Law Reform (Miscellaneous Provisions) (Scotland) Bill: [H.L.]

HL Deb 27 March 1990 vol 517 cc820-63

House again in Committee on Clause 15.

Lord Fraser of Carmyllie: moved Amendment No. 160A: Page 16, line 40, at end insert: ("(8A) Where a conveyancing practitioner applies to the Board to remove its name from the register, the Board shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business it then has in hand, grant the application and amend the register accordingly.").

The noble and learned Lord said: These amendments make provision for conveyancing practitioners, confirmation practitioners and qualified conveyancers voluntarily to surrender their registration when they no longer wish to offer the services in question. They remedy a deficiency in the Bill as drafted in that there are no means by which a practitioner can have his name removed from the register without committing some offence and having such registration revoked. These amendments therefore provide for any practitioner to have his name removed from the relevant register by making a simple application to the board.

In the case of conveyancing and confirmation practitioners, who, unlike qualified conveyancers, will be offering services directly to the public, the amendments further require the board to satisfy itself that suitable arrangements have been made regarding any work outstanding at the time that the practitioner seeks to leave the register. It will not therefore be possible for practitioners to abdicate their professional responsibilities to their clients simply by seeking the removal of their names from the register. I beg to move.

Lord Morton of Shuna: I

believe that the noble and learned Lord intended to speak to Amendments Nos. 160A, 178G and 188A. It is interesting that there is no provision in these amendments for the board to examine whether there is a complaint outstanding or whether there is any potential complaint. As the noble and learned Lord will no doubt be aware, there has been a method by which solicitors have avoided the discipline tribunal by having their name removed from the list. It seems that it would be appropriate—because that is an unfortunate occurrence—that there should be some measure in the clause that if there is a complaint or a potential complaint the board shall have some method of dealing with it.

In the amendment put forward there does not appear to be any such suggestion. For all I can see, if a conveyancing practitioner or a conveyancer should suddenly decide to go off with £200,000, as long as he first takes the step of asking to be taken off the list, nobody can do anything about it. That must be wrong. I hope that the noble and learned Lord will at least consider whether there should not be some measure taken to deal with that potential difficulty.

Lord Fraser of Carmyllie

That is certainly not the intention. 1 introduced the amendments for the very purpose of ensuring as best we can that those who provide services cannot evade their responsibilities by revocation. I shall look at the matter again. I had hoped that, where reference was made to the fact that there were adequate arrangements in respect of the business, that would be sufficiently wide to cover the matter, but I shall look at it.

On Question, amendment agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 160B: Page 16, line 40, at end insert: ("(8 8) The Board shall send to the Keeper of the Registers of Scotland— (a) as soon as practicable after 1st April in each year, a list of all conveyancing practitioners; and (b) written notice of any subsequent change to the register of conveyancing practitioners.").

The noble and learned Lord said: In moving this amendment, I shall speak also to Amendment No. 180A. These are technical amendments which have been crafted after detailed consultation with the Department of Registers of Scotland. Their purpose is to enable the keeper to verify the credentials of a qualified conveyancer who has signed a warrant or application for registration of a deed.

The second amendment requires the qualified conveyancer, when signing a warrant, to specify the name of the conveyancing practitioner or the solicitor who employs him or, where a qualified conveyancer practises as a conveyancing practitioner on his own account, his designation as such. New subsection (8B) in Clause 15 places the board under a duty to supply the keeper with a list of all conveyancing practitioners so that he may make the necessary connections to undertake that verification. I beg to move.

Lord Morton of Shuna

The amendment provides for intimation to the Keeper of the Registers, or whoever else may be interested, of when someone comes on or off the list. That is to be done only once a year, but surely it must be done every time someone comes on or off the list.

Lord Fraser of Carmyllie

As I indicated, we are anxious to ensure that the keeper is able to verify credentials. There are comparable provisions in respect of solicitors. There must also be provisions for conveyancing practitioners. Again, I shall ensure that that point is covered.

Lord Morton of Shuna

I am sure that the noble and learned Lord realises that the solicitor has a document called a practising certificate. There is no provision, until we come to a later amendment in my name, that provides for a practising certificate for these people. Without such a practising certificate, there is no measure to deal with the problem of people who come on and leave, unless they do so on or about 1st April. The matter should be looked at carefully.

Lord Fraser of Carmyllie

Provision for written notice of a subsequent change to the register is contained in Amendment No. 160B.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Hayter)

I must tell the Committee that, if Amendment No. 161 is agreed to, I cannot call Amendments Nos. 162 to 167 inclusive.

Lord Macaulay of Bragar moved Amendment No. 161: Page 16, leave out from beginning of line 41 to ("in") in line 44 and insert: ("(9) The Board shall, after consultation with interested bodies and the Director General of Fair Trading, by rules make such provision as it thinks fit with a view to maintaining appropriate standards of conduct and practice of conveyancing practitioners. The Secretary of State shall promulgate regulations incorporating these rules, and such rules shall,").

The noble Lord said: This amendment relates to the regulations to be made under Clause 15(9). It is an important area because it is the area that we mentioned earlier which will satisfy the public that the standards to be maintained by the practitioners will be the highest possible.

This is a probing amendment. I hope that Members of the Committee will notice that basically it inverts responsibility for promulgating those regulations The board will have the power after consultation with interested bodies—that will cover the question of consultation with, among others, the Law Society—and the Director General of Fair Trading to by rules make such provision as it thinks fit with a view to maintaining appropriate standards of conduct … The Secretary of State shall promulgage regulations incorporating these rules".

The amendment seeks to give the board power to decide what the rules shall be and places an onus on the Secretary of State to publish the regulations once they have been agreed by the board. I appreciate that it is a rather unusual state of affairs, but it is basically the idea of the Scottish Consumer Council and the citizens advice bureaux, which believe, as we have already mentioned, that that would give a greater public input into the rules of conduct. This is a probing amendment to see whether the principle is accepted by the Government. I beg to move.

8.45 p.m.

Lord Fraser of Carmyllie

This amendment places the duty to make regulations about the conduct and practice of the board on the board itself rather than on the Secretary of State. That would mean that the first draft of the code, before it went out to consultation, would be prepared by the board and not by the Secretary of State. If that was all the amendment did, there might be little harm in it, but it also excludes the Secretary of State from the task of specifying what is to be included in the code. That would create difficulties with regard to the public interest.

Having said that, there is nothing in the amendment which cannot be encompassed within the provisions as drafted. We have already amended Clause 15(9) to make clear that the Secretary of State will consult about regulations before he makes them and it might be that the board would be charged with preparing the first draft on behalf of the Secretary of State for Scotland. I should like to make it clear that, if that is not the case, the board would be consulted. Having said that, I firmly believe that direct responsibility should rest, as originally provided, with the Secretary of State.

Lord Mackie of Benshie

On this occasion I agree with the noble and learned Lord the Lord Advocate. He would have been able to hide behind the provisions and say that it was not his responsibility, whereas now we can get at him directly, which is much better.

Lord Macaulay of Bragar: I

am grateful to the noble and learned Lord the Lord Advocate for the explanation of the Government's position, which is precisely as I anticipated it might be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 162A: Page 16, line 41, leave out ("may, after consultation with the Director General of Fair Trading") and insert ("shall, subject to section (Advisory and supervisory functions of the Director) of this Act and after consultation with such persons as he considers appropriate").

The noble and learned Lord said: This amendment was discussed in an earlier grouping. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 163 to 167 not moved.]

Baroness Carnegy of Lour: moved Amendment No. 168: Page 16, line 47, after ("services") insert: (", including the requirement that conveyancing practitioners must offer prospective conveyancing clients an interview with a solicitor at a location convenient to such clients, review any possible conflict of interest, and explain the nature of the service being provided.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 171, which is grouped with it.

I cannot speak for other noble Lords who have been kind enough to add their names in support of my amendment, nor for noble and learned Lords who have tabled the separate and similar Amendments Nos. 169 and 170. For my part, however, this amendment and those with it are at this stage exploratory. They are designed to bring out the Government's view on the details that they envisage for the code of conduct which will regulate conveyancing practitioners.

At Second Reading I expressed concern that although Clause 9 lists conflict of interest as one of the areas to be included in the code, the possibility of conflict of interest between conveyancers acting on behalf of both seller and buyer is not precluded by the Bill. There is nothing in the Bill that states that one or more conveyancers who may also be providing linked mortgages and insurances should not act for both seller and buyer. Those matters are of great concern to the Scottish Consumer Council and the Citizens Advice Bureaux of Scotland, which back the amendment and subsequent amendments on the subject also standing in my name.

The White Paper of 1989 indicated that the code of conduct would include the requirement that the conveyancing practitioner should provide his or her client with an interview with a solicitor to clarify the precise nature of the service being offered by the practitioner and to explain any conflicts of interest that arise. Because the contents of the code are not on the face of the Bill that requirement is not there either. Therefore I should like to ask my noble and learned friend whether he can assure the Committee that it will be there when the code is published.

Can he also amplify exactly what the intention is? Will the code stipulate at what stage in the proceedings the interview must be offered? Will the code preclude clients from having to travel impossibly long distances in order to take up the offer? Will conveyancing practitioners be allowed to charge an extra fee for the interview?

The Scottish Consumer Council takes the view, with which I agree, that if an interview is to be offered it will not be much use unless it takes place at the outset, early in the procedure, before the client agrees to proceed with the services offered by the practitioner. The interview must be near at hand and the cost must be included in the overall price charged. The amendment would add those provisions to the Bill.

In so far as concerns Amendment No. 171, it seems to me—and I am backed here by the Scottish Consumer Council—that it is very important that conveyancing practitioners should not be allowed to carry our conveyancing for purchaser and seller on the same transaction. The consumer council points out that the arrangements under the Bill could give rise to serious conflicts of interest. For example, when there is only one branch of a building society in a county town it is likely that the seller and several potential buyers may go there for advice. If the firm provides it they may also seek help with obtaining mortgages and taking out insurance policies related to the deal.

It is not possible to act fairly for both sides. The dangers and implications would be explained at the outset to the client if he had an interview with an independent solicitor. However, as the Bill stands it is not possible for that danger to be ruled out. There is another amendment concerning the interview. I should like to ask my noble and learned friend whether, either by adopting the amendments or clarifying subsection (9)(c), he could amplify those points. I await his reply with great interest. I beg to move.

The Deputy Chairman of Committees

Amendments Nos.168 and 170 appear to be alternatives and presumably will be debated together.

Lord Mackie of Benshie

I am delighted to be able to agree wholly with my noble neighbour Lady Carnegy on this occasion. Something will have to be produced on the lines of the various amendments. The so-called practitioner will not be a top-level fellow. He will certainly not work on his own. He will work in a back room, employed by an estate agent, a bank, a building society or some other body. His services provide a perfect subject for the slick package operation which will be advertised. The bemused client dependent on the organisation for his mortgage and his insurance is not likely to ask questions and is the perfect target for such sales talk.

Therefore, as the noble Baroness said, such a provision, which was provided for in the White Paper, is necessary if genuine protection is to be afforded to the consumer.

Lord Morton of Shuna

The difference between Amendments Nos. 168 and 169 is a matter of semantics. I have no doubt that the noble Baroness, Lady Carnegy, will agree with me that in any amendment which the Government may be minded to accept the drafting is wrong in any event and should be changed. I do not believe that there is any dispute between us. If either amendment is accepted or neither is accepted but the principle is accepted, that would suit me. The same issue arises in connection with Amendments Nos. 170 and 171. Incidentally, in the second line of Amendment No. 170 the second "purchaser" should read "purchasers".

