Courts and Legal Services Bill [H.L.]

HL Deb 29 January 1990 vol 515 cc86-149

8.20 p.m.

House again in Committee.

Clause 27 [Revocation of authorised body's designation]:

[Amendments Nos. 148 and 148A not moved.]

Clause 27 agreed to.

Schedule 4 [Authorisation and Approval]:

Lord Ackner moved Amendment No. 148B: Page 70, line 38, after ("Committee") insert (", the Lord Chancellor and each of the designated judges").

The noble and learned Lord said: The first bringer of unwelcome news hath but a losing office and the tongue sounds ever as a sullen bell remembered tolling a departing friend". I am happy to tell the Committee that I bring, I hope, welcome news.

The many amendments that stand in my name relating to Schedule 4 have been drafted by those a great deal more expert than I am. That has had two distinct advantages. First, they are likely to be in proper form; and, secondly, it has enabled me to continue to give such contributions as I can to the Appellate Committee where no doubt my noble and learned friend the Lord Chancellor would wish me to concentrate the major part of my efforts.

Before dealing with these amendments, perhaps I may indicate to the Committee how I intend to go about it. I propose to deal with the philosophy behind the amendments which require both explanation and justification, having set out on page 9 for the convenience of the Committee exactly what the amendments will look like. If my noble and learned friend the Lord Chancellor wishes to follow what one usually has in English litigation, I have a copy which shows underlined in red what I am taking out, and in black what has been put in. The net consequence of these amendments is shown from page 9 onwards of the Marshalled List. Before embarking upon that task, perhaps I may first invite the Committee's attention to what appears in paragraph 8.5 of page 28 of the White Paper. It reads as follows: It is necessary also to recognise the role of the judiciary in determining how work before the courts is done". I leave out a number of unnecessary matters. Draft rules relating to advocacy or the conduct of litigation will, under the legislation be made by the professional body but to become effective they will require the concurrence of the Lord Chancellor and each of the Lord Chief Justice, Master of the Rolls, the President of the Family Division and the Vice-Chancellor. Both the Lord Chancellor and the senior judges will be required to have regard to the Advisory Committee advice. The duties of the profession, the Advisory Committee, the Lord Chancellor and of the senior judiciary are of course interrelated". I stress this part. The Government envisages that this will, in practice, be reflected in the earlier stages of the preparation of drafts by the professional bodies who by a process of discussion involving all four parties".

In the debate on the Second Reading, at col. 244, of theOfficial Report, when my noble and learned friend the Master of the Rolls expressed his concern at the procedural layout in Schedule 4 whereby the senior judges —the designated judges —came in so to speak just before the curtain fell, my noble and learned friend the Lord Chancellor stated: I entirely agree with the view that in practice we should be able to have discussions to determine the various steps to be carried out in the same way as the noble and learned Lord, Lord Donaldson of Lymington, deals with solicitors' recommendations some of which require his approval only and some of which require the approval of my noble and learned friend the Lord Chief Justice and of the Lord Chancellor".

It is in my submission extremely important if these principles are to work in harmony, that, to quote again the White Paper, in the earlier stages of the preparation of drafts by professional bodies, there should be a process of discussion involving all four parties". The desirability of this was well reflected in the speeches in the debate on the Second Reading. I make only two quotations. The first is from my noble and learned friend Lord Alexander of Weedon at column 162 ofHansard. He said: This year has been an immensely sad one for those who care about the administration of justice and believe that there is much to be done to improve our law and there is much that the Government, the judiciary and the profession need to do together to improve our substantive law and procedure. The division, bitterness and distrust created by the conflict over the structure of the profession need to be ended if we are to tackle the real problems that affect access to justice".

The noble Lord, Lord Hooson, at cols. 233 and 234 was a little more direct. He said: …noble Lords—judges, members of the Bar and others—have expressed exactly the same doubts about the Bill as they expresed about the Green Paper. It is a very serious matter that the noble and learned Lord the Lord Chancellor has not been able to ally the fears of the senior judges about the long-term effect of his proposed measures … The noble and learned Lord appears to have embarked upon a confrontational course with the Bar and the judiciary. It is unjustified in the circumstances".

I now turn to the philosophy behind the justification for redrafting Schedule 4 in the manner that we have. There are eight points. First, the role of the senior judges is not appropriately provided for. Their concurrence should not be the last step in a procedure that has wound its way via the advisory committee, the Lord Chancellor, the advisory committee again, the Director General of Fair Trading, the Lord Chancellor again, and finally the senior judges. Taking Part I of Schedule 4 as an example, the first step should be the submission in paragraph 2 which should be to the Lord Chancellor and —I emphasise "and" —each of the senior judges. They will then send it to the advisory committee and the Director General of Fair Trading for advice. Once that advice has been received, the Lord Chancellor and —I emphasise "and"—the senior judges should then consult together —and I emphasise the word "together" —and each form a judgment whether the application meets the requirement of the statutory objective and the general principle both generally and specifically. They should then each deliver a reasoned decision.

Secondly, the present framework in Schedule 4 puts the senior judges —by that I mean the designated judges —in a purely passive role at the end of a long procedural chain. On the contrary, they should be involved throughout.

Thirdly, moreover, the senior judges and the Lord Chancellor should be able to initiate possible changes themselves. The judges as well as the Lord Chancellor will through experience and consultation with the higher judiciary, circuit judges and others, become aware of circumstances calling for change. In my respectful submission, the present framework bars any initiative by the senior judges or the Lord Chancellor, except only the part of the Lord Chancellor in the limited circumstances related to revocation under Clause 27.

Fourthly, the framework in Schedule 4 does not allow for consultation of other authorised bodies. They have a legitimate expectation that they will be consulted as to the effect of what is proposed for the particular authorised body or proposed authorised body. It is only common sense that they should be consulted. For example, if it were proposed that the Royal Institute of Chartered Surveyors should become an authorised body for the purpose of granting rights to conduct litigation, it would be wrong for the Law Society and the Bar Council not to be fully consulted. They may have considerable relevant observations to make and that should be provided for.

Fifthly, the framework in Schedule 4 makes no provision for the authorised body, proposed authorised body, or any other such body to have an opportunity to respond to the advice of the advisory committee and Director General of Fair Trading. Clearly that would be a step necessary in fairness to all concerned and it should be provided for.

Sixthly, the framework in Schedule 4 requires the senior judges (that is the designated judges) to give their reasons if they are against —and I emphasise the word "against" —an application but not if they are for it. Apparently that proceeds on the footing that it is only if an application is refused that any question as to the correctness of the decision can arise. Clearly that is not right. A decision to approve an application may be erroneous in law or in fact just as much as a decision to refuse an application. Therefore, the Lord Chancellor and the senior judges should be required to give reasons whichever way they may decide.

Seventhly and penultimately, the reason of the Lord Chancellor and of each of the senior judges should be available to the public on every occasion. That is rather than the framework now proposed which could only expose the senior judges to undue pressure —and I emphasise those words —by publicising only the reasons of any of them who refuse to approve an application (see Schedule 4, paragraph 5(10)).

Eighthly and lastly, at present there is no provision in Schedule 4 to enable the designated judges to take the initiative to put in train the procedure to review existing rights to grant rights of audience. That is an omission and Schedule 4 should be amended accordingly.

The Committee will appreciate that in no way have I sought to produce amendments that can be said to prejudice what the Lord Chancellor desires by way of proper consultation. On Second Reading I expressed my views about the undesirability of the whole of this legislation and I do not seek to repeat any part of those submissions. In the spirit which my noble and learned friend Lord Alexander of Weedon stressed on Thursday, I have endeavoured to put forward proposals to try to ensure that what is proposed by the Government works better.

On previous occasions the Lord Chancellor has emphasised —and I have quoted him —that no harm is ever done by consulting the people who have wisdom to provide. In the amendments I have sought to provide what the White Paper suggested; that is bringing in the judiciary, which, in the words of the Lord Chancellor, has a vital role to play at an earlier and more effective stage and making the consultation open, friendly, harmonious and in a manner designed to achieve sensible results rather than the confrontational system which the noble Lord, Lord Hooson, understandably thought existed as Schedule 4. I beg to move.

8.30 p.m.

The Lord Chancellor

These are full amendments and I am grateful to my noble and learned friend for the way in which he has set out their result on page 9 of the Marshalled List.

There is little between us. As I have already made clear, it was always my intention that the judges and myself would be involved at any appropriate stage. I have sought to model the provision on the arrangements which were made in the statute of the solicitors' branch of the profession for approval by the Master of the Rolls in some cases and by the Lord Chief Justice, the Master of the Rolls and myself in relation to others. I anticipate that, as it was in those cases, so it should be in this machinery; that without any risk to their ultimate judgment judges should be able to participate in discussion of such matters.

I also believe it to be right that their formal decision should be the ultimate stage in the process. That is to say, unless their consent is obtained the regulations will not become effective. That is right but it does not mean that their views will not become involved in the formation of the arrangements at an earlier stage. Therefore, we can readily accept most of the proposals put forward by my noble and learned friend.

However, it is unwise to include formal requirements for consultation with authorised bodies. It is right that in many cases that would be appropriate, but by no means would the consultation be restricted to the authorised bodies. Consultations that the advisory committee might undertake in respect of such matters should be far-reaching. To include existing authorised bodies as having a stuatutory right to be consulted while excluding others would not be an improvement. It would tend towards the confrontational arrangement which it is my noble and learned friend's objective to eliminate.

I believe that in formulating proposals in that area the advisory committee would be right to take account of the views of all those who have interests as members of authorised bodies but also the views of others. The result is likely to be more satisfactory. That is the main distinction between my noble and learned friend's proposals and what I believe to be right.

As regards the response to the advice of the advisory committee and the Director General of Fair Trading, of course the intention would be that the advisory committee's advice would be available to the professional body involved in making the application and that would be generally available. The intention is that the advisory committee should come to its views in a way which is presented to the public.

I am perfectly content to accept the view that the judges should give their reasons, whichever way they may decide, and that those views should be available to the public on any occasion.

It was also my intention that, in common with others, the judges could initiate moves to make changes, but I am perfectly content to make that a formal part of the arrangements. Therefore, although I find it unacceptable that there should be a legal obligation to consult the authorised bodies without mentioning anyone else, most of the other proposals are acceptable. I believe that what must happen is that the advisory committee must have a full chance to consider the matter and come to a conclusion on it, taking the benefit of every shade of opinion and view which it considers to be appropriate. I hope that in the light of that response my noble and learned friend will allow me to consider these matters further.

Lord Alexander of Weedon

Before the noble and learned Lord, Lord Ackner, has an opportunity 0to respond, perhaps I may say how much I welcome the response given by my noble and learned friend. It is sometimes suggested that the judges are not innovative or that they are not critical of counsel. That has not been my experience at the Bar. I very much welcome that the judges, who have so often taken the lead in procedural reforms, will be in a position under the suggestion accepted by my noble and learned friend both to take the initiative in putting forward proposals and to be consulted at an early stage. I believe that that is the way in which effective progress in the administration of justice has traditionally been made; that is, by regular consultation between the Lord Chancellor's Department and judges. I am very glad that my noble and learned friend believes it desirable to continue in that way.

I accept totally what he says about the possible lack of necessity to provide for specific consultations with the authorised bodies. Since the rights of their members are affected, it may in any event be necessary to consult them as a matter of natural justice. Be that as it may, from the spirit in which this answer has been given on the consultation procedure I believe it is clear that my noble and learned friend has in mind that their views should be taken into account.

8.45 p.m.

Lord Simon of Glaisdale

This is an immensely complicated schedule and Members of the Committee will be very much indebted for the exemplary clarity of my noble and learned friends Lord Ackner and the Lord Chancellor in explaining where their difference lies. As I understand it, my noble and learned friend the Lord Chancellor only demurred on one point; namely, that although he thought it right that the authorised bodies should be consulted, he did not think it right that they should be the only bodies necessarily to be consulted.

I did not understand that my noble and learned friend Lord Ackner had proposed expressly any exclusions. If he did, that is a matter which can easily be put right on Report, his amendments being accepted as a whole.

However, it may be that my noble and learned friend the Lord Chancellor had in mind the doctrine of construction generally expressed in the Latin maximexpressio unius est exclusio alterius. Again, if that is what he fears as applicable, I am by no means sure that that would be applicable. That is a matter which every day the draftsman excludes by saying, "Without prejudice to any other consultation which might be deemed to be desirable". Therefore, at present, having listened with admiration to the explanation of my two noble and learned friends, I do not see why the Lord Chancellor does not accept these amendments as a whole.

Lord Hooson

I should also like to congratulate the noble and learned Lord the Lord Chancellor on his reaction to these amendments, which is very reassuring. However, as I understand his response he was only concerned that Amendment No. 148M was too restrictive and that he did not believe he should be restricted only to consult the authorised bodies because he might want to go outside that.

It seems to me that he could accept that amendment and bring a further amendment to it which should read something like, "The Lord Chancellor shall also send copies of the regulations and rules and of the statement of proposed rights to every existing authorised body and such other bodies as he deems it expedient to send them to", or something along those lines. He would not then be restricted but nevertheless he would fulfil the purpose which the noble and learned Lord, Lord Ackner, has in mind; namely, that there should be consultations with the authorised bodies. I well understand the reaction of the noble and learned Lord the Lord Chancellor that he does not want to be restricted to merely consulting those bodies.

Lord Renton

I too should like to show my appreciation of the open-mindedness on this matter of my noble and learned friend the Lord Chancellor. When he says that he does not go along with the idea of consultation with authorised bodies, I assume that he refers to the new subsection (2A) which is to be seen on page 10 of the Marshalled List. That is very simple and clear in its terms and does not impose much of an obligation upon anybody. However, as my noble friend Lord Alexander of Weedon said, it might be a matter of natural justice to allow those authorised bodies to be told what is happening. It is analogous with the rule of natural justice,audi alteram parte. I should have thought that my noble and learned friend the Lord Chancellor would lose nothing and might gain a great deal in the working of the machinery if he were to accept this proposal for consultation.

Lord Mishcon

Perhaps the Committee will agree with me that it would be economical of time if I were to speak to my Amendments Nos. 148T to 148Y without moving them at this stage because those amendments concern the very provisions which we are talking about in Schedule 4.

Perhaps I may say at once that I have heard the noble and learned Lord, Lord Ackner, and others who spoke after him. We all take for granted, as I am sure we should, that the amendments have been put forward in thoroughly good faith and that when the judges are being consulted on the question of the rules and regulations and any alterations to them we can count on the fact that they have accepted the spirit and objects of this Bill and that in no sense at all, because this phrase has been used in the media and elsewhere, will there be any question of endeavouring to sabotage —I do not use the word, but others have used it —the whole purpose of this Bill.

It is in that sense that we are all listening to these suggestions. We wish to be sure that the spirit in which the judges carry out their work will be consistent with the spirit of the Bill.

Having said that, I should like to turn to the spirit of the amendments which stand in my name and in the names of the noble Lords, Lord Prys-Davies, Lord Goodman and Lord Allen of Abbeydale. If any of those noble Lords take the view that I am not expressing what they would like to express in support of this amendment, I know that the opportunity will be granted to them to say so.

Lord Rawlinson of Ewell

The noble Lord, Lord Mishcon, referred to those noble Lords who supported him. I looked round anxiously to see where they were so that we could hear what they wanted to say.

Lord Renton

The noble Lord, Lord Prys-Davies, is here.

Lord Mishcon

The noble Lord, Lord Prys-Davies, is here. I am sure that when the other noble Lords have read what I have had to say regarding the amendment, they will have an opportunity at another stage of the Bill to express a view, if it happens to be contrary to mine.

What was my anxiety behind these amendments? It was an anxiety that I have heard expressed by the noble and learned Lord, Lord Rawlinson. I am reminded of his name only because he has just made his helpful intervention in regard to my absent friends. That anxiety has been expressed by other noble Lords. We know the present noble and learned Lord the Lord Chancellor. We have every respect for him and we have every faith in him. Who knows what may arise in the future under the guise of the Lord Chancellor, wearing his noble robes? We felt that a spirit of caution ought to be present in our deliberations when we envisaged some eccentric Lord Chancellor who might not be doing what we should like him to do.

Eccentricity does not only lie with future imagined Lord Chancellors; it can also —dare I say it? —arise in respect of a designated judge. It is possible to assume such a state of affairs. This point is followed through in the amendments of the noble and learned Lord, Lord Ackner. Any one designated judge, leaving aside the Lord Chancellor, in his eccentricity, as it might exist, has the power under the Bill to say: the principle of the Bill has not been observed; the application is refused. He has the power to say that he disagrees with the application to amend the rules. Noble Lords will observe from the wording of the amendment and the Bill that that is the power of veto which is given to any one designated judge.

My amendment is a probing one dealing with this question: in those circumstances, would consultation be more appropriate? The Lord Chancellor makes his decision after receiving the opinion of each of the designated judges. However, I do not stand rigidly behind consultation. The purpose of my probing amendment was to voice to the Committee the view that under the Bill it should be a majority decision that counts with the Lord Chancellor without giving an individual veto. If the noble and learned Lord would kindly consider the situation that he may be faced with in future years —that every one of the designated judges has to agree one way or the other —he may find that there is wisdom, if I may humbly say so, in an amendment which provides that the majority decision of the designated judges ought to count with him.

