House of Commons Hansard Debates for 25 Jul 1990

The Solicitor-General : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker : With this we shall discuss Government amendments Nos. 11, 72, 75, 80 and 81.

The Solicitor-General : The amendments, although necessarily bulky-- I apologise to the House that they are bulky, but they will be recognised by members of the Committee as following our previous discussions--are straightforward in their main purpose, which is to extend the powers of the Council for Licensed Conveyancers so that it will have the opportunity to apply, under the framework in part II of the Bill, for approval to license conveyancers to undertake probate work, and authorisation to grant them rights of audience and rights to conduct litigation.

The council is a statutory body, established under the Administration of Justice Act 1985 to grant licences and regulate practitioners solely for the provision of conveyancing services. It therefore has no power to license its members to do other work. Under clause 27 of the Bill, however, professional or other bodies will be able to apply for authorisation to grant their members rights of audience and rights to conduct litigation. Under clause 46, bodies may be approved by the Lord Chancellor to grant their members

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exemptions from the provisions of section 23(1) of the Solicitors Act 1974, thus enabling them to undertake probate work.

The Council for Licensed Conveyancers has already shown its interest in seeking such authorisation and approval. Furthermore, in the Green and White Papers that preceded the Bill, the Government made it clear that they intended that licensed conveyancers should be able to offer probate services.

It is therefore necessary to amend the Administration of Justice Act 1985 to enable the council to pursue applications for authorisation or approval under those provisions, and the new clause 14 and first part of the new schedule provide for that.

The procedures required in the event of a successful application are set out in detail to be consistent with the framing of the original legislation. The amendments will not in themselves, however--this should be understood--give the council the power to grant any further rights or exemptions. They will simply place it on the same footing as other bodies able to seek authorisation in due course.

Part II of the schedule extends the council's more detailed powers to enable it to operate and to regulate its members more efficiently and effectively, and to improve the position of the consumer client. They include increased powers to delegate functions to committees of the council, and to intervene in the practice of a licensed conveyancer ; revised powers to deal with cases in which the professional services provided are inadequate, including a new power to award compensation of up to £1,000 in such cases and adopt for licensed conveyancers the powers in relation to solicitors that were added to the Bill in Committee in this House ; and finally, additional powers to require licensed conveyancers to account for deposit interest on money held for clients, and powers to endorse or attach conditions to licences.

Amendments Nos. 72, 78, 80 and 81 concern necessary minor consequential and transitional changes, and repeals.

The amendments will enable the new profession of licensed conveyancers to seek to develop other new areas of business in the provision of legal services, to the benefit, we hope, of the profession and the consumer, and to make further changes to increase consumer protection.

Mr. Fraser : I thank the Solicitor-General for his comments. Did the Council of Licensed Conveyancers ask for those powers to obtain rights of audience, did it ask solely in relation to probate work, or did it ask at all? Perhaps the Solicitor-General can confirm that only 200 licensed conveyancers are actually in private practice, At the end of 1993, the Government will have provided £466,000 in subsidy to the licensed conveyancers' body. Is that expenditure to continue? Is it consistent with the Government's rather market-orientated, vigorous financial approach to those matters? I welcome the hon. Member for Ealing, Acton (Sir G. Young) to the Government Front Bench. It is always good to see Lambeth councillors in the House. One is the Chancellor of the Exchequer. It is nice to see another on the Government Front Bench. It is only a pity that hon. Members cannot hear him talk.

Mr. Peter Temple-Morris (Leominster) : One need not go through the rather enormous declarations of interest that all those who served on the Standing Committee went through in their traverses between one side of the legal

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profession and the other. Although I do not intend to do that, it will shorten matters if I inform the House--most hon. Members are aware of this--that I shall be speaking on behalf of the Law Society, as I did in Committee. Although my personal thoughts may penetrate my arguments, it will be much easier if everyone presumes, unless I say otherwise, that the views that I am giving are those of the Law Society.

The hon. Member for Norwood (Mr. Fraser) has more or less made the points that I wanted to make. However, may I underline one of them, which I hope that my right hon. and learned Friend will deal with in his answer. The Law Society's solicitors' branch believes that this is an entirely proper new clause. The creation of licensed conveyancers to compete with solicitors is fair enough, but if they continued to receive public subsidy, that would not be totally satisfactory ; indeed, it would be unsatisfactory.