If I am trying to sell a house and the building society, bank or solicitor is also acting for the potential purchaser or purchasers, if I say that I want £x and I am offered £x minus £1,000 it is very difficult: for the conveyancer to give impartial advice when both sides are his clients or a variety of clients are competing for the property. If I state that I want £x, how is the adviser to convince me that he is giving impartial advice when he is also acting for the potential purchaser? If I am a potential purchaser and he acts for other potential purchasers and the seller, how do I know that he is being totally impartial? That is an issue which has to be faced both by the Law Society and by the conveyancing practitioners.

I appreciate that in certain cases—for example, where one person by agreement sells property to somebody else who may be a relative at a price that they have fixed between them—it is quite proper for somebody to act to carry that agreement through. However, it seems to me that both the Law Society's provisions and the lack of provisions in the Bill for conveyancing practitioners need to be dealt with firmly. I hope that the Government will accept one of the amendments—either Amendment No. 169 or No. 168, and either Amendment No. 170 or No. 171. At the very least I hope that they will accept the principle behind them and come forward with their own amendments.

9 p.m.

Lord Boardman

I am somewhat hesitant about entering into what is essentially a Scottish debate, but I claim to be 50 per cent, a Scot, which perhaps gives me some right to comment on this important amendment.

The amendment opens up two fundamental principles, the question of a conflict of interest and also the extent and the quality of the advice given to people buying a house—the most important financial transaction they will carry out in their lives. Those two matters, which this amendment opens up, cause me considerable concern.

We are likely to be faced as a result of the Bill with combines of a building society or a bank which also act as an estate agency and an insurance broker and carry out conveyancing services. Those who after seeing a property in an estate agent's window, go in and make an offer are likely to be told that they can have a full one-packet service. The prospect of having conveyancing, insurance brokerage—the whole lot—done by one firm will seem attractive to those who do not have wider experience.

I ask: what is the capacity of the conveyancing practitioner, who is often part of the combine, to give disinterested, independent advice? Will the person who sees the customer or even the solicitor, under the amendment, say to the customer client, "Of course, if you come here you will have to have an endowment policy with the XY insurance company and the terms are these." Will he then go on to say, "If you like to go across the road, where there is a free, independent insurance agent, you will get quotations which may be much better"?

Will the employee of the combine, whether he is a solicitor, as required by the amendment, or an employee with no legal qualifications (or only a bare minimum of qualifications) bear in mind where his pay cheque comes from and where his pension lies? Will he turn away that customer and say, "You will do better across the road"? I doubt it very much.

Secondly, there is the quality of the advice. When a person is buying a house the conveyancing transaction might be relatively simple. But there is also the possiblity that it will be complicated. It is 25 years since I had anything to do with practising as a solicitor; so I am very out of date. But conveyancing is only a small part of the whole matter. The person giving the advice must surely ask, "Have you thought about the tax complications? What about the house being in the joint names of yourself and your wife? What about the question of who will die first?" There are all those matters which extend far beyond the scope of someone authorised as a conveyancer under the Bill.

I ask whether, if the Bill goes through as it is, we shall be providing the customer with the quality of advice and the extent of advice that he is entitled to expect and that he would receive if he went to an independent solicitor. I contrast the different duties owed. A solicitor's primary duty is to his client: he has a fiduciary duty to that client. Banks, building societies and estate agents, all hightly reputable and no doubt acting honestly in every way, do not have that fiduciary duty. Their job is to promote their own commercial interests, honestly and properly. But that is very different from exercising the fiduciary duty which is bound to be exercised by a solicitor.

I wonder whether this amendment, which I support, goes nearly far enough to meet the points I have made. The whole trend of government has been for greater consumer protection. We spent weeks in this House discussing the Financial Services Bill, as it then was, to provide greater financial protection, greater consumer protection, polarisation, Chinese walls and so on, to keep apart the conflicting interests which might arise. Whether it does is another matter. Ignoring all that, this element of the Bill, despite the amendment which I support, does not go nearly far enough to give the consumer the protection that someone is entitled to in carrying out the most important financial transaction in his life.

Lord McCluskey

It is slightly unfortunate that Amendments Nos. 168, 169, 170 and 171 are all taken together, because there are two slightly different points. I support what has been said and will not add to it in relation to Amendments Nos. 168 and 169 on independent advice. In relation to Amendments Nos. 170 and 171, prohibition of acting for both sides, the principle of the level playing field requires that a rule of this kind which applies to a conveyancing practitioner applies equally to a solicitor.

The Law Society of Scotland has to face up to the problem that at the moment its rules permit in very limited circumstances that the same firm of solicitors may act for parties on both sides of the same transaction. There is an important difference in one sense. For the most part, solicitors have clients and stay with them through thick and thin over the years. One would not expect conveyancing practitioners always to have clients in the same sense. So there may be a difference there. But this is a problem that has to be thought about, not just by the Government but also by the Law Society of Scotland.

I am sure that there exists somewhere the possibility of a compromise whereby, in very limited circumstances, a practitioner or a solicitor is allowed to act for both parties in a transaction provided that it is made abundantly plain to both clients that that is exactly what is happening and that both accept it. I can envisage circumstances in which I should be perfectly happy that my solicitors or my building society should act both for me and for somebody else. I hope that we shall get away from the notion of prohibitions and think rather in terms of restrictions. And let us have good will on all sides in framing those restrictions.

Lord Grimond

A speech made in favour of these amendments, the principle of which I agree with, raises a question in my mind which is possibly more appropriate to the proposers of the amendments than to the Government. Who is to choose the solicitor? As has been said, there are many areas in Scotland where solicitors are difficult to come by. When this Bill has gone through they may be reduced still further. It may then be quite difficult to find a man who is totally independent. At any rate, it should be made plain that it must not be left to the conveyancer to find a solicitor. Whether that means that we shall have to have a panel of solicitors or whether it is considered that the client is capable of choosing his own solicitor seems to be a matter that requires further thought.

I emphasise that clearly, if the solicitor is to be genuinely independent, he must be free from not only any interest but even the appearance of interest. I know from experience that one of the difficulties in small towns in Scotland is to find lawyers who, even though they may be totally reputable and disinterested, nevertheless arouse a suspicion in many people's minds that they are in some way involved already in the transaction with one side or the other. Therefore I believe that when we pass these amendments, as I hope we do, we have some way of ensuring that the solicitors are genuinely independent.

Lord Morton of Shuna

There is obviously a difficulty in that, if a conveyancing practitioner has to offer an interview with a solicitor, he has to choose a solicitor who is willing to take on the job of giving one-off interviews to people and explaining this whole matter to them. The question of independence will be very difficult if in practice the building society, bank or other conveyancing practitioner has to choose a solicitor who will himself say that he is willing. He should be independent and I expect that in normal circumstances he would be. However, it is very difficult to see how adding "independent" would work. Would it mean that the client had to choose a solicitor and the conveyancing practitioner had to pay whatever fee the solicitor might choose to charge?

If I may say so, there are firms of solicitors which charge various rates for an hour's time. If a client chose a solicitor who was very expensive, would the conveyancing practitioner be able to say, "No, you cannot have him; you can only have somebody who charges half that sum"? It is a little difficult to see. I agree totally with the argument.

With regard to the business of prohibitions, personally I should pray for a prohibition with exceptions rather than a restriction. But that is perhaps another matter of semantics.

Lord Renton

I have listened to this very interesting discussion and what worries me a little is the lack of qualification of the word "solicitor" in both amendments, Amendments Nos. 168 and 169. It seems to me that it would be quite in order for the conveyancing practitioner to obtain his own solicitor, a tame solicitor or the building society's solicitor, and ask him to advise. If that happens it would comply with the requirement of the amendment. Therefore I suggest that perhaps this amendment needs a little more consideration between now and Report stage. It needs to be amplified a little.

Having said that, I feel bound to point out that, if I have understood correctly, either Amendment No. 168 or Amendment No. 169 is a necessary prelude to what is proposed in Amendment No. 170 or Amendment No. 171 and that the crux of the matter is to have one of those two amendments on the statute book. If that is done, perhaps at Report stage we can get the necessary preliminaries sought out.

Lord Fraser of Carmyllie

I have no difficulty in accepting that the matters which these amendments seek to import into the statutory code of conduct for conveyancing practitioners are indeed important features of our proposed scheme. The draft conveyancing code, which was set out in the Secretary of State's consultation paper The legal profession in Scotland and the further suggestions made in his Statement The Scottish legal profession—the way forward, dealt in terms with all the points.

However, I cannot accept that it is desirable to include such detail in the list of items which will guide the Secretary of State in framing the regulations. I believe that the various suggestions can readily be accommodated within the list of items that we already have.

The conflict of interest point is clear enough. The requirement to offer an interview with prospective clients would be part of Clause 15(9)(a): the manner in which conveyancing practitioners conduct the provision of conveyancing services". As I have already indicated, the conflict of interest point would embrace specific prohibitions on acting for specific combinations of parties whose interests conflict.

The intervention by the noble and learned Lords, Lord McCluskey and Lord Morton, underlined the reasoning behind the desire to see this point in a code made by regulations rather than included on the face of the Bill. The noble and learned Lord appeared to be urging vigorously that the Law Society of Scotland improve its provisions over conflict of interest. That may not fall entirely on deaf ears. However, it would seem appropriate in such circumstances that both regulations that affect conveyancing practitioners and solicitors should be at least similar, if not identical, in terms.

Let me assure the Committee that the matters referred to in these amendments will all feature in appropriate terms in the regulations that will in due course be issued for consultation. While I may be in a slightly more helpful mood over some other amendments on the provisions of this subsection, I am concerned that provisions on conflict of interest, as set up, should not be too restrictive, which might achieve exactly the opposite effect from what is desired. Indeed, the more items that are suggested, the less scope there may be for a measured reflection of what is really important.

Perhaps I may answer my noble friend Lady Carnegy by saying that the interview will be required to explain the scope of the service before instructions are accepted. That is what is proposed. The interview will be near the property being conveyed, the place of work or the home of the client. It is not difficult to see why one has to have such a range. Someone working in Edinburgh may wish to buy a house in Inverness because of a change in job. Those alterntives, and such detail, have to be considered very carefully before they are set out in a finalised form.

I appreciate that the approach that I have suggested has not found complete favour with such bodies as the Scottish Consumer Council. However, I believe that it is the right way forward, in particular since I have indicated that, if we set up a board which has on it those who represent consumer interests, those representatives should have the opportunity to be consulted and to comment on any code of conduct. It should not be fixed in primary legislation, with very little opportunity to amend it.

The assurances that I have given are not vague. They are meant to be taken quite clearly and firmly. With that in mind, I hope that the Committee will agree that these amendments should not be pressed.

9.15 p.m.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, perhaps he will answer the question of the noble Baroness, Lady Carnegy, about costs. Who will bear the cost of the interview? Will it be borne by the purchaser or the seller? I am not clear.

Lord Carmyllie

I apologise to the noble Lord and to the noble Baroness. That interview would be free.

Lord Morton of Shuna

I am sorry, but there is no such thing in general as free interviews with lawyers. Someone will pay. Who will pick up the Bill? It will either be the seller or the purchaser, or both, or other potential purchasers of sellers. The one thing that will not happen is that this independent solicitor will not be paid. He will be paid by somebody, presumably the conveyancing practitioner. Who can the conveyancing practioner pass the cost on to? If the Government have the idea that independent solicitors will give myriads of interviews for nothing, they may be under a misapprehension.

Baroness Carnegy of Lour

My question was this: will the cost of the interview be included in the charge that the practitioner makes in advance? I understand my noble friend to say that that is the case.

I thank Members of the Committee who have supported these amendments. A number of important aspects have been brought out. My noble friend Lord Boardman said that the amendments open up the question of quality of advice under the Bill. He spoke on a very broad front—rather broader than I had undertaken. However, he made it clear that the combinations of functions of the firms for which the conveyancers work makes the problem rather complex. He compared that position with the fiduciary duty of the solicitor to the client.