If the noble and learned Lord feels that after receiving the opinion of each one of them and then altering the word "decisions" to "opinions" this is a good amendment, I shall be happy, as I am sure will the noble Lords whose names appear with mine on this amendment. However, if that does not find favour with the noble and learned Lord and Members of the Committee, then I respectfully suggest that we should come forward at Report stage with a provision that it should be the majority. We would then avoid the unhealthy spectacle of either judicial review upon the judgment of one of the designated judges, or a situation where the eccentricity or obdurate attitude of one of the designated judges upsets the whole applecart.

It was for that reason that I put down the amendments. I hope that the Committee feels that it was sensible of me to rise when I did in order to voice those opinions. I shall take a certain course, which I hope will be an abbreviated way of dealing with the matter, when these amendments are reached.

Lord Hutchinson of Lullington

The noble Lord spoke of the possibility of there being an eccentric designated judge. What would happen if there were an eccentric Lord Chancellor?

Lord Rawlinson of Ewell

I thought that it was the policy of the party to which the noble Lord belongs to abolish the House of Lords. Presumably he would abolish the Lord Chancellor also. There would then be a great deal of eccentricities for which the noble Lord would have to provide.

Lord Mishcon

This is not the only time when the noble and learned Lord, Lord Rawlinson, not in a ceremonial way but in another way, has voiced an opinion which is not necessarily the correct one. My party has adumbrated its policy of reforming the House of Lords. Whether all of us agree with the announcement of the policy is another matter. I hope that in any such reformation the dignified role of Lord Chancellor would play a part.

Lord Hooson

As I understand it, as all of the designated judges in a few years' time will be solicitors in any event, I am surprised that the noble Lord, Lord Mishcon, suggests that one of them might be eccentric.

It is much more important that the status and authority of future designated judges should not be undermined, whether they have a background of being solicitors or barristers. It must be right that if the designated judge is wrong in his decision he can be challenged by way of judicial review. In practice the truth of the matter is that they would be so careful in their decisions that they would come to a judicial decision on what is required in the circumstances. I think the noble Lord should withdraw this amendment.

Lord Mishcon

I have not moved the amendment; therefore it is difficult for me to withdraw it. However, I should like to be permitted the courtesy of answering immediately.

If the noble Lord, Lord Hooson, thinks that I have not met an eccentric solicitor in my professional career, he is wrong. I regard anyone who disagrees with the point of view that I put forward on behalf of my client as being eminently eccentric.

To deal with the matter seriously, as I know the noble Lord did, are we going to face a situation where the remedy, says the noble Lord, Lord Hooson, is to go by way of judicial review because one judge has differed from all of the others? I shall not repeat my speech. I hope that it will be deemed to be good and sensible legislation policy to provide that a majority of the judges would carry sway if, as I say, the Committee does not like the idea of the consultation process.

9 p.m.

Lord Ackner

I shall not take up the valuable time of the Committee by dealing with such of the media who may have used the word "sabotage". They are irresponsible and do not deserve any comment.

The High Court judges and the Court of Appeal, after deliberation, published a long document setting out their reactions to the Green Paper. Interestingly enough, the media did not criticise any of the essential principles which were adumbrated. The amendment tabled by the noble Lord, Lord Mishcon, seems to have somewhat changed course. There is no reference to majority or minority; there is reference to opinion. That really means you can consult but you can then ignore. That is what taking account of an opinion means.

I remind my noble and learned friend the Lord Chancellor of what happened as recently as last Thursday during the Committee stage. At col. 1235 of theOfficial Report the noble Lord, Lord Rippon, quoted this passage from the judges' written response: It is of fundamental importance that the existing degree of separation of powers and functions of the Judiciary from those of Parliament and the Government, evolved gradually over the centuries, should be maintained. The independence of the Judiciary and of advocates is perhaps more important now than ever, because one of the great constitutional tasks of the courts today is to control misuse of power by Government Ministers and departments. The Government is proposing that in future the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the High Court and the Court of Appeal by means of subordinate legislation". My noble and learned friend the Lord Chancellor, in replying to that quotation, said at col. 1239: However, I should like to say that my noble friend Lord Rippon, in reading from the comments of the judges on the Green Papers, is dealing with the system that was proposed in those Green Papers, which I have modified fundamentally in order to take account of those very criticisms. The Lord Chancellor no longer has the final decision in any of these matters. In this case the balance is that the professions must propose—so far as concerns the Law Society and the Bar as their respective governing bodies—and approval is required not only from the Lord Chancellor but from all heads of division". That was the considered reply last Thursday. I am sure that my noble and learned friend the Lord Chancellor can be relied upon to be consistent.

I do not know what the noble Lord, Lord Mishcon, means by the eccentric judges. When I started in practice one of the qualities that many of the judges had was eccentricity; it was part of their character. But we are now so leavened into a mould of similarity that eccentricity no longer exists. If the noble Lord meant by eccentricity irrationality, then he should say so. He avoided the word irrationality because, as the able lawyer he is, we all know that irrationality is one of the classic grounds for judicial review. No one would know that better than even an eccentric head of a division.

Finally, I refer to the question raised by my noble and learned friend the Lord Chancellor as the one reservation that he had. In my address to the Committee I said that these bodies may or might have a legitimate expectation. That is a phrase that my noble and learned friend the Lord Chancellor will recall, I believe I am right in saying, from the GCHQ case involving judicial review. If there is a legitimate expectation, then it has to be reasonably complied with. It was in order to ensure that a schedule was not produced which itself could be attacked as being irrational by not allowing a legitimate expectation, that I specifically used those terms.

I am very grateful to my noble and learned friend the Lord Chancellor for his willingness to consider the matter. Perhaps he might consider that aspect, too. We shall then have an opportunity at Report stage to see how the new Schedule 4 reads. For the moment I am quite happy to withdraw my amendment.

The Lord Chancellor

Before my noble and learned friend sits down what I have to say may help because I have not responded to what the noble Lord, Lord Mishcon, said. I want to adhere absolutely to the policy set out on this matter in the White Paper. In the light of what my noble and learned friend Lord Ackner has proposed, all I am considering is whether any improvement can be made to the machinery for achieving what is required in order to enable the judges to participate informally as well as, ultimately, formally. I have explained my situation in that regard.

As regards consent, I have given the matter as much consideration as I am capable of doing. I came to the conclusion that it was right to require the consent of each head of division. I came to that conclusion for this reason: originally I had said in the Green Papers that the Lord Chancellor would consult the senior judiciary. I had in mind that, in my experience, the Lord Chancellor would be very likely to go along with the views of the senior judiciary in seeking to deal with these matters. He might well influence these views in discussion with them.

It appeared from the consultation that many, including my noble and learned friend Lord Ackner and others, were afraid that whatever I might do, the Lord Chancellor as such might not do the same. Therefore if was thought wise to have an express requirement of concurrence from the senior judiciary on the lines of what the Law Society had been familiar with for many years in their training and conduct regulations. But in this case where the right of audience is in question I had in mind that each of the heads of division has a distinct responsibility. I have mentioned them before; the Lord Chief Justice for the Queen's Bench Division, the Criminal Division of the Court of Appeal; the Master of the Rolls for the Civil Divison of the Court of Appeal; the President for the Family Division and the Vice-Chancellor for the Chancery Division, making up in total the High Court. I felt that each distinct part of the court might have a distinct aspect to consider. Therefore I believe it is right to require that for rules to become effective they should have the concurrence of each of the heads of division, which is in accordance with what I proposed.

As the noble Lord, Lord Hooson, has pointed out, the law is not powerless to deal at least with irrationality. Notwithstanding what my noble and learned friend said about the complete elimination of eccentricity in the judges of the present day, I do not believe that the law necessarily completely does that by its available procedures. I am open to further instruction from my noble and learned friend on that point as the Bill proceeds. But at least on the question of the rationality of the judgment, there is available legal remedy.

I should not like the noble Lord, Lord Mishcon, to feel that I would consider in any favourable way what he proposed as I did not reach my present conclusion in the White Paper without a great deal of consideration. On the other matters, I am grateful to my noble and learned friend. We have dealt only with the principle of the matter here in order to focus on the detailed matters that we shall want to consider.

Lord Ackner

I beg leave to whitdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 148C to 148P not moved.]

The Lord Chancellor moved Amendment No. 148Q: Page 72, line 12, leave out ("42") and insert ("41").

The noble and learned Lord said: Perhaps I may speak at the same time to Amendment No. 148ZP. There are typographical errors in the Bill. The investigations made by the Director General of Fair Trading will be made under Clause 41 and not under Clause 42. These amendments correct identical typographical errors. I beg to move.

Lord Simon of Glaisdale

I did not understand my noble and learned friend. He said that he was speaking to Amendment No. 148Q. I thought he said Amendment No. 148P. Either I misheard or it was a slip of the tongue.

The Lord Chancellor

It was Amendment No. 148ZP. That is what I hope I said; that is certainly what I intended to say.

On Question, amendment agreed to.

[Amendments Nos. 148R and 148S not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 148T: Page 72, line 36, leave out ("or any") and insert ("after receiving the opinion of each").

The noble Lord said: I have spoken to Amendments Nos. 148T to 148Y. I should rather like to consider the courteous words which the noble and learned Lord addressed me on these matters. For the time being I shall not move the amendments.

[Amendment No. 148T not moved.]

[Amendments Nos. 148U to 148ZN not moved.]

The Lord Chancellor moved Amendment No. 148ZP: Page 74, line 39, leave out ("42") and insert ("41").

The noble and learned Lord said: This is the amendment to which I spoke on the last occasion. I beg to move.

On Question, amendment agreed to.

Lord Ackner had given notice of his intention to move Amendment No. 148ZQ:

Page 74, line 39, at end insert — ("Opportunity, for applicant to comment on advice of Advisory Committee and the Director 10A. When he has received the advice of the Advisory Committee and that of the Director, the Lord Chancellor shall afford the applicant a reasonable opportunity to comment on that advice.").

The noble and learned Lord said: I shall not move Amendments Nos. 148ZQ to 148ZZC. I hope that the Chief Whip will give us some credit for this effort.

[Amendment No. 148ZQ not moved.]

[Amendments Nos. 148ZR to 148ZZC not moved.]

Schedule 4, as amended, agreed to.

Clause 28 [The General Council of the Bar]:

9.15 p.m.

Lord Meston moved Amendment No. 149: Page 22, line 23, at end insert ("and the word "barristers" shall include barristers holding judicial office").

The noble Lord said: This amendment is grouped with Amendments Nos. 155, 203 and 204. I shall, with the leave of the Committee, speak to all four amendments. These are all probing amendments which are designed to seek clarification. They are concerned with the qualifications for judicial office and the interchangeability of judicial office. At present such qualification is that the person concerned is a barrister or a solicitor of so many years' standing. On appointment he will remain a barrister or solicitor and therefore eligible for other appointments requiring similar qualifications.

Under the provisions of Clause 50 and Schedule 7 to the Bill, the qualification for judicial office is an advocacy qualification of so many years. For example, if after the Bill is enacted a barrister or solicitor becomes a district judge of the principal registry of the Family Division or a Supreme Court master, he will have done so by virtue of a seven-year general qualification. His deemed rights of audience under Clauses 28 and 29 will count towards that qualification.

However, if after a few years such a person wishes to become, say, a district judge elsewhere, the same seven-year qualification would be needed. The question arises, therefore, whether he still has that qualification and the necessary eligibility. This is not entirely clear, especially since Clause 50(4) refers to, a person who, for the time being has that qualification". Let us suppose alternatively that the same person wishes to stay as a district judge of the principal registry or a master but also wishes to become a recorder or assistant recorder which requires a 10-year qualification. If he had not attained that eligibility by the time of his original appointment on the strength of a seven-year qualification, is it then too late? On the other hand, if he had a 10-year period under his belt when first appointed, does he still retain that qualification? I think that the provisions contained in Clause 50(5) mean that he does, but it is not entirely clear because subsection (5) does not refer back to subsection (4)(b); it refers only to subsection (4)(a).

The third question concerns the position of present office holders and those who may be appointed before this Bill takes effect. These people are no longer in practice. However, do they have advocacy rights for the purposes of other appointments in the future? I assume that the provisions of the Bill are intended to allow flexibility as regards appointments and that the intention is not to cut office holders off from future moves and changes. If that is correct, then these amendments merely seek to clarify the position. I beg to move.

The Lord Chancellor

I shall look carefully at the three cases mentioned by the noble Lord, Lord Meston. The intention is that one does not lose the qualification by virtue of a judicial appointment. Accordingly, from the point of view of further judicial appointment, the qualification remains.

There are other problems in this connection and I was not certain whether the noble Lord intended to raise them. I refer to what should happen to someone ceasing to hold judicial office. I had not in fact intended to address that issue in the Bill. At this stage the matter is dealt with purely on the basis of qualifications. If that accords with what the noble Lord has in mind, then my intention is in accordance with his request. However, I shall check the position to ensure that that is so.

Lord Meston

I am most grateful for that indication as regards the intention in this respect. This was only a small probing amendment dealing with a technical point. I am pleased that it has been received in that spirit. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 149A not moved.]

Lord Renton moved Amendment No. 149B: Page 22, line 32, leave out from ("audience") to end of line 35.

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 149C. These are probing amendments because, quite frankly, it does not seem to me that subsection (2)(c) and subsection (3) of Clause 28 are as clear in their effect as they might be. There is in particular some concern as to their effect on the existing position with regard to the rights of audience of barristers. Paragraph 3.10 of the White Paper states: "Primary legislation should recognise" —I take it that it should be expressly recognized— that any person called to the Bar by one of the Inns of Court … in accordance with the regulations on education and training will have rights of audience which can be exercised in all courts and appropriate tribunals when pupillage is complete". That is the present state of affairs so far as the Bar is concerned. It ensures that people are not inflicted upon the courts, or upon their clients for that matter, unless and until they are properly trained.

Perhaps my noble and learned friend will look at the wording of the parts of Clause 28 that I have mentioned and confirm that nothing in Clause 28 would effect a departure from the existing practice which I have described. I am sure that he does not wish to put back the clock, but we must ensure that in this part of the Bill there is no intention to do so and it will not have that effect.

As I say, this is a probing amendment but it is an important point. I look forward to hearing what my noble and learned friend has to say. I beg to move.

Lord Meston

I support Amendments Nos. 149B and 149C because Clause 28(1) ensures that the Bar Council's regulations and rules are deemed approved. As the noble Lord, Lord Renton, said, that was the promise contained in paragraph 3.10 of the White Paper, reiterated in paragraph 11.4, which reads: As has already been made clear, the Bar's and the Law Society's current rules and codes will remain in force when the legislation proposed in this White Paper is implemented until either professional body chooses to amend them". It is worth mentioning that the concerns dealt with in the amendments are those which might affect the Law Society in relation to Clause 29.

However, Clause 28, subsections (1) and (2)(a) and (b) suffice to give effect to the promise contained in the White Paper. Subsections (2)(c) and (3), which the amendments seek to delete, seem to qualify the promise and create an uncertainty because they raise the prospect of the Bar Council's current regulations being struck down by the Lord Chancellor and the powers that are to be.

As I have said, the White Paper, by contrast, contemplated only the striking down or disapproval of later changes to now existing regulations. The Bill seems to go back on that by deeming approved only those current regulations and rules which would be approved by the mechanism of the Bill. It is by no means easy to understand how it will be determined for the purposes of Clause 28(2)(c) whether regulations would have been approved, if they had been submitted, under a mechanism which does not exist. There are moments when I think that I understand how the provisions work but they do not last. For those reasons, I support the amendment.

Lord Byron

Perhaps I may associate myself with what has been said by the noble Lords, Lord Renton and Lord Meston. Amendment No. 155C standing in the name of the noble Lord, Lord Hacking, is the exact corollary so far as the rights of audience of solicitors are concerned. I do not want to repeat what the noble Lord, Lord Meston, has said, but it seems that the equivalent provisions under Clause 29(2)(c) and (3) throw considerable doubt on the existing position. I therefore wish to associate myself with what has been said.

The Lord Chancellor

The regime proposed in the White Paper was that the existing regulations would stand. I shall take the Bar as an example although the same would apply to solicitors. Regarding rights of audience, the regulations would continue to apply and new regulations would require the approval of the Lord Chancellor and the designated judges.

When we came to draft the Bill, there appeared to be advantages from the point of view of the profession in having a deemed approval regarding existing rules. That is new, something that makes the whole code consistent. But if that was to be done I thought it wise to leave open the possibility that some rules might, for some reason, require alteration. If so, it would have no effect on anything that happened.

Let me take the education aspect of the regulations for the Bar as an example. If somebody were called and had obtained a right of audience already, any change in the regulations would not affect him: it would only affect people called thereafter. Conduct regulations would require to be approved by the Bar and would bind anyone then at the Bar from the time when they were approved onwards. The purpose of the provision is to give a deemed approval, subject to the possibility that some existing rules might require to be reconsidered. The purpose of Clause 28(3) and (4) is to provide machinery for that consideration. The purpose of subsection (5) is to preserve anything already done against any effect that might arise from the deemed approval.

In other words, this is a refinement of the White Paper policy to spread back the approval because that might well be appropriate. I hope that this explanation makes clear to my noble friend Lord Renton and to the noble Lord, Lord Meston, what we have in mind. Of course the same applies to the Law Society.

