It is the same sort of matter that we dealt with previously in relation to another part of the Bill. The existing power is really sufficient to enable proper regulation to be made. Of course it has the effect of ensuring that the regulations may be amended from time to time in the light of experience. Therefore, they can be improved if any loophole or defect turned out to be present in existing regulations. I hope that the noble Lord will take it that I shall consider carefully what should be done, but that he will also bear in mind that I believe that the ordinary drafting mechanism of the word "may" is adequate for this purpose.

§ Lord Mishcon
It may be that when I move the next amendment which deals with specifying what the regulations should cover my point will be met. In the circumstances, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Mishcon moved Amendment No. 186D:

§ Page 34, line 17, at end insert — ("(2C) Regulations made under subsection (2A) shall make provision with a view to securing —

(a) that authorised probate practitioners maintain satisfactory standards of competence and conduct in connection with the provision by them of probate services; and
(b) that the interests of their clients and any beneficiaries entitled under the estate are satisfactorily protected.

(2D) The regulations shall, in particular, make provision —

(a) designed to —

(i) provide for the efficient administration of estates;
(ii) avoid unnecessary delays;

(b) as to the supervision, by persons with such qualifications as may be prescribed, of probate services;
(c) requiring authorised probate practitioners to have one named person, who shall be either a solicitor who has in force a practising certificate or a barrister or a duly certified notary public or a person falling within subsection (2)(g), who shall be directly responsible for ensuring that probate services are carried out according to any rules or regulations made under this section;
(d) requiring authorised probate practitioners to arrange, so far as is reasonably practicable, for each matter to be under the overall control of the same individual;
(e) designed to avoid conflicts of interest;
(f) as to the terms and conditions on which authorised probate practitioners may provide probate services including the remuneration for such services; and
(g) as to the disclosure of and accounting for commissions.

(2E) The regulations shall also make provision for rules made under:

(a) Section (Rules concerning indemnity) of the Courts and Legal Services Act 1990;
(b) Section (Compensation for losses caused by authorised practitioners) of that Act;
(c) Section (Rules with respect to handling by authorised practitioners of clients money) of that Act; and
(d) Section (Accounting for interest on clients' money) of that Act, to have effect in relation to authorised probate practitioners with such additions, omissions or other modifications as appear to the Lord Chancellor to be necessary or expedient and, accordingly any reference in such rules to the clients of an authorised practitioner shall be construed, unless otherwise provided by the regulations made under subsection (2A), as including a reference to the beneficiaries of an estate in respect of which an authorised probate practitioner is acting.").

§ The noble Lord said: As we see it at present, Clause 43(1) simply requires in the new subsection (2A), which is inserted into Section 23 of the Solicitors' Act, that the provider of probate services must be a member of a scheme which, complies with such requirements as may be prescribed by regulations made by the Lord Chancellor".

§ In view of the importance of this matter, and in view of what the noble and learned Lord said about regulations, one submits that the amendment would considerably extend the noble and learned Lord's regulation-making powers and therefore would be a very welcome inclusion in the Bill, instead of the general provider clause which currently exists.

§ I do not intend to do more than say that as a result of the amendment the regulations would be able to deal with all mattters which were necessary to secure that the providers of probate services maintain satisfactory standards of competence and conduct —the very matter, if I may say so, to which the noble and learned Lord earlier referred —and that the interests of clients and beneficiaries were satisfactorily protected.

§ Much of the material in the amendment is drawn from the provisions of the Bill regarding the regulation of authorised conveyancing practitioners. I hope therefore that the logic and sense of what is proposed will commend itself to the noble and learned Lord and that the amendment will be accepted.

§ Lord Boardman
Before the noble Lord sits down, perhaps I may intervene at this point. It may be that I have not done my homework adequately, but can he clarify the following situation? Under his amendment, what would be the remedy in the case of a building society undertaking probate services which caused acute delay, and so on, and which is not subject to the disciplines applicable under the Law Society rules which would apply to a solicitor who did likewise? It may be that I have not followed his argument, but does his amendment provide any disciplinary protection in such cases?