I was very encouraged to hear the noble and learned Lord, Lord McCluskey, say that he feels that the matter is one that the Law Society of Scotland will have to consider. The Committee will have seen that my Amendment No. 177 deals with that matter.

The noble Lord, Lord Grimond, spoke of the problem of finding lawyers or conveyancers in remote areas. One appreciates that that is a problem. However, that does not make the protection of the client any less important. Therefore ways forward have to be found.

The noble and learned Lord, Lord Morton, spoke of the difficulty of finding an independent solicitor to give the independent advice. I could not help smiling because we have been told so much about the ability of solicitors to be independent in all circumstances. I believe that solicitors are human and that in certain circumstances it would be extremely difficult for a solicitor to be independent. I accept that there are problems, as was reflected by my noble friend Lord Renton.

I am grateful to my noble and learned friend for his clear reply: he answered all my questions. Clearly the Government do not want to have that amount of detail on the face of the Bill. I shall consult the Consumers' Association and ask whether it is satisfied with the reply. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 169: Page 16, line 47, at end insert ("including a requirement that conveyancing practitioners must offer each prospective conveyancing client an interview with a solicitor at a place convenient to that client, at which any possible conflict of interest will be reviewed and the scope of the service being provided explained.").

The noble and learned Lord said: Although I shall not move the amendment, there is a good deal to be said for putting something on the face of the Bill. The difficulty about regulations is that the government of the day may put forward any kind of assurance that provisions will be made in regulations but this House and the other place have no opportunity to discuss or amend them in any detail. If the regulations do not meet the issue, that will not do. I hope that the noble and learned Lord will consider putting something on the face of the Bill to show the type of regulations that we may face. However, I shall not move the amendment.

[Amendment No. 169 not moved.]

[Amendments Nos. 170 and 171 not moved.]

Baroness Carnegy of Lour moved Amendment No. 172: Page 17, line 6, at end insert: ("(f) the disclosure of and accounting for commissions.").

The noble Baroness said: Some Members of the Committees will have had the same kind of personal experience as I. When a professional adviser undertakes to obtain quotations and arrange an insurance policy, for example, on one's behalf, one asks that professional what the charge will be for doing so. The reply is, "It will not cost you much because part of the cost will be met by the commission"; or, "There will be no charge because the cost will be covered by the commission". In those circumstances there is no way of knowing how much that professional person will receive in commission or what the charge would be if there were no commission.

That unsatisfactory situation, which occurs in circumstances other than conveyancing, may become a considerable problem under the Bill. I understand that solicitors, whether acting as conveyancers or not, are required by the Law Society of Scotland to inform their clients of any commission that will accrue to them. It is essential that the code of conduct for conveyancing practitioners should require the same of them.

However, the Scottish Consumer Council, backed by the citizens' advice bureaux, takes the view that all service providers should be obliged to disclose in writing full details of any advantages that might arise from any proposed transaction and what, if any, allowance will be made for that in determining the fee charged to the client. That would mean that, if a conveyancing practitioner receives a commission for arranging a mortgage, for example, it would be disclosed to the client before he decides whether to accept the policy. If the practitioner's overall fee is to be reduced, the client should be told that also.

During the Committee stage of the English Courts and Legal Services Bill a similar amendment was moved by the noble Lord, Lord Mishcon. That was carried by your Lordships by 31 votes to 30. I do not know whether the Government intend to leave that Bill as it now stands. However, on reflection I feel that it is very important for Scotland to ensure that the disclosure of and accounting for commissions becomes a clear requirement for all conveyancers in Scotland, England and Wales. I believe that the Law Society supports the amendment. I shall listen with interest to what my noble and learned friend says. I beg to move.

Lord Fraser of Carmyllie

If it will help us to make progress, in view of the arguments advanced by my noble friend Lady Carnegy, I propose to accept the amendment.

Baroness Carnegy of Lour

I thank my noble and learned friend. That is absolutely magnificent.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 172A: Page 17, line 6, at end insert: ("(9A) The Board shall make such arrangements as are necessary to ensure the satisfactory completion of any work in hand when the registration of a conveyancing practitioner is suspended or revoked or the practitioner ceases, for whatever reason, to provide conveyancing services.").

The noble and learned Lord said: These amendments are to ensure that clients of conveyancing and confirmation practitioners receive no less a protection against any unforeseeable disadvantage at the hands of a practitioner than would be the case with a solicitor. The amendments enable the board to take the necessary steps to ensure that clients are not left in the lurch if the conveyancing or confirmation practitioner ceases to practice as such, whether that is as a result of disciplinary measures or other unforeseen circumstances. The power mirrors a similar one accorded to the Council of the Law Society in relation to solicitors who cease to practice at very short notice.

Given the wide range of circumstances in which a confirmation or conveyancing practitioner may be forced to abandon practice as such, the power is fairly widely drawn. However, the board will be concerned to exercise it in the best interests of clients. I beg to move.

Lord Morton of Shuna

This is fine as far as it goes. However, if the particular solicitor carrying out the work, whatever it is, runs away with the money to a country with which we have no extradition agreement, the client is totally safe as regards his money and everything else. That is not provided for here. I have said this before. There should be an arrangement to cover that sort of issue.

If the noble and learned Lord can assure the Committee that that will be done, so be it. However, there is no power which prevents a confirmation practitioner from getting confirmation to a large estate, cashing it in and disappearing to a country from which he cannot be extradited.

Lord Renton

Of course one agrees with the aim of the amendment but I am rather puzzled as to how it is to be carried out. Presumably the board itself will not have solicitors or staff to complete the unfinished work. The board will have no compulsion over any other solicitor. Earlier this evening we heard that there are parts of Scotland—and I am conscious of this—where there are not many solicitors—or conveyancers, for that matter—available. It would very much help if my noble and learned friend the Lord Advocate could tell us how these arrangements will be carried out and, indeed, enforced.

The Earl of Balfour

My noble and learned friend should have said, although he did not do so, that this amendment is grouped with Amendment No. 193B, which raises a similar point.

Lord Fraser of Carmyllie

If I neglected to do so, that is correct. It is so grouped. These provisions are very similar to equivalent provisions in the Solicitors (Scotland) Act 1980 although they may be more succinct. However, it is envisaged that it would be open to be the board to nominate another practitioner to take over the affairs of the practitioner who has ceased to practise.

Lord Morton of Shuna

What about the point I raised about the defaulting practitioner who goes off with the money?

Lord Fraser of Carmyllie

I believe that that point was answered at an earlier stage.

Lord Renton

When my noble and learned friend says "nominate another solicitor", does that mean that it is compulsory for the other solicitor—who may be the only one available for miles around—to do this? Is there some convention of the profession or requirement of law of which I am ignorant which requires the nominated solicitor to complete the job?

Lord Fraser of Carmyllie

We are not dealing with the solicitor. We are dealing with the conveyancing practitioner.

On Question, amendment agreed to.

9.30 p.m.

Lord Carmichael of Kelvingrove: moved Amendment No. 173: Page 17, line 6, at end insert: ("(9A) The Board may make rules in relation to other matters relating to the maintenance of appropriate standards of conduct and practice of conveyancing practitioners, after consultation as provided in subsection (9) above, as it thinks fit.").

The noble Lord said: For brevity I point out that the Scottish Consumer Council is concerned that the standards of practitioners should be maintained and therefore that there should be scope within the Bill for the continual maintenance of appropriate standards of conduct. The amendment gives the Secretary of State flexibility to ask that that be done. I beg to move.

Lord Fraser of Carmyllie

This amendment places a duty to make regulations regarding conduct and practice on the board itself rather than the Secretary of State. That was essentially dealt with when we dealt with Amendment No. 161, if I am not mistaken.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 174: Page 17, line 23, at end insert ("and to imprisonment for a period not exceeding one month").

The noble and learned Lord said: Amendments Nos. 174, 175, 181 and 198 are an endeavour—no doubt wrong and no doubt without the proper drafting—to put the penalties for failure on the conveyancing practitioner and the conveyancer on the same level as the penalties on the solicitor. That is the purpose of Amendment No. 174.

Amendment No. 175 deals with the corporate situation. Amendment No. 181 deals with the same situation in the next clause. Amendment No. 198 again deals with the corporate situation. It is a straightforward level playing field type of situation—that the same penalty for the same offence be imposed. I beg to move.

The Earl of Balfour

Perhaps I may also raise a question. Subsection (12) of Clause 15 states: any person who … wilfully and falsely … pretends to be a conveyancing practitioner … shall be guilty of an offence". My concern is that due to the pretence the unfortunate client may have parted with a lot of money. I can find nothing within the legislation that provides for the unfortunate client to receive compensation from this rogue, for want of a better word. Perhaps my noble and learned friend the Lord Advocate will be good enough to consider that point.

Lord Fraser of Carmyllie

The Committee will be aware that there is a guarantee fund which is to be set up in terms of paragraph 16 of Schedule 1. We dealt with parts of this earlier. It would allow for compensation to those who suffer pecuniary loss through dishonesty and so on. However, it would be difficult to impose on the board a duty to make compensation where someone falsely holds himself out to be a conveyancing practitioner when he is nothing of the sort but simply a con man. In those circumstances I fear that there is no immediately obvious answer to the issue of compensation.

I do not underestimate the harmful effect which could be caused by someone acting as a conveyancing or confirmation practitioner when not qualified to do so either because they have not been registered or during a period of suspension; but it would not be appropriate to impose a period of imprisonment on someone guilty of such an offence. The Bill already provides for a fine of up to £1,000. I believe that that is a sufficient deterrent to anyone who has in mind misleading the public into believing that they were such a practitioner.

The noble and learned Lord, Lord Morton, may have been looking at Sections 31 and 63 of the Solicitors Act 1983 when preparing the amendment. Those sections envisage the possibility of imprisonment. However, I do not consider that a period of imprisonment is relevant to the offence we are debating. I hope the noble and learned Lord is therefore prepared to withdraw his amendment.

Lord Morton of Shuna

Can the noble and learned Lord explain why a licensed conveyancer who is unqualified, so to speak, is free from the risk of imprisonment but someone pretending to be a solicitor doing exactly the same thing is liable to be imprisoned? To my simple mind the level playing field would be to say that the same offence attracts the same penalty.

The noble and learned Lord the Lord Advocate has not advanced one reason for his view. He merely asserts that the penalty should be different in each case. If he can give me a reason I shall be delighted. I do not want to send anyone to prison but unfortunately sometimes people have to go to prison. Perhaps the noble and learned Lord can give a reason apart from the mere assertion.

Lord Macaulay of Bragar

Surely the offence—

Lord Fraser of Carmyllie

Perhaps I can get on with the business. The provision in—

Lord Morton of Shuna

I am trying to get on with the business. I have not intervened previously. I strongly resent being accused, by implication, of delaying business. In moving amendments I probably have been shorter than any other noble Lord. I strongly resent any suggestion from the noble and learned Lord that I am trying to delay the business. I certainly am not.

Lord Macaulay of Bragar

I support the noble and learned Lord, Lord Morton of Shuna, on this amendment. Surely the offence in subsection (12) goes to the very heart of the relationship of trust between the client and the practitioner. Anyone who wilfully and falsely pretends to be a conveyancing practitioner and harms a client certainly, I believe, deserves a penalty more than a fine on the standard scale. We should make clear in the context of the Bill that people who misbehave will go to prison in appropriate cases.

Lord Morton of Shuna

In view of the silence and lack of explanation I regret that I must ask the opinion of the Committee.

9.34 p.m.

On Question, Whether the said Amendment (No. 174) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 38.