Lord Renton

I am grateful to my noble and learned friend for his explanation, so far as I have been able to understand it. Speaking for myself, I should want to consider it carefully between now and Report stage. He claims that Clause 28 is a refinement of the clear terms of the White Paper. I must confess that I regard it more as an obfuscation. Let us consider the matter in the light of his debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 149C not moved.]

Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 150: Page 22, line 40, leave out ("Lord Chancellor") and insert ("Lord Chief Justice").

The noble and learned Lord said: This amendment together with Amendments Nos. 151 to 154 and 156 to 161 inclusive, as well as Amendments Nos. 162 to 167 inclusive, are consequential upon the amendment which I moved on Thursday. I argued then that there is no place for a Minister in the guidance, education, training or conduct of an independent legal profession. I spoke to all those amendments at that time and I shall return to the subject later on Amendment No. 168.

[Amendment No. 150 not moved.]

[Amendments Nos. 151 to 154 not moved.]

Clause 28 agreed to.

9.30 p.m.

Clause 29 [The Law Society: rights of audience]:

[Amendments Nos. 154A to 155 not moved.]

Lord Hacking moved Amendment No. 155A:

Page 23, line 22, at end insert — ("(aa) to have granted to solicitors rights of audience in all interlocutory proceedings in the Supreme Court;").

The noble Lord said: Amendment No. 155A concerns Clause 29 which is the deeming clause for existing rights of audience possessed by members of the Law Society. The proposal here is that there should be deemed also to solicitors a right of audience in all interlocutory proceedings in the High Court.

As the Committee will be aware, most interlocutory proceedings in the High Court are conducted in chambers. That is largely the practice except in the Chancery Division where motions are held in open court. Representations have been made to the Supreme Court Procedure Committee concerning some of these interlocutory applications suggesting that they should be heard not in chambers but in open court. I understand that representations have been made concerning for example applications for an injunction with the proposal that those applications should be heard not in chambers but in open court.

The Committee will also be aware that members on my side of the profession regularly appear in interlocutory matters in the High Court of Justice and therefore have full experience in that type of forensic work. The purpose of this amendment is to enable the rules committee, if it thinks it right to do so, without being troubled over the rights of audience issue, to change the rules so that some proceedings that are currently held in chambers in the High Court, for example injunction applications, should now be heard in open court and no longer in chambers. That is the basis upon which this amendment has been tabled. It seeks to give freedom to the Supreme Court Procedure Committee and not to delay everything upon the rather lengthy procedure which would clearly have to be gone through for solicitors to have a general right of audience in the High Court as opposed to the limited right of audience which they already exercise in chambers and which they may now require in open court. I beg to move.

Lord Ackner

I have only one comment to make on this matter. It was said yesterday and has been repeated today that the advisory committee has been set up to deal with the extensions, if any and whenever, in rights of audience. We sought in relation to the cab rank principle, which is a point of constitutional importance, to have that enacted. However, it was not passed. We have sought in relation to the Crown Prosecution Service to get that on the statute book. However, it was not passed because the advisory committee again is meant to be there to deal with those matters. This kind of small alteration does not in my respectful submission justify inclusion in the statute. It is very much a matter on which I respectfully think the advisory committee should grind its teeth, assuming it has any.

Lord Donaldson of Lymington

While not adopting the phraseology of my noble and learned friend Lord Ackner, I believe that the matter needs to be looked at very carefully in detail. I should have thought that the advisory committee, the Lord Chancellor and the designated judges were the people to do that. I say that for this reason. Solicitors do not have rights of audience in all interlocutory proceedings in the Supreme Court. So far as I am aware they certainly have no rights of audience in the Court of Appeal in relation to interlocutory proceedings.

Furthermore, interlocutory proceedings has a quite different meaning in the Court of Appeal from its meaning in the High Court as a result of orders made under Section 60 of the Supreme Court Act. As I mentioned earlier in the Committee proceedings, that section consists of a general rule and no fewer than 40 exceptions.

I subscribe entirely to the policy of my noble and learned friend the Lord Chancellor that no one should lose existing rights of audience. However, I fear that as worded the amendment may not have that effect. Whether it erodes existing rights or adds to them I know not. However, I do know that it requires a great deal of study to find out what the effect of the amendment would be. Therefore, I hope that it will not be pressed.

The Lord Chancellor

I have little doubt that the two amendments, if passed, would constitute an enlargement of the existing rights of audience of solicitors. The Lord Chancellor is nothing if not consistent. I firmly believe that this is a matter for the advisory committee to consider. The effect on the Crown Court could be quite considerable, even in terms of volume. Both are matters for the advisory committee to consider and for the machinery that we have set up.

I should like to comment in passing that my noble and learned friend Lord Ackner referred to a number of things that were said yesterday. The proceedings in this Bill must have given the impression that the weekend was very short.

I hope that the noble Lord, Lord Hacking, will feel able to withdraw the amendments on the understanding that these are matters to be dealt with by the machinery that we seek to set up.

Lord Ackner

I apologise for the disorientation. For 48 hours over the weekend we had no power.

Lord Coleraine

Before the noble Lord, Lord Hacking, comes to his decision about the amendment, perhaps I may speak briefly to the subsequent amendment. It has already been answered by my noble and learned friend and I have taken careful note of the points made by the noble and learned Lord. I am grateful that the noble and learned Lord will look at this as well as the first amendment. However, I should like to explain to the Committee what the Law Society has in mind in supporting the deemed extension of rights of audience into the Crown Court in all cases of guilty pleas and other cases not heard on indictment.

Such cases would not require special training for solicitors, who have considerable experience of all those matters arising out of their work in magistrates' courts. There would be no question but that further training would be needed for solicitors who wished to deal with matters in the Crown Court on indictment. However, it is thought that for the cases mentioned in the amendment to have to set up special training which would only apply to solicitors who already had the training would be superfluous.

In the Green Paper the Government specifically indicated that they proposed an immediate extension of solicitors' audience rights to include guilty pleas in Crown Courts. I am not at all clear why my noble and learned friend had changed his mind when it came to the White Paper and those proposals had been dropped. It may be that he felt that it was more suitable for them to be dealt with in other ways.

Solicitors conducting the vast majority of advocacy in magistrates' courts presenting guilty pleas both for the defence and the prosecution would be doing exactly the same work if allowed to do the work in the Crown Court. On the prosecution side, it can hardly be said that the presentation of facts on a guilty plea calls for great advocacy skills. There are not inconsiderable savings of public money to be made in that area if, for example, the Crown Prosecution Service, which conducts the vast majority of Crown Court cases, has the flexibility to use its solicitor or barrister prosecutors to present guilty pleas before the Crown Court.

Apart from that, if and when that facility is allowed, it will enable clients in the large bulk of Crown Court cases to select the lawyer whom they have come to know to take the case through to the finish because in the large bulk of cases there is a guilty plea. It would add to client choice and would potentially allow significant savings to the public purse, both on the defence or legal aid side and on the prosecution side.

Lord Alexander of Weedon

I had not intended to intervene on the amendment. I was however a little surprised when I heard my noble friend Lord Coleraine say that training in advocacy in the magistrates' courts was necessarily adequate for conducting a plea in mitigation in respect of some of the most serious criminal offences which might carry a period of imprisonment of up to life.

When I started at the Bar I felt content to cut my teeth on pleas of mitigation in careless driving cases. I should not have wished to do so in cases of manslaughter or serious crimes such as rape which might involve a long period of custody for my client. I respectfully suggest that this is an issue which, not only on grounds of consistency but on the basis of the principle of sensible evolution, should be left for the advisory committee.

9.45 p.m.

Lord Hutchinson of Lullington

I intend to say something about the matter at this stage because the words that have fallen from the lips of the noble Lord, Lord Coleraine, illustrate the extraordinary propaganda about rights of audience. The idea that a plea of guilty in a Crown Court is a matter with which anyone can deal and which does not, as the noble Lord said, require any special training, is a concept of advocacy which shows that a great deal of the debate is based on total ignorance. The idea that handling a plea of guilty and dealing with a person who may or may not plead guilty is a matter of total simplicity with which any qualified person may deal shows such ignorance of what advocacy is all about that one can hardly believe what one hears during the debates on the Bill or reads in the propaganda about advocacy. I have received more today from the Law Society.

Dealing with the possibility of a plea of guilty is one of the most onerous and important duties that an advocate may have. The question of advising a person as to whether he should concede a case or whether he should accept a situation in which he may go to prison for a long time is a matter of great importance and responsibility. So many matters arise that disinterested advice to such a person is crucial. The idea that anyone may provide that is so outrageous that it should involve the committee considering the matter. When faced with the question of a plea, what would be the likely outcome and the likely penalty? Is the plea justified in the law affecting the charge? What about the alleged confession? Should one accept the alleged confession or should one go into court and spend three or four days trying to establish that the confession was falsely obtained?

I have often seen a Guildford Four situation arise in magistrates' courts. It is sometimes unbelievable to see the way in which confessions are accepted in magistrates' courts because two or three policemen say that that is what happened. The advice given to that person is, "Oh well, it's no good disputing a confession because there are four policemen who all say it was made." Having to decide whether or not to accept that situation depends on experience, courage, thought and a whole series of questions which are of crucial importance in advocacy.

The simple and easy way is to tell the client, "Well, there is the evidence. I'm telling you that there is no answer to the case." It requires a great deal of backbone and courage to go into court and spend many hours disputing such a matter, no doubt to the disapproval of the noble Baroness, Lady Phillips.

All kinds of questions arise about the bad character of the client. If he attacks the police his bad character will be put into the case and all his convictions produced. Is that the right thing to do? Is it worth taking the risk? Those matters are of vital importance.

There is the legitimate question of plea bargaining, which is the legitimate approach to the prosecution to decide whether a plea can be accepted on one or another ground. It may mean going to see the judge in chambers to discuss such matters. It may save the court weeks of trial but these matters must be handled with tremendous responsibility and care.

Finally, when sentence has been passed, that is not the end of the matter. One has then to consider whether there should be an appeal against the sentence. That requires experience of the Court of Appeal and the considerations that it will take into account. An opinion will have to be written as to whether one should proceed with the appeal to the Court of Appeal. Those are matters of tremendous responsibility. They require great care and experience.

When I hear mentioned, as I have just now, the idea that one does not require any special training for these matters, I sometimes despair about the questions which are discussed in this Committee. There are a great many people who are not versed in the law and who simply listen to the propaganda that is pushed out to the effect that anybody can do this or that. It is said that lawyers should not be allowed to do this. Qualified barristers should not be messing about in courts of criminal law. What are they doing in magistrates' courts? What are they doing spending all that time in the Crown Courts? Queen's Counsel ought to be in the Court of Appeal dealing in commercial matters and in high intellectual matters where their qualifications are justified. The whole spirit of this Bill is to clear the criminal court of barristers and qualified advocates and to let the matter be dealt with on legal aid by some advocate, quietly and briefly trained to do a job, as the Bill states, in a specific court using his specific qualifications. He can deal with pleas of guilty. He can do that in the magistrates' court. He can do a trial in the criminal court. That is a concept of justice that I shall continue to resist. I sincerely hope that this amendment will not be given the slightest consideration.

Lord Ackner

I agree that one of the greatest tests of the ordinary non-specialised advocate is the plea in mitigation. When I was a pupil my pupil master told me that what I should try to do was to indicate in the most tactful way to the judge how he should deal with my client and then make it impossible for him to do anything else. If that does not take skill, it is difficult to know what does.

In my pursuit of moderation, as requested by my noble friend Lord Mishcon, I shall refer to two quotations from my noble and learned friend the Lord Chancellor which he made in an interview in December 1977 in the barristers' magazine,Counsel. The client comes in off the street to seek the help of a solicitor. His whole life in the sense of his reputation and freedom may depend on the skill of the advocate. It could be a mistake to put the decision whether to do the case oneself or pass it on to a barrister into the hands of those with first access to the consumer". The other quotation is this: A trained advocate hits the point very quickly. It is not easy to do. Some quite distinguished solicitors take part in committal proceedings and receive wonderful client reaction without actually achieving very much in their client's interest". I wonder to whom he was referring. The client wants the best advocacy going, and if the solicitor fancies himself as an advocate, he may not be the best person to judge his own skills against those of his colleagues. It is a crucially important decision for his client". Another quotation reads as follows: The idea that a potential litigant may choose to have his case in the Superior Courts conducted by a solicitor no doubt carries a superficial and populist appeal. But, as I have said, the choice of the advocate best equipped to conduct the particular business of a litigant can only be an informed choice. Uninformed choice is no choice at all. Members of the public are in no position to know, without professional advice, which advocate should be instructed or to know whether his own solicitor, even if he is one of those who have a right of audience in a particular Court, is best equipped to act as his advocate in his particular proceedings". That was not from my noble and learned friend the Lord Chancellor but from the memorandum submitted to my noble and learned friend by none other than the Lord President of the Court of Session and Lord Justice General, who is the equivalent of our Lord Chief Justice south of the Border. It just shows what wisdom exists up north. I hope that it will continue to pervade in this sense down south.

Lord Bridge of Harwich

I hope that the Committee will forgive me for introducing a lighter note provoked by the noble Lord, Lord Hutchinson. If the lay client wants to learn whether he has an arguable case for appeal against sentence, far and away the cheapest opinion he can obtain is by making an application in person for leave to appeal to the Court of Appeal. It will cost him infinitely more to get an opinion from leading counsel.

Lord Mishcon

If the noble and learned Lord will forgive me, from the height of the eloquence and advocacy of the noble Lord, Lord Hutchinson, and the model of moderation of the noble and learned Lord, Lord Ackner, perhaps I may try to bring the Committee down to what I believe from my experience really happens.

Everything that the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Ackner, have said should make the Committee beg the Lord Chancellor to remove from solicitors the right of advocacy in county courts and indeed in magistrates' courts where they conduct cases in full. They cross-examine, make submissions, advise on pleas, and are responsible for the liberty of the subject when they are acting for a client. I fail to find reality in what I was told took place. Shall I be forgiven for saying this, because I have such admiration for members of the Bar? That is not said lightly, insincerely or cheaply. But if one phones chambers on behalf of a client and says, "All I have is a plea in mitigation; the facts are obvious; the client agrees; there is a plea of guilty", the clerk will immediately choose the most junior member of chambers on the basis that it is only a plea in mitigation even if it is in the Crown Court. That is the case in nine out of 10 examples.

I am not arguing that the solicitor is superior to counsel. However, one normally finds that the person who has grown up with the case and has taken instructions ought, from the point of view of benefit to the client, to ensure that the client does not have to pay too much if legal aid has not been granted, or that legal aid funds are made available for worthy objects. One hopes for the expansion of legal aid into those worthy objects which might be a saving. If the client wants his solicitor to conduct a plea in mitigation in the Crown Court he should be allowed to have him.

As has already been said, if the client desires to instruct counsel, counsel will be instructed. If the solicitor does not feel able to conduct the matter properly, counsel will be instructed by the solicitor. However, to bar a solicitor from making a plea in mitigation in a normal case —and I entirely accept from the noble Lord, Lord Hutchinson, that there are important abnormal cases—which would go to the Crown Court is an absurdity. To bar him from saying that his client has a completely good character; that certain circumstances should be brought before the court explaining why he committed the crime; that he is married and has two children and that his employment is whatever it is —to say that such matters cannot be advanced in any circumstances by a solicitor on a plea of guilty in a Crown Court is an absurdity.

Lord Simon of Glaisdale

Members of the Committee have heard a most important and informative speech from the noble Lord, Lord Hutchinson, seconded by my noble and learned friend Lord Ackner. The noble Lord, Lord Hutchinson, did not put forward the point which was sought to be answered by the noble Lord, Lord Mishcon. He was concerned to demonstrate the intense importance to the liberty of the subject and the enormous difficulties in what was dismissed as something of apparently no moment at all.

I do not desire to go over what they said but I venture to submit that it is a disgrace to have such an important pronouncement made to the Committee at this hour of night, in all the conditions which are unconducive to the publicising of those views and to a meagre Committee. The noble Lord the Leader of the House has been good enough to be present and I beg him to bear that in mind.

Lord Hooson

I did not intend to intervene in the debate but I believe that this is a matter which should be left to the new machinery. The noble Lord, Lord Mishcon, referred to his experience. I also have experience because before 1972 I was chairman at a quarter sessions where solicitors had an unlimited right of audience. During my time there not one of them exercised that right.

The noble Lord, Lord Thomas of Gwydir, knows the quarter sessions about which I am talking. I am also right in saying that since 1972 there has been a limited right of audience to solicitors in the Crown Court at Caernarfon, which is on the same circuit. I have no recollection of a solicitor taking advantage of that right. No doubt there are cases about which I have not known and in which such a right has been exercised. However, in almost every case, in the interests of their clients, solicitors have taken the same view that has been expressed so eloquently in the debate tonight.

10 p.m.

The Lord Chancellor

I do not wish to rise again other than to take up one very short point; namely, that I thought that the noble Lord, Lord Hutchinson, said that it was one of the purposes of this Bill to take counsel altogether out of the criminal courts. That is wrong. There is no foundation in this Bill for that allegation.

