COMMONS AMENDMENTS (Hansard, 25 October 1990)

§ Lord Fraser of Carmyllie
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 93 and 94. In moving these amendments I wish to speak also to Amendment No. 246.
The question whether there should be named publicity for all disciplinary decisions of the Scottish Convey ancing and Executry Services Board and the Scottish Solicitors' Discipline Tribunal has been keenly debated throughout all stages of the Bill. Opinions have ranged widely and have not been divided simply on party lines.
During this House's consideration of the matter in Committee on 1st May I said I would reconsider the matter. Thereafter, a government amendment was debated in another place to remove the requirement for named publicity where there had been no finding against the practitioner. In the course of that debate Members on the Opposition Benches were divided on the principle of the amendment and there was a degree of misunderstanding about its precise meaning. It was not possible on that occasion to bring the matter to a conclusion. Accordingly, the Government reviewed the matter again and, on Report in another place, there v, as further debate after which an amendment was carried to provide that there should be full publicity in all cases except where the interests of third parties might be threatened.
The amendment in the name of the noble Lord, Lord Macaulay of Bragar, would introduce discretion for the tribunal to withhold the solicitor's name in cases where a complaint is not withheld. It would leave the tribunal in a different position from the Scottish Conveyancing and Executry Services Board. I fully acknowledge the strong views held on this question but I am not persuaded of the case in favour of withholding names where there has been no finding. I clearly must do so against the background of the extended debate that has taken place at different stages of the Bill in another place.
In the course of debate on this issue in another place it was pointed out that in England and Wales where the discipline tribunal already publishes all its decisions in full there is little public interest in not guilty findings. If English practice is to serve as a guide it supports the Government's position and not that of the noble Lord. Any argument to the effect that Scotland should be treated differently on grounds of size does not, I suggest, bear up when applied to any 1568 local situation in England. All solicitors practise in some particular locality, irrespective of the size of the jurisdiction. I do not accept that the public interest is furthered by maintaining a cloak of secrecy over some decisions in tribunal prosecutions. Although there have been some considerable comings and goings on this matter at various times, I believe that the correct approach is that pursued by the amendment which was carried in another place. That would ensure a uniformity of approach on both sides of the Border.
Moved, That the House do agree with the Commons in their Amendments Nos. 93 and 94.—(Lord Fraser of Carmyllie.)

§ Lord Macaulay of Bragar
My Lords, this amendment is also linked with Amendment No. 246A which stands in my name. As the noble and learned Lord the Lord Advocate has correctly stated, the amendment standing in my name seeks to except the tribunal from the requirement to publicise decisions in cases where solicitors are found to be innocent.
The Solicitors (Scotland) Act 1980 provided for a Scottish Solicitors' Discipline Tribunal to be established. The Law Society of Scotland prosecutes solicitors before the tribunal in cases of alleged professional misconduct or inadequate professional services. At present the tribunal has a discretion in relation to the publication of its findings. The present provisions of the Bill remove that discretion. All decisions of the tribunal, whether a solicitor is found innocent or guilty, will now be subject to publicity.
It is true to say that in England the solicitors' disciplinary tribunal publishes all decisions, irrespective of guilt or innocence. I take it that the same applies in Wales from what the noble and learned Lord the Lord Advocate has said. However, that decision to publish all decisions may not be correct in relation to a person's professional standing and work within the community. I found on the fact that while England is a far larger country than Scotland and the impact in England of the publication of a decision might not have the same effect as it has in Scotland which constitutes a community of some 5 million people, the tabloid press in Scotland is not slow to jump upon anything that is detrimental to lawyers. Lawyers start off with a black mark in the public eye. We try nevertheless to make that black mark a little whiter. This measure does not assist us in that aim in that a person who has been wrongly complained against and who is acquitted by the tribunal finds his name plastered all over the papers with the complaint in the headlines. The finding, if it is published at all, may be hidden away in a corner of the paper somewhere.
It is as well to remember that solicitors and no doubt advocates on occasions are subject, like doctors, to malicious complaints which their professional bodies must investigate and adjudicate upon. The General Medical Council publishes all its findings, but the situation is different in that case in that the hearings of that council are open to the public. There was a classic example recently of a doctor who was wrongly accused in the eyes of the General Medical Council of having sexual relations with two 1569 patients. He was acquitted but his name was plastered all over certain sections of the press for several days. At this stage no one can know what good or evil that may have done to the doctor and his practice.
The insistence on the publication of all its findings would place the tribunal in a different position from all other Scottish professional disciplinary authorities. The Institute of Chartered Accountants of Scotland has a rule that whenever the disciplinary committee makes a decision, it shall: cause its decision to he published as soon as practicable in such manner as it may think fit provided that if the Discipline Committee has decided that no further action shall be taken on the complaint the decision shall not be published unless the defender so requests". That is an interesting provision. It means that if word has got around that someone has appeared before the disciplinary body of the Institute of Chartered Accountants, and albeit been acquitted, the stigma of having appeared before the professional body nevertheless attaches to that person, and he can ask the professional body to publish its findings in his case.
The Royal Incorporation of Architects in Scotland receives reports from its disciplinary committee in camera and has discretion as to publicity. The Royal Institution, of Chartered Surveyors in Scotland has power to order publication of the penalty, but if there is no penalty there is no publicity because there has been no finding of guilt. In the Faculty of Advocates there is no statutory obligation upon the dean to publicise findings of guilt or innocence in respect of disciplinary findings. In comparison with those areas of Scottish professional life the Government's intentions to publish decisions of disciplinary tribunals, where a solicitor has been declared innocent. is out of step with Scottish public life, whatever may happen in other parts of the United Kingdom.
If a doctor is badly treated in the press so that it may not be pleasant for him in his own area, he can practise his profession in any part of the world, as can an architect, accountant or a surveyor. However, it is very difficult for a Scottish solicitor whose name has been publicised, albeit in the context of innocence, to practise anywhere outside Scotland. I suggest that the Government should take into account the size of the country within which Scottish solicitors practise.
I would be the last person to advocate secrecy and keeping important information from the public. The Law Society does not try to do that and exercises its right to publish its findings with great discretion.
I should like to raise a further matter in passing. Those who have been referred to in the course of debates in your Lordships' House, particularly by the noble and learned Lord, Lord McCluskey, as barefoot pleaders who may attain rights of audience under Clause 23, will not apparently be subject to the same publicity of disciplinary findings as the practising solicitor. That seems rather strange and is a gap in the 1570 legislation. I ask the Government to reconsider this very important piece of legislation in the light of its consequences.
I also find it strange that in exercising discretion the tribunal has to take into account the interests of everyone but the solicitor and his family. It is to the solicitor and his family, and to his practice and his partner that the greatest damage is done. This legislation appears to point the gun at the solicitor whether he is guilty or innocent. It means that a solicitor who carries on his practice perfectly properly in the public domain may be pilloried for the rest of his professional life. Accordingly, I have put forward Amendment No. 246A.

