HL Deb 22 February 1990 vol 516 cc478-500

Advice from the Advisory Committee

1.—(1) Where the Lord Chancellor receives an application from a professional or other body ("the applicant") for approval under this Schedule, he shall refer the application to the Advisory Committee.

(2) It shall be the duty of the Advisory Committee to consider the application and to give to the Lord Chancellor such advice as it considers appropriate.

Advice from the President of the Family Division

2.—(1) When the Lord Chancellor has received the Advisory Committee's advice he shall refer the application, together with that advice, to the President of the Family Division.

(2) It shall be the duty of the President to consider the application, in the light of that advice, and to give to the Lord Chancellor such advice as he considers appropriate.

(3) If the President asks the Committee to give him advice with respect to the application, it shall be the duty of the Committee to do so.

Information to be supplied by applicant

3. The applicant shall provide the Lord Chancellor, the Advisory Committee and the President with any information that they may reasonably require.

Approval by Lord Chancellor

4. Having considered the advice given to him by the Advisory Committee and by the President, the Lord Chancellor may by order approve the application if, but only if, he is satisfied that the applicant has in force suitable arrangements—

  1. (a) for training; and
  2. (b) for ensuring that any person to whom the applicant grants the exemption mentioned in section 44A(1) will at all times, while exempt, comply with the requirements of section 44A(2)(a) to (e).

Refusal to approve

5.—(1) If the Lord Chancellor porposes to refuse the application he shall give the applicant written notice of his proposal.

(2) The notice shall—

  1. (a) give the Lord Chancellor's reasons for proposing to refuse the application and
  2. (b) inform the applicant of the effect of sub-paragraph (3).

(3) Where such a notice is served, it shall be the duty of the Lord Chancellor, before determining whether to grant or refuse the application, to consider any representations duly made by the applicant.

(4) For the purposes of sub-paragraph (3), representations are duly made if—

  1. (a) they are made to the Lord Chancellor before the end of the period of 28 days beginning with the day on which the notice is served; and
  2. (b) unless the Lord Chancellor directs in a particular case, are in writing.

(5) If the Lord Chancellor refuses the application he shall give notice to the applicant in writing.

(6) Any notice given under sub-paragraph (5) must give the Lord Chancellor's reasons for refusing the application.

Revocation of approval

6.—(1) The revocation of any approval given under this Schedule shall be by order ("a revoking order") made by the Lord Chancellor.

(2) A revoking order may only be made if—

  1. (a) the approval body has made a written request to the Lord Chancellor asking for it to be made;
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  2. (b) the approved body has agreed in writing to its being made; or
  3. (c) the Lord Chancellor is satisfied that the circumstances at the time when he is considering the question are such that, had that body then been applying to become an approved body, its application would have failed.

(3) A revoking order may make such transitional and incidental provision as the Lord Chancellor considers necessary or expedient.

(4) Where a revoking order is made—

  1. (a) the exemption granted to any person by the body with respect to whom the order is made shall cease to have effect, subject to any transitional provision made by the order; and
  2. (b) the Lord Chancellor shall—
  1. (i) give the body with respect to whom the order is made written notice of the making of the order;
  2. (ii) take such steps as are reasonably practicable to bring the making of the order to the attention of members of that body; and
  3. (iii) publish notice of the making of the order in such manner as he considers appropriate for bringing it to the attention of persons (other than those members) who, in his opinion, are likely to be affected by the order.

Role of the Advisory Committee

7.—(I) Where the Lord Chancellor is considering whether to make a revoking order by virtue of paragraph 6(2)(c)—

  1. (a) he shall seek the advice of the Advisory Committee; and
  2. (b) the Advisory Committee shall carry out such investigations with respect to the approved body as it considers appropriate.

(2) Where—

  1. (a) the Lord Chancellor has not sought the advice of the Advisory Committee under sub-paragraph (1); but
  2. (b) the Advisory Committee has reason to believe that there may be grounds for recommending that a revoking order be made under paragraph 6(2)(c) with respect to an approved body,

it may carry out such investigations with respect to the approved body as it considers appropriate.

(3) If, on concluding any investigation carried out under sub-paragraph (1) or (2), the Advisory Committee considers that there are grounds for recommending the making of a revoking order with respect to the approved body concerned, it shall advise the Lord Chancellor accordingly.

Notice to approved body

8.—(1) If the Advisory Committee advises the Lord Chancellor that there are grounds for recommending the making of a revoking order with respect to an approved body, the Lord Chancellor shall send written notice of that advice, and of the effect of such an order, to that body.

(2) Any such notice shall invite the approved body to make representations in writing to the Lord Chancellor or such person as he may appoint for the purpose.

(3) Any such representations must be made before the end of the period of three months beginning with the date on which the notice was given.

Notice to members of approved body

9.—(l)Where—

  1. (a) the Lord Chancellor has given notice to approved body under paragraph 8(1); or
  2. (b) is proposing to make a revoking order with respect to an approved body, by virtue of paragraph 6(2)(a) or (b),

he shall take such steps as are reasonably practicable to bring the matter to the attention of the members of the approved body and of any other persons who, in his opinion, are likely to be affected by any revoking order made with respect to that body.

(2) Any such steps shall include inviting those members and other persons to make representations to the Lord Chancellor or (as the case may be) to the person appointed by him for the purpose.

(3) Any such representations—

  1. (a) shall, except in such circumstances as the Lord Chancellor may specify, be in writing; and
  2. (b) must be made before the end of the period of three months beginning with such date as may be fixed by the Lord Chancellor.

Consideration by Lord Chancellor and President

10.—(1) It shall be the duty of the Lord Chancellor to consider—

  1. (a) any advice given to him by the Advisory Committee under paragraph 7; and
  2. (b) any representations duly made under paragraph 8 or 9.

(2) Having done so, the Lord Chancellor shall—

  1. (a) send to the President a copy of any such advice and of any such representations (including a note of any oral representations); and
  2. (b) inform the President of his view as to whether or not a revoking order with respect to the approved body concerned should be made.

(3) It shall be the duty of the President—

  1. (a) to consider the information sent to him by the Lord Chancellor;
  2. (b) to inform the Lord Chancellor of his own decision in the matter; and
  3. (c) to give his reasons, in writing, for his decision.