Lord Morris

As a non-lawyer, I intervene in this very polite but somewhat unseemly punch up between the two branches of the profession. I follow on from the point made by the noble Lord, Lord Hooson. I understand that solicitors have a right of audience in the county court which they very rarely take up. I ask the noble Lord, Lord Mishcon, whether my belief has any foundation in fact. That is relevant. If one is looking for an extension of rights of audience, then one should consider what is the practice as to the taking up of the rights of audience which already exist.

Lord Mishcon

I answer that very briefly by saying that my experience over the years is that the county courts are full of solicitors who exercise their rights of audience. That is true of all the metropolitan county courts; and I should have thought, from what I hear from my colleagues, that is also true of the county courts in the provinces.

Lord Morris

I ask the noble Lord to inquire as to the position in, for example, the Liverpool County Court where I understand that that is not the case at all.

Lord Hacking

Although I have been responsible for the renewed discussions during the past 30 minutes on the rights of audience issue, I suggest to the Committee that that has been thoroughly over-discussed in this Chamber and it is not reflecting much credit on either side of the profession by the continuation of the discussion because the only consequence is a polarisation of views and the taking of extreme examples. Both branches of the legal profession understand its traditions and duties. When members of my side of the legal profession make a decision as to whether to conduct advocacy themselves in courts in which they have an audience or whether they instruct counsel, that is made responsibly according to what is in the best interests of the client and what is in the best interests of justice.

There are pleas of guilty which are moderately elementary to conduct. Unlike the noble Lord, Lord Alexander of Weedon, I never found careless driving cases very easy, and I believe that I only won one such case of the many which I conducted in the magistrates' court. The noble Lord, Lord Alexander, did not say they were easy to conduct, but he reminded the Committee of his early days at the Bar and I remember mine. He said that with confidence one could accept that sort of case but would be hesitant about taking on a much more serious plea in mitigation in what was then the Assize Court or the Quarter Sessions. In those days, as now, all other things being equal, the advocate with the right experience and responsibility is the advocate who conducts that plea in mitigation.

I bear responsibility for the renewed debate during the past 32 minutes on the rights of audience issue because I have tabled two amendments. I thought that they were modest and did not attack any vital issues regarding rights of audience. Certainly, I thought that Amendment No. 155A was wholly modest and sensible and would facilitate the work of the Supreme Court Procedure Committee. Therefore, I found the comments of the noble and learned Lord the Master of the Rolls somewhat disappointing although he accepted the basis on which we should promote this matter; namely, that rights of audience which currently exist should not be taken away.

That is not to say that there is not a problem about definition or that this amendment could not be improved. It is a sensible amendment. In the interests of justice, if it is right that injunction proceedings should be taken in open court rather than in chambers, and solicitors already have the right to conduct those proceedings, it seems sensible in the interests of justice that they should continue to conduct matters in which they have regular experience when the forum is changed from chambers to open court.

Having been responsible for re-introducing the subject of rights of audience, I beg leave to withdraw the amendments standing in my name.

Amendment, by leave, withdrawn.

[Amendments Nos. 155B to 161A not moved.]

Clause 29 agreed to.

Clause 30 [The Law Society: rights to conduct litigation]:

[Amendments Nos. 162 to 167 not moved.]

Clause 30 agreed to.

Lord Ackner moved Amendment No. 167A: After Clause 30, insert the following new clause:

("Judges' recommendations concerning regulations and rules of authorised bodies.

.—(1) The Lord Chancellor or, acting jointly, the designated judges, may at any time make to the General Council of the Bar, the Law Society or any other authorised body such recommendations (including recommendations for additions, omissions and other changes) as they think appropriate concerning any aspect of that body's qualification regulations and rules of conduct and practice, whether or not relating to advocacy or the conduct of litigation.

(2) Any body to which a recommendation under this section is made shall have regard to it.").

The noble and learned Lord said: This is a very short and modest amendment. It proposes that the designated judges should be able actively to initiate the process of change and, where appropriate, make alterations to existing regulations and rules. I hope that this is an example of another proposal made by me which is wholly non-contentious. I beg to move.

Lord Mishcon

May I say how sensible this amendment is.

The Lord Chancellor

I shall take this amendment into account and I hope to give effect to the principle of it.

Lord Ackner

In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 167ZA: After Clause 30, insert the following new clause:

("Commencement of rights of audience and of rights to conduct litigation.

.—(1) On entry of the name of a solicitor on the roll kept by the Law Society under section 6 of the Solicitors Act 1974 or the restoration of the name of a solicitor, such a solicitor shall be deemed to have been granted by the Law Society the rights of audience and rights to conduct litigation exercisable by solicitors (in their capacity as solicitors) immediately before 7th December 1989.

(2) Upon recognition of a body corporate by the Council of the Law Society pursuant to rules made under section 9(1) of the Administration of Justice Act 1985, that body corporate shall be deemed to have been granted by the Law Society the rights to conduct litigation exercisable by solicitors (in their capacity as solicitors) immediately before 7th December 1989").

The noble Lord said: I can deal with this amendment very briefly. It would ensure that solicitors admitted after 7th December 1989 automatically acquire solicitors' existing rights of audience and rights to conduct litigation and that solicitors' incorporated practices recognised after 7th December 1989 automatically acquire solicitors' rights to conduct litigation. I understand that there is some doubt in certain quarters whether these rights are preserved by Clause 29. This amendment would put the matter beyond dispute. It is supported by the Law Society and I trust that it is acceptable to the Government. I beg to move.

The Lord Chancellor

Amendments Nos. 167ZA and 167ZB are the same. I am not sure that it is necessary for primary legislation to set down for all time the method by which solicitors acquire rights of audience and rights to conduct litigation or to make a statement of the extent of those rights. That is something that is more appropriate to the rules of the profession body concerned, in this case the Law Society.

I find subsection (2) more difficult. Although it is the name of the firm of solicitors which appears upon the writ when a solicitor from that firm is conducting litigation on behalf of a client, it is not the firm to which the right is granted but the individual solicitors. Similarly, if a solicitors' incorporated practice were conducting litigation, it would be the name of the incorporated practice which appeared on the court documents. This would not, however, imply that any right had been granted to the company but rather to its individual solicitor directors. That is the way in which I understand the matter. There may be some technical issue which has not been completely focused. At the present moment I have some difficulty with the question. I shall be happy to consider the issue further if the noble Lord has further points to put to me.

Lord Hutchinson of Lullington

As this is the last amendment dealing with solicitors requiring rights of audience, can the noble and learned Lord tell the Committee what are his intentions as regards his powers under the Supreme Court Act 1981? At the moment it does not appear that that Act is to be repealed because it does not appear in the relevant clause of the Bill. He has the power at any time to direct that solicitors may appear and have rights of audience in the Crown Court. I raised this matter in connection with a previous amendment but I did not ask the noble and learned Lord to reply to it.

The Lord Chancellor

I should have said something about it. My understanding is that it is a rather specialised provision which has been given effect, for example, in the situation to which the noble Lord, Lord Hooson, referred. When one reads the section as a whole one does not regard it as doing other than recognising that in some places the old Quarter Session rights should be recognised if there is a scarcity of counsel. I personally had to exercise that right in the very limited circumstances when the Crown Court moved from Bodmin to Truro. The old rule, so far as Bodmin was concerned, was transferred to Truro. That is the scope of the section as I understand it.

At one stage, in the course of the various applications made to me since I became Lord Chancellor, one suggestion was that that section could be used to obviate the present debate. I resisted that rather strongly. That is my view of the scope of the section. The machinery here is intended to deal with matters generally and not specific locations. I do not believe that the two are in any way inconsistent, the one with the other.

Lord Hutchinson of Lullington

I am sorry to press the noble and learned Lord. I understand and totally accept that the noble and learned Lord would not use the powers under the section to do what he has suggested, which is to give rights of audience at the Crown Court to solicitors. Will he agree that the power is there in the hands of anyone who may succeed him in his great office? The simple terms of the section are that the Lord Chancellor may at any time direct that solicitors may appear, conduct, defend and address the court in any proceedings in the Crown Court. Will the noble and learned Lord agree that, whatever his own intentions are, that section gives the power?

The Lord Chancellor

I believe that there is more to the section than just that. I have not got it in front of me at the present moment. My reading of it suggests that it can only be used in relation to special situations. That is the understanding I had of it.

Lord Donaldson of Lymington

Approximately once a month I sign a list of names, the magic of which is that theyeo instante come on the roll of solicitors. What troubles me about subsection (1) of either amendment is that my successor in 10 or 20 years' time—assuming that the statute is still on the statute book —will be granting new solicitors the rights of audience enjoyed by solicitors immediately before 7th December 1989. That seems a total irrelevance. They probably will have much extended rights of audience in general. In some respects it may be that they would be less than the rights effective on 7th December 1989. I cannot see that it matters what the rights of solicitors were on 7th December 1989. What matters is the rights of solicitors at the moment they join the roll.

Lord Prys-Davies

I have listened carefully to the noble and learned Lords the Lord Chancellor and the Master of the Rolls. There is, no less, concern at the Law Society as to the rights of solicitors who qualify after the Bill becomes law. Clearly, the Law Society will have to consider carefully the advice that has been delivered in reply to the amendment. I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 167ZB not moved.]

10.15 p.m.

Clause 31 [The Authorised Conveyancing Practitioners Board]:

Lord Rawlinson of Ewell moved Amendment No. 168: Page 25, line 18, leave out ("Lord Chancellor") and insert ("Master of the Rolls").

The noble and learned Lord said: We now come to Clauses 31 to 38, which deal with conveyancing, a matter dear and close to the heart of the solicitors' branch of the profession. I have no doubt that from now on there will be total and utter harmony so that barristers and solicitors in both branches of the profession will be able to gambol through the clauses hand in hand. The only person who may not be able to do so is my noble and learned friend the Lord Chancellor as I seek to remove him from his control and domination of this area of legal services and substitute for him a judge.

I should like, if I may, to speak to Amendment No. 169 which with Amendment No. 168 refers to the conveyancing board; to Amendments Nos. 171, 172 and 172A in Schedule 5, which deals with the membership of the conveyancing board; to Amendments Nos. 175 and 176 in Clause 34, which deals with the provision of conveyancing services; to Amendment No. 177 in Clause 36, which deals with the revocation and suspension of conveyancing; to Amendment No. 178 in Clause 38, which deals with regulations with regard to conduct, and to Amendments Nos. 181 to 184 which deal with the Conveyancing Appeal Tribunals.

Under my amendments the Master of the Rolls would be substituted for the Lord Chancellor in regard to the exercise of the powers being taken in all these matters. Conveyancing is a purely legal matter. It is probably the most important legal transaction that a member of the public will ever enter into. It is of enormous importance. It deals with the transfer, acquisition or sale of the single greatest asset of most people. In my view it is lunacy not to use a solicitor to conduct that form of transaction. I cannot understand why anyone would want to do anything else. But it is purely a matter of the legal profession carrying out a commercial transaction.

What on earth is the point of suddenly introducing the Government into this area? Why do we need a Minister on this board to deal with these matters? The Government are again seeking powers to dominate an independent legal profession. Is there anywhere else in the civilised world where a member of the Executive, a person who sits in the Cabinet, is given powers over the exercise of how one sells or transfers one's house? What is the purpose of this provision? What reason is there for it?

Parliament does not interfere with the decisions of judges and does not interfere with the Director of Public Prosecutions in his decisions whether or not to prosecute. It either accepts the decision of a judge or of the Director of Public Prosecutions or it removes him. Parliament does not have to approve and should not express approval or disapproval of how judges conduct their business. Moreover, it should not, through a Minister, take powers to control or supervise this perfectly ordinary legal practice.

We are storing up for ourselves much danger —I am sure that my noble friends Lord Boardman and Lord Coleraine will well appreciate this fact —if we take in a Cabinet Minister to assist us in the practice of legal services. However, it is a little more than that; it is a matter of principle. My party, the Tory Party, has always been pragmatic in matters of policy —that is, the old Tory Party used to be —but never over matters of the balance of the constitution and the sharing of the balance of power.

I beg the Committee not to allow this issue to slip through at this time of night when there are only a smattering of Members present. Here we are again glibly handing the matter over and saying, "Well, it will be perfectly all right". The Minister will say, "I will look after the matter; of course it will be dealt with by those professional bodies. I am there, and I am taking these powers just to see that it is all right".

In my submission that cannot be right. We should not slide into indifference because a particular Cabinet has made a particular decision and because a particular draftsman is now interfering with the main and most important business which a citizen has to undertake as regards the transfer of any legal rights. I know that it is more a matter for my noble friends Lord Boardman and Lord Coleraine who are in that branch of the profession. Of course they know much more about conveyancing than I do. However, I know that whatever happens it would be sensible not to go to any of these new creatures which have been created. One should go straight to a solicitor to sell or buy a house.

I know that we have said this before. Moreover, in the years to follow there may be a different Cabinet, an abolished House of Lords or a reformed House of Lords—whatever the noble Lord, Lord Mishcon, has in mind. We do not know what this Chamber will look like when it is reformed, who will be the Minister or what type of Minister will be here, or indeed what kind of people will be sitting in this place. Are we really going to accept that a Cabinet Minister should be involved in controlling the independent legal profession in such a matter as the sale or purchase of a house?

I think that all Members of the Committee should now join together in harmony in asking my noble and learned friend gracefully to withdraw and to let a judge have this position. I suggest that the Master of the Rolls should take over these duties, duties with which he is fully conversant and which comply with other aspects of his duties as regards the solicitors' branch of the profession. I beg to move.

Lord Rippon of Hexham

For the reasons I supported my noble and learned friend Lord Rawlinson in respect of Clause 16, I also support him on this occasion. At that time the noble and learned Lord the Lord Chancellor explained that it was difficult to substitute the Lord Chief Justice because, as he said again this afternoon, various heads of division have various responsibilities. Therefore, it is logical in respect of this clause that the Master of the Rolls should be the substitute for the Lord Chancellor.

I think it is important that the noble and learned Lord the Lord Chancellor, who has this difficult and sometimes delicate balance to keep between being the head of the judiciary and a member of the Cabinet, should stand away as far as he can from interfering with the legal profession. I refer to both sides of it in that respect because I regard them as being of equal importance.

For my part I would welcome an amendment inDod whereby solicitors were moved up from number 194 to 192 in the order of precedence and that they should be allowed to call themselves esquire. I believe that we are now in danger in this Bill as regards some of the matters of causing a further division betweeen the Law Society and the Bar Council; that is, between barristers and solicitors. This is most unfortunate and we should not allow it to happen. We should recognise that both parts of the legal profession have their role to play. Solicitors certainly have a role to play in conveyancing. Moreover, if I am ever involved in a transfer of a house, either buying or selling, I shall go to a solicitor. However, that is my personal view.

Once again of course we have one of these nominated boards with all its members, including the chairman, to be chosen by the Lord Chancellor. The chairman may be anyone. He may be a judge, but he does not have to be. That is the pattern that runs right through one Act of Parliament after another. The Government are to nominate all the members to boards set up under the Bill —the advisory committee and this board. They did it in relation to the health service and the water authorities. It is a dangerous pattern, and one that we should not support.

Those doubts are ones that I have expressed not only in relation to this Bill but to many other measures which have come before Parliament in recent years. I recall that Lord Radcliffe in the Reith lectures on the problems of power said that of course one way to defend the rule of law, although it was not one that he recommended, was to rely upon a sufficient number of bald-headed men on top of a Clapham omnibus to turn up to see that everything was all right. I do not believe that that is good enough.

Clause 32 provides that one of the board's functions shall be to develop competition. The proposals are anti-competitive. That is a concern which has been expressed by many bodies, including the CBI. There is none of the protections against predatory pricing which were announced in the White Paper.

I accept that the purpose of the Bill is to do something that is for the benefit of the consumer; it is not just for the benefit of solicitors. I regard the proposal to allow conveyancing by banks, building societies and other institutions to be thoroughly objectionable. I agree with the view expressed by the noble and learned Lord, Lord Goff of Chieveley, in the debate on the Green Papers when he said that that proposal, would not lead to competition, but would promote a captive market for those large institutions. In addition, it could well lead to the demise of many high street solicitors, to the detriment of the ordinary citizens of this country". The public's only protection will be the requirement that the conveyancing work would have to be carried out in compliance with a statutory code of conduct. I am not all that enamoured by a reliance upon codes of conduct. The Committee may again agree that my noble and learned friend Lord Goff of Chievely was equally right when he said in the debate on the Green Papers: I respectfully agree with the noble and learned Lord the Master of the Rolls that too much emphasis is placed upon codes of conduct. No one ever created high standards of conduct by writing words down on a piece of paper". —[Official Report, 7/4/89; col. 1410.] It is the practice that matters and the training that people receive from those with whom they work when they are young pupils or young solicitors. That is what creates the code of conduct. Many people have never looked at the code of conduct. They have learned from practice what is the right thing to do and how to behave.

Generally, as I understand it, solicitors may not act for both the vendor and the purchaser; but it is now proposed that a single financial institution, as I understand it, may, first, act as agent for the vendor to sell the house; secondly, act as the vendor's solicitor; thirdly, act as the purchaser's mortgagee; fourthly, sell the purchaser a life insurance policy; and, finally, act as the purchaser's solicitor. He will no doubt charge all the fees. It will not necessarily be any cheaper. It may not be as safe as the present practice.