DIVISION NO. 2
CONTENTS
Airedale, L.	Hatch of Lusby, L.
Blease, L.	Hylton, L.
Boston of Faversham, L.	Macaulay of Bragar, L.
Carmichael of Kelvingrove, L.	McCluskey, L.
	Mackie of Benshie, L.
Cocks of Hartcliffe, L.	Morton of Shuna, L. [Teller.]
David, B.	Pitt of Hampstead, L.
Emslie, L.	Ponsonby of Shulbrede, L.
Gallacher, L. [Teller.]	Saltoun of Abernethy, Ly.
Greenway, L.	Selkirk, E.
Grey, E.	White, B.
Grimond, L.

NOT-CONTENTS
Allerton, L.	Henley, L.
Ampthill, L.	Hesketh, L.
Arran, E.	Hives, L.
Balfour, E.	Hooper, B.
Belstead, L.	Long, V. [Teller.]
Blatch, B.	Radnor, E.
Blyth, L.	Rankeillour, L.
Borthwick, L.	Reay, L.
Campbell of Croy, L.	Rees, L.
Carlisle of Bucklow, L.	Rochdale, V.
Carnegy of Lour, B.	Sanderson of Bowden, L.
Carnock, L.	Skelmersdale, L.
Craigmyle, L.	Strathmore and Kinghorne, E.
Davidson, V. [Teller.]
Elliot of Harwood, B.	Thomas of Gwydir, L.
Elliott of Morpeth, L.	Trumpington, B.
Ferrers, E.	Ullswater, V.
Fraser of Carmyllie, L.	Vinson, L.
Glenarthur, L.	Wynford, L.
Gray of Contin, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.46 p.m.

[Amendment No. 175 not moved.]

Lord Morton of Shuna moved Amendment No. 176: Page 17, leave out line 28.

The noble and learned Lord said: The purpose of the amendment is to make it clear that a solicitor doing conveyancing work remains under the control of the solicitors' disciplinary provisions and not of those of the conveyancing board. It is necessary that one or other and not both should cover the position. I beg to move.

Lord Fraser of Carmyllie

The broad objective underlying all parts of the Bill is to remove unnecessary constraints. We have been discussing how in future conveyancing services will be provided by conveyancing practitioners under the direction of the board as an addition to the services already provided by solicitors. It is not, however, our wish that there should be any restriction on solicitors providing conveyancing services as conveyancing practitioners under the regulation of the board. They might also continue in a separate capacity as solicitors. They might even provide conveyancing services as such.

For the protection of clients it is likely that the Secretary of State will include in the code of conduct that conveyancing practitioners who are also solicitors acting as such should give a clear identification to clients of the capacity in which they are offering their services. I should make it clear that the board will only regulate the provision of conveyancing services by conveyancing practitioners and not by solicitors. Similarly, the Law Society will not regulate conveyancing practitioners. The provision in Clause 15(13) is one which I should like to think will never be invoked. I cannot think that the Law Society will have anything to gain by imposing restrictions on its members of the kind to which this provision refers.

Lord Morton of Shuna

The noble and learned Lord has a great ability not to see the point, if I may say so. I give the example of a lady going in to buy her council house. She is expected to remember whether the gentleman or lady sitting in front of her is a conveyancing practitioner for the moment or a solicitor for the moment. It is ludicrous that the answer, which she will never remember because she is interested only in buying her council house, depends on which regulation and which liability is involved. It is a completely ludicrous idea. If a solicitor is to escape liability to the Law Society of Scotland by calling himself a conveyancing practitioner he should come off the roll of solicitors and be a conveyancing practitioner. If he wants to be a solicitor, then he should remain as a solicitor.

I submit that this has nothing whatever to do with giving a choice to the client; it is a choice which the practitioner, whether or not he is a solicitor, must make. Either he is a solicitor or he is a conveyancing practitioner. He must make the choice.

On Question, amendment negatived.

Baroness Carnegy of Lour moved Amendment No. 177: Page 17, line 33, at end insert: ("(14) Any rules or regulations made in pursuance of this section in relation to conveyancing practitioners shall be incorporated into the practice rules of the Law Society of Scotland.").

The noble Baroness said: This amendment continues the theme of what we have just been discussing. It would add an additional subsection to Clause 15 requiring the Law Society of Scotland to impose upon private practice solicitors acting as conveyancers the same rules and regulations which the statutory code of conduct would impose upon non-solicitor conveyancers.

There are three main reasons why this provision is important. First, according to the draft code of conduct contained in the Government's consultation paper of March 1989, the new conveyancing practitioners will be required to give a client in advance an estimate of what the total cost will be, the way the cost is calculated, the circumstances in which the fee may be increased and particulars of any additional expenses which may accrue; for example, registration fees or stamp duty.

The Scottish Consumer Council is of the view—and this may be the personal experience of some Members of the Committee—that solicitors in private practice in Scotland are still not all that good at giving clients price information in advance. Indeed, the council conducted a survey of the experiences of Scottish house purchasers. It found that, of those who responded, 37 per cent, had received no estimate about fees from their solicitor before the purchase and that 21 per cent, had to meet expenses which they had not expected or about which they had not been warned. If that is in any way a typical cross-section, it is not good enough.

Likewise, the rules regarding conflict of interest, whatever they turn out to be, which are to be imposed on new licensed conveyancers should surely also apply to solicitor conveyancers in private practice. I think that that was a point made by the noble and learned Lord, Lord McCluskey, earlier in the debate. There are circumstances in which solicitors can find themselves with conflicting interests. The public is well aware of that fact.

On Second Reading I pointed out that the Law Society's practice rules of 1986, while stipulating that a solicitor may act for two or more parties whose interests conflict, allow solicitors in the same firm to act for both sides of the deal in certain circumstances; for example, if both parties are established clients or are blood relations.

Judging by the perception and experience of that arrangement in my part of Scotland, where in the market towns the solicitors' firms practising are not large and property changing hands is seen to be everyone's business, I believe that solicitors need to be seen to be very careful about conflict of interests. Indeed, much of what my noble friend Lord Boardman said about conveyancers applies to solicitors.

It seems to the consumer council and to the citizens' advice bureaux that the public needs to know that it has the same protection whoever the conveyancer may be. I believe that solicitors in the Law Society will recognise that fact and that they may well agree to such a requirement being placed on the face of the Bill. In fact, however, this is only an exploratory amendment. I beg to move.

Lord Morton of Shuna

I would have great sympathy with this amendment if it included at the end the words "and vice versa"; or, if the wording were to be put around the other way so as to read: The practice rules of the Law Society of Scotland shall be incorporated in relation to conveyancing practitioners". There are practising rules for solicitors; there are no practising rules for conveyancing practitioners. Therefore it would be logical that the rules that exist should be adopted by the body which does not yet exist. I quite agree that there should basically be the same rules for each group. The practical difficulty is: who makes the rules? The Secretary of State is to make the rules for the board, as I understand it. The Council of the Law Society, subject to the approval of the Lord President, is to make the rules for the Law Society. Therefore who wins in a conflict is not made clear. The idea behind it is clear, if the noble Baroness accepts—as I am sure she will—a vice versa situation. We want the same rules both ways.

Lord Macaulay of Bragar

This is a strange amendment, if I may say so. It tends to ignore the fact that conveyancing practitioners will be special creatures of statute. Written into Clause 15(9) are the regulations which shall apply. The statute creates the conveyancing practitioners and lays down the guidelines for them.

The amendment ignores the fact that the Law Society is a long-established body in its own right. It is difficult to see how the rules for conveyancing practitioners could be imposed on the Law Society of Scotland. I do not know what its wishes are on the subject but as a matter of practicality it seems almost impossible to do that. As the noble and learned Lord, Lord Morton of Shuna, said, if it were the other way round one could see the force of the provision—the greater including the less rather than the less being imposed on the greater.

Lord McCluskey

I had intended to speak at some length on this matter but the noble and learned Lord, Lord Morton of Shuna, who addresses the Committee with such laconic brevity that it is almost universally appreciated, has dealt with all the points. I need only say that the practice rules of the Law Society of Scotland have evolved over a long period of time. They contain provisions which have been tried and tested against particular cases. Eventually they have reached a certain form. Principally for that reason, I say that this is the model and therefore I support the point that has been made that the provision is the wrong way round.

Further, we know what is in the practice rules because we can read them. They are printed in various documents and are readily available. We do not know what is to be contained in the rules or regulations made in pursuance of this clause. I am not prepared to buy that particular pig in a poke.

Subject to those two points, which have been well made by others, I support, as I did earlier, the principle that there ought to be equality of provision for the two sides. I beg the Government when considering this amendment between now and the Report stage—as they no doubt will—to say that the real starting point is the practice rules. Any deviation from those rules in respect of the conveyancing practitioners has to be justified.

Lord Fraser of Carmyllie

This is an interesting amendment in the context of the level playing field concept which has so dominated the debate about the new ways of providing legal services. Clearly there is great merit in the argument that if regulations are to be imposed upon conveyancing practitioners it seems curious for the Law Society of Scotland in its rules to impose a lesser standard upon its own members. I think that was underlying the earlier remarks of the noble and learned Lord, Lord McCluskey.

The noble and learned Lord, Lord Morton, raised an interesting point which I confess had not occurred to me. In a curious way this might be seen as a device whereby the Secretary of State, in making regulations to affect conveyancing practitioners, might manage to sidestep the satisfactory existing arrangement, as I see it, in respect of the rules required of the Law Society.

It seems clear to me that the Law Society of Scotland will not wish to have lesser standards in the performance of the conveyancing services that its members are to offer. I suggest to the noble Baroness that although we understand what she is driving at, it can be left to the Law Society of Scotland to look to its own rules. I hope I can be confident that those rules impose no lower standard on its own members.

Lord Morton of Shuna

Before the noble and learned Lord sits down, perhaps he will also give an assurance that the conveyancing board will not impose a lower standard on conveyancing practitioners than the Law Society imposes on solicitors for conveyancing.

Lord Fraser of Carmyllie

We have set out fully in the clause the signposts in terms of the code of conduct. For example, I have referred to matters relating to interviews with clients, which, as I understand it, are at present not a requirement imposed on solicitors. Although there might be some differences, I cannot envisage that there will be any material differences between the duties imposed on conveyancing practitioners and solicitors.

Baroness Carnegy of Lour

I thank all noble Lords, including my noble and learned friend on the Front Bench, who have contributed to the discussion. This subject is important to the public. The noble and learned Lord, Lord McCluskey, said that it was important that the starting point should be the practice rules. I do not think that the public perception of the way that solicitors' rules work in a small town is completely satisfactory. The public see solicitors in the same firm working on two sides within rules. That point requires consideration. It is one of the main points that I wanted to raise. Having listened to the discussion with great interest, I shall read it in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15, as amended, agreed to.

[Amendment No. 178 not moved.]

10 p.m.

Clause 16 [Qualified conveyancers]:

[Amendment No. 178A not moved.]

Lord Fraser of Carmyllie moved Amendment No. 178B: Page 8, line 1, leave out ("with the approval of the Secretary of State") and insert ("subject to subsection (3A) below").

The noble and learned Lord said: I apologise in advance as it may take me a moment or two to spell out exactly what the provisions are about. I was invited to deal with them earlier rather than leave until later matters relating to the Director General of Fair Trading which they essentially cover. In moving this amendment I shall speak also to Amendments Nos. 178C, 192A, 193A, 224B, 225B, 225C, 257A, 258A and 275F to 275J. I believe that that is a comprehensive list.

The amendments collectively set out to indicate what the functions and powers of the Director General of Fair Trading are to be and to apply them to the relevant parts of the Bill. Broadly speaking, where the Secretary of State has a role in the making of regulations or in the approval of professional rules, he is required under the provisions of the Bill to exercise it only after taking the advice of the director general. Although he is required to take the director general's advice, the final decision—I stress this point—on any question relating to such regulations or rules rests with the Secretary of State alone.

