AS AN AMENDMENT TO COMMONS AMENDMENT NO. 123 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 123C. This amendment refers to a matter on which I have already spoken. It deals with the case I mentioned. The new clause contains, as did the old clause, in subsection (4) the provision that: Where a complaint has been made that a person"— that is, the person I have referred to as a barefoot pleader— has been guilty of professional misconduct … the body of which he is a member may, or if so requested by the Lord President shall, suspend that person". 1591 Therefore, the Lord President has the power to order the suspension of that person from exercising his rights of audience. That suspension endures, in the words of subsection (4), pending determination of that complaint". Surprisingly, the subsection then adds, by the body". So, if the Lord President orders his suspension, the body can determine the complaint and remove the suspension.
That appears to be a contradictory provision. If the Lord President takes the extreme step of ordering the suspension of a person who enjoys rights of audience, I should have thought it right and proper that the Lord President should have a say as to whether or not that person comes back into the ranks of those who exercise the right of audience. I beg to move.
Moved, That Amendment No. 123C, as an amendment to Commons Amendment No. 123, be agreed to.—(Lord McCluskey.)

§ Lord Fraser of Carmyllie
My Lords, I have already touched on this matter in dealing with the previous amendment. There is a fundamental disagreement between us on how these matters ought to proceed but there is nothing illogical here. If the Lord President has brought to his attention an allegation of gross professional misconduct it would seem entirely appropriate that he should have the power to go to the body and request it to suspend the individual until it has determined whether or not there has been a disciplinary offence. In a number of areas people are suspended prior to a determination of a complaint against them. It seemed appropriate to the Government that in these circumstances the Lord President as the senior judge in Scotland should be given that opportunity to require the suspension. It does not follow that, where the suspension is requested pending the determination of a complaint, he should be the person to determine that complaint.

§ Lord McCluskey
My Lords, under the suspension procedure, the body may suspend. If the body suspends, the body is then made the judge as to whether the suspension shall endure or be recalled. If the body can perform the dual function of suspender and then judge, surely the Lord President can perform the dual al function, a fortiori, of a body. The body might be the British Association of Social Workers. Surely the Lord President is better able to make a judgment on this matter.
I agree that this is a fundamental disagreement between us. I understand that the noble and learned Lord the Lord Advocate is not disposed to accept the amendment. I express my regret about that. I can foresee a situation in which the Lord President might order the suspension of a person's rights of audience. The body, perhaps for policy or other reasons, might decide that that person should go back on the roll. Is the Lord President supposed to order the suspension again? One could have a confrontation or standoff between the two, with apparently no means of resolving it. In those cases where the Lord President has ordered a suspension, the logical answer is to give 1592 the Lord President the right, even if he wants to delegate it to one of his colleagues or to three of his colleagues, to determine the fitness of that person to be restored to the roll. I believe that the noble Lord, Lord Macaulay, wishes to intervene.

§ Lord Macaulay of Bragar
My Lords, I intervene on a point of information. Is there not a distinction between the two suspensions? The member of a body subscribes to the rules of that body or association and to the rules of conduct. He therefore knows that if he contravenes the rules of the body it may or may not suspend him. There is a difference between that and the Lord President's intervention. The Lord President will presumably have a matter brought to his attention or he will have witnessed a matter which is so serious in his view at the time that he recommends suspension of the person from that body until that body has determined within its rules of conduct, which have already been approved in terms of the Bill, whether that complaint is justified. I am not trying to uphold one or other approach. I raise the matter as a point of information.

§ Lord McCluskey
My Lords, the noble Lord's suggestion is wrong. Subsection (4) is concerned with complaints that a person has been guilty of professional misconduct. That is different from conduct which involves a departure from the rules which the body has laid down in the scheme. Accordingly, it is a matter of professional misconduct about which the Lord President may make a judgment. One cannot put sound professional conduct into watertight, comprehensive and exhaustive rules. Professional misconduct is something other than what appears in these rules, although it may include what is contained in the rules. Accordingly, the noble Lord's intervention is, I believe, misconceived. If there is no movement on the part of the Government, I do not propose to press the matter to a Division. I beg leave to withdraw the amendment.
Amendment No. 123C, as an amendment to Commons Amendment No. 123, by leave, withdrawn.