The proposal will involve no fewer than four actual or potential conflicts of interest. The only solicitor involved in the transaction is employed by the estate agent, the mortgagee and the life insurance salesman. Of course —this is a point made to me by a firm of solicitors and not the Bar Council —it can be said that there will be Chinese Walls. The City, as my noble friend Lord Boardman will know, is full of Chinese Walls, some of them made of rice paper. Others have grapevines growing round them, but few have any degree of solidity. I hope that this is not a Second Reading speech, but in a sense it is better to make one speech on the matter. As my noble and learned friend Lord Rawlinson said, conveyancing is of major importance to the consumer. It is the most important transaction most people ever carry out.

One of the difficulties of the Bill is that it tries to do so many things at once. It deserves most careful attention from us all. The Confederation of British Industry and many other organisations have expressed concern about the proposals of the noble and learned Lord the Lord Chancellor, especially their effect in the high street and upon provincial firms of solicitors whose continued existence may be threatened. I do not believe that that is in the public interest.

Of course, it is not surprising that this is happening because there is a pattern. As I said the other day, the lawyers attend proceedings on this Bill; for the most part, the City people come to the financial services Bills; the local government people come to the local government Bills. It is not always possible to observe the way in which, under Bill after Bill, it is the little man who is threatened, all in favour of the larger institution —whether it be the bank, the large firms of solicitors or in due course possibly the very large, powerful sets of barristers' chambers. The Financial Services Act has hit the small stockbroker. The new business rate is hitting the small business. We are now going to hit the small country solicitor, just as the health service legislation is directed for the moment against the small country doctor.

It seems to me that the whole basis of my noble and learned friend's case time after time in this Bill is designed to help the consumer or the client of the legal services. I do not believe that the provisions in this part of the Bill will be of any benefit to the consumer. Today I received a very interesting letter from the president of the Glasgow Bar Association asking me to support its amendments. He states: We totally reject the sections of the Bill relating to conveyancing … as being unnecessary. The public's interests are paramount to us". He says that the system there, which is different from that of England, is, reliable, expeditious, cost effective, flexible and above all gives adequate protection to the public and separate independent advice". That is what I think we should retain in England. Of course, until recently I should have hesitated to make any pronouncements upon the law in Scotland, but I think it is rather ossified now to believe that one cannot express a view on somebody else's law, even if one is not familiar with it.

10.30 p.m.

Lord Boardman

I shall not attempt to follow my noble friend Lord Rippon in his wider comments on the impact that some of these clauses are likely to have on competition, conflicts of interest and the like. I am heartened to believe that perhaps we shall find ourselves in agreement at a later stage in the Bill, in the same way that I happen to agree with my noble and learned friend Lord Rawlinson.

On the very narrow point about "Master of the Rolls" replacing "Lord Chancellor" for the purposes of this clause, I find myself sadly in disagreement with both my noble friends. I do not feel strongly on the matter. It is not as much of a constitutional point as was the replacement of "Lord Chancellor" with "Lord Chief Justice" in an earlier part of the Bill. It seems to me that with the role that is cast for the Lord Chancellor in this clause and from there on, it is appropriate that the matter should be for a member of the Executive rather than a member of the judiciary.

If we examine Clause 31 and the following clauses where this point is evoked, so many of the roles and duties cast upon the Lord Chancellor are essentially of an executive character. For instance, The Lord Chancellor may, with the approval of the Treasury, make grants"; Any sums required by the Lord Chancellor for making grants … shall be paid out of money provided by Parliament", and so on. I feel in this case that it is quite appropriate that the amendment should not be agreed to. The Master of the Rolls in his judicial capacity is one thing; the Lord Chancellor in this case, with a very heavy executive responsibility, is the right person to shoulder these responsibilities in this part of the Bill.

Lord Mishcon

I wish to add briefly to what the noble Lord, Lord Boardman, has said. I shall not repeat anything he has said, much of which I agree with. I also agree heartily with much of what the noble Lord, Lord Rippon, said. However, I wonder whether the argument that the noble Lords advanced, namely that the purchase and sale of a home are possibly the most important acts that a member of the public in many cases indulges in, is not the very reason why a Minister of an elected government, in safeguarding the public, should not make the appointment in this case rather than a judge. I say that with all due respect to judges.

The Lord Chancellor

As regards legislation on this topic, the present position is that authorised practitioners, as provided in the 1986 Act, are to be certified or authorised by the Lord Chancellor individually. I am furthering the policy that my noble and learned friend Lord Rawlinson of Ewell and my noble friend Lord Rippon of Hexham proposed by distancing myself somewhat from the approval of practitioners.

On the appointment of members of the board, I believe that constitutionally it is right that these appointments should be made by someone who has answerability to Parliament so that any appointments can be challenged as regards their suitability through the developed methods of parliamentary scrutiny. That would not be appropriate for a judge in the position of the Master of the Rolls. While from my own personal point of view I should be delighted to have responsibilities in other quarters than my own, as a matter of constitutional propriety I believe it is right that the Lord Chancellor should make these appointments. He has to have regard to the various interests that are described. I hope that in the light of that explanation my noble and learned friend will feel able not to press the amendment.

Lord Rawlinson of Ewell

I still fail to see why an independent legal profession has to have a Minister so closely involved not only with the rights of audience and the advisory council but also with the conveyancing board. However, I have done my best for that other branch of the profession which I admire so greatly. I was even going to move an amendment to remove the word "barrister" in Clause 33(3)(a) and leave the matter of conveyancing only to a: solicitor, notary or licensed conveyancer". I do not think that that matter is the duty of a clerk or a barrister. Different skills and a different ability are involved. However, my gift horse was turned down by my noble friend Lord Boardman. So if the solicitors are satisfied with that position, then so be it.

However, with great respect to my noble and learned friend I do not understand the constitutional importance of having a Minister involved in this matter when across the length and breadth of Europe legal services are at last becoming independent. They are throwing out the authority of ministers and government and declaring that they will conduct their business with people appointed by them and in accordance with their own standards. The legal profession in such countries has become independent. In no other country in the world is a government so much involved in the legal services provided in a state. If one went to America and suggested that a secretary of a state or the whole federation should be involved in who should be allowed to practise in the American courts or how American lawyers should carry out conveyancing on a house one would be turned upon. That would also be the case anywhere else in the world. However, we say that this provision is constitutionally important. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 169 not moved.]

Lord Simon of Glaisdale

I should like to suggest that the House do now resume. At this stage I need say no more than that it is highly undesirable that an important Bill such as this, a Bill in which presumably the Government have confidence, should be discussed in a meagre Committee at this hour of night, and later.

We lost an hour of the Committee proceedings. We lost three-quarters of an hour on the Statement and another quarter of an hour because of the business during the dinner hour over-running. Therefore, with confidence, it being past the normal hour for rising, I beg to move that the House do now resume.

Moved, That the House do now resume. —(Lord Simon of Glaisdale.)

Lord Belstead

I realise that the hour is getting later. As the Committee will know from the list of amendments that we placed at the doors, we had intended to go a very long way tonight. However, the Government have been proposing through the usual channels to go so far as Amendment No. 177C. I hope that the noble and learned Lord, Lord Simon of Glaisdale, will feel that that is reasonable and will allow us to make some inroads into conveyancing. That is the only comment that I ought to make on the noble and learned Lord's Motion.

Lord Simon of Glaisdale

I am very grateful at least for that mercy. However, can the noble Lord the Leader of the House say how many more Committee days we shall have? At the moment we have only one more day, Thursday.

Lord Belstead

We have Thursday and also next Monday.

Lord Simon of Glaisdale

We cannot possibly deal with the remainder of the Bill properly unless we have more days in Committee. The noble Lord the Leader of the House has very properly not sought to attain the quite unrealisable and unrealistic target that was set. However, having rightly curtailed the business today, he must see that if this Chamber is to do its job within its proper scope another day is required for the Committee stage.

I remind the noble Lord, the Lord Privy Seal, that when I first raised the question of the business in this Committee he said the matter would be kept under review, and that there was no definite allotment of Committee days. I understood that in saying that the matter would be kept under review he meant that if it turned out that more days were required they would be vouchsafed. More days are required.

Lord Rawlinson of Ewell

Before my noble friend replies, perhaps I may say that this is a Bill which can only be dealt with properly by Parliament in this Chamber. It is the kind of Bill on which this Chamber has the particular expertise and the ability to deal with it properly. If I may say so from my experience of another place, that could never be done there. It can be done here. It is one of the great reasons for the existence of this Chamber—before we are reformed by the noble Lord, Lord Mishcon, as he is so determined to do—that only this Chamber can deal properly with such Bills.

Therefore I ask the business managers to be a little more gracious. I know that my noble friend the Leader of the House is trying to be as kind as he can, but I hope that he will realise that we are not making Second Reading speeches or being difficult. We are trying to turn this Bill into what we sincerely believe to be a good Bill. We believe that that is also in the interests of this Chamber.

10.45 p.m.

Lord Belstead

Perhaps I have not made myself clear, in which case that is my fault. We are today on the fourth day in Committee on the Bill which was the original number of days in Committee proposed by the Government through the usual channels. Realising that the Bill had got off to quite an intense and not very quick start, we then proposed an extra day. That will be Thursday of this week. When I said to the noble and learned Lord, Lord Simon of Glaisdale, that Monday of next week has now been proposed by the Government, I should point out that that is yet another day which would make six days in all.

Lord Simon of Glaisdale

It is entirely my fault. A sixth day is now proposed and, that being so, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

The Earl of Shannon moved Amendment No. 170:

Page 25, line 29, at end insert ("and (c) ensuring that no member or members of the Board shall be nominated by the Law Society or the Society of Licensed Conveyancers.").

The noble Earl said: As I indicated in my speech on Second Reading, the creation of authorised practitioners with machinery and regulations to match has now brought into being two separate systems of conveyancing. The intention is expressed that competition between them is a desirable aim, although in speaking to the previous amendment the noble Lord, Lord Rippon, seemed to express his doubts on that matter.

In effect that means that the two systems will need to compete with each other on level terms. That objective cannot be sustained if influential personnel from one of the previous existing systems —in practice either the Law Society or the Society of Licensed Conveyancers —may become members of the Authorised Conveyancing Practitioners Board which effectively sets the ground rules for the new authorised system. It would be intolerable if such influential persons who overwhelmingly represent the established system were appointed to the strategic position of being able to interfere with the working rules of their principal competitor.

I appreciate that some may argue that the boards should have a knowledgeable and balanced representation and that widening the conveyancing systems and services might adversely affect the business of provincial solicitors, but that is what competition is all about, not a cosy monopoly. Is it right to include representatives of one faction to control the activities of their compeititors? Competition must both be achieved and be seen to be achieved.

As it stands, the clause must be defective in that respect. Equity demands that safeguards outlined in the amendment be put in place and that the consumer-client benefits from demonstrably fair competition. I beg to move.

Lord Prys-Davies

By virtue of Clause 31 the membership of the board will be balanced and the noble and learned Lord the Lord Chancellor must have regard to appointing persons with experience in or knowledge of the provision of conveyancing services and the financial arrangements associated with conveyancing.

It appears to me that the speech of the noble Earl, Lord Shannon, went far beyond even the wording of his amendment because his amendment seeks to ensure that no member shall be nominated by the Law Society or the Society of Licensed Conveyancers. That amendment is misconceived because there is no power in the Bill for the Law Society or the Society of Licensed Conveyancers to nominate any person for membership of the board. I should have thought that a wise solicitor or licensed conveyancer would be very well qualified for membership of the board.

The Bill does not provide that a member of the Law Society or a member of the Society of Licensed Conveyancers shall be appointed, but I believe that it would be inappropriate to accept this or any amendment that would prohibit any solicitor or licensed conveyancer from being appointed to the board if the Lord Chancellor considered that the appointment was appropriate.

Lord Boardman

I believe that this amendment would seriously restrict the choice of quality candidates and exclude those who have valuable experience in this field. It will be the duty of the authorised conveyancing practitioners to help develop competition in the provision of conveyancing services. Industry in particular, as expressed through the CBI, is gravely concerned that one of the effects of these proposals will be to reduce the legal advice available in the High Street to the medium and small sized businesses. It believes that it is essential that on this board there should be sufficient experienced advice to enable some of the practices that might otherwise operate to adverse effect on the local solicitors' firms—predatory pricing, tying arrangements and the like —to be avoided. It believes it essential that there should be experienced and wise advice on this board to enable some of these practices to be monitored and avoided. It would certainly oppose this amendment.

Lord Evans of Claughton

The hour is late, as we have heard a number of noble Lords say very recently. All that I need to say is that I am entirely opposed to this amendment, which I believe is mischievous. Conveyancing in this country has been done for generations by solicitors and recently by solicitors and licensed conveyancers. To exclude the nomination of people from the professional bodies dealing with those experts would be totally absurd. Quite frankly, I believe that the amendment is mischievous and unhelpful.

The Lord Chancellor

As I have already explained, one of the purposes of this measure is that the Lord Chancellor should appoint people having regard to the considerations which are mentioned in this clause of the Bill. There is no proposal that any body should nominate the members except the Lord Chancellor. I have no intention whatever of appointing people who might be thought to be or might consider themselves to be delegates of anybody else.

However, I think that it is unwise to restrict the freedom of choice of quality candidates for this board except by reference to the kind of considerations which are mentioned in the clause. I hope that on the assurance that the Bill does not contain any power for the Law Society or the Society of Licensed Conveyancers to nominate members of the board, the noble Earl, Lord Shannon, will feel that he should not press this amendment.

The Earl of Selkirk

Perhaps I may ask my noble and learned friend how far the word "conveyancing" goes. What is it proposed to include in that? For instance, is there an element of negotiation, is there an element of testing of prices or is this purely the writing of a document on which a complete decision has already been made? Is there a definition or is it left vague for the conveyancers to make up their minds?

The Lord Chancellor

The present law restricts the right to do conveyancing. It is on that monopoly that this provision operates.

I do not have the full facts relevant to this amendment in front of me at this moment, but my understanding is that the drawing of deeds which effect the transfer of property for reward would be the essential idea of conveyancing for this purpose. Anyway, I can assure my noble friend that these clauses will operate on the present conveyancing monopoly.

The Earl of Shannon

My proposed amendment does not seem to have attracted much support. It was not my intention to be mischievous or to try to wreck anything. I appreciate that my amendment may be incorrect in suggesting that there may be some form of nomination included by those two bodies. However, it seems a little odd that members of one faction should be allowed to monitor and write the rules for the operations of their competitors. It does not seem to me to be exactly fair; nor will it be seen to be fair by anyone else.

I agree that it would restrict the Lord Chancellor's catchment of suitable members for his board. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 170A: Page 25, line 34, leave out ("employees") and insert ("staff").

The noble and learned Lord said: This is a purely drafting amendment. The word "staff' appears to be preferable to the word "employees". I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Schedule 5 [The Authorised Conveyancing Practitioners Board]:

Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 171: Page 77, line 5, leave out ("Lord Chancellor") and insert ("Master of the Rolls").

The noble and learned Lord said: I have spoken to Amendments Nos. 171, 172 and 172A. Indeed, I have spoken generally to all the amendments up to and including Amendment No. 177. I do not seek to move the amendments.

[Amendments Nos. 171 to 172A not moved.]

Schedule 5 agreed to.

Clause 32 [Functions of the Board and financial provisions]:

The Deputy Chairman of Committees (Lord Grantchester): If Amendment No. 172ZA is agreed to, I cannot call Amendment No. 172ZB.

Lord Prys-Davies moved Amendment No. 172ZA:

Page 25, line 44, leave out paragraph (a) and insert — ("(a) to promote high standards of integrity and fair dealing in the provision of conveyancing services;").

The noble Lord said: The amendment seeks to achieve two things: to remove the existing paragraph (a) and to replace it with the new paragraph (a) which is set out in the amendment.

Clause 32(1)(a) is a surprising clause. We find it a strange clause because the duty to develop a conveyancing service is already provided for in the statutory objective in Clause 14(1) which the Committee discussed for some hours last week.

Moreover, the proposed rules of the board and the proposed regulations of the Lord Chancellor will have to be sent to the Director General of Fair Trading, who will express his views to whether or not they restrict or prevent competition. On top of that, there is a right of appeal against a decision of the board to the appeals tribunal. We therefore ask this question. Why does the Bill not rely on the general framework of Clause 14, underpinned by the jurisdiction of the Director General of Fair Trading and the right of appeal?

The answer is to be found in the Notes on Clauses. We are told that the introduction of Clause 32(1)(a) will ensure that the board will not unnecessarily refuse authorisation or impose unreasonable conditions. There is a right of appeal to the appeals tribunal if an applicant believes that his application has been refused unnecessarily or if the board has established unreasonable conditions. Therefore, the purpose of the subsection is to introduce on the face of the Bill a slant or bias in favour of competition. We note that the reference is to competition and not to fair competition.

We believe that the clause is unnecessary and that the primary duty of the board should be to promote high standards of integrity and fair dealing in the provision of conveyancing services. I beg to move.

11 p.m.