The amendments insert parallel provisions into the Bill and into the Solicitors (Scotland) Act 1980. The provisions inserted in the 1980 Act provide a consultative role for the Director General of Fair Trading when the Secretary of State is considering rules relating to solicitors' rights of audience in the Supreme Court or to solicitors' partnerships. Separate but parallel provisions are provided in the amendments to give a consultative role to the director general when the Secretary of State is making regulations relating to conveyancing practitioners or is approving rules made by the board in connection with qualified conveyancers or confirmation practitioners or by the Faculty of Advocates in relation to advocates' partnerships or advocates' practice rules.

A similar role is provided for the director general when the Secretary of State is considering a draft scheme for rights of audience or rights to conduct litigation for non-lawyers under Clause 20. The amendments provide the director general with sufficient powers to exercise his advisory role in accordance with a broader government policy. He is given a statutory remit to consider whether any regulation or rule on which he advises the Secretary of Stale is likely to restrict, distort or prevent competition. He is also given certain investigative powers to enable him to offer properly informed advice. Those who have been involved in the Courts and Legal Services Bill will doubtless know that those provisions are largely modelled on the equivalent provisions in that Bill.

In relation to all the rules and regulations other than those relating to rights of audience the Secretary of State, once he has received the advice of the director general, will consider in the light of that advice whether the regulations or rules in question meet the purpose prescribed in the Bill. Where the rules relate to the rights of audience for solicitors or solicitors' partnerships he will also be able to consider the interests of justice. The Secretary of State's role will therefore be to consider the advice of the director general in the context of the primary purpose of the rules and regulations and determine whether to approve or disapprove them.

Perhaps I may conclude by stressing again that the final decision on any regulations or professional rules where the Secretary of State is involved will rest with the Secretary of State. The director general's advice is an important ingredient in achieving a balanced judgment as to the impact of the regulations and the rules in question. With that explanation I hope that the amendments can be approved. I beg to move.

Lord McCIuskey

I am very grateful to the noble and learned Lord for taking the trouble to give a preliminary explanation of the clauses. It is unfortunate and certainly not his fault that he did not begin until three minutes past ten. That means that the report of the debates in your Lordships' Committee will not be in print until Thursday morning.

I want to say nothing more at the moment than that I regard the new clauses, of which this is one, as a considerable improvement on what is presently in the Bill. However, I am not at all sure what the Director General of Fair Trading has to do with the interests of justice as distinct from competition policy and other matters of that kind. The interests of justice are the responsibility ultimately of the Lord President and of the person who is the Minister of justice; namely, the Secretary of State for Scotland. However, I shall read with care what the noble and learned Lord has said and I am very grateful to him for having taken the trouble to explain the amendment.

Lord Fraser of Carmyllie

If I appeared to indicate that the Director General of Fair Trading had an involvement in the interests of justice, that was incrorrect. It is the responsibility of the Secretary of State, having received that advice, to put it into a broader context as he sees it.

As I indicated previously, my remarks were in the nature of a preliminary indication of how the various provisions hang together. I hope that that has been helpful for the later consideration that we shall have to give to the clauses, possibly on another day.

On Question, amendment agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 178C: Page 18, line 7, at end insert: ("(3A) Before making any rules under subsection (3) above the Board shall submit them to the Secretary of State for his approval, and before approving any such rules the Secretary of State shall consult the Director in accordance with section (Advisory and supervisory functions of the Director) of this Act.").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 178D: Page 18, leave out lines 10 to 18.

The noble and learned Lord said: In moving Amendment No. 178D I propose to speak also to Amendments Nos. 178E, 178F, 202A, 204A and 204C. The amendments represent a rationalisation of the structure of Clause 18, although clearly they start with Clause 16, to encompass all the disciplinary provisions relating to conveyancing practitioners and confirmation practitioners and, if the amendments are accepted, qualified conveyancers. As drafted the disciplinary provisions relating to qualified conveyancers appear at Clause 16(5). I hope your Lordships will agree that it is more logical for all of the board's disciplinary functions to be dealt with in one clause. I beg to move.

Lord McCluskey

I only want to say a word which echoes something which I and others said earlier. The problem is that these amendments, including this amendments, are so substantial that it is becoming extremely difficult for Members of your Lordships' Committee to follow what Clause 16 is ultimately saying, particularly as it has now to be read in the context of the new clauses. So we may have to come back to this at a later stage. Certainly for my purposes at the moment I want to reserve my position entirely. The mere fact that I do not propose to speak again on this amendment does not signify that I accept it in any way. It is simply that at the moment I do not fully understand it.

Lord Fraser of Carmyllie

I hope that when the noble and learned Lord, Lord McCluskey, sees it in its proper form before Report he will be satisfied. But I wholly understand his position.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 178E: Page 18, line 20, leave out from ("above") to end of line 23 and insert ("the applicant").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 178F: Page 18, line 26, leave out ("or, as the case may be, the qualified conveyancer").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 178G: Page 18, line 28, at end insert: ("(7A) Where a qualified conveyancer applies to the Board to remove his name from the register the Board shall grant the application and amend the register accordingly.").

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 179: Page 18, line 29, at end insert ("and to each Sheriff Clerk").

The noble and learned Lord said: This is a very technical amendment, and I believe that I should also speak to Amendments Nos. 179, 179A, 180 and 189. At this point the Bill provides that the notice should be sent to the Keeper of the Registers of Scotland and I propose to add "and to each Sheriff Clerk". In Amendment No. 189 I do the reverse and say that when it goes to the sheriff clerk it also goes to the Keeper of the Registers.

It seems on the advice I have received that those advising the noble and learned Lord have forgotten that notices of inhibition have to be registered in sheriff courts on occasion, and on occasion things such as wills that one would think are originally being registered in the sheriff courts have also to be registered with the Keeper of the Registers, and it would be better for the information to go to each. I beg to move.

Lord Fraser of Carmyllie

As I understand, there are no restrictions on who may register deeds or documents in the Register of Inhibitions and Adjudications, nor in the sheriff court books. That being so, it is not necessary for the purposes of such registrations for the Keeper of the Registers or sheriff clerks to know the names of those who are registered as qualified conveyancers. In view of that, it appears to me that the noble Lord's amendment, unlike others where there was a necessity to notify who was a qualified conveyancer, is unnecessary.

Lord Morton of Shuna

Perhaps the noble and learned Lord will look at Amendment No. 189 and also take advice about the question of notices of inhibition. On Amendment No. 189, as the noble and learned Lord is no doubt well aware, wills are frequently linked in title in conveyancing and the Keeper of the Registers likes to know about wills. If people have to register them, he likes to know that the person registering them is qualified to register them. That is the only point. It is a fairly simple one. I do not wish to delay the Committee and I thought the noble and learned Lord would know about it.

Lord Fraser of Carmyllie: I

have looked at the matter. I think the amendment is unnecessary, but I shall check.

Lord Morton of Shuna

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 179A and 180 not moved.]

10.15 p.m.

Lord Fraser of Carmyllie: moved Amendment No. 180A: Page 18, line 43, at end insert:— (", and any enactment or subordinate instrument making provision as to the form of such a warrant or application shall, with the necessary modifications, apply in relation to a qualified conveyancer. (9A) A qualified conveyancer who signs a warrant or application by virtue of subsection (9) above shall, in addition to any matters required to be specified after his signature by any enactment or subordinate instrument, specify the conveyancing practitioner or solicitor by whom he is employed or, where he is himself a conveyancing practitioner, his designation as such.').

On Question, amendment agreed to.

[Amendment No. 181 not moved.]

Clause 16, as amended, agreed to.

Clause 17 [Confirmation practitioners]:

[Amendments Nos. 182 to 187 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 187A: Page 19, line 23, leave out ("a bank") and insert ("an institution").

On Question, amendment agreed to.

The Earl of Balfour moved Amendment No. 188: Page 19, line 35, leave out ("and").

The noble Earl said: I have already spoken to this amendment. I beg to move.

Lord Fraser of Carmyllie

I have already indicated that this amendment is acceptable.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 188A: Page 19, line 45, at end insert: ("(7A) Where a confirmation practitioner applies to the Board to remove its name from the register the Board shall, if they are satisfied that the practitioner has made adequate arrangements with respect to the business it then has in hand, grant the application and amend the register accordingly.").

On Question, amendment agreed to.

[Amendments Nos. 189 to 191 not moved.]

Lord Macaulay of Bragar moved Amendment No. 192: Page 20, line 6, leave out ("may") and insert ("shall").

The noble Lord said: This is a very short amendment to subsection (9) of Clause 17. It is going over the old ground of the "may" and "shall" argument. To put the point shortly, the amendment seeks to replace the word "may" with "shall" to put an element of compulsion into the production of rules as to the standard of conduct and practice of confirmation practitioners. As the Bill stands at the moment the board would be under no obligation to produce any rules in relation to these matters: the substitution of the word "shall" will alter that situation. I beg to move.

Lord Fraser of Carmyllie

Perhaps I may take this matter away and consider it.

Lord Macaulay of Bragar

In the light of that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 192A: Page 20, line 6, leave out ("with the approval of the Secretary of State") and insert ("subject to subsection (9A) below").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 192B: Page 20, line 7, leave out ("as to the") and insert ("with a view to the maintenance of appropriate").

The noble and learned Lord said: The purpose of this amendment is to give a clear indication as to what the rules, if any, made by the board under Clause 17(9) are intended to achieve. The Committee will note that, as presently drafted, this subsection does not give the board a great deal of guidance as to the direction that its rules should take. The amendment makes clear that the purpose of the rules in question is to maintain necessary standards of conduct and practice.

It is also important that the Secretary of State has a statement of purpose for the rules to which he can refer when he is required to consider them in the light of any advice that he has received from the Director General of Fair Trading on their contents. I beg to move.

On Question, amendment agreed to.

[Amendment No. 193 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 193A: Page 20, line 8, at end insert: ("(9A) Before making any rules under subsection (9) above the Board shall submit them to the Secretary of State for his approval, and the Secretary of State shall consult the Director in accordance with section (Advisory and supervisory functions of the Director) of this Act; and thereafter, having considered— (a) any advice tendered to him by the Director; and (b) the interests of the public in the maintenance of appropriate standards of conduct and practice of confirmation practitioners, he may approve or refuse to approve the rules or any of them.").

On Question, amendment agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 193B: Page 20, line 8, at end insert: ("(9B) The Board shall make such arrangements as are necessary to ensure the satisfactory completion of any work in hand when the registration of a confirmation practitioner is suspended or revoked or the practitioner ceases, for whatever reason, to provide confirmation services.").

On Question, amendment agreed to.

[Amendments Nos. 194 to 198 not moved.]

Clause 17, as amended, agreed to.

[Amendment No. 199 had been withdrawn from the Marshalled List.]

Lord Morton of Shuna: moved Amendment No. 199A: After Clause 17, insert the following clause:

("Practising certificates .—(1) A person shall not practice as or hold himself out as a conveyancing practitioner, qualified conveyancer of an executry practitioner at any time unless at that time he holds a current practising certificate. (2) The Board shall issue a practising certificate to any applicant whose name is currently on the appropriate register and whose application complies with rules made under subsection (3) below, (3) the Board shall makes rules prescribing— (a) the fee to be paid by an applicant (and different fees may be prescribed for different classes of applicant); (b) the form in which the application is to be made; (c) the information to be provided by the applicant; (d) the circumstances, which may include mental illness, bankruptcy or insolvency, in which a practising certificate may be suspended or revoked, and (e) the cases in which, and by whom, notification to the Board is required that any of the prescribed circumstances has arisen, and such other matters as appears to the Board to be necessary. (4) The Board shall keep a register of practising certificates for the time being in force, and that register shall be open to inspection by members of the public free of charge at all reasonable hours. (5) Subject to subsection (6) below, a practising certificate shall be in force for a period of one year from the date on which it is issued or such later date, if any, as the Board may specify in the certificate. (6) A practising certificate shall cease to be in force immediately upon the holder's name ceasing to appear in the appropriate register whether by reason of the suspension of his registration or otherwise). (7) A person who contravenes subsection (1) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale and to imprisonment for a period not exceeding one month. (8) Where a person has contravened subsection (1) above, the fact may be taken into account as a determining factor in considering whether he has been guilty of professional misconduct. (9) In this section references to the appropriate register shall be construed— (a) in relation to a conveyancing practitioner, as a reference to the register maintained under section 15 of this Act; (b) in relation to a qualified conveyancer, as a reference to the register maintained under section 165 of this Act; (c) in relation to a executry practitioner, as a reference to the register maintained under section 17 of this Act.").