§ Lord Morton of Shuna
My Lords, I support Amendment No. 246A in the name of the noble Lord, Lord Macaulay, on the basis that there should be a similar provision in Amendments Nos. 93 and 94 because the same standards should apply in both cases.
In the case of a private tribunal such as the disciplinary tribunal, where the public are not admitted to hearings, there is no point in damaging a person by saying that a complaint has been made against him which has proved to be unfounded. That could be said of all of us who have not had complaints against us which have been upheld. It is quite wrong that there should be such publicity.
The position in the case of the General Medical Council is different because its hearings are public. However, there is the difficulty that people who are protected by anonymity can make allegations against a named doctor which are then found to be unfounded. Yet the doctor has all the publicity against him.
It is a difficult problem. We should be in favour of freedom. It is right that when a person has been found not guilty there should be no slur against his character as a result of publication of the fact that someone has made a complaint against him.

The Earl of Selkirk
My Lords, I find it very difficult not to support what the noble Lord, Lord Macaulay, has said on the subject. This seems to open a channel which is undesirable for everybody. One might hate a lawyer and present a first-class case against him. That case may be unproven but nevertheless it is made public. The lawyer could be damaged quite unreasonably.
I do not know on what grounds the proposal was put forward. It is suggested that it is copied from England. There may or may not be good grounds for it but it is most unfair for someone to be held up to abuse where their professional integrity is of the first importance. I should like to see the matter looked at again although it is very difficult at this stage of the Bill. I support the suggestion of the noble Lord, Lord Macaulay.

§ Lord Coleraine
My Lords, I should like to support the noble Lord, Lord Macaulay. It does not seem to me that the provisions of the English Solicitors Act regarding the findings of the Solicitors Disciplinary 1571 Tribunal need to be regarded as relevant or as giving guidance as to what should happen on the other side of the Border.

§ Lord Fraser of Carmyllie
My Lords, it has been requested that there should be further consideration of the matter. I was at pains to point out that there has been the most elaborate consideration of the matter. Some of your Lordships will recollect that at least on one occasion when it was discussed in this House indicated that I would take the matter away and look at it again. However, when it went to the other place, without any prompting from the Government—and indeed the Government put down an amendment— the strangest views were expressed from various sides of the Committee, without regard to party allegiance, that a provision should not be introduced on the lines proposed by the noble Lord, Lord Macaulay. On that basis the Government considered that the matter should come back in another place at Report stage. The amendment that is now before us was carried.
There are a number of difficulties. One of them has been correctly identified by the noble and learned Lord, Lord Morton. If there is to be true equity in this matter it would be appropriate that such an exemption should also apply to those who are hauled before the board as well as to those who come before the solicitors disciplinary tribunal. The amendments would not permit that to happen.
The matter has been considered exhaustively. I believe that there is a comparison to be drawn with solicitors in England. England may be a very much larger country, but any solicitor in England who practises in a small county town will be in much the same position as regards damage that flows from publicity as a solicitor who practises in one of the smaller boroughs in Scotland.
Furthermore, as I understand it there have been no significant difficulties in England where this provision has been in place. The arrangement that we have allowed for in this provision, which ensures that there should not be publicity if there is to be damage to the interests of persons other than the practitioner, his close associates or their families, was a proviso which was very sensibly suggested, if I may say so with respect, by the Lord President of the Court of Session. We were more than willing to accede to that restriction. I believe that as best we can in this matter we have achieved the right balance.