(4) No revoking order shall be made with respect to the approved body unless the Lord Chancellor and the President agree that it should be made.").

The noble and learned Lord said: My Lords, I undertook in Committee to give further thought as to whether or not the provisions relating to the authorisation of new classes of probate practitioner provided proper client protection. The amendments represent the fruit of that consideration.

First, I took the view that entitling "classes" of people to prepare papers for probate was probably not specific enough. I therefore decided that the field of those who could apply for authorisation should be narrowed to "a professional" or other body which is approved by the Lord Chancellor under the schedule.

More important, I considered that these new classes of "probate practitioner" should be required to comply with certain standards of competence and conduct. The amendments therefore provide that, before the Lord Chancellor may approve an application to be authorised to grant the right to prepare papers, he must be satisfied that the applicant has in force suitable arrangements for training, and also for ensuring that any person to whom the applicant grants the exemption from Section 23 of the Solicitors Act will comply with certain requirements as to conduct and competence. These are that the applicant should be fit and proper; he, and any person employed by him in the provision of probate services, must be suitably trained; there must be satisfactory arrangements in force at all times for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising; he has to be a member of, or otherwise subject to, a complaints scheme and have in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.

I also deemed it wise that I should seek specific power, having had advice from the advisory committee and with the agreement of the President of the Family Divison, to revoke approval where I considered that the body was not meeting the requirements for authorisation. I hope that the House will accept that I am committed to maintaining proper standards of competence and conduct, and I believe that the amendments will ensure that these new classes of "probate practitioners" are suitably supervised and regulated. This is in response to the concerns expressed in Committee. I beg to move.

Lord Prys-Davies

My Lords, we were very pleased indeed to read the amendments tabled by the noble Lord the Lord Chancellor and we are grateful that he has moved to meet the concerns that we expressed in Committee. I understand that the Law Society is also pleased with the amendments, though it believes that they may not go far enough to meet its anxieties. However, I understand that it proposes to study the amendments further and it may well be that the other place will come back to this amendment for further consideration.

Lord Simon of Glaisdale

My Lords, this is a truly astonishing amendment—a complete new schedule brought forward at Report stage. There has been no attempt to re-commit the Bill so that it can be properly considered. Not only is it quite astonishing that a new schedule of more than three pages should be tabled at Report stage and that it is brought forward at twenty to ten at night with a sparse House, but the content of the schedule is truly astonishing.

Modern schedules in modern statutes tend to fall into two classes: those that try to teach grandmothers to suck eggs and those that try to set out administrative instructions suitable for departmental standing orders. Astonishingly, this schedule manages to do both.

I ask your Lordships to consider merely the first two paragraphs. Under the Bill, and in the eyes of my noble and learned friend, the advisory committee is central. My noble and learned friend attaches great importance to it. But do we need to stipulate that the Lord Chancellor shall consult and ask advice from an advisory committee? Yet that is the first thing that is done. Do we need to say that the advisory committee shall consider any request from the Lord Chancellor? Do we need to say that it must communicate that advice? Since it is a high-powered advisory committee can its members not be trusted to behave like sensible men constituting such a committee?

Then, having enjoined it to give its advice, can we not trust the Lord Chancellor to consider the advice? One does not attain one of the highest offices in the state—in fact the highest civil office in the state—without having proved oneself not only as a famous lawyer but as an admirable man of business. Can he not be trusted to consider the advice that is tendered to him, without a statutory authority?

Then we have the President of the Family Division, who oddly enough, is responsible for undefended probate business, the principal probate registry and all the district probate registries. Again, he is not appointed unless he has proved himself capable of transacting public business. Do we really have to write into a statute that he must consider any communication on the subject from the Lord Chancellor? Do we really need to say that he must answer the letter in writing? Do we need to say that the Lord Chancellor must then consider what he has received from the President of the Family Division?

At this time of night, with the schedule not recommitted, of course it would be absurd to divide against it. It is brought up in an empty House at the time of night that I have indicated. No doubt the Government business managers have learned a lesson from what happened on Tuesday. I do not doubt that there is a silent and deaf majority faithfully assembled by the noble Lord the Chief Whip ready to vote down any attempt to defeat the schedule. However, one cannot let it go by without pointing out how absurd, how wrong it is, to swell a statute book with such rubbish.

A short time ago we had a debate on the subject of the swelling statute book. The noble Lord, Lord Rippon, drew attention to the way in which it has expanded. The noble Lord, Lord Mishcon, drew similar attention in relation to the volumes of statutory instruments. Shall we really do nothing to try to halt the swelling by introducing completely flatulent and unnecessary legislation—the volumes of the statute book that have to be typed out, printed, read, and every stage of draft approved, at enormous expense? In the glad, glorious morning of Thatcherdom, economy was one of the considerations. Is it not time that that was considered again; and considered, incidentally, in the sphere of preparation of legislation?

9.45 p.m.

Lord Renton

My Lords, I must apologise to my noble and learned friend the Lord Chancellor for uttering a word, since I had not heard much of his moving of the amendment. However, having heard the noble and learned Lord, Lord Simon of Glaisdale, I feel bound to make three comments.

First, the noble and learned Lord, Lord Simon, was himself the President of the Probate, Divorce and Admiralty Division which preceded the Family Division. He therefore has very good reason for knowing what he is talking about.

Secondly—I am glad to see that my noble friend the Chief Whip is within hearing—in your Lordships' House we do not, as a matter of routine, as is done in another place, have the system of recommittal at or before Report stage of matters of substance which were not before the House before the Report stage. Essentially this matter would have been suitable for recommital.

Thirdly, at paragraph 125 of the schedule we reach a position where, after the various pieces of machinery have been covered, the Lord Chancellor is in the position of overruling consent given by the president of the Family Division. The public regards the administration of the system of justice as being primarily the responsibility of the Lord Chancellor. However, the public does not expect to see any disagreement between the Lord Chancellor and the heads of divisions of the High Court publicly expressed in a way which is provided for by statute.

It is most unusual and it is a feature of the schedule which should arouse your Lordships' curiosity.

Lord Mishcon

My Lords, I believe that the last thing which the noble and learned Lord the Lord Chancellor wants is a defence from this Dispatch Box provided by me. He does not need it and, for all I know, it may embarrass him. However, I wish to answer the points that have been raised. The time of night has not diminished the eloquence of the noble and learned Lord, Lord Simon, nor the power to speak in his usual forthright way.