The noble and learned Lord said: It is a long amendment but its principle is fairly clear. The Law Society of Scotland has operated a system under which everyone who is a solicitor has a practising certificate authorising him to operate. The certificate lasts for a year and has to be renewed. It is a useful procedure. It enables someone who does not renew it to go off the roll; someone who is struck off may not have a chance of renewing it.

Having a certificate enables one to demonstrate that one is authorised to do what one sets out to do, rather as a road traffic licence does. The provision here aims to produce practising certificates for the conveyancer and conveyancing practitioner and the executry practitioner. That is the term that I have used, but if it becomes a confirmation practitioner the principle would also apply. There is much practitical use in having a certificate, licence or whatever one cares to call it. I beg to move.

Lord McCluskey

I support the principle of the amendment. I notice that in the first line the verb "practice" is spelt with a "c". That is the way that the Americans spell it. I expect that it was entirely intentional that we should move over to American spelling since in other parts of the Bill we are moving to American practices in relation to the provision of legal services. However, that may not be the intention.

I support the principle. At this time of night I shall not take up time in rehearsing further arguments. I look forward to hearing the Government's response.

Lord Morton of Shuna

I am sorry. I am surprised that my noble and learned friend did not notice that there is also a misprint on the second line of subsection (1). The word of should read "or".

Lord McCluskey

Yes, I did!

Lord Fraser of Carmyllie

In many respects the Bill provides for conveyancing and confirmation practitioners and qualified conveyancers to be subject to a regulatory regime similar to that applying to solicitors. For example, the requirements for registration include indemnity insurance and the requirement to comply with practice rules. There are many other similarities in the handling of complaints and discipline.

The Law Society will require to maintain a fund to compensate clients in the event of loss through dishonesty and the offence provisions for impersonation are, subject to the disagreement that we had some time ago, broadly comparable. Like the society the board will maintain a register of practitioners. It will provide for this register to be open for public inspection. All these matters are covered specifically in the Bill. In addition, the board will enjoy considerable freedom to exercise its functions in such manner as it considers necessary or expedient.

I believe that we have struck a good balance between what we regard as essential in the way of powers and functions of the board and what can be left to the board's discretion. In this context, we have not thought it necessary to provide for a scheme of annual practising certificates. The initial requirements for registration are rigorous, as are the disciplinary provisions in the event of practitioners failing to comply with rules, or in any way acting in an unprofessional manner or offering inadequate services.

I believe, therefore, that we have provided the board with a sufficient range of powers to regulate the provision of conveyancing and confirmation services in the interests of clients. We have not considered it necessary to impose a system of practising certificates as an essential part of the regulatory mechanism. However, that is not to say that the board will not devise some means whereby it can keep in regular contact with those whom it has registered. Indeed, in order to raise income through fees to finance activities I regard as highly likely the board imposing some kind of periodic levy on practitioners. Although that is not the same as issuing an annual certificate to practise it would imply regular contact with practitioners. There may be differences but it appears that in practice a real opportunity is open to the board to replicate the practising certificate for solicitors.

Lord Morton of Shuna

I regret to say that I regard that remark as being out of touch with reality. Does the noble and learned Lord really expect someone who goes to a qualified conveyancer in Lochmaddy, and who wishes to know whether that person is a qualified conveyancer, to be told, "Yes, the board in Edinburgh or Glasgow has a list that you can inspect"?

A solicitor receives a piece of paper which is a practising certificate. Some solicitors have the habit of hanging it in their waiting rooms. If a qualified conveyancer has a certificate what is wrong with his being able to assure the client? After all, we are supposed to be thinking of the lay client and there is a great deal to be said for a certificated person being able to say immediately, "Here is my certificate; look at it".

I hope that the noble and learned Lord will look at the matter again. It is no answer to say to the general public that a list is kept by some amorphous board.

Lord Fraser of Carmyllie

I had sought to indicate to the noble and learned Lord that I hope that what is already in place will be sufficient to meet all the difficulties met by a client going to a conveyancing practitioner. I hoped to indicate the fact that there is a possibility that a document similar to a practising certificate will be in place. He may consider that I am naive—

Lord Morton of Shuna

If the noble and learned Lord considers that there will be some form of practising certificate let us not worry about the name. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 200 and 201 had been withdrawn from the Marshalled List.]

Clause 18 [Professional misconduct, inadequate professional services, etc.]:

[Amendment No. 202 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 202A: Page 20, line 32, at end insert: ("(1A) Where, after such inquiry as they consider appropriate (whether or not following a complaint to them), the Board are satisfied that a qualified conveyancer— (a) is guilty of professional misconduct; or (b) has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a qualified conveyancer, they may take such of the steps set out in subsection (3A) below as they think fit.').

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 202B: Page 20, leave out lines 33 to 42.

On Question, amendment agreed to.

10.30 p.m.

Lord Fraser of Carmyllie moved Amendment No. 202C: Page 21, line 14, after ("registration;") insert— ("(da) subject to subsection (3B) below, to impose on the practitioner a fine not exceeding £10,000; (db) to censure the practitioner;").

The noble and learned Lord said: I shall speak also to Amendments Nos. 203A, 203B and 204D. These amendments provide further disciplinary powers for the board which we consider necessary to ensure both a level playing field in disciplinary terms between solicitors and any new providers of legal services and that the board's disciplinary function carries sufficient weight to meet its purpose in full measure. The board is given a power to fine a solicitor or qualified conveyancer up to a maximum of £10,000 and a power of censure. Both those powers correspond to similar powers which are available to the Scottish solicitors' discipline tribunal. While I would not expect to see those powers used frequently, they are important to ensure that sufficient sanctions are available to meet every contingency.

The second of the amendments inserts a new subsection (3B) into Clause 18, the purpose of which is to prevent the board imposing a fine on a practitioner who has already been convicted of the same offence in a court of law and has been sentenced to a term of imprisonment of two years or more. Clearly it would not be acceptable for practitioners to have to face a double jeopardy for the same offence.

The new subsection (3C) prevents a possible conflict of interest which may arise for a self-financing board where it has a discretion over the amount of any fine and is at the same time mindful of its own financial needs. Therefore, this new subsection provides that any fines imposed by the board under this clause are to be forfeited to the Exchequer. They are also to be recovered on the same terms as a fine imposed by the High Court. I beg to move.

Lord Morton of Shuna

At the instigation of the Law Society I tabled Amendments Nos. 202D and 203AA some time before the noble and learned Lord tabled his amendments. They are to the same effect, except that I said that the £ 10,000 should be forfeited to Her Majesty and the noble and learned Lord wants it to go to the Treasury. That is probably a distinction without a difference.

However, it would have been gracious of the noble and learned Lord had he said that his amendments were in response to the amendments tabled in my name. Let us make no fuss about that. I shall not move my amendments and I shall not oppose those of the noble and learned Lord.

Lord Fraser of Carmyllie

It may come as a surprise to the noble and learned Lord that it was not a matter of discourtesy towards him. Part of his provision is worth while; that is, subsection (3A) on annulments. On Report I propose to move an amendment which will provide for a variation order. Therefore, far from being ungracious, I was hoping to thank him for tabling his amendments.

Lord Morton of Shuna

That is very gracious. I gratefully accept it. It is remarkable what may happen late in the evening.

Lord McCluskey

I deal with a slightly different point. As I listened, in a sense, from the wings to this debate, read the new provisions and heard the undertakings given by the noble and learned Lord, as we go through the Bill and amendments are moved and accepted, this body called the board is looking more and more like the Law Society of Scotland. By Third Reading I fully expect the noble and learned Lord will be standing at the Dispatch Box moving amendments, saying, "And the board shall be called the Law Society of Scotland and practitioners shall be called solicitors ad hoc".

The logic of the Government's rhetoric about a level playing field and the interests of the public is driving them towards accepting a position whereby the restrictions which exist and which clients obtain in relation to solicitors must be conferred on the same clients and members of the public in relation to conveyancing and confirmation practitioners. At the end of the day the Government are getting very close to re-enacting the 1949 legislation dealing with legal aid and solicitors.

On Question, amendment agreed to.

[Amendment No. 202D not moved.]

[Amendment No. 203 had been withdrawn from the Marshalled List.]

Lord Fraser of Carmyllie: moved Amendment No. 203A: Page 21, line 19, at end insert— ("(3A) The steps referred to in subsection (1A) above are— (a) to suspend or revoke the registration of the qualified conveyancer; (b) subject to subsection (3B) below, to impose on the qualified conveyancer a fine not exceeding £10,000; and (c) to censure the qualified conveyancer. (3B) The Board shall not impose a fine under subsection (3)(da) or (3AXb) above where, in relation to the subject matter of the Board's inquiry, the practitioner or, as the case may be, the qualified conveyancer has been convicted by any court of an offence involving dishonesty and sentenced to a term of imprisonment of not less than two years. (3C) Any fine imposed under subsection (3)(da) or (3A)(b) above shall be treated for the purposes of section 203 of the Criminal Procedure (Scotland) Act 1975 (fines payable to HM Exchequer) as if it were a fine imposed in the High Court.").

On Question, amendment agreed to.

[Amendment No. 203AA not moved.]

Lord Fraser of Carmyllie: moved Amendment No. 203B: Page 21, line 32, after ("(d)") insert ("or (3A)(a)"). On Question, amendment agreed to. [Amendment No. 204 not moved.]

Lord Fraser of Carmyllie: moved Amendment No. 204A: Page 21, line 34, after ("practitioners") insert ("or the register of qualified conveyancers").

On Question, amendment agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 204B: Page 21, line 34, at end insert— ("(6A) Where the Board take a step set out in subsection (3)(d) or (3A)(a) above shall— (a) subject to subsection (6B) below, publish their decision; and (b) make available a copy of every decision published under paragraph (a) above for inspection by any person without charge. (6B) In carrying out their duty under subsection (6A) above, the Board may refrain from publishing any names, places or other facts the publication of which would in their opinion, damage or be likely to damage the interests of persons other than the practitioner or qualified conveyancer to whom the decision relates, but where they so refrain they shall publish their reasons for so doing.").

The noble and learned Lord said: This amendment should encourage openness in the board's handling of disciplinary matters. The revocation or suspension of a practitioner's registration, and the imposition of a fine, are clearly matters of considerable public interest. It may help the Committee if I explain that a corresponding amendment will be moved at a later stage to put the Scottish solicitors' disciplinary tribunal under a similar duty to publish, with the same discretion to withhold details in certain cases. The public interest is a visibly accountable disciplinary system for conveyancing and confirmation practitioners will be well served by this amendment. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 204C: Page 21, line 35, leave out ("or (d) above the practitioner") and insert ("to (db) or (3A) above the practitioner or, as the case may be, the qualified conveyancer").