The Lord Chancellor

Before dealing with the detail of the amendment I wish to point out that Clause 32(1)(b) imposes on the board the duty: to supervise the activities of authorised practitioners in connection with the provision by them of conveyancing services". Further, subsection (2) provides that: In discharging the duty imposed on it by subsection (1)(b) the Board shall, in particular, make arrangements designed to enable it to ascertain whether authorised practitioners are complying with regulations made by the Lord Chancellor under section 37". Those two duties —that referred to by the noble Lord, Lord Prys-Davies, and that referred to by me —are designed to go together.

The purpose of the clauses relating to conveyancing in this part of the Bill is to give the client the choice of a new kind of conveyancing service to be provided by authorised practitioners. The board must remember that one of the reasons that it exists is to help in realising that choice. When deciding what kind of rules to make and whether to authorise applicants, it should bear in mind that it is there in part to help ensure that the client gets his choice. I do not think that the Bill is improved by relieving the board of that duty.

Of course this is only one side of the coin. The client needs to have confidence in authorised practitioners and to be able to rely on them performing their tasks to an appropriate standard. That is already provided for in substance by the other side of the board's duty —that of supervising the provision of conveyancing services by authorised practitioners. That will primarily be done by the enforcement of the regulations to be made by the Lord Chancellor. That mechanism provides a place for Parliament in maintaining standards which I think is essential.

I trust that in the light of what I have said the noble Lord will feel that the regulations which the Lord Chancellor makes and in which the parliamentary process is involved will have the effect of providing the framework which the board will have to operate. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Boardman

I hope that my noble and learned friend will look at the matter further. It has the ring of seeking to develop competition and of encouraging cut-throat competition which does not necessarily go with the highest standards of integrity and fair dealing. I am mindful that in the provisions covering the Securities and Investments Board, which is similar in its intentions, it is not charged with such duty. Its main task is to make regulations which must promote high standards of integrity and fair dealing in the conduct of the investment business.

In an area where there must be a danger of introducing practices of which the Committee may not approve —and I am sure that we shall hear more about that matter later —we should write into the Bill the requirements for those high standards of integrity. I hope that my noble and learned friend will look at the matter further before the next stage of the Bill.

Lord Evans of Claughton

I should like to add my plea to that of the noble Lord, Lord Boardman. I have practised as a conveyancer for nearly 40 years, not in the City of London but in the high street where conveyancing is the life-blood of the profession. I assure Members of the Committee, particularly those who live in the rarefied atmosphere of the High Court or the City of London, that there are already unfair practices brought about by the fierce competition for work to which some solicitors and licensed conveyancers are willing to reduce themselves.

I add that unless some steps are taken to ensure that unfair competition is as far as possible removed, the practices which would ensue in order to drum up business would rebound, in the end, to the disadvantage of the person buying a house. That is the biggest transaction undertaken in most people's lives. If they come from a humble background, £20,000 for a terrace house in the North of England is a lot of money. I deal with that sort of convenyancing. If they live in other parts of the country, £100,000 or £200,000 or more can be a lot of money. Quite frankly, I believe that the provisions in this Bill will encourage the drumming up and seeking of business by the promotion of collection of commissions and every other practice which is so reprehensible to a member of the profession, rather than to a person engaged in other occupations. That will become more and more prevalent.

I am sad, from the bottom of my heart, that we are discussing a matter which is probably more important to the ordinary citizen in this part of the Bill at this time of night when we have spent so many hours discussing much more esoteric subjects in the early part of this Bill. This is the part which affects the average man in the street. This matter is being discussed at ten minutes past eleven and it will receive scant consideration. I feel very deeply that we are in danger of doing a permanent injury to an extremely important part of a service given to the public and to the legal profession of which I have been honoured to be a member, with great feelings of loyalty, for nearly 40 years. I believe that it is terribly sad that this matter is being swept through at this time of night. I support the noble Lord's amendment.

The Lord Chancellor

I rise again because I wish to assure the noble Lord, Lord Evans of Claughton, that I do not regard this as a matter to be swept along. I regard it as very important and I listened with great care to what he said and to what my noble friend Lord Boardman and others said because I agree that this matter affects ordinary people. I started off my life in the law dealing with conveyancing transactions for people who were even more ordinary than those described by the noble Lord in his submissions, at least if the price of the houses is anything to go by.

However, I remind the Committee, because it is relevant to what I said earlier, that Clause 37 states: The Lord Chancellor may by regulation make such provision as he considers expedient with a view to securing —

1. (a) that authorised pracititioners maintain satisfactory standards of competence and conduct in connection with the provision by them of conveyancing services; and
2. (b) that the interests of their clients are satisfactorily protected".

I take that very broadly to mean that that does not confine the regulations in any way but requires that they secure that the interests of clients are satisfactorily protected. The noble Lord will know that in the original Green Paper I proposed some protective regulations. In the White Paper I have elaborated upon them. The matter is not yet concluded. I am willing to listen to any suggestions about what is required in the interests of satisfactory protection of the client. I believe that that is an extremely important matter. The problems that the noble Lord has referred to in connection with dealings in the high street and other places require to be carefully scrutinised. The noble Lord will know that consideration is being given to that situation in relation to estate agents by my right honourable friend and honourable friends in the Department of Trade and Industry and by the Director General of Fair Trading.

Lord Prys-Davies

I am extremely grateful for the support which this amendment has received. The noble Lord, Lord Evans of Claughton, in particular has expressed the deep anxiety that exists in relation to this clause. We fully support paragraph (b) to which the noble and learned Lord referred. Our amendment fits in which paragraph (b). It does not detract from it but merely establishes that priority should be given to the maintenance of standards of integrity and fair dealing between the parties.

We are concerned that the clause should give prominence to the need to develop competition. The forces of the market will ensure competition. In free competition, the conveyancing board should be in business to promote standards of integrity and fair dealing. That should be at the top of its list of priorities.

I cannot take the matter any further this evening but we may well return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. I72ZB not moved.]

The Earl of Shannon moved Amendment No. 173:

Page 26, line 3, at end insert — ("(c) to promote and develop the efficient provision in respect of conveyancing services by authorised practitioners.")

The noble Earl said: This is only a probing amendment. It seeks to gain certain assurances about the nature of the Authorised Conveyancing Practitioners Board and its work. Very welcome to those who have read this clause is the statement in subsection (1)(a) that the board will seek to develop competition. I should like to take this point further and ensure that the board has a positive and innovating role in developing conveyancing services.

My amendment states in a direct way that the board should seek to develop new procedures in conveyancing as far as the authorised sector of house transfer is concerned. That is something that is needed more than ever. Until recently the function of breaking new ground and moving the frontier of conveyancing practices belonged to the conveyancing standing committee of the Law Commission, which I understand has now been abolished.

It may be that this amendment is quite unnecessary and that competition, as mentioned in Clause 32(1)(a), includes the innovating role which I have attempted to describe. I wish to be persuaded. Promoting competition does not necessarily mean changing time-honoured rituals. It could mean the creation of two sets of time-honoured rituals to compete with each other in the same old way. I hope that this amendment might avoid that. I remind the Committee that the conveyancing system in this country is the subject of a continual chorus of consumer complaint. Only in recent years has it tried to come to terms with modern consumer society. Even now the system tends to meander along its way like a country omnibus.

This amendment would assist in finding ways to make house transfer more expeditious, inexpensive and less of a trauma than it has been for far too long. I beg to move.

11.15 p.m.

The Lord Chancellor

This clause is in Part II of the Bill and the general objective of this part is described in Clause 14(1) which has been amended. However, in this aspect the clause remains as it was. The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new ways of providing such services and a wider choice of persons providing them". Then words are added.

What the noble Earl has in mind is there in the general objective of Clause 14 which applies to the whole part including this. The object of this particular provision is to make it clear that the board has the job of developing competition in the provision of conveyancing services under that general objective. As regards standards, as I say, these are to be set by regulations which will be subject to parliamentary procedure. The board will have the responsibility of making sure that the authorised practitioners obey these regulations. The Authorised Conveyancing Practitioners Board in the clauses to which I have referred, appears to give the kind of direction that the noble Earl wishes to see received. In the light of that explanation, the noble Earl may feel able to withdraw the amendment.

The Earl of Shannon

I am most grateful to the noble and learned Lord the Lord Chancellor. They were just the assurances that I was hoping for. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Claughton moved Amendment No. 173A: Page 26, line 17, leave out ("may") and insert ("shall").

The noble Lord said: It may be for the convenience of the Committee if in moving this amendment I also speak to Amendment No. 173B. Both amendments deal with a similar matter. The first requires rather than empowers the noble and learned Lord the Lord Chancellor to publish any report made to him by the board on a matter referred to it under subsection (4). The second amendment would require the board to send to the noble and learned Lord any rules and directions that it publishes. It is in the public interest that reports of the ACPB should be made available to the general public, and that the noble and learned Lord the Lord Chancellor should have a complete picture of all the directives and rules made by the board.

As matters stand, he has to approve the rules under Clause 34(4). I believe that he will welcome with delight these amendments and have them incorporated in the Bill. In such a mood of confidence, I beg to move.

The Lord Chancellor

The noble Lord has also referred to Amendment No. 173B, and I shall try to deal with both. As regards Amendment No. 173A, the noble Lord wishes to put an obligation on the Lord Chancellor to publish what is in the board's report. That is my understanding of the first amendment. I question whether that is wise. It is right that the Lord Chancellor should have a discretion to publish what the board may say but to have an obligation to do so might not be wise. For example, the board might refer to the Lord Chancellor the result of some form of preliminary investigation or something of that kind. The result might well require further substantiation.

In some cases we have seen quite serious consequences coming from the publication of a report. I do not envisage this happening very often but the possibility of something of this kind happening and the report containing information which would require further investigation might make it difficult to accept an amendment that imposes an absolute duty on the Lord Chancellor to publish all reports made to him.

Amendment No. 173B is unnecessary. All rules made by the board apart from those dealing with fees are subject to the concurrence of the Lord Chancellor. It is therefore unnecessary to send him a copy. It is not appropriate for the board to be required to send copies of its rules on the raising of fees to the Lord Chancellor. The board is to be self-financing, and a statutory provision could be interpreted as giving rise to a presumption that the Lord Chancellor has a supervisory duty in what is entirely a matter between the board and authorised practitioners. Should it come to the Lord Chancellor's attention, by whatever means, that the board is failing it its duties in respect of these rules, it is open to him to give the board a direction under Clause 32(7). It is always open to the Lord Chancellor to obtain a copy of the board's rules —and it is open to the board to send them to him voluntarily, which is the likely course. The imposition of unnecessary duties by statute is to be avoided. I am sure that the noble Lord would not wish to have unnecessary duties enshrined in statute. Directions by the board could be effective only if their breach gave rise to disciplinary action leading to suspension or revocation. Although the board is allowed to make rules governing revocation or suspension, these are subject to the concurrence of the Lord Chancellor and he would therefore see them in any event. In the light of that explanation, I hope that the noble Lord will feel that the points raised by his amendments are adequately covered.

Lord Evans of Claughton

I moved the amendment in an attempt to be helpful and encourage openness of decision-making. I have listened carefully to what the noble and learned Lord has said, and at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173E not moved.]

Clause 32 agreed to.

Clause 33 [Provision of conveyancing services by authorised practitioners]:

Lord Evans of Claughton moved Amendment No. 173C: Page 27, line 2, at end insert ("provided that in the cases of paragraphs (b) and (c) above any act done in connection with the provision of conveyancing services shall be done by persons with such qualifications and under such supervision as shall be prescribed by the regulations referred to in section 37 of this Act.").

The noble Lord said: The White Paper made clear the Government's intention that conveyancing work should be undertaken by properly qualified and supervised persons. A principle of this importance should appear in the Bill and should not be left to subordinate legislation to be made under Clause 37.

Section 22 of the Solicitors Act already prohibits unqualified persons from doing certain conveyancing acts. Clause 33(1) provides that Section 22 shall not apply to conveyancing acts done by the staff of an authorised practitioner. The amendment would provide that such unqualified staff were exempt from the Section 22 offence only if they were properly supervised as prescribed by regulations made under Clause 37.

I do not think that there is any need for me once again to rehearse the points I made earlier regarding how important the transaction of buying or selling a house can be in the life of the average man and woman or, indeed, in a more general way how important are conveyancing transactions of a commercial and more general kind. Therefore, this sort of limitation on those who can undertake conveyancing unsupervised should be in the interests of what the Government want in the legislation and also in accordance with the spirit of the Bill as debated in this Committee so far. I beg to move.

Lord Mishcon

I wonder whether it would again be economical as regards time if I were to speak now to Amendment No. 173D, although I shall obviously not move it at this stage. I wish to do so because it has exactly the same object as the amendment moved by the noble Lord, Lord Evans, except that it provides that this supervision necessity for unqualified staff should be in primary legislation as it is in regard to solicitors and licensed conveyancers.

With the leave of the Committee I should like to quote Section 22 of the Solicitors Act 1974 to which the noble Lord, Lord Evans, referred. It is a short section but it is quite clear and it is contained in primary legislation. Subsection (2A) provides that the unqualified staff of a solicitor may only do acts protected by Section 22 if the act is done, at the direction and under the supervision of another person and,

1. (a) that other person was at the time his employer, a partner of his employer or a fellow employee; and
2. (b) the act could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section."

Again the noble Lord, Lord Evans, quite rightly quoted from the White Paper. However, paragraph 3.7 of the Green Paper Conveyancing by Authorised Practitioners states that authorised practitioners would be required to employ, a sufficient number of solicitors or licensed conveyancers … to provide or supervise the provision of the conveyancing services". The Green Paper had such a provision in mind. It is a statutory obligation on solicitors and licensed conveyancers and it should therefore be in primary legislation so as to cover this situation.

The Lord Chancellor

Perhaps I may deal with these two amendments at the same time. My intention is that the regulations should deal with this matter by specifying the nature of the supervision that should be required. I believe that that is the wisest course to take in this situation. The Green Paper referred to this provision and the White Paper developed it in quite considerable detail. I believe that the White Paper proposal is an effective method of securing supervision by a properly qualified person.

I can well understand that the situation is one of importance and therefore I have provided that these regulations —that is, those proposed under Clause 37 —should be supervised under Clause 32(2)(b). However, I can see that if by chance there was a failure to comply with these there may well be a problem. Therefore, I shall consider further the proposal put forward by the noble Lord, Lord Evans of Claughton. That may be the best way forward as it would have the effect of ensuring that the authorised practitioner who disobeyed or neglected these two branches—namely, paragraphs (b) and (c) —would expose himself to the criminal sanctions under Section 22 of the Solicitors Act 1974.

If the noble Lords, Lord Evans and Lord Mishcon, are prepared to leave the matter with me, I am prepared to consider further whether an added incentive, as it were, to the authorised practitioners to ensure that they obey the regulations with regard to supervision would be appropriate.

I believe that the regulation-making system is the better one to ensure the standard of supervision. Supervision is, as we know, something that can vary in standard. It is important to be able to specify the standard to some extent. As I said, I developed that proposal between the Green Papers and the White Paper. It may be possible to develop it still further. It is an important matter and it would be wise to have power to specify it closely. I shall consider adding the sanction suggested in the amendment.

11.30 p.m

Lord Evans of Claughton

In the light of what the noble and learned Lord has said, it gives me considerable pleasure to withdraw the amendment to enable him to reconsider the matter. It shows that it is worth staying up late occasionally. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon had given notice of his intention to move Amendment No. 173D:

Page 27, line 2, at end insert — ("( ) Subsection (I) shall only apply

1. (a) in the case of an act done by an officer or employee of a body corporate, where the act was done at the direction and under the supervision of another person who was at the time an officer or employee of that body; or
133
2. (b) in the case of an act done by a member or employee of an unincorporated association, where the act was done at the direction and under the supervision of another person who was at the time his partner, his employer, a partner or his employer or a fellow employee; and
3. (c) apart from this section, the act could have been done by the other person for or in expectation of fee, gain or reward without committing an offence under the said section 22.").

The noble Lord said: I have already sopoken to the amendment and I shall not inflict a further speech on the Committee. I hope that the noble and learned Lord can consider whether, as the primary legislation deals with the two other branches involved with conveyancing, it would be consistent to deal with this matter by primary legislation. He said that he will consider the whole question, and in the light of the speeches made I am prepared to leave it at that and I shall not move the amendment.

[Amendment No. 173 not moved.]

The Deputy Chairman of Committees

If Amendment No. 173E is agreed to I cannot call Amendments Nos. 173F to 174 inclusive.

Lord Mishcon moved Amendment No. 173E: Page 27, line 3, leave out subsections (2) and (3).

The noble Lord said: I wonder whether the Committee is prepared to smile at this time of night. I can only remind the Committee of what happened in court one day when, after a long submission by one counsel, the learned judge turned to the other counsel and said. "Now, what do you think of Mr. Brown's submission?"; to which the reply was, "I thought it was dreadful"; and the counsel sat down. In the same way, I wish to be brief and say that subsections (2) and (3), which I ask to be deleted as a result of the amendment, are in the view of the Law Society and the practitioners dreadful, which is why we want to omit them.

Having used those strong words, I should explain why that is so. The amendment would allow the professions to continue to regulate their members' employment by conveyancing institutions and would allow professional rules to govern those who act as their agents. Unless the amendment is made the professions will lose that right. The subsections strike at the ability of the Law Society, the Bar and the Council for Licensed Conveyancers to regulate the affairs of their members who are employed or retained by authorised practitioners. I feel that I need say no more at this stage and at this time of night to show how objectionable —if I may use that term —the Law Society and the practitioners (I imagine I speak for the Bar Council too) regard those subsections.