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Mr. Austin Mitchell : I rise only to sound a note of dissent from the tendency to praise with faint damns. I welcome the new clause and the expenditure. We shall achieve a social purpose by breaking the solicitors' monopoly over conveyancing. Therefore, the expenditure to achieve that end is justified. We are creating a new professional. Our creation needs the encouragement and support that he is getting. On that basis, I welcome the new clause.

Sir Hugh Rossi (Hornsey and Wood Green) : I do not know whether I am talking out of turn. I was not a member of the Committee that considered the Bill and I saw the papers only about an hour ago. Therefore, the House will forgive me if I am somewhat confused about the matter.

My right hon. and learned Friend referred to the use of authorised conveyancers in probate cases. This may therefore be an opportune moment to ask him a question about that. Little was said about probate practice when the Bill was discussed in Committee. If authorised conveyancers are to be allowed to do probate work, will provision be made to ensure that reasonable charges are set by them for the work that they undertake? Solicitors' costs are taxed. Solicitors charge far less than banks for their probate services. The general public will not be given the protection that they ought to have unless the Bill contains such a provision. I have been unable to spot one. Is a complaints procedure provided for in the Bill, to which the general public will have access, in respect of the probate services that the new profession will be allowed to provide?

The Solicitor-General : This new profession will supplement the great solicitors' profession which has existed for hundreds of years. I am sorry that the hon. Member for Great Grimsby (Mr. Mitchell) has left the Chamber. To some extent, he can claim to be the midwife of the new profession, and to some extent the midwife's fees have been paid in the form of the £466,000 that was mentioned. I take the figure from the hon. Member for Norwood (Mr. Fraser). I do not have it in front of me. However, that will be pump-priming money to enable this professional body to get off the ground.

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There are about 700 licensed conveyancers. The hon. Member for Norwood was right when he said that only about 200 of them are in independent private practice. Most of the others are employed by solicitors. A good many of them are legal executives, and some of them are quite distinguished. That is a sound basis for a new profession.

I shall seek to find the answer to the question asked by my hon. Friend the Member for Hornsey and Wood Green (Sir H. Rossi) about the taxation of costs. The Bill will create a framework within which the Council for Licensed Conveyancers will be able to provide protection to the public of the kind that the Law Society seeks to provide for the public in relation to solicitors. I do not suggest that that protection is as sophisticated and advanced as that which has been developed by the Law Society over a long period. That, however, is the objective, and that is why the Government have primed the pump.

Mr. Vaz : Do the Government intend to continue to provide money for the council? Do they intend to get some of it back? Is the council to be self-financing in the way that the Authorised Conveyancing Practitioners Board is to be self-financing?

The Solicitor-General : There is both a similarity and a distinction. We do not intend to seek to get back the pump-priming money. That is where there is a distinction, compared with the Authorised Conveyancing Practitioners Board. The board figure is £900,000. That is the figure that the hon. Gentleman and I discussed in Committee. I intended to write to him, and I apologise for the fact that I did so only today, with more details of the make-up of that sum. It is intended that some of the start-up money for the Authorised Conveyancing Practitioners Board should be recouped. The purpose of the money resolution is that the necessary financial structure should be capable of being put in place.

Mr. Vaz : Is it right that the latest grant of £130,000 for the next three years will be the last grant that the Government intend to give to the Council for Licensed Conveyancers?

The Solicitor-General : I do not know the answer to that question. However, several hon. Members have asked whether the council is to become self-supporting. That is most certainly the Government's intention. I shall seek to find out whether a decision has been reached on whether that is to be the last pump-priming figure. Question put and agreed to.

Clause read a Second Time, and added to the Bill.

New clause 15

Legal professional privilege

.--(1) This section applies to any communication made to or by a person who is not a barrister or solicitor at any time when that person is--

(a) providing advocacy or litigation services as an authorised advocate or authorised litigator ;

(b) providing conveyancing services as an authorised practitioner ; or

(c) providing probate services as a probate practitioner. (2) Any such communication shall in any legal proceedings be privileged from disclosure in like manner as if the person in question had at all material times been acting as his client's solicitor.

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(3) In subsection (1), "probate practitioner" means a person to whom section 23(1) of the Solicitors Act 1974 (unqualified person not to prepare probate papers etc.) does not apply.'.-- [The Attorney-General.]

Brought up, and read the First time.

The Attorney-General (Sir Patrick Mayhew) : I beg to move, That the clause be read a Second time.