During the Committee stage I tried to plead with the noble and learned Lord—if that is not putting it too high—to deal with probate matters in the same way as he dealt with conveyancing matters in order to ensure that the public was properly protected. I pointed out to him most respectfully that possibly the public needed a little more protection in the administration of estates than would normally be required in conveyancing matters. It needs protection in both, and I made that point.

If those points are raised in Committee it is a little extraordinary to find that there is criticism of the noble and learned Lord, who listened to what was said and who has produced an answer in a speedy but nevertheless efficient way. However, as my noble friend Lord Prys-Davies said, it may be that certain amendments must be tabled in another place. If on Report a concession is made to what was said in Committee it is hardly a matter for complaint. In sheer fairness I say that it is not a case of the Government coming forward with something that should have been thought of a long time ago but was not.

It is only fair to say that we have talked many times in this House about the value of judicial review. In the normal case that is possible only where the citizen can point out to the court that a Minister has not carried out the machinery of consultation and of considering advice clearly imposed upon him by statute. If one gave arbitrary rights to Ministers, even to great Lord Chancellors, on the basis that they are capable administrative men, fine lawyers and are people to be trusted, the first complaint would be that this was giving to Ministers powers that nobody should give them.

When you put carefully into a statute that there must be consultation and that that consultation must be considered, the citizen has a right to say, "Oh, statute, Parliament has imposed a procedure which has not been carried out and therefore I, the citizen, shall ask for judicial review and I shall ask for this matter to be considered in accordance with the regulation of statute". I thought it only fair that I should make those remarks.

Lord Simon of Glaisdale

My Lords, how can anybody know whether the Lord Chancellor has considered the advice tendered to him?

The Lord Chancellor

My Lords, as I explained, this amendment was brought forward in order to seek to satisfy the matters raised in Committee by the noble Lord, Lord Mishcon. I have sought to set out a procedure under which an order would be made by the Lord Chancellor, which of course is a statutory instrument requiring parliamentary procedure.

I have sought to set out a reasonable procedure for the reasons which the noble Lord, Lord Mishcon, explained. I have sought to do that in as clear a manner as possible. I believe that it is advantageous to set out those matters so that, when an application comes in, it is dealt with fairly and, if more than one application comes in, they are dealt with on the same basis.

The noble and learned Lord, Lord Simon of Glaisdale, has unique experience in the field of probate, as my noble friend Lord Renton said, as the president of the division as it was in his day which has now become the Family Division. It appears to me to be right that the judge who should have a concern and responsibility for those matters should be the president of the Family Division. The object of the arrangement is that Parliament will be able to tell what advice the president should give. This is a perfectly open matter and I believe that it is right that it should be done in that way.

Obviously there are situations in which the Lord Chancellor consults the judges and the matters are between him and the judges. However, there are other areas and other parts of this Bill where it was felt, in the light of the consultation which preceded, that the views of the judges should be made clear and distinct from those of the Lord Chancellor.

Therefore, in answer to a request, this is an attempt to produce a fair procedure with a more elaborate protection for the public in the field of probate than had been originally proposed. I believe that one of the great advantages of parliamentary procedure is that the proposals which the Government make in Bills should be developed in the light of the discussion in Parliament. I have benefited, and I am sure that this Bill has benefited, a great deal from the contributions which your Lordships have made. I have sought to respond to those contributions and this is an example where I have sought to respond to the contribution of the noble Lord, Lord Mishcon. I have also sought to respond to contributions from my noble friend Lord Renton. I have responded to contributions from my noble and learned friend Lord Simon of Glaisdale and I expect to do so again. Therefore, I hope that the House will agree to accept this amendment.

Lord Renton

My Lords, before my noble and learned friend sits down, does he not agree that, when his admirable response involves tabling a new schedule which is four pages long, that should be the subject of recommittal, which is possible within our procedure although very rarely used, rather than being submitted on Report, subject to the very strict rules which we then have for discussion?

The Lord Chancellor

My Lords, with the leave of the House, I believe that this is an appropriate way to deal with the matter and the schedule is very much along the lines of the sort of procedure which has been suggested in relation to the main provisions.

On Question, amendment agreed to.

Clause 44 [Preparation of papers for probate etc.]:

The Lord Chancellor moved Amendment No. 161:

Page 34, line 19, at end insert—

("(bb) the Public Trustee;").

The noble and learned Lord said: My Lords, this amendment seeks to include the Public Trustee in the list of those who may prepare, for reward, applications on which to found or oppose a grant of probate or letters of administration.

I believe the House will accept that the Public Trustee is a fit and proper person to carry out this work. Regarding a complaints mechanism, as the Public Trust Office is under the ministerial responsibility of the Lord Chancellor, complaints about probate services can be directed to him. Furthermore, as the Public Trustee is listed in Schedule 2 to the Parliamentary Commissioner Act 1967 the Parliamentary Commissioner can investigate complaints about the Public Trustee's probate services. In these circumstances it seems to me that he can be treated in the same way as barristers and duly certificated notaries public; and I do not propose that he should be a member of or subject to a complaints scheme as specified in subsection (2)(2A). I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 162:

Page 34, line 22, leave out ("operate") and insert—("carry on").

The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 152. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 163:

Page 34, line 35, after ("subsidiary") insert—

("(as defined by section 736(1) of the Companies Act 1985)").

The noble and learned Lord said: My Lords, this is a technical amendment and it defines "subsidiary", for the purposes of this clause, in the terms of Section 736 of the Companies Act 1985, as replaced by Section 144(1) of the Companies Act 1989. I beg to move.

On Question, amendment agreed to.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 164:

Page 34, line 39, leave out ("which").

The noble and learned Lord said: My Lords, unless my noble and learned friend would like me to move this amendment with a view to its immediate acceptance I propose not to move it but to leave it for discussion. Perhaps he will indicate whether he would like me to move the amendment or leave the matter to be discussed.

The Lord Chancellor

My Lords, before my noble and learned friend sits down, I should be grateful if he left the amendment for discussion. I have difficulty in understanding precisely its effect, so if my noble and learned friend is willing I would appreciate its being left to form part of the discussion we intend to have.