Lord Renton

I understood that we were going no further than this tonight. I should have thought that we had achieved a great deal today. I know that one or two of the debates have been unexpectedly long; but nevertheless we have covered a great deal of ground and dealt with many amendments. I should have thought that we would do much better to come back to this important matter fresher and at a more reasonable hour on some other day.

The Lord Chancellor

I am not sure whether there is some misunderstanding about this amendment. I rely upon the standard of competence and conduct of the professions —that is to say, the solicitor branch, the barrister branch and the licensed conveyancer branch —to ensure proper standards in the performance of these conveyancing services. There is no intention whatsoever of depriving the Law Society, the Bar Council or the Society of Licensed Conveyancers of making rules about the standard of professional conduct. All that the provisions do that the amendment seeks to delete is to ensure that the scheme can operate, making use of solicitors, for example, either as employees or as agents of the building societies to provide the services.

I do not think that the provisions can reasonably be construed as having any other effect. I, with my advisers, will certainly look further to see whether that is so and whether we can make it clear that far from abolishing the right of the Law Society to make effective rules of conduct and competence, I wish to rely on them. I shall seek advice on whether there is any chance that what we have drafted unnecessarily damages that.

On the other hand, I wish it to be made clear that none of the professional bodies can make a rule which would prevent their members from giving these services to authorised practitioners. That is the very heart of the scheme. I do not believe that it would be right to allow the heart to be torn out of the scheme. However, it is right that the professional bodies should continue to regulate the standards of conduct. That is what I rely on. There may be some misunderstanding between us, but my intention is as I have said. I believe that the clause as drafted gives effect to that. If it does not, after taking advice I shall seek to improve it further.

Lord Templeman

While I accept all that my noble and learned friend the Lord Chancellor says, perhaps I may ask him to consider this point. As a result of the debate on the Green Paper, the noble and learned Lord the Lord Chancellor has introduced a number of safeguards. They will prevent the evil arising of an estate agent acting on behalf of vendor and purchaser and will prevent multidisciplinary partnerships being exploited so that building societies and insurance companies collect commission from all kinds of operations, to the detriment of the purchaser.

I ask the noble and learned Lord to consider, in the context of this subsection, the possibility of a cosy arrangement between an estate agent and a building society or insurance company. In a fairly large town they might employ just one firm of solicitors as agents. They will obey the law but not until it is passed. All the building societies and insurance companies will go on with all the practices which we attack so strongly in the Green Paper and which the noble and learned Lord the Lord Chancellor announced his intention of curbing. They will continue to do so until the law is passed restraining them.

I have had to wait four days to make this speech, so perhaps I may implore the noble and learned Lord to ensure that in all the safeguards which he is introducing in the Bill, proper safeguards will prevent the kind of abuse to which reference was made on all sides of the House with regard to conveyancing in the debate on the Green Paper. Will the noble and learned Lord assume that people will do their best to get out of it? The cosy arrangement between any of these institutions and one firm of solicitors could destroy the whole element of competition. It would mean that the high street solicitor would not be able to compete in the locality because all the work would go to one firm of solicitors.

The Law Society should have power to say that it will not tolerate that practice, and that if it finds that happening it should be able to tell the firm of solicitors concerned that it must not act for a particular building society, insurance company or estate agent in a town unless they agree that their conveyancing work shall not be limited only to that firm of solicitors but shall be spread out. It may be difficult to ensure that that happens, but I wish to impress on the noble and learned Lord the Lord Chancellor, even at this late hour, that there may be some potential evil here. One does not wish to inhibit the Law Society from saying whether its own members are operating fairly between the rules.

Lord Donaldson of Lymington

Before the noble and learned Lord the Lord Chancellor replies to that point, I wish to refer to another issue as the noble and learned Lord may wish to reply to them together. I understood the noble and learned Lord to say that the purpose of subsection (2) was to make sure that no branch of the legal profession, or I suppose licensed conveyancers, made a rule preventing a barrister, for example, from acting as an employee of an authorised practitioner or acting on his behalf; in other words, facilitating the provision of conveyancing services by an authorised practitioner. I have just been having a word with the chairman of the Bar on this matter and I understand that what is troubling the Bar is something quite different. The Bar wishes to be maintained as a referral profession; that is a profession which does not accept instructions other than through another professional, whereas it would appear that subsection (2)(a) as drafted would prevent it prohibiting a member of the Bar, perhaps in private practice, from carrying out conveyancing direct for members of the public with all kinds of complications in relation to the insurance cover provided by the Bar and in relation to accounts. Perhaps I only speak for myself but I believe most members of the Bar are quite incapable of keeping accounts which would satisfy the client account rules of the Law Society. Indeed it would be necessary to have client accounts and other horrors with which the Bar is wholly unfamiliar.

Lord Renton

The noble and learned Lord the Master of the Rolls referred to a point which arises in my Amendment No. 173F. It might save time if I were to refer to that now. I shall do so very briefly, as I always do. I have never spoken for longer than two minutes on any amendment to this Bill. If the Chief Whip has his watch he can time me now. The point is that, as the noble and learned Lord has said, unless we have Amendment No. 173F, or something to like effect, it will mean that members of the Bar who carry out conveyancing —among my friends in Lincoln's Inn there are quite a number —could be approached direct by members of the public instead of in accordance with the practice which has always prevailed; namely, being approached by a solicitor. I hope that my noble and learned friend the Lord Chancellor will agree that this matter should be put right. The best way of putting it right is by accepting Amendment No. 173F.

Lord Mishcon

I wish to give some examples of how misleading this subsection is at the moment. It speaks clearly about there being no ability of the Law Society or the Bar Council to prevent their members from being employed by authorised conveyancers. With that object the Law Society and, I am sure, the Bar Council, would have no quarrel, if it were clearly pointed out that this is the limit of what is desired. However, the language is not so clear.

I should like to draw to the attention of the noble and learned Lord that the Law Society, for example, needs to ensure that its members are subject to its general regulatory powers such as those which ensure that undertakings given by solicitors can be relied on absolutely. It also needs to be able to regulate the extent to which authorised practitioners can provide services through private practitioners. In particular, it needs to ensure that no confusion can arise between the wholly independent service now available from private practitioners and the more limited service to be provided by authorised practitioners.

I cite those two examples so that the noble and learned Lord, in his courtesy, can consider them as well as the other speeches that have been made regarding the amendment. As I understand it, the noble and learned Lord has as a specific object keeping the clause in clear language so that we may know exactly what it means.

11.45 p.m.

The Lord Chancellor

The intention of the clause is to make it possible for a solicitor in private practice to provide conveyancing services for the clients of a building society. That is the purpose of paragraph (c). Paragraph (b) makes it possible for a member of the Law Society, for example, to be an employee of an authorised practititioner. I believe that the two paragraphs are necessary if the scheme is to be fully effective.

I agree entirely that the Law Society, for example, should have power to control completely the way in which those services are given, in the sense of providing the proper standard of professional service under those arrangements. I should think that, for example, a solicitor in private practice who provided conveyancing services for the clients of a building society should be capable of explaining fully to the client at the personal interview which I have stipulated should be offered what services he was prepared to offer and the conditions under which those services were offered.

I entirely see the point that was made by my noble and learned friend Lord Templeman. That is one of the objectives of having the board seek to develop competition in the provision of conveyancing services. I believe that the board is the best body to have such responsibilities. Those responsibilities would operate on the building society in the example that my noble and learned friend quoted. The last thing I want to do is to limit or inhibit competition or to allow authorised practitioners to develop systems under which they would be able improperly to limit competition.

My noble and learned friend the Master of the Rolls also made a point which I should like further to consider. It is not clear to me what problem arises so far as concerns the Bar. I can see that there may be a difficulty in some circumstances if a practitioner gives services only on referral and is a member of the practising Bar in that sense. I can see no reason why a member of the Bar should not be employed by an authorised practititoner if he wants to take up such employment.

Lord Donaldson of Lymington

I explained that paragraph (a) was the problem.

The Lord Chancellor

I see that. That is an aspect of the matter which I would want to consider further but the regulations could cope with that. I do not believe that it is necessary to take paragraph (a) out, but I shall certainly look further at the matter. That also deals with the point made by my noble friend Lord Renton.

Lord Renton

The comments of my noble and learned friend the Lord Chancellor deal partly with that point, but if noble Lords look at the place at which I propose that the words, except the General Council of the Bar", should be inserted, they will see that the proposal covers each of the three circumstances mentioned in subsection (2).

In view of what my noble and learned friend the Lord Chancellor said about wanting to consider the question of the employee of an authorised practitioner and in view of the possibility, which I must confess that I had not contemplated, that an independent barrister could give up being such and become an employee of an authorised practitioner who is not a barrister, perhaps I should take my amendment away and we should consider that proposal.

However, I should have to come back on Report and point out that in order to cover the circumstances of the independent practitioner some words must be inserted which would ensure that the present rules with regard to independent practitioners are not altered. There should not be direct access to the lay clerk. Barristers are neither trained nor organised to work directly with lay clerks, handling money, for example. They have always acted through solicitors and that should remain the position. I shall not move my amendment tonight, but I ask my noble and learned friend to consider the matter further. It must be dealt with somehow.

The Lord Chancellor

I intended to say that I would consider that point. I believe that it is capable of being dealt with.

Lord Mishcon

In the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 173F to 174 not moved.]

Clause 33 agreed to.

Clause 34 [Authorisation of practitioners]:

[Amendment No. 174ZA not moved.]

Lord Evans of Claughton moved Amendment No. 174A: Page 27, line 29, after ("date") insert ("and be for such period").

The noble Lord said: This simple amendment seeks to concentrate the minds of practitioners since, as the Bill stands at present, authorisation would be indefinite. I seek to substitute a limited period. The amendment should be supported because, clearly, authorised practitioners, like other human beings, are likely to improve their services if they have to apply for a fresh authorisation periodically and are not allowed an indeterminate period without any interruption. I beg to move.

The Lord Chancellor

I find it difficult to accept the principle of the amendment. The board is to be given a full range of powers to deal with any authorised practitioner whose performance does not come up the mark. We are to discuss the powers that it would have to look at what practitioners have been up to. Against that background I see no reason why the board and practitioners should be put to inconvenience and expense where there is no reason to doubt their competence. Where there is, a power to impose conditions to my mind is a more direct and effective way of dealing with any problems.

I hope that the noble Lord will feel that this is a very effective system for making sure that if anything is wrong the authorised practitioner's standing can be immediately affected. But a periodical renewal, as it were, of his authority seems to be unnecessarily bureaucratic in effect. Such effect, I am sure, is one of the last things that the noble Lord would wish to introduce into the system.

Lord Evans of Claughton

I am very willing to accept the advice so robustly put to me by the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 175 not moved.]

The Earl of Lytton moved Amendment No. 175A: Page 27, line 37, leave out ("may") and insert ("shall")

The noble Earl said: In moving this amendment I should also like to speak to Amendments Nos. 178A and 178B. I shall explain the position very quickly. Under subsection (6) of Clause 34 there is the indication that the Authorised Conveyancing Practitioners Board may make, but does not have to make, rules prescribing the form in which applications from those wishing to become authorised practitioners may be made. In my view that is too permissive a power. My amendment seeks to make it mandatory.

I believe that there is a public interest point here which demands that the rules be very clearly set out and that the board receive all the information that it needs to judge whether an applicant is a fit person for authorisation purposes. That is the purpose behind Amendment No. 175A.

I turn briefly to Amendments Nos. 178A and 178B which concern a related principle. Clause 37 deals with the regulations that will be required to regulate the competence and conduct of practitioners. I believe that a strong regulatory framework is required, particularly in view of the expanded categories of people who will be involved.

I am sure that the noble and learned Lord will give me a very plausible explanation. But as a layman, treading I suspect on rather thin legal ice, it seems to me that the word "may" is not strong enough. I declare such interest as I have as a chartered surveyor and therefore someone who to some extent is involved, at any rate by professional label, with the conveyancing process, although I myself do not become directly involved with it. I beg to move.

The Lord Chancellor

This amendment seeks to amend subsection (6) of Clause 34, which provides that the board, when making rules in respect of an application for authorisation under subsection (4), may in particular make provision as to the form in which any application must be made and for the furnishing by applicants of information required by the board in connection with their application. The amendment makes it mandatory rather than discretionary for the board to make such particular rules.

The aim of the subsection is to give guidance as to the matters which the board should consider when making rules. The form of the application and required supporting information are inevitably matters that the board will wish to consider; but given the possible variation in the classes of applicant, it is not appropriate for the board to be under a duty to make rules covering specific items.

Apart from anything else, an obligation which states "shall" instead of "may" would not be complete without some time limit. I believe that the noble Lord should have in mind that the board will require to have the concurrence of the Lord Chancellor to the rules that it would make.

I believe that if one were to make some part of the obligation mandatory, it would be right to do so for the whole lot. If one does so, the whole arrangement is inflexible and unwise. I believe that the board might wish to make new rules from time to time in the light of practice as matters develop. A mandatory system does not properly take account of that. The idea of "may" is to give the board power and one expects the board to use these powers in the furtherance of the duties placed upon it in the opening words of Clause 32 which we looked at.

I hope in the light of that explanation the noble Earl may feel as a layman that I have given not just a plausible explanation but one that satisfies him.

The Earl of Lytton

I should like to thank the noble and learned Lord for that explanation and apologise for the incompleteness of the amendments that I have moved. My power of parliamentary drafting is not as good as perhaps it should be. However, I should like to consider the explanation that the noble and learned Lord has given. It seems entirely plausible and proper. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12 midnight

Lord Mishcon moved Amendment No. 175ZA: Page 28, line 4, after ("arising") insert ("and in particular complies with any indemnity rules made under section (Rules concerning indemnity), so far as applicable.")

The noble Lord said: My only consolation in moving this important amendment at this hour would be to hear the noble and learned Lord say either that he accepts the amendment, or that he accepts the spirit of it, or that he will favourably consider it.

With the leave of the Committee I speak also to Amendments Nos. 175ZB and 180D.

As noble Lords will see, this is the important amendment dealing with rules concerning indemnity which the lord Chancellor should make in respect of civil liability incurred by authorised practitioners in the course of their providing conveyancing services. It is therefore a very necessary protection for the public.

I have referred to the Green Paper. In paragraph 3.10 it was stated that an authorised practitioner will be required to have adequate professional indemnity insurance or other appropriate arrangements to meet claims arising out of conveyancing services. But Clause 34(7)(b) does not refer to insurance. It simply requires an applicant to ensure that, satisfactory arrangements are at all times in force for covering adequately the risk of any claim made against the applicant in connection with the provision of conveyancing services provided by the applicant, however arising". One has only to look at the indemnity requirements contained in other statutes to see that that is very wibbly-wobbly. Section 21 of the Administration of Justice Act 1985 had detailed provisions in regard to licensed conveyancers and requiring them to be insured. Section 53 of the Financial Services Act 1986 has similar insurance requirements in respect of persons authorised to carry out investment business. As everyone knows, Section 37 of the Solicitors Act 1974 is specific in containing insurance requirements in respect of solicitors.

This amendment is based very much on all those provisions. The proposed amendment enables the Lord Chancellor to exempt certain authorised practitioners from the indemnity rules. It may very well be that the Lord Chancellor will take the view that very big banks, building societies and insurance companies have such large financial resources from which to meet claims for liability that it would not be necessary or appropriate for him to require them to be insured. The Lord Chancellor can take that matter into account when making his rules. However, there will be many other authorised practitioners who will be individuals, partnerships or smaller companies. In those cases members of the public must be properly protected by rules requiring authorised practitioners to be insured. I beg to move.

The Lord Chancellor

As I have already said, I fully support the idea that by one means or another clients must be protected. That, I believe, is achieved in two ways. First, under Clause 34(7)(b), to which the noble Lord, Lord Mishcon, has referred, it is a prerequisite for authorisation that an authorised practitioner must have satisfactory arrangements in force for covering adequately the risk of any claim. The board shall authorise a person to provide those services if it is of the opinion that the applicant will comply with the requirements mentioned in subsection (7). In other words, it must see that satisfactory arrangements are in place for a particular practitioner to be authorised. That means that, generally speaking, the practitioner must be insured.

For those acts that cannot properly be covered by insurance —namely, dishonesty —the Government have tabled amendments enabling the board to establish a compensation fund. It is unnecessary and over-regulatory to require it to set up an indemnity fund in addition. The noble Lord recognised that there may be exceptions to what he has in mind. It is right that what is to be insured is set out together with the manner in which it is secured, provided that sufficient powers exist to enable that properly to be done in all cases and that that is the best way forward. Therefore, I believe that our suggestions deal effectively with the problem raised by the noble Lord and with the minimum of unnecessary detail.

Lord Mishcon

I have heard what the noble and learned Lord said, as have other Members of the Committee. He has recognised the fact that it is an important matter. I believe that in protecting the public it will be of great help to him if the matter is made clear in the primary legislation. That was the reason for my detailed amendment containing the clause which I proposed should be inserted if it was agreed.

In view of the importance of the matter, I am sure that the noble and learned Lord will consider it most carefully. Upon that understanding, which I believe I have, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 175ZB not moved.]