This new clause extends the concept of legal professional privilege so as to apply to the new classes of legal practitioner established by the Bill-- that is to say, authorised advocates, authorised litigators, authorised practitioners and probate practitioners. Legal professional privilege is based on the practice, developed in the Court of Chancery in the first instance, which ensures--this is a sensible and thoroughly up-to-date purpose--that communications made to and from a legal adviser for the purpose of obtaining and providing legal advice and assistance are protected from disclosure in the course of any subsequent legal proceedings. The reason is not undue love of secrecy ; the protection exists to enable the client to confide fully in his adviser without fear of disclosure. That is valuable in the interests of the administration of justice. Clearly, a person seeking advice from one of the new classes of legal practitioner being created by the Bill should be in no worse position, as regards the confidentiality of his communications to and from the practitioner, than if he were seeking advice from an established legal practitioner.

The new clause therefore ensures that communications to or from one of the new legal practitioners will enjoy legal professional privilege, just as if the practitioner acting for the client had been a solicitor.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 16

Discrimination by, or in relation to, advocates

.--(1) The following shall be inserted in the Sex Discrimination Act 1975 after section 35A (as inserted by this Act)--

"Advocates

Discrimination by, or in relation to, advocates.

35B.--(1) It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a woman--

(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil ;

(b) in respect of any terms on which he offers to take her as his pupil ; or

(2) It is unlawful for an advocate, in relation to a woman who is a pupil, to discriminate against her--

(a) in respect of any terms applicable to her as a pupil ; (b) in the opportunities for training, or gaining experience, which are afforded or denied to her ;

(d) by terminating the relationship or by subjecting her to any pressure to terminate the relationship or other detriment. (3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against a woman.

(4) In this section--

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advocate' means a member of the Faculty of Advocates practising as such ; and

pupil' has the meaning commonly associated with its use in the context of a person training to be an advocate.

(5) Section 3 applies for the purposes of this section as it applies for the purposes of any provision of Part II.

(6) This section does not apply to England and Wales."

(2) The following shall be inserted in the Race Relations Act 1976 after section 26A (as inserted by this Act)--

"Advocates

Discrimination by, or in relation to, advocates.

26B.--(1) It is unlawful for an advocate, in relation to taking any person as his pupil, to discriminate against a person--

(a) in the arrangements which he makes for the purpose of determining whom he will take as his pupil ;

(b) in respect of any terms on which he offers to take any person as his pupil ; or

(2) It is unlawful for an advocate, in relation to a person who is a pupil, to discriminate against him--

(a) in respect of any terms applicable to him as a pupil ; (b) in the opportunities for training, or gaining experience, which are afforded or denied to him ;

(d) by terminating the relationship or by subjecting him to any pressure to terminate the relationship or other detriment. (3) It is unlawful for any person, in relation to the giving, withholding or acceptance of instructions to an advocate, to discriminate against any person.

(4) In this section--

advocate' means a member of the Faculty of Advocates practising as such ; and

pupil' has the meaning commonly associated with its use in the context of a person training to be an advocate.

(5) This section does not apply to England and Wales.".'.-- [The Attorney-General.]

Brought up, and read the First time.

The Attorney-General : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker : With this it will be convenient to discuss Government amendment No. 107.

The Attorney-General : In Committee, the Government introduced, and the Committee accepted, amendments to the Sex Discrimination Act 1975 and the Race Relations Act 1976 to make it unlawful for a barrister or a barrister's clerk to discriminate against a pupil on grounds of sex or race and for any person giving, withholding or accepting instructions to a barrister to discriminate on grounds of sex or race. That is effected by clause 53 of the Bill.

In Committee the Government gave an assurance that an amendment to cover Scotland would be tabled on Report. The new clause and the amendment fulfil that undertaking, which has the support of the Faculty of Advocates. I am much fortified by the presence of my hon. Friend the Under-Secretary of State for Scotland, who marks the importance that we attach to the presence of a Scottish Minister when Scottish legislation passes through the House.

A separate clause is required to cover Scotland, because there are differences between the ways in which barristers in England and Wales practise and the way in which advocates in Scotland practise. The most relevant

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difference for these purposes is that advocates do not practise from chambers in the way that barristers do. Therefore, references to tenancies, which occur in clause 53, would not have any meaning. I have said enough about this thoroughly worthwhile provision.