Lord Simon of Glaisdale

In those circumstances I do not move the amendment.

[Amendment No. 164 not moved.]

The Lord Chancellor moved Amendment No. 165: Page 34, leave out lines 40 to 44.

The noble and learned Lord said: My Lords, Amendment No. 165 leaves out words which are referred to in Amendment No. 168. I have spoken to this amendment with Amendment No. 160, but I should like to draw attention to that. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 166: Page 35, line 7, at end insert ("with respect to matters relating to such complaints").

The noble and learned Lord said: My Lords, this amendment seeks to clarify subsection (l)(2A)(b). It was intended that the Lord Chancellor's regulation-making powers in this subsection should relate only to a complaints scheme. It was not intended to provide a general regulation-making power. Such a power is not necessary as Amendment No. 169 sets out the standards of conduct and competence which probate practitioners will be expected to meet. It appeared from the discussion in Committee that this limitation was not clear from the subsection as drafted, and I hope that the amendment now emphasises that the regulations may be made only in respect of the complaints scheme. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 167: Page 35, leave out lines 8 to 18.

The noble and learned Lord said: My Lords, Amendment No. 167 also has an impact on Amendment No. 168 and will require it to be moved in a different place from that indicated in the Mashalled List. I have already spoken to Amendment No. 167 with Amendment No. 160. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 168: Page 35, line 12, at end insert—

("(2C) Regulations made under subsection (2A) shall make such provisions as the Lord Chancellor considers expedient with a view to securing—

  1. (a) that—
    1. (i) any body falling within paragraph (c)—(f) of subsection (2); or
    2. (ii) any person falling within a class of person prescribed by order made under paragraph (g) of subsection (2)

who or which provides probate services maintains satisfactory standards of competence and conduct in connection with the provision by them of probate services; and

  1. (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—

  1. (a) designed to ensure that bodies and persons providing probate services have satisfactory arrangements at all times in force for covering adequately the risk of any claim made against them in connection with the provision of probate services, however arising;
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  2. (b) designed to ensure that bodies and persons providing probate services are members of a compensation scheme for compensating persons who have suffered loss in consequence of dishonesty on the part of such bodies or persons or their officers or employees in connection with the provision of probate services;
  3. (c) designed to provide for the efficient administration of estates and to avoid unnecessary delays;
  4. (d) as to the supervision, by persons with such qualifications as may be prescribed, of probate services;
  5. (e) as to the terms and conditions on which bodies and persons providing probate services may provide such services;
  6. (f) designed to avoid conflict of interests; and
  7. (g) as to the handling by bodies and persons providing probate services of their clients' money.")

The noble Lord said: My Lords, I wondered what was going to happen to my amendment and I uttered a little prayer that someone would say that it was out of order in which case I would put it down for the next Report day. I can take this very quickly. I believe the House will agree that it is sensible to have a protective procedure for the public which is roughly similar, though there may have to be differences, to that dealing with probate and conveyancing matters. I said a few minutes ago, repeating what I said in Committee, that maybe the public needs even more protection over the administration of estates than in respect of most conveyancing transactions. One thinks in terms of dishonesty, negligence, delay or incompetence in relation to such matters. I have studied the new clause tabled by the noble and learned Lord. I have tried to compare it with Clause 37 which contains the detailed regulation-making power concerning conveyancing matters. I have made some observations about the possible limitations of that clause. I note that clear regulation-making power, and my proviso.

When one looks at the regulation-making power in regard to the probate services, I do not find it at all clear what the noble and learned Lord the Lord Chancellor could or could not include in those regulations. Perhaps I may give an example. The complaints scheme is given no statutory power. As I see it—and those advising me are of the same view—as the clause now stands it is unlikely that those responsible for the scheme would have the power to require information and documents relevant to any investigation to be furnished to them or the payment of compensation by the provider of probate services.

Schedule 7 was introduced by the noble and learned Lord at the Committee stage. It equipped the conveyancing ombudsman with these specific powers. There is no logic in failing to equip the probate service's complaints scheme with analogous powers. It is for that reason that the amendment seeks to give the regulation-making power to the noble and learned Lord. It would seem to run in parallel with that relating to conveyancing services. I beg to move.

The Lord Chancellor

My Lords, I think I must first explain that I believe this amendment to be slightly misdirected. The regulations in subsection (2A) were intended to relate to a complaints scheme, as has been made clear by my Amendment No. 166. That said, I do not believe that it is necessary or indeed appropriate to give the Lord Chancellor a general regulation-making power. I think it would help if I first emphasise that the area which we are opening up is the preparation of applications for grants of representation in probate. The administration of estates is not subject to a prohibition on who may undertake this work. It is currently done by banks, insurance companies, other trust corporations; indeed anyone may administer an estate for reward. I therefore do not consider it necessary to make provisions in the terms of this amendment in relation to such a small monopoly area as is the probate area. I certainly do not believe, and it would be contrary to general government policy, in introducing regulation where previously no regulation existed.

As I said when moving Amendment No. 60, I am committed to ensuring that the public has proper protection. It is for this reason that I decided that all probate practitioners, other than solicitors, barristers, notaries and the Public Trustee, should be subject to, or a member of, a suitable complaints scheme. This scheme is likely to require that there should be an ombudsman who will have powers to compensate clients of probate practitioners. Banks, building societies and insurance companies are all presently subject to prudential supervision by their appropriate regulatory bodies and I can see no benefit in adding another further unnecessary layer of regulation.

So far as concerns those new approved bodies, I have set out on the face of the statute certain requirements as to conduct and competence with which the new probate practitioners will be required to comply. These relate to a "fit and proper" test, training arrangements for compensating clients in respect of claims made in connection with probate, and satisfactory arrangements to protect clients in the event of ceasing to provide probate business. In addition, these new probate practitioners will also have to belong to a suitable complaints scheme. The Lord Chancellor will not be able to approve a body unless he is satisfied, after advice from the advisory committee and consultation with the President of the Family Division, that it has in force suitable arrangements for training and enforcing compliance with these competence and conduct requirements.

I consider that the proposals in my amendment provide satisfactory consumer protection in respect of the preparation of applications while not imposing unnecessary restrictions on those who already do trustee work, or those entering the market who will be required to be suitably trained and subject to regulation by their "approved body". I hope that in the light of my explanation the noble Lord will consider that the purpose behind the amendment, so far as it is necessary and directed to the probate aspect, has been served by what I have done.