On Question, amendment agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 204D: Page 21, line 39, at end insert— ("(8) Part II of Schedule 1 to this Act (Board's powers of investigation for the purposes of inquiries under this section) shall have effect. (9) In this section "conveyancing practitioner", "confirmation practitioner" and "qualified conveyancer" respectively include any conveyancing practitioner, confirmation practitioner or qualified conveyancer whether or not it or he was registered as such at the time when the subject matter of the Board's inquiry occurred and notwithstanding that subsequent to that time it or he has ceased to be so registered.").

The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 205A. The purpose of the amendment is to ensure that communications between a conveyancing and confirmation practitioner and his or her client are confidential and privileged to the same extent as those between a solicitor and client.

It is clearly important to ensure that conveyancing and confirmation practitioners are not disadvantaged in offering their services to clients through not enjoying the same privilege in relation to communications. The amendment does not give any wider privilege than necessary. It will also reassure clients that any communication they make with their conveyancing or confirmation practitioner is confidential and protected to the same extent as communications with a solicitor.

I trust that this is not a contentious matter, since the legal concept of privilege has been accepted in relation to solicitors in Scotland for a very long time. I beg to move.

Lord Morton of Shuna: I

believe the amendment is coupled with Amendment No. 205A. The difficulty with regard to the amendment is that it imposes the privilege of confidentiality but not the obligation of confidentiality. No doubt the noble and learned Lord wished to impose both the obligation and the privilege, and perhaps he would consider at the next stage putting on the practitioner the same duty as exists on the solicitor—the obligation of confidentiality. It is a very important obligation to the client.

Lord Fraser of Carmyllie

As I indicated, if we are looking not only to put conveyancing practitioners in the same position as solicitors but also to reassure clients, I would consider whether the noble and learned Lord's suggestion is necessary. If it is not adequately covered by the amendments I have already moved, I shall certainly look to achieve that objective.

On Question, amendment agreed to.

[Amendment No. 205 not moved.]

On Question, Whether Clause 18, as amended, shall stand part of the Bill?

Lord McCluskey

I am sure that I am out of order but I observe that the Leader of the House is sitting on the Government Front Bench and I should like to raise a point for his consideration, together with his noble and learned friend the Lord Advocate.

We are shortly to deal with Clause 19 and then move on to Clause 20 and the whole fasciculus of clauses dealing with rights of audience. That is an entirely different subject to any that we have discussed in the Committee stage. It is an extremely important part of the Bill. It is a matter on which many noble Lords who are not present will wish to speak; for example, the noble Lord, Lord Renton, has left the Chamber.

Therefore, I hope it is proper for me to ask the Leader of the House and the noble and learned Lord the Lord Advocate whether they believe it is right to start debating rights of audience at approximately 11 p.m. when the Committee is almost empty. This is a matter of great importance which needs to be discussed at the proper time of day.

Lord Macaulay of Bragar

I endorse what the noble and learned Lord, Lord McCluskey, said on this matter. I seem to recall that on the Committee stage of the Courts and Legal Services Bill protests were made as the time wore on because people were getting tired. We have been going at a considerable pace and I agree that this is not the time to enter the realms of rights of audience, as some noble Lords may be feeling the pace more than others.

Lord Fraser of Carmyllie

It is correct that when we have concluded Clause 19 we shall turn to the wholly different issue of rights of audience, and I appreciate as clearly as the noble and learned Lord that we have been going for a long time.

The noble and learned Lord said that there were important aspects of Clause 20 on which noble Lords will want to speak, but there are a number of amendments at the beginning of Clause 20 on which there is probably a considerable measure of agreement. It might be of advantge to at least reach the point of dealing with the amendments on which there is some agreement so that in future we can see what remains to be discussed on matters that may be disputed.

Lord Morton of Shuna

The noble and learned Lord will no doubt consider the fact that, while there is agreement between him and one or more of the noble and learned Lords who have tabled amendments to Clause 20, that may have nothing to do with other noble Lords who are not present and who may wish to contribute to the debates. There is a great difficulty if a noble Lord produces an amendment which is acceptable to the Government and that is whizzed through late at night when it is known that other noble Lords have differing views. We know that there are differing views on the subject of rights of audience.

Lord McCluskey

Perhaps I may add that I disagree with my noble and learned friend Lord Morton of Shuna and agree with the noble and learned Lord the Lord Advocate that there is a large measure of agreement and that it is proper that that agreement should be dealt with and recorded tonight. I would certainly come back to the matter if the noble and learned Lord the Lord Advocate sought to move on to controversial matters tonight. It is extremely important that contentious matters should be dealt with when the Committee is more fully attended.

Clause 18, as amended, agreed to.

Lord Fraser of Carmyllie: moved Amendment No. 205A: After Clause 18, insert the following new clause—

("Disclosure of documents etc. .—(1) Any communication made to or by a conveyancing practitioner or a confirmation practitioner in the course of its acting as such for a client shall in any action or proceedings in any court be protected from disclosure on the ground of confidentiality between client and professional legal adviser in like manner as if the practitioner had at all material times been a solicitor acting for the client. (2) Any enactment or instrument making a special provision in relation to a solicitor or other legal representative as to the disclosure of information, or as to the production, seizure or removal of documents, with respect to which a claim to confidentiality between client and professional legal adviser could be maintained, shall, with any necessary modifications, have effect in relation to a conveyancing practitioner and a confirmation practitioner as it has effect in relation to a solicitor.").

On Question, amendment agreed to.

10.45 p.m.

Lord Morton of Shuna moved Amendment No. 206: After Clause 18, insert the following new clause—

("Duty of Secretary of State to report to Parliament. The Secretary of State shall report to Parliament within two years of the Board first registering a conveyancing practitioner to provide conveyancing services and every two years thereafter on the effect which conveyancing practitioners offering conveyancing services has had on the availability of legal services generally, and of services provided under the Legal aid Scheme.").

The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 212 which stands in the name of the noble Baroness, Lady Carnegy of Lour, and the noble Lords, Lord Mackie of Benshie and Lord Evans of Claughton. There is only one difference between the two amendments apart from the place in which they arise in the Bill. My amendment suggests that apart from a report within two years of the first conveyancing practitioner being registered there should be a report every two years thereafter. Amendment No. 212 simply suggests one report two years after the registration of the first practitioner and then there are no more reports.

Perhaps a regular report is more appropriate because in the first two years there might be only one building society, for example, wanting to register as a conveyancing practitioner. Two years thereafter there might be many more. It is absolutely essential, whichever way one looks at the matter, that the provision of legal services and the effects of the conveyancing board and its acolytes should be looked at and monitored very carefully. Though I am aware that the Government have undertaken to do this, they have not undertaken to tell anybody of the result.

This amendment is to ensure that the result is known and, if necessary, a debate can be instigated in this House. In principle, I do not think there is any difference of view between the noble Baroness and myself concerning the amendments except the precise wording. I beg to move.

Baroness Carnegy of Lour

In support of my Amendment No. 212, I agree with the noble and learned Lord that there is virtually nothing between the two amendments. I know that the Law Society of Scotland is very anxious that the monitoring should be very carefully done. It fears that a substantial number of firms may lose their conveyancing business as a result of competition. I believe that solicitors' firms are going to rise to the challenge of new competition and probably we shall not find cataclysmic results. There is no question but that the monitoring has to be carefully done. The Consumer Council has been told by the Government that they intend to carry out the monitoring very thoroughly. It is not an entirely impractical suggestion that some formal arrangement might be made such as this. I shall be interested to hear what my noble and learned friend has to say.

Lord Mackie of Benshie

I wish to support the amendment which bears my name. It is quite obvious from the concern expressed by all kinds of people about the effects of the measure, particularly on rural practices, that the Government must monitor what is going on. Otherwise we may find that instead of increasing competition and having a better service, the provision could lead to a total deterioration of legal services for ordinary people in rural Scotland.

Lord Fraser of Carmyllie

I appreciate the concern that lies behind both new clauses, which was also apparent in the discussion of earlier amendments. I am happy to confirm that my right honourable friend the Secretary of State for Scotland has already put in hand research to establish the geographical location of solicitors' offices and how accessible they are to the population.

I indicated earlier that an article appeared recently in the Scots Law Times which went some way in Easter Ross to try to analyse the problem. But, curiously, we know remarkably little about these matters. Perhaps I may reassure the noble and learned Lord and my noble friend Lady Carnegy that not only is the research in hand but it is intended that it will be repeated at intervals.

The Government remain committed to ensuring that those who need legal services in both urban and rural areas continue to have adequate access to them. While I would not be prepared to accept the idea of a formal report to Parliament after the fixed period of two years, what I believe lies properly behind the amendment is that there should be this research and there should be proper consideration of the impact of the changes. I hope that the noble and learned Lord will withdraw the amendment.

Lord Morton of Shuna

It is all very well to say that there will be research but the National Consumer Council and other organisations should know the results of that research. It is all very well for the research to be carried out but the Secretary of State should publish the results. If the noble and learned Lord will undertake that he will—

Lord Fraser of Carmyllie

In saying that it had been put in hand by my right honourable friend I did not mean that it would be a research project undertaken in circumstances of the utmost secrecy. If there are important lessons to be learnt I entirely agree with the noble and learned Lord that those who are interested should know the results.

Lord Morton of Shuna

So long as there is an undertaking that the results will be published quickly as soon as they are available—I am surprised that New St. Andrew's House has difficulty in finding out where solicitors are—I shall ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [Interpretation of sections 14 to 18]:

[Amendments Nos. 207 to 211 not moved.]

Clause 19 agreed to.

[Amendment No. 212 not moved.]

Clause 20 [Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary]:

The Deputy Chairman of Committees (Lord Airedale)

I have to remind the Committee that if Amendment No. 212A is agreed to I cannot call Amendments Nos. 212B to 220.

Lord Emslie moved Amendment No. 212A: Page 22, line 28, leave out from ("who") to the end of line 14 on page 23 and insert ("— (a) seeks a right of audience in, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council or, on the other hand, the High Court of Justiciary; and (b) has satisfied the Council as to the requirement provided for in this section, shall have a right of audience in those courts or, as the case may be, that court."). (2) The requirements mentioned in subsection (1), in relation to the courts or, as the case may be, the court in which a solicitor seeks a right of audience, are that—

1. (a) he has completed to the satisfaction of the Council, a course of training in evidence and pleading in relation to proceedings in those courts or that court;
2. (b) he has such knowledge as appears to the Council to be appropriate of—
1. (i) the practice and procedure of; and
2. (ii) professional conduct in regard to, those courts or that court; and
3. (c) he has satisfied the Council that he is, having regard among other things to his experience in appropriate proceedings in the sheriff court, otherwise a fit and proper person to have a right of audience in those courts or that court.").

The noble and learned Lord said: In moving this amendment it may be helpful to the Committee if I mention Amendments Nos. 220B, 220E and 223. These amendments are to subsections of the new Section 25A which is introduced by Clause 10. These subsections are interrelated and accordingly the amendments which are proposed are interrelated and ought to be seen together.

I have not lost the anxiety which I expressed at Second Reading about Clause 20, but at this stage I feel it is my duty to be as helpful to the noble and learned Lord the Lord Advocate as I can be. If Clause 20 survives, its provisions must be such as are likely to make the scheme at least as satisfactory as can be expected. The general objective is that the clause must spell out the requirements which a solicitor must satisfy if he is an aspirant for rights of audience in the supreme court. These requirements must be both sound and relevant.

The other general objective must be to give adequate guidance to the Council of the Law Society, which will have the very difficult duty of devising training rules and conduct rules, the content of which must be such as to be likely to command the approval of the Lord President.

As I see it, the deficiencies in subsections (2) and (3) of Section 25A are these. As I attempted to suggest on Second Reading, the first is that experience of sheriff court practice, for however long, affords no useful test of competence to plead in the superior courts The standards are different. Indeed, the longer a solicitor remains in practice the more likely it will be that bad habits will become ingrained, and bad habits tend to waste time and cost other people money.