Mr. Fraser : As I am of Scottish ancestry, it is better that I speak to the new clause. Of course we welcome it, as we welcomed the extension of the Sex Discrimination Act 1975 and the Race Relations Act 1976 to barristers and solicitors. It is a pity--I say this with the authority of my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), the shadow Secretary of State for Scotland--that the new clause does not appear in the Law Reform (Miscellaneous Provisions) (Scotland) Bill, which finished its Committee stage at 3 o'clock this morning and is due to come back to the House. We say that for the practical reason that it would be much better if a Scottish clause were found in a Scottish Bill. It is almost the only Scottish provision in an English and Welsh Bill. It would sit better in Scottish legislation. Perhaps that could be considered at a later stage.

The Attorney-General : It is a great pity that several things do not appear in the Bill to which the hon. Gentleman referred. We mark the peculiarity--I shall not go so far as to say anomaly--to which the hon. Gentleman referred by the presence of my hon. Friend the Under-Secretary of State for Scotland. I should be delighted if he said something about it, although I doubt that there is much more to be said. My hon. Friend is here and he will say at once if he wishes to contribute. I think that he would. I shall postpone the remainder of my answer for a moment, if that is in order, Mr. Deputy Speaker.

The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton) : I had not anticipated that I would have to speakon the new clause. The Faculty of Advocates--I am an advocate--would regard discrimination of any kind as unthinkable. It is altogether appropriate that the new clause should be inserted in this Bill, but I shall consider the point that the hon. Member for Norwood (Mr. Fraser) mentioned in case there is any possibility of putting the provision in the Scottish Bill. However, I believe that it is satisfactory in this Bill. If the hon. Gentleman is willing to leave it at that, I shall be most grateful.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New clause 17

Administration of oaths etc. by justices in certain probate business

.--(1) Every justice shall have power to administer any oath or take any affidavit which is required for the purposes of an application for a grant of probate or letters of administration made in any non-contentious or common form probate business.

(2) A justice before whom any oath or affidavit is taken or made under this section shall state in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

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(3) No justice shall exercise the powers conferred by this section in any proceedings in which he is interested.

(4) A document purporting to be signed by a justice administering an oath or taking an affidavit shall be admitted in evidence without proof of the signature and without proof that he is a justice. (5) In this section--

"affidavit" has the same meaning as in the Commissioners for Oaths Act 1889 ;

"justice" means a justice of the peace ;

"letters of administration" includes all letters of administration of the effects of deceased persons, whether with or without a will annexed, and whether granted for general, special or limited purposes ; and

"non-contentious or common form probate business" has the same meaning as in section 128 of the Supreme Court Act 1981.'.-- [The Solicitor- General.]

Brought up, and read the First time.

The Solicitor-General : I beg to move, That the clause be read a Second time.

New clause 17 enables justices of the peace to administer oaths or take affidavits in non-contentious probate proceedings. It provides that the justices must state in the jurat when and where the oath or affidavit was taken or made.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New clause 18

Power of parties in certain cases to fill vacancy

.--(1) In section 10 of the Arbitration Act 1950 (power of court in certain cases to appoint an arbitrator or umpire), the following shall be substituted for subsection (3)--

"(3) In any case where--

(a) an arbitration agreement provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the two appointed by the parties or in some other manner specified in the agreement ; and

(b) one of the parties ("the party in default") refuses to appoint an arbitrator or does not do so within the time specified in the agreement or, if no time is specified, within a reasonable time, the other party to the agreement, having appointed his arbitrator, may serve the party in default with a written notice to appoint an arbitrator.

(3A) A notice under subsection (3) must indicate whether it is served for the purposes of subsection (3B) or for the purposes of subsection (3C).

(3B) Where a notice is served for the purposes of this subsection, then unless a contrary intention is expressed in the agreement, if the required appointment is not made within seven clear days after the service of the notice--

(a) the party who gave the notice may appoint his arbitrator to act as sole arbitrator in the reference ; and

(b) his award shall be binding on both parties as if he had been appointed by consent.

(3C) Where a notice is served for the purposes of this subsection, then, if the required appointment is not made within seven clear days after the service of the notice the High Court or a judge thereof may, on the application of the party who gave the notice, appoint an arbitrator on behalf of the party in default who shall have the like powers to act in the reference and make an award (and, if the case so requires, the like duty in relation to the appointment of a third arbitrator) as if he had been appointed in accordance with the terms of the agreement.

(3D) The High Court or a judge thereof may set aside any appointment made by virtue of subsection (3B)."

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