Lord Mishcon

My Lords, I shall obviously have to consult with those advising me on this matter. In the meantime, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 169:

After Clause 44, insert the following new clause:

("Preparation of probate papers etc:

exemption from section 23(1) of Solicitors Act 1974

—(1) The provisions of section 23(1) of the Solicitors Actl974 (preparation of papers for probate etc. by unqualified persons) shall not apply to any person to whom exemption from those provisions is granted by an approved body.

(2) An approved body may only grant such an exemption to a person who is one of its members and who satisfies it—

  1. (a) that his business is, and is likely to continue to be, carried on by fit and proper persons or, in the case of an individual, that he is a fit and proper person;
  2. (b) that he, and any person employed by him in the provision of probate services, is suitably trained;
  3. (c) that satisfactory arrangements will at all times be in force for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising;
  4. (d) that he is a member of, or otherwise subject to, a scheme which—
    1. (i) has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and
    2. (ii) complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints; and
  5. (e) that he has in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.

(3) In this section "approved body" means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate).

(4) The approval of any body under Schedule (Probate) may be revoked under that Schedule.").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 160. I beg to move.

Lord Simon of Glaisdale

My Lords, I have only one queston. Subsections (3) and (4) refer to the "Schedule (Probate)". I cannot see where the Schedule (Probate) is properly established in the body of the statute. It may be something that my noble and learned friend can answer immediately, or it may be something on which he would wish to consult with the draftsman.

The Lord Chancellor

My Lords, the answer to my noble and learned friend's question is that the only purpose of the schedule is to say how a body becomes an approved body. Subsection (3) says: In this section 'approved body' means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate)". Subsection (4) says: The approval of any body under Schedule (Probate) may be revoked under that Schedule". That is the only effect the schedule needs to have, and that the way in which it has been done.

Lord Simon of Glaisdale

My Lords, before my noble and learned friend sits down, I am afraid I did not make my meaning clear. A schedule is normally invoked by a provision in the statute itself. At the side of the clause there is a reference to the subsection of the Act which does it. It was to that aspect I was drawing attention.

The Lord Chancellor

My Lords, it was to that aspect that I was seeking to give the answer. The effect of the schedule is to describe an approved body. That is what subsection (3) of the clause does. It says: In this section 'approved body' means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate). That is the only statutory effect the schedule needs to have. It tells us what is an approved body. That is the way it has been dealt with.

On Question, amendment agreed to.

Clause 45 [Conditional fee agreements]:

10.15 p.m.

The Lord Chancellor moved Amendment No. 170: Page 36, line 3, after ("agreement") insert ("in writing").

The noble and learned Lord said: My Lords, I should like to move Amendment No. 170 and speak to Amendment No 171.

At Committee state I said I would like to consider the amendments of the noble Lord, Lord Hacking, to require conditional fee agreements to be in writing, and to empower the Lord Chancellor to prescribe information which such agreements should contain. I believe my amendments achieve these purposes. Your Lordships will see that the second of the two amendments provides for the prescribing of requirements rather than information. While the former includes the latter, it also seemed wise on reflection to include the possibility of prescribing, for example, how conditional fee agreements should define success in the client's action. I believe both amendments to be real, if not major, improvements to the clause, and I commend them to your Lordships.

Lord Renton

My Lords, I agree that the first of my noble and learned friend's amendments, that the conditional fee agreement should be in writing, is certainly an improvement; but when he says that the Lord Chancellor should be able to prescribe various requirements, unspecified, in this new and highly controversial departure from the previous practice and etiquette of the Bar in England and Wales, I must say that I do not find his second amendment so welcome.

Perhaps the noble and learned Lord could give us some idea of the kind of requirements which he had in mind when he tabled the amendment. After all, we have in the clause as it stands a certain amount of statutory indication as to what the agreement could or should contain or not contain. Now, in this highly controversial matter we are adding a factor of uncertainty which, speaking for myself, I do not welcome. But I should like to hear what my noble and learned friend has to say about it.

Lord Mishcon

My Lords, perhaps I may add a sentence or two. I believe that the noble Lord, Lord Renton, put his finger on a good description of this fee when he said it was highly controversial. None of us quite knows how it is going to work. I should have thought that when one has something which is highly controversial, when one needs to see how it works out and how it ought to be regulated—indeed, how it may have to be stopped—the requirement is for flexibility, to give this power to make regulations from time time to condition the fee, to limit the rights or to extend them in some way. I should have thought this was a proper amendment. We support it.

The Lord Chancellor

My Lords, I brought these amendments forward as a result of the amendments moved by the noble Lord, Lord Hacking. I am glad that my noble friend Lord Renton approves of the first one.

So far as the second one is concerned, with respect I think the fact that the matter is somewhat controversial is a very good reason for giving the Lord Chancellor power to make additional requirements if that seems to be necessary. It was in that spirit that I decided that it would be wise to accept the principle of the noble Lord, Lord Hacking's amendment. I can see that it could do good to have this power, but I cannot see how it could do harm. The requirements would be additional to the requirements in the statute and, to that extent, might be able to meet elements of doubt that my noble friend had about the matter. It was on that principle that I brought the matter forward. If the noble Lord thinks it is adding a damage to the clause I should be glad to know on what basis. On the contrary, it seems to me to provide a possible defence against any difficulty which may emerge in a situation which my noble friend describes as controversial.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 171: Page 36, line 8, after ("circumstances") insert— ("(bb) complies with such requirements (if any) as may be prescribed by the Lord Chancellor;").

The noble and learned Lord said: My Lords, I have already spoken to the amendment. I hope that I have assured my noble friend about the matter. I beg to move.

On Question, amendment agreed to.

Lord Ackner had given notice of his intention to move Amendment No. 172:

Page 36, line 11, leave out subsection (2) and insert—

("(2A) A conditional fee agreement shall be unenforceable so far as it provides for the amount of any fees to which it applies to be increased above the amount which would be payable if it were not a conditional fee agreement.").