§ Lord Mishcon
I do not know whether I follow the full impact of the question of the noble Lord, Lord Boardman. Was his query connecting the quality of regulation that the Law Society would exercise on those who were conducting probate work with what I am now trying to provide in the amendment; or did I misunderstand what he said?

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§ Lord Boardman
I asked whether there is a similar discipline which could be applied to those people, other than members of the Law Society —that is, those working in building societies, and the like—who are granted the right to operate and apply for probate but who do so in such a way that if they were solicitors complaints would be made which would lead to the final discipline of their being struck off. I asked whether his amendment contained or opened up some such discipline which would apply to other bodies.

§ Lord Mishcon
Yes. It is to be hoped that that would be so.

§ The Lord Chancellor
My noble friend Lord Boardman will see that Clause 43(1)(2A), which substitutes a new section in the Solicitors Act, provides that, The conditions are that the body is a member of, or otherwise subject to, a scheme which —

(a) has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services".
Therefore, there is a scheme already provided for that purpose. I have already indicated those matters which I was thinking of in relation to the amendments. It may be that in the light of what I said regarding the earlier amendment the noble Lord will feel that the matters which he wishes to deal with will receive consideration.

§ Lord Mishcon
I once introduced, and the noble and learned Lord did not object to it, the adjective "favourable" before "consideration". I assume that the consideration will be equally favourable on this occasion. On that assumption, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Mishcon moved Amendment No. 186E:

§ Page 34, line 20, at beginning insert — ("(3A) Subsection (1) also does not apply to any act done by an officer or employee of an authorised probate practitioner if —

(a) it was done by him at the direction and under supervision of another person who was at the time an officer or employee of the body; and
(b) 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: The purpose of this amendment is to make it clear that the unqualified staff of a body providing probate services must be supervised by a qualified person. Again obviously we have in mind a solicitor, barrister or I suppose in this case a notary public. I beg to move.

§ The Lord Chancellor
I am happy to consider this amendment perhaps I should say "favourably" in the sense that we may be able to do something in the direction which the noble Lord has in mind.

§ Lord Mishcon
I thank the noble and learned Lord for that courtesy. In those circumstances I ask leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

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§ Lord Mishcon moved Amendment No. 186F:

§ Page 34, line 23, at end insert — ("2A) The intervention powers conferred by Part II of Schedule (Intervention in authorised practitioner's practice) shall be exercisable by the Board in relation to an authorised probate practitioner in the circumstances specified in Part I of that Schedule in like manner as they are exercisable in relation to an authorised conveyancing practitioner and accordingly any reference in that Schedule to an authorised practitioner shall be construed as including a reference to an authorised probate practitioner.").

§ The noble Lord said: This amendment would enable the board to exercise intervention powers in relation to an authorised probate practitioner in the same circumstances as the Committee will remember it can exercise intervention powers in respect of an authorised conveyancing practitioner. It seems to be logical, equitable and a proper protection of the public. I beg to move.

§ The Lord Chancellor
This depends on whether the board has any jurisdiction in this area. As I indicated in answer to the noble Lord, Lord Prys-Davies, so far I am not persuaded that it is desirable to extend the conveyancing board's functions into this area. Therefore it follows that the amendment would go out of this jurisdiction along with the board.

§ Lord Mishcon
This is a matter which I shall have to consider with my noble friends and those who have made representations to us. We shall see where we stand at a further stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 186G not moved.]

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§ On Question, Whether Clause 43 shall stand part of the Bill?

§ The Lord Chancellor
Perhaps I may take this opportunity of the Question having been posed to thank the noble Lord, Lord Mishcon, for the kind remarks he made about me a few moments ago. I am extremely grateful for them and I reciprocate them in regard to all Members of the Committee who have shown such patience in remaining with us until this time of night.

§ Lord Renton
The fact that I did not utter an endorsement of what the noble Lord, Lord Mishcon, said about my noble and learned friend at the time should not be taken as an indication of my disagreement. Although I disagree with my noble and learned friend so much over the Bill —a great deal of it worries me —my admiration for his ability and his conscientious attitude is not in any way diminished.

§ Lord Hacking
Hear, hear!

§ Clause 43 agreed to.

§ Viscount Ullswater
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.

§ House resumed.

§ House adjourned at twenty-five minutes before ten o'clock.