Lord Evans of Claughton moved Amendment No. 175ZC:

Page 28, line 12, at end insert— ("(f) submits reports at regular intervals from an independent accountant in a form to be prescribed by the Board that the accounts of the authorised practitioner are being kept in a proper manner and in accordance with the regulations laid down under subsection (1)(f) of section 37.").

The noble Lord said: The purpose of the amendment is to provide protection for the consumer similar to that which already exists for solicitors and licensed conveyancers. It would require authorised practitioners to submit a regular accountant's form certifying that the practitioner's accounts are being properly kept.

Rather cruelly, the Law Society has said that it prefers Amendment No. 180E tabled by the noble Lords, Lord Mishcon and Lord Prys-Davies. However, undaunted by my professional body's preference, I put forward my amendment on the grounds that we shall deal with it this evening and God knows when we shall reach Amendment No. 180E.

The principle enunciated is plain: that the consumer deserves at least equal protection to that which he now receives in relation to his transactions with solicitors and licensed conveyancers and that accountant's certificates must be produced at regular intervals. I beg to move.

The Lord Chancellor

I understand the aim of the noble Lord. The amendment, if accepted, would compel continuing financial surveillance by the board of authorised practitioner accounts and the handling of their clients' money in a way similar to that in which the Law Society requires annual certificates from auditors that solicitors have complied with its clients' accounts rules. To the extent that this kind of surveillance is needed, the existing powers already set out in the Bill are adequate to allow regulations to impose the necessary requirements.

In general, however, the board will receive information from the conveyancing ombudsman and may also obtain it in certain circumstances from other regulatory bodies (for example, the Building Societies Commission or the Office of Fair Trading) which will enable them to fulfil their regulatory role. I believe that this will provide adequate protection for the client while not imposing an unnecessary burden on authorised practitioners. Requiring authorised practitioners to produce their accounts in such a way as to enable financial monitoring by the board could entail expenditure of considerable time and expense which would have to be passed on to the client. It should not therefore be imposed unless it can be fully justified.

I believe that the general regulations to which I have referred are sufficient to ensure what is required without imposing unnecessary burdens. I hope that the noble Lord will feel that that is the best way to meet his very understandable concern.

Lord Evans of Claughton

I am not completely happy with the assurance given to me by the noble and learned Lord. However, I should obviously like time to consider this matter between now and the later stages of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Lytton moved Amendment No. 175B: Page 28, line 18, leave out ("or").

The noble Earl said: In speaking to this amendment I also speak to Amendment No. 175C which relates to this. This is a probing amendment to seek an assurance regarding the categories of persons who may be considered appropriate for authorisation by the board.

In this instance, reference is made at subsection (8) to a bank, a building society and an insurance company in particular. It seems to me that there are other professions which could also be considered appropriate and which perhaps should stand to be judged for their appropriateness in exactly the same way as those named groups of bodies by virtue of the fact that they are professional bodies.

I believe that my professional body, the Royal Institution of Chartered Surveyors, might be among those which should be considered appropriate, although I would not in any way wish to prejudge the matter. I do not believe that the institution has expressed a particular preference one way or the other. Therefore, it may well be that the noble and learned Lord will advise that this matter is already dealt with and that it is subservient to the general principles outlined in the Bill. The purpose behind the amendment is to seek clarification as to those which are likely to be considered appropriate for the provision of conveyancing services.

I believe that that very much follows on the principles enunciated in the White Paper and in particular the concept of recognising professional bodies and other organisations for that purpose. I beg to move.

The Lord Chancellor

I take also Amendment No. 175C to which the noble Earl has spoken. I regret that I cannot accept these amendments. If one looks at Clause 34 one sees that the board is to consider whether the applicant's business is being, and is likely to continue to be, carried on by fit and proper persons, or, in the case of an individual, whether he is a fit and proper person. The board can therefore recognise people who are fit and proper persons without any further ado.

On the other hand, we have directed attention to the fact that some possible applicants are already subject to prudential regulations under other statutory provisions. Where that situation applies, in paragraphs (a), (b) and (c), the board can have regard to the fact that it is so authorised in determining whether the board is satisfied, as mentioned in subsection 1(a). It is not bound by that. In other words, if one finds a bank authorised by the Bank of England to operate deposit-taking business, it may be safe to conclude that those involved are fit and proper persons to provide conveyancing, subject to the other safeguards. To add the words, a member of a professional body recognised for this purpose by the Secretary of State would be to introduce unnecessarily another Minister into the arrangement. We try to leave this to the board. The board would make up its own mind whether the particular business was carried on by fit and proper persons. If they were members of a recognised professional body, that would be a factor to be taken into account by the board in considering their application. Accordingly, I do not believe that this amendment would advance matters beyond the limits provided for in the clause.

I hope that the noble Earl finds that response satisfactory.

12.15 a.m.

The Earl of Lytton

I fully appreciate what the noble and learned Lord has said. His knowledge of the matter is incomparably greater than mine in regard to the correct way in which these things should be dealt with. He answered my question in the sense that he accepts that a member of a professional body will not necessarily be excluded from being considered a fit and proper person. That was the point behind the amendment. I thank the noble and learned Lord for his reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175C to 176A not moved.]

Lord Prys-Davies moved Amendment No. 176ZA:

Page 28, line 26, at end insert— ("(10) The Board shall establish and maintain a register of authorised practitioners, which shall be available for inspection by any person without charge. (11) The Board shall enter the name of any person authorised to provide conveyancing services and any conditions to which his authorisation is subject in the register of authorised practitioners. (12) Where the Board suspends or revokes a person's authorisation it shall amend the register accordingly.")

The noble Lord said: This amendment would require the conveyancing board to keep a register of authorised practitioners which could be inspected by members of the public free of charge. There is no duty under the Bill for the board to establish such a register. We believe, and the Law Society believes, that this omission should be put right. It is important that members of the public should be able to check whether or not a particular person or body is an authorised practitioner and whether the authorisation is subject to any conditions.

There are similar provisions concerning a register being available for inspection by the public in the Solicitors Act 1974 in relation to solicitors and in the Administration of Justice Act 1985 in relation to licensed conveyancers. The noble and learned Lord will know that there are similar provisions in regard to conveyancing practitioners in Scotland in the Law Reform (Miscellaneous Provisions) (Scotland) Bill. I trust that the amendment will be acceptable to the Government. I beg to move.

The Lord Chancellor

Schedule 2, paragraph 5, gives the board the general power to regulate its own arrangements. It will be open to the board to establish such a register. It may well consider that in order to function effectively it will need to establish a register of those bodies or individuals that it has authorised. However, the noble Lord has drawn my attention to a number of similar situations in which a statutory duty is imposed to keep such a register. I am therefore happy to consider favourably I believe in this case this particular amendment.

Lord Prys-Davies

I am very grateful for that response. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clause 35 agreed to.

Clause 36 [Revocation and suspension of authorisation]:

[Amendment No. 177 not moved.]

Lord Mishcon moved Amendment No. 177A:

Page 29, line 37, at end insert— ("(5) The powers conferred by Part II of Schedule (Intervention in Authorised Practitioner's Practice) below shall be exercisable by the Board in the circumstances specified in Part I of that Schedule, whether or not the Board has suspended or revoked the practitioner's authorisation.").

The noble Lord said: The attitude of the noble and learned Lord has encouraged me with hope as regards this amendment. It is part of a series of amendments which are there to protect the public. Therefore, I know that that will have the very ardent consideration of the noble and learned Lord if there be merit in the amendment. I shall also speak to Amendment No. 184A.

The purpose of the amendments is to enable the board to intervene in an authorised practitioner's practice where that intervention is necessary in order to safeguard a client's money or interests. At the moment the only provision that comes anywhere near that is Clause 34(7)(d), which provides that an applicant must have, in force satisfactory arrangements to protect the applicant's clients in the event of the applicant ceasing to provide conveyancing services".

The matter is left there.

That is not what the Green Paper said. At paragraph 3.14 the Green Paper states: An authorised practitioner may cease, or go out of business for any number of reasons including death, illness, disciplinary action or bankruptcy. In the case of solicitors and licensed conveyancers who cease practice, there are statutory provisions whereby clients' money is protected, and professional colleagues"—

I underline those words — may intervene in the practice in order to return papers to the clients. Very often the intervening colleague is willing to take over the file of any client prepared to instruct him. Similar arrangements will be required in the case of authorised practitioners so that clients are properly protected".

Exactly as the Green Paper states, as regards solicitors there is the provision in Section 35 of and Schedule 1 to the Solicitors Act 1974 where the Law Society is specifically given powers to intervene in a solicitor's practice in certain cricumstances where client's money and affairs have to be safeguarded.

The Council for Licensed Conveyancers is covered by Section 31 of and Schedule 5 to the Administration of Justice Act 1985 which gives similar powers to the Council for Licensed Conveyancers. My noble friend quoted the Financial Services Act 1986. The noble and learned Lord said that he had noted that there were similar statutory provisions. He said that it may be a good idea to look at them and give favourable consideration to including a similar statutory provision.

Even in the Financial Services Act 1986, Sections 64 to 71 give powers by way of detailed provisions concerning powers of intervention. This is a necessary safeguard for the public and I trust that the noble and learned Lord will feel able to accept this amendment. I beg to move.

The Lord Chancellor

The powers the Bill confers on the board are aimed to enable it to perform its duties of authorising and supervising practitioners in a way that is light and flexible as well as effective. Under Clause 32(1)(b) the board has a general duty to supervise the activities of authorised practitioners, and by Clause 32(2) the board will make arrangements designed to enable it to ascertain whether authorised practitioners are complying with the regulations which the Lord Chancellor will make if Parliament so decides. Further, under Clause 36(3)(d) the board may make rules concerning transitional arrangements for dealing with any work in hand should an authorised practitioner's authorisation be revoked or suspended. Those would vary according to the circumstances.

I consider these clauses and the other relevant clauses in the Bill give sufficient control to the board without attempting to give it the full panoply of intervention powers of a professional body, a role that is unnecessary and unsuitable for this body. I remind the Committee that the board will be regulating a wide range of practitioners, from large financial institutions to small firms. We must design its duties and its powers to reflect that and the fact that it will be supervising only one, and perhaps a comparatively small, aspect of many practitioners' businesses. Those are likely to be subject to detailed regulation in those other areas. We must provide adequate safeguards and avoid overlapping and conflicting sets of rules or regulatory overkill that will deter the large business and overburden the small one.

I have certainly heard it said, whether correctly or not, that some aspects of the Financial Services Act may sometimes do something of that kind. I cannot comment on that but I have heard it said. We must be careful to achieve the correct safeguard without unnecessary overburden. I hope the noble Lord may feel that that is a reasonable position for me to take in relation to the point on which his amendments focus.

Lord Mishcon

I must confess to be unhappy with the noble and learned Lord's reply, but obviously at this hour of the night it would be foolish to continue the debate. In the circumstances, I ask leave to withdraw the amendment, reserving the right to return to it at a later stage.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Lord Mishcon moved Amendment No. 177B: After Clause 36, insert the following new clause:

("Authorised Conveyancing Practitioners Board to be able to require provision of redress in respect of inadequate professional services.

—(1) Where the Board are satisfied that the services provided by an authorised practitioner were in any respect not of the quality that could reasonably have been expected of it or him the Board may, if it thinks fit, do one or more of the following things, namely,—

1. (a) determine that the costs to which the authorised practitioner shall be entitled in respect of those services shall be limited to such amount as may be specified in their determination and direct the authorised practitioner to comply or secure compliance, with such of the requirements set out in subsection (2) below as appear to it to be necessary to give effect to its determination;
2. (b) direct the authorised practitioner to secure the rectification, at the expense of the practitioner of any such error, omission or other deficiency arising in connection with the services as the Board may specify;
3. (c) direct the authorised practitioner to take, at the expense of the practitioner, such other action in the interests of the client as the Board may specify;
4. (d) direct the authorised practitioner to pay compensation of up to £1,000.

(2) The requirements referred to in subsection (1)(a) are —

1. (a) to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the costs of the authorised practitioner in connection with the services; and
2. (b) to waive, whether wholly or to any specified extent, the right to recover those costs.")

The noble Lord said: I hope to be more fortunate with this amendment, which again seeks to protect the public. Its effect would be to enable the board to require an authorised practitioner to provide redress to a client in respect of inadequate professional services. I shall, if I may, cite what happens elsewhere. All other legislation affecting providers of conveyancing services enables the appropriate regulatory body to deal with complaints of inadequate professional services, to which we have referred in past debates as shoddy work.

In each case the regulatory body may, where it is satisfied that the conveyancing practitioner has provided inadequate professional services, direct the practitioner to reduce his bill, even to nothing, or to take rectifying action. Such powers are given to the Law Society by the Solicitors Act 1974 and to the Council for Licensed Conveyancers by Section 26 of the Administration of Justice Act 1985. And even in the noble and learned Lord's native Scotland, the Law Reform (Miscellaneous Provisions) (Scotland) Bill, which is being considered by the House at the moment, gives similar powers to the Scottish Conveyancing and Confirmation Practitioners Board. It would be a little odd if a client could secure redress for shoddy work if he had instructed a solicitor or licensed conveyancer but could not do so if he had instructed an authorised practitioner. I beg to move.

The Lord Chancellor

It is appropriate in this arrangement for the ombudsman to have the kind of powers that are here in question. We have endeavoured to provide in the new Schedule 6A an amendment to deal with this matter. My Amendment No. 186YA provides the opening to it. There is then a schedule of detailed powers for the ombudsman.

I believe that this is the proper way of dealing with the matter in this case. I know that the noble Lord may not have had much opportunity as yet to consider my amendment as it has not been moved, but I believe that what is proposed there is appropriate and will deal with the same point he raised.

Lord Mishcon

I cannot help thinking that the ombudsman could in fact deal with all manner of complaints, including those against solicitors and licensed conveyancers. However, it is deemed necessary to have a statutory provision specially providing for such a situation. If I may say so with the greatest respect, I am somewhat surprised that the noble and learned Lord has not sought to introduce this clear power for the board which would have precisely the same effect and ensure an analogous and tidy situation.

However, the noble and learned Lord has given his reply and I must therefore consider it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 177C: After Clause 36, insert the following new clause:

("Authorised Conveyancing Practitioners Board to be able to call for practitioners' files to aid investigation

. —(1) Where the Board are satisfied that it is necessary to do so for the purpose of investigating:

1. (a) any allegation that an authorised practitioner has failed to comply with any condition to which his authorisation was subject; or
2. (b) has failed to comply with any rules or regulations made under this Part; or
3. (c) any complaint made to the Board about an authorised practitioner; or
4. (d) any allegation that an authorised practitioner has provided inadequate professional services, the Board may give notice to the authorised practitioner to whom the allegation or complaint relates, or to his firm, requiring the production or delivery to any person appointed by the Board, at a time and place to be fixed by the board, of all documents in the possession of the authorised practitioner or his firm in connection with the matters to which the allegation or complaint relates (whether or not they relate also to other matters).

(2) Sub-paragraphs (2) and (12) of paragraph 9 of Schedule (Intervention in authorised practitioner's practice), together with paragraphs 11 and 12 of that Schedule, shall apply in relation to the powers conferred on the Board by subsection (1) as they apply in relation to the powers conferred on the Board by sub-paragraph (1) of paragraph 9, and accordingly in those provisions —

1. (a) any reference to a person appointed, or to a requirement, under that sub-paragraph shall be construed as including a reference to a person appointed, or to a requirement, under subsection (1); and
2. (b) any reference to any such documents as are mentioned in that sub-paragraph shall be construed as including a reference to any such documents as are mentioned in subsection (1)").

The noble Lord said: The purpose of this amendment is to give the conveyancing board the power to call for an authorised practitioner's files for the purpose of investigating allegations or complaints in respect of that authorised practitioner. The powers are similar to those given to the Law Society by Section 44B of the Solicitors Act 1974 and to the Council for Licensed Conveyancers by Section 31(2) of the Administration of Justice Act 1985. It seems to me that the conveyancing board should not be denied that power especially in the circumstances—namely, those mentioned in paragraphs (a), (b), (c) and (d) —referred to in the amendment. I trust, therefore, that the noble and learned Lord can see his way clear to accept the amendment. I beg to move.

The Lord Chancellor

This board is not intended to be a mirror of the Law Society with its detailed powers; it is under a statutory duty to make rules providing for the circumstances in which it may suspend or revoke authorisation. It may well be —and, this is a point of the amendment which I should like to consider further—that the board should have specific statutory powers to call for an authorised practitioner's documents in order properly to carry out its supervisory and disciplinary functions. With the noble Lord's agreement, I intend to look into the matter and return to it at a later stage.

However, I should point out that because of the particular circumstances with which we are dealing I am really aiming at something a good deal less than the full panoply of powers which, for example, the Law Society has. I hope in the light of that explanation, and upon the understanding that I shall look further at the question of specific powers to call for an authorised practitioner's documents, that the noble Lord will feel able to withdraw his amendment.

I also hope that the noble Lord will feel that it was well worth waiting until this time of night to hear that response. I think that we are nearing the end of today's proceedings.

Lord Prys-Davies

My patience has indeed been rewarded. I am especially grateful for the noble and learned Lord's response. Accordingly, I beg leave to withdraw the amendment.

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 one o'clock.