The noble and learned Lord said: My Lords, the amendment relates to the new contingency fee. We spent two hours on the subject on the sixth day (the last day) of the Committee stage debate. It is now approaching 10.30 p.m. The House is virtually empty. It would be inappropriate to address the House at any length. It would be even more inappropriate for me to seek to divide the House on an issue as important as this. I do not therefore propose to move the amendment. I shall return to it on Third Reading.

[Amendment No. 172 not moved.]

[Amendments Nos. 173 and 174 not moved.]

The Lord Chancellor moved Amendment No. 175:

Page 36, line 22, leave out subsections (5) and (6) and insert—

("(5) Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings.

(6) An agreement which falls within subsection (2) shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement exceeds the prescribed maximum permitted percentage for the description of proceedings to which it relates.").

The noble and learned Lord said: My Lords, the amendment is intended, in the light of the discussions that we have had, to improve the clause. Subsection (5) of the clause as drafted empowers the Lord Chancellor to prescribe maximum permitted percentages by which the lawyer's fee under a conditional fee agreement may be increased.

Subsection (2) requires any increase to be stated in the agreement. Since the power in subsection (5) is permissive, it might be argued that where no maximum has been prescribed, it is left open to the lawyer to agree an unlimited increase and that the agreement would then be rendered enforceable by subsection (3). In fact, the Lord Chancellor could effectively prevent any such development by prescribing a maximum percentage increase for every category of specified proceedings; nevertheless, I think it right to put the matter beyond doubt, by substituting for subsection (5) an absolute requirement that wherever a conditional fee agreement is to be enforceable, there must be a maximum permitted percentage increase.

The amendment to subsection (6) is purely consequential, removing the impression, which might otherwise become misleading, that an increase might be permitted where no maximum had been laid down. I beg to move.

Lord Mishcon

My Lords, I wonder how the noble and learned Lord thinks that the amendment could, in practice, be carried out. I would understand it completely if the profession were subject to a rate card which said precisely how much a client would be charged. I could understand it if there were no such thing as an agreement between solicitor and client as to the fees that should be charged. I could understand it if it were a rule, which it certainly is not, that all clients should be charged on precisely the same basis—the wealthy the same as those who are fairly comfortably placed, and the fairly comfortably placed in the same way as the poor client. All that I could understand if one were thinking in terms of an order which laid down a percentage as a maximum; but, bearing in mind the way in which the profession works, I do not see, with respect, how the provision has any practicability at all. If I have erred, I know that the noble and learned Lord will deal with me gently. However at the moment I do not see how this can be put in a statute because as I see it the provision has no practical outcome at all.

The Lord Chancellor

My Lords, my understanding is that the clause already in the Bill allows a percentage increase on the fee that would otherwise be payable, assuming that there were no conditional fee agreement attached to it. What was in the Bill allowed a maximum permitted percentage. I wish to be clear that no conditional fee agreement shall be enforceable unless it is within that category. In other words, if no additional fee is allowed, the agreement is unenforceable if an additional fee or additional percentage is stipulated for. I hope that I have made that clear to the noble Lord. A stipulation is allowed for, for an additional fee, but a maximum percentage is allowed for it. I indicated that I regarded it as likely that it would be small, and not a big percentage uplift.

In this amendment I provide that: Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings". In other words every specified proceeding must have a maximum attached to it. The second point that I provide in the amendment is that: an agreement … shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement", is more than the permitted maximum. In other words it makes absolutely clear that the permitted maximum cannot be exceeded in any case and still retain the enforceability of the agreement.

Lord Mishcon

My Lords, with the leave of the House and before the noble and learned Lord sits down, I understand that. It may well be that I ought to have raised this matter at Committee stage. I am anxious that before the Bill leaves the House everybody is apprised of the fact that we have allowed the Bill to go from this place in an orderly and practical way. If every bill of costs of a solicitor is taxed, it will impose a terrific burden upon the taxing office of the court, quite apart from imposing hardship upon practitioners who may have to wait a long time before they know what fee is payable by the client. What beats me at the moment is this. A fee agreement may presumably say, "Because I have entered into an arrangement with you, the client, to act for you on this matter and it is upon the conditional fee basis, if you are successful I am to be paid a sum which is equivalent to the amount of costs that I would normally have received, plus x per cent.".

I just do not know how one regulates the situation from there. Comes the day when the client is successful. All he has to do, unless every bill is taxed, is presumably to say, "Well, let me see, I would have charged you normally £1,500". He has to do this at the end of the day, not at the beginning. "My agreement says that I am entitled to charge you a percentage over and above that". The poor client does not know whether the £1,500 is a just fee or an unjust fee unless he taxes. Normally the relationship of solicitor and client is such that if there is no percentage arrangement and limit, the client agrees the fee as being reasonable. Only in very rare cases is it taxed. But how would one know whether the law was being complied with? I am not talking, I hope, about the average practitioner. All a practitioner has to do and may do is to put an outlandish sum in regard to what he says he would normally have charged and then obtain an excess merely by saying that he has complied with the maximum percentage and all he is going to do is to add x per cent, to that. I do not know how anyone will regulate this matter—that is my difficulty—unless every conceivable bill is taxed to see whether the solicitor has properly complied with the law; namely, that he has in fact charged only the proper charge that he would have made theoretically if this agreement had not existed, and then added a percentage to it. That is my difficulty. I apologise if I should have raised this matter in Committee when the debate took place.

10.30 p.m.

Lord Renton

My Lords, before my noble and learned friend replies I must intervene as I shall not be able to address your Lordships later. I now rise to make the rather simpler point that I was about to make when I wanted the noble Lord, Lord Mishcon, to get in before me. First, I am opposed to there being any kind of uplift percentage increase. Secondly, although it is not stated in the clause, I assume that this means a percentage increase over what would otherwise be scale fees as costs on taxation. But in any event I think that if there is to be an uplift, the maximum permitted percentage should of course be limited, if necessary by order, as the amendment of my noble and learned friend indicates. Therefore, I should have thought that if we are to have uplift (which I am strongly opposed to) subsection (5) is rather necessary. It follows therefore—this is the sanction to enforce subsection (5)—that if there is to be an uplift, if the uplift is exceeded it should be unenforceable, as described in the proposed subsection (6) of the amendment of my noble and learned friend. I say without prejudice to any discussion that we may have at a later stage on whether there should be a maximum permitted percentage that, if there is to be one, the proposals of my noble and learned friend ought to be accepted.