The other weaknesses are as follows. There is no need for two separate subsections (2) and (3) in Section 25A. The word "pleading" contained in subsections (2)(a) and (3)(a) is by itself much too narrow. In subsections (2)(c) and (3)(c) there is no reference to the important question of professional conduct. Finally, in subsections (2) and (3) we find a total silence on the important question of character; namely, whether the aspirant is a fit and proper person to be entrusted with rights of audience in the Court of Session and the High Court.

My amendment attempts to cure the deficiencies in Section 25A(1)(2) and (3) and it is conceived in this form. It tidies up subsections (1), (2) and (3) by running subsections (2) and (3) together in a single subsection which will say all that has to be said for all relevant purposes. In the amended subsection (2)(a) in my amendment, the training which ought to be carried out should be not only in evidence but also in pleading. In amended subsection (2)(b) the knowledge which is to be expected is not only to be of practice and procedure; it must also include professional conduct in relation to the particular court.

I should point out that these matters are merely a reflection of the requirements of the compulsory examination which every solicitor entrant to the Faculty of Advocates must pass if he is to become an advocate holding public office. Noble Lords will also observe in subsection (2)(c) of the amendment that the fit and proper person test is introduced. That is to ensure so far as is possible that the aspirants meet the standards which are appropriate for the superior courts. There is nothing new in that proposal because, as Members of the Committee may well know, solicitor entrants to the Faculty of Advocates have to pass that test if they are to be admitted to the public office of advocate. In the context of a fit and proper person test, there is a reference in my amendment to experience in the sheriff court. This is the right place to put it. It is a very much more flexible way of dealing with what now appears in Section 25A subsections (2)(b) and (3)(b).

Amendment No. 220B concerns Section 25A(4). It is purely consequential upon acceptance of Amendment No. 212A. Penultimately, I turn to Amendment No. 220E, which deals with subsection (5). I am glad to see that the amendment which has been tabled by the noble and learned Lord the Lord Advocate is a very good one. I say that because it echoes the language of my amendment, except for the omission of four words; namely, "the duration of and". In any event, that is a good start for me.

In my view subsection (5) as drafted gives inadequate guidance to the Law Society as to what the rules governing training must contain if they are to have any practical effect and if they are likely to commend themselves to the Lord President on approval. If Clause 20 survives, we surely must have rules which will ensure so far as is possible that solicitors will have the thorough kind of training which is likely to equip them to appear in court without impairing the quality and efficiency of the administration of justice.

All advocates, including those who have been solicitors, must undergo the rigorous training of pupillage. We should be looking for a course of training which will not be materially less effective. In short, if the rules are to be useful they must be designed to secure that objective. They must define the methods of instruction. In my submission they ought to specify the duration of the course of training which is envisaged by the Law Society. The duration may differ according to the courts for which people are being trained. The rules must also spell out, it seems to me, the qualifications of those who will do the teaching because I suspect that solicitors are not equipped to teach each other about the matters which become important when we consider a right of audience in the supreme courts.

Finally, referring to subsection (5), provision must be made for testing a solicitor's knowledge of professional conduct in relation to particular courts, as well as his knowledge of practice and procedure.

Amendment No. 223 refers to subsection (6), rules of conduct. Here again, perhaps because of the haste in which the Bill or this part of the Bill has been conceived, I find that inadequate guidance has been given to the Council of the Law Society. It seems to me that it would be sensible to provide that the rules to be made should correspond as nearly as may be to those which apply to advocates. I cannot think of anything much more awkward or difficult for the supreme courts if advocates or solicitors appearing before them were subject to different rules of professional conduct. I do not think that it would do any harm to give the Council of the Law Society a hint that what it ought to be driving at is a set of rules that would not be materially different from those which govern the conduct of advocates. I cannot for a moment imagine that the Lord President would be inclined to approve of rules that did not quite satisfy that test. Technically, I ought simply to move Amendment No. 212A at this stage. I beg to move.

11 p.m.

Lord Fraser of Carmyllie

Perhaps I may rise, arguably prematurely. What I have to say may be helpful to the Committee. It is my intention to accept Amendment No. 212A, moved by the noble and learned Lord. I am grateful to him for putting it down. I understand that it enjoys not only his distinguished support but that of his successor as Lord President. I am grateful to him for the great care that he has given to the preparation of the amendment and for suggesting ways in which the requirements to be placed on those who seek rights of audience in the supreme courts might be better defined to match more closely the practice and procedures of those courts.

I think that the amendment also improves the structure of the clause, as the noble and learned Lord indicated, by combining the requirement for the civil and criminal courts in one place. I am grateful to him, as I have said. In view of the way in which he approached the matter, I agree that his Amendment No. 220B is essentially consequential upon this amendment. If Amendment No. 212A is acceptable to other Members of the Committee I similarly propose to accept his Amendment No. 220B. I heard what the noble and learned Lord also had to say about Amendment No. 220E and his comparison of what he has put down with my own Amendment No. 220D.

There is only one small matter on which we have any significant difference. That is over the word "duration". Clearly in training there will be issues of how long courses might be and how fully they should be covered. What is behind my reluctance to accept the wording here is that I would not think it appropriate to give to the Law Society of Scotland too much of an indication that all methods of instruction should be of the same length.

For example, the training requirements of a solicitor who had been working in an Edinburgh firm with a large Court of Session practice, had also spent some time in the Crown Office and had appeared daily in the sheriff court, would be different from those which might be required of a relatively young and inexperienced solicitor who had worked mainly on conveyancing. I do not disagree fundamentally with what the noble and learned Lord says in Amendment No. 220E. I agree with what he says about the qualifications of those who will conduct any course of training, but, when we reach Amendment No. 220E, I should be inclined to resist it on those grounds.

The noble and learned Lord went a little further and mentioned Amendment No. 223, in which he is joined by the noble and learned Lords, Lord McCluskey, although he has now left the Committee, and Lord Morton of Shuna. The amendment states that the rules shall correspond as nearly as may be to those which apply to advocates". I am sympathetic to what lies behind the amendment.

Lord Macaulay of Bragar

In view of the direction in which matters have moved and the major area of consensus between the noble and learned Lords the Lord Advocate and Lord Emslie, I welcome what has happened. We on this side of the Committee accept, as has been made clear all along, that there is a high standard to be attained in the Supreme Court. The Law Society and solicitors recognise that the practice in the Supreme Court requires different techniques and new knowledge and methods. Accordingly, we welcome the Government's acceptance of the amendment of the noble and learned Lord, Lord Emslie. I shall reserve my position on other related matters until I see the final shape of Clause 20 when the Bill returns on Report.

Lord Grimond

It might save the Committee's time if I spoke on this amendment instead of my Amendment No. 213, which is not grouped with it but attempts to deal with the same matter.

I drafted my amendment in the hope of probing why it is not possible for solicitors who wish to appear in the Supreme Court to become advocates. The noble Lord, Lord Macaulay, suggested the same idea on Second Reading. It struck me that one would save a great deal of trouble and responsibility for the Lord President if one assumed that a solicitor was sufficiently learned in the law, but needed extra practice in the high courts.

To my mind, the only way to learn how to be an advocate is to study with other advocates and to become a pupil. Advocacy is an art. There are horses for courses and it is impossible to train someone to be an advocate for all purposes. It is one of the great advantages of having the profession split into two bodies that the solicitor may choose an advocate who he thinks is particularly suitable for his purpose. In my lifetime I have known one distinguished lawyer who, when he reached the Bar, was hopeless before a jury, although very effective before a judge. I have known another man whose main claim to expertise in advocacy was that he was practically inaudible. He was particularly sought after in cases involving indecency, as the press could not hear a word he said.

Having mentioned those matters and as the Government intend to accept the amendment of the noble and learned Lord, Lord Emslie, I shall not move my amendment when it is eventually called.

Lord McCluskey

Perhaps I may intervene to say that I am happy that the Government have chosen to accept the amendment. It is perhaps unfortunate that the original print of the Bill did not contain something of this kind so that a good deal of upset might have been avoided.

I understand that we may not proceed beyond Amendment No. 222 tonight. If that is so I do not propose to say anything more now because my objections are of a different kind from those which have been discussed. I am not concerned ultimately with the qualifications or training of solicitors because many solicitors of my acquaintance are superb advocates. I am concerned with structural point'; which can be dealt with more sensibly when we discuss amendments which follow Amendment No. 222. I shall therefore not raise them tonight.

Lord Fraser of Carmyllie

I shall add a postscript to those remarks. While I understand that there is a proposal that we should stop at Amendment No. 222 perhaps I may modify that by suggesting that we go to Amendment No. 223 to which the noble and learned Lord, Lord Emslie, has spoken. I do so because I have indicated that I am sympathetic to that amendment and propose to return at Report with an amendment referring to the desirability of having essentially similar rules for all Supreme Court pleaders. I give that indication now and ask that when we come to that amendment it is withdrawn to enable me to do that.

Lord Macaulay of Bragar

It may be of assistance to the Committee if I say that I do not propose to move the amendments up to Amendment No. 223 which stand in my name and that of my noble friend Lord Carmichael as those matters are now covered by the amendment which has been accepted by the noble and learned Lord the Lord Advocate.

On Question, amendment agreed to.

[Amendments Nos. 212B to 220A not moved.]

Lord Emslie: moved Amendment No. 220B: Page 23, line 16, leave out ("or (3)") and insert ("in relation to the courts or, as the case may be, the court in which he seeks a right of audience").

On Question, amendment agreed to.

[Amendment No. 220C not moved.]

Lord Fraser of Carmyllie moved Amendment No. 220D: Page 23, leave out lines 21 to 29 and insert— ("(a) the matters to be included in, the methods of instruction to be employed in, and the qualifications of the person who will conduct, any course of training such as is mentioned in subsection (2)(a); and (b) the manner in which a solicitor's knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated, and separate rules shall be so made in relation to, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary.").

On Question, amendment agreed to.

Lord Emslie had given notice of his intention to move Amendment No. 220E: Page 23, leave out lines 21 to 29 and insert— ("(a) the matters to be included in, the duration of and the methods of instruction to be employed in, and the qualifications of those persons who will conduct any course of training such as is mentioned in subsection (2)(a); and (b) the manner in which a solicitor's knowledge of the practice and procedure and professional conduct mentioned in subsection (2)(b) is to be demonstrated, and separate rules shall be so made in relation to, on the one hand, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council and, on the other hand, the High Court of Justiciary.").

The noble and learned Lord said: In the light of the acceptance of the amendment proposed by the noble and learned Lord the Lord Advocate I shall not move my amendment. The difference between us is small and that difference will be taken up by common sense anyway.

[Amendment No. 220E not moved.]

[Amendments Nos. 221 and 222 not moved.]

Lord Morton of Shuna moved Amendment No. 223: Page 23, line 32, at end insert ("which shall correspond as nearly as may be to those which apply to advocates.")

The noble and learned Lord said: I believe that the noble and learned Lord, Lord Emslie, has already spoken to the amendment. I beg to move.

Lord Fraser of Carmyllie

At two earlier points I indicated my sympathy for this amendment. Given that undertaking, I invite the three noble Lords whose names appear in support of the amendment not to pursue it.

Lord Emslie

I am very grateful to the noble and learned Lord the Lord Advocate for that expression of sympathy. I shall be even more grateful if that expression of sympathy is translated into action. In the light of what he has said, I am content to beg leave to withdraw the amendment at this time.

Lord Fraser of Carmyllie

May I say to the noble and learned Lord that it is not just an expression of sympathy. It is an indication that I will return on Report with an amendment to meet what he is proposing.

Lord

Emslie: I thank the noble and learned Lord very much.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

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