Lord Simon of Glaisdale

My Lords, as my noble and learned friend shows every sign of asking leave to speak again, I shall make one short point that perhaps he can deal with. Why is the word "unenforceable" used in this amendment and not the word "void"?

The Lord Chancellor

My Lords, the amendment deals with the situation that arises if the agreement is not in accordance with the prescription. As I understand the law at present, it states that a conditional fee agreement is unenforceable. Therefore I seek to maintain that state of the law in respect of any conditional fee agreement which does not comply with the requirements of the clause.

I am grateful to my noble friend Lord Renton for his support on these amendments, which I believe to be right. These amendments do not affect the basis of the clause except to make it clear that there will always be a specified maximum. That is without prejudice to the question of whether any uplift should be allowed at all. If an uplift is allowed it should not exceed a specified maximum in any case. If it exceeds the specified maximum the agreement is unenforceable.

So far as concerns the point raised by the noble Lord, Lord Mishcon, what I have in mind is that the agreement should specify that the fee is conditional and may be increased over the normal fee that would have been payable had the fee not been under a conditional fee agreement. The noble Lord is right to say that in most cases it would be possible to ascertain and determine the fee without resort to taxation. The rights of the parties will be agreed between them. The solicitor may say, "The normal fee would be x. We have agreed an uplift of 5 per cent, which is applicable in the circumstances. Therefore the fee is x x 105/100". If there is a dispute about x—and I hope that disputes would be the exception—that would be determined by the taxing officer in the normal way. The solicitor would submit his account for taxation. If x was disputed, x would be determined and the percentage added. I do not see the difficulty in that.

The fee agreement could specify the fee and dispense with taxation altogether, but that would be most unusual. Normally the fee would be one that would arise in the normal course of events and it would be agreed that there should be an addition to the ordinary fee for the reasons which I explained when we dealt with the matter in Committee.

Lord Ackner

My Lords, before my noble and learned friend sits down I should like assistance in order to ascertain to what extent the client is protected. The client does not know the difference between what would result from taxation and what would result from an ordinary agreement.

In the debate my noble and learned friend was at pains to say that he was anxious that the damages which justice awarded to the successful plaintiff should come to that successful plaintiff virtually untouched. How can that be the case unless the client is given clear statutory protection so that he knows that he has, and must be told that he has, the option in every such agreement to go for taxation? It would be quite improper in such a situation for a fee to be agreed at the outset which might have little or nothing to do with the amount of work done ultimately, particularly if there is a settlement. We had a substantial debate on how the conflict might arise between the interest of the client and that of the solicitor as to whether there should be a settlement. If there is to be proper protection for a client in that highly undesirable situation, there must be some statutory obligation to inform the client that in every such agreement he is entitled to have the costs taxed, if he is so minded, before the percentage uplift—which I hope will never occur—is applied to the Bill.

The Lord Chancellor

My Lords, with the leave of the House, I am not sure that that issue arises under the amendment for which I have sought your Lordships' approval. However, as I understand it, in litigation a client is always entitled to have his account taxed. I do not propose any change in that respect. All I say is that the amount that would be awarded on taxation under a conditional fee agreement could be increased by not more than the specified percentage.

The noble Lord, Lord Mishcon, asked how that can work unless there is a taxation in every case.

The answer is that it would work in exactly the same way as in other cases in which there is no taxation; in other words, the client would accept the fee proposed under the agreement by the solicitor. If he disputes it, the remedy is by taxation. That applies as well to this as to the ordinary case.

On Question, amendment agreed to.

[Amendment No. 176 not moved.]

The Lord Chancellor

My Lords, I call Amendment No. 177.

Lord Simon of Glaisdale

Not moved.

The Lord Chancellor

My Lords, it may help my noble and learned friend Lord Simon of Glaisdale if I said that I was willing to accept his Amendment No. 177.

Lord Simon of Glaisdale

My Lords, I am not sure whether I am in order or not. I thought that my noble and learned friend called Amendment No. 177 and I said, "Not moved".

Lord Renton

My Lords, on a matter of procedure, I understand that my noble and learned friend the Lord Chancellor has power to move the amendment himself, if he wishes, in order to accept it. If he does not, I shall.

The Lord Chancellor

My Lords, I am not sure whether my noble and learned friend and I are at cross-purposes. I am certainly willing to accept his amendment. I should much prefer it if he were to move it himself, but I am perfectly happy to do so.

Lord Simon of Glaisdale

My Lords, in that case I shall move the amendment.

The Lord Chancellor

My Lords, I shall be extremely glad to accept the amendment.

Lord Simon of Glaisdale moved Amendment No. 177: Page 37, line 5, leave out subsection (11).

On Question, amendment agreed to.

Clause 47 [Regulation of right of Scottish and Northern Ireland lawyers to practise in England and Wales]:

The Lord Chancellor moved Amendment No. 178: Page 37, line 17, leave out from ("litigation") to end of line 19.

The noble and learned Lord said: My Lords, I bring forward this amendment to give effect to an undertaking that I gave to my noble friend Lord Coleraine on the sixth day of Committee. Indeed, my amendment is identical to that which my noble friend brought forward on that occasion. Parliamentary counsel advises me that his drafting cannot be improved upon. I am grateful to my noble friend for bringing forward this amendment and for his patience.

I gave an undertaking in the White Paper to make regulations which will ensure that United Kingdom lawyers have rights to practise in other parts of the United Kingdom at least equivalent to those available to lawyers from other EC countries. The clause as drafted, however, goes further in making provisions for such cross-border practice than the EC directive did with regard to inter-state practice. That was not my original intention and I am, therefore, bringing forward this amendment to make the clause comply with the policy that I had already indicated. I beg to move.

Lord Coleraine

My Lords, I am grateful to my noble and learned friend whose amendment is clearly every bit as effective as the one that I moved in Committee.

On Question, amendment agreed to.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 179: Page 37, line 27, leave out subsection (3).

The noble and learned Lord said: My Lords, on this occasion I do not move the amendment.

[Amendment No. 179 not moved.]

[Amendment No. 180 not moved.]

10.45 p.m.

Lord Simon of Glaisdale

My Lords, I beg to move that consideration of the Bill on Report be adjourned.

It is most important that noble Lords should have control of the business. It is now virtually a quarter to eleven. It is not for the government business managers to fix a target—Amendment No. so-and-so—and threaten to vote down any attempt to rise earlier. Already perhaps the most important amendment on the Marshalled List—that of my noble and learned friend Lord Ackner relating to contingency fees up-lift—has been withdrawn owing to the lateness of the hour.

In view of the fact that so many amendments have not been moved and have been postponed virtually until Third Reading, I do not think that we shall have much difficulty in completing the business on the third day of Report. However, since your Lordships and not the Government's business managers are in control of your business, I submit that noble Lords should say that at a quarter to eleven enough is enough.

Moved, That further consideration on Report be now adjourned.—(Lord Simon of Glaisdale.)

The Lord Privy Seal (Lord Belstead)

My Lords, the Government would have no objection at all to finishing now. I think that the House has laboured long and hard. I look at other noble Lords—at my noble and learned friend who is in charge of the Bill and whose Bill it is, at the noble Lord, Lord Mishcon, and at the noble Baroness, Lady Seear. They may like to say a few words. The Government would be particularly happy to accede to what the noble and learned Lord, Lord Simon, suggests.

Lord Hacking

My Lords, perhaps I may first put one point. I have stayed in your Lordships' House especially to thank the noble and learned Lord for Amendment No. 183. I should be disappointed not to be able to express those thanks this evening. I think that we have perhaps only about two minutes more of business left.

Lord Ponsonby of Shulbrede

My Lords, I think that we agreed to go to Amendment No. 183. It would only take a short time to get there and it might be a good idea to finish that tonight.

Lord Simon of Glaisdale

My Lords, it is a matter for the House. The noble Lord the Lord Privy Seal accepted that if it were the view of the House we should adjourn now. I think the general feeling of the House is that we should go on up to Amendment No. 183. In that case, I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.

Clause 48 [Right of barrister to enter into contract for the provision of his services]:

The Lord Chancellor moved Amendment No. 181: Page 38, line 3, leave out ("with his client").

The noble and learned Lord said: My Lords, we discussed this clause on the sixth day of Committee. With the agreement of the House, I hope it will be helpful if I speak to this amendment and to Amendment No. 182 at the same time. The purpose of this clause is to abolish any rule of law which prevents a barrister from entering into a contract for the provision of his or her services as a barrister. During our discussion on the sixth day of Committee, my noble and learned friend the Master of the Rolls indicated that he thought that some doubt existed as to whether "client" in the clause as originally drafted included lay client as well as professional client. The government amendment is designed therefore to remove any question of doubt. It simplifies the provision, so that it would be clear that any rule of law preventing a barrister from entering into a contract for the provision of his services as a barrister is abolished.

As I understand the amendment tabled by my noble friend Lord Renton and the noble Lord, Lord Meston, it seeks to restrict the ability to make contracts to making contracts with barristers' professional clients. Such an amendment defeats the object of the clause. Its purpose is to ensure that there are no rules of law preventing contracts. Clause 48(2) makes clear that it will remain open to the Bar Council to make rules which restrict a barrister's right to enter into contracts and I would argue that such rules would be the appropriate place for restricting the making of contracts to a barrister's professional clients.

The result of that is to make the arrangements completely a matter for the General Council of the Bar to regulate. That is the purpose of the clause. However, at the moment I am dealing only with Amendment No. 181. It is clear that if Amendment No. 181 is agreed to, Amendment No. 182 is pre-empted. I therefore thought it right to make clear that that would be the effect. I beg to move.

Lord Renton

My Lords, to me it is absolutely unthinkable that a barrister could enter into such a contract as this, which is not possible at the moment and has never been done, except with a professional client. For him to deal direct with a lay client would be absurd.

My noble and learned friend says, "Ah, but the Bar Council can ensure that. That is all right". But what are we bothering to enact if the first subsection says that there can be a contract with any client and then it is understood that the General Council of the Bar will restrict it to a professional client?

We are proposing provisions in legislation which are not necessary and only cause doubt and confusion. However, if we are to have this measure, we should make it abundantly plain by keeping the words "with his client" and adding my one word "professional" to make it clear that it is only with the professional client that any such contract could be made, if at all, and subject to what the Bar Council says.

Baroness Seear

My Lords, I did not speak when the noble Lord, Lord Simon of Glaisdale, made his proposal that the House do adjourn. I make the point completely out of order, but it seems to me that the amendment raises a matter of very considerable importance which ought to be discussed in a fuller House with people more wide awake than they are at this time. I do not know whether there is a way out of this difficulty, but I think it most unfortunate that we proceed on this matter at such a late hour in an empty House.

Lord Simon of Glaisdale

My Lords, I entirely agree with what the noble Baroness has said. However, with a view to further discussion, perhaps I may ask this question on Amendment No. 181. Your Lordships discussed the immunity rule earlier, I believe at Committee stage. Under the immunity rule an advocate has immunity for his performance in court. He has that immunity because he owes a supervening duty to the court and it is highly undesirable that he should be looking over his shoulder to see whether he might be criticised, litigated against, by his client. The case of Rondel v. Worsley was a warning. But that is as far as the law gives immunity. If a lawyer is advising, other than in performance in court, he has no immunity. I am not sure what is the position with regard to solicitors, but that is the position with regard to counsel.

In view of the point that the noble Baroness has made—that this matter ought properly to be considered at a more suitable hour—my question is this. Would it be possible under this amendment for any lawyer to stipulate in the contract that he should not be liable in negligence or in breach of contract? Obviously that would be subject to the control of the Bar Council. However, leaving that matter aside, would such a stipulation be possible?

Lord Hutchinson of Lullington

My Lords, I have a certain amount to say on this matter. I do not know whether the noble Lord the Leader of the House can indicate whether we can defer further discussion about this or whether we are now committed to going on?

Lord Belstead

My Lords, I am advised that one of your Lordships may propose the adjournment of this particular amendment, and then we propose the adjournment of the Report stage. But, for once, it is one of those occasions where I do not think that I can help the House very much further. I have no objection to ending now, but it is a matter for your Lordships.

Lord Renton

My Lords, I wish to respond to the generous offer made by my noble friend the Leader of the House. I beg to move that further consideration of Amendment No. 181 be adjourned.

On Question, Motion agreed to.

Lord Renton

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.