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Second Standing Committee
on Delegated Legislation
Tuesday 26 November 2002
[Mr. David Taylor in the Chair]
Draft Access to Justice Act 1999
(Solicitors' Practising Certificates)
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,
That the Committee has considered the draft Access to Justice Act 1999 (Solicitors' Practising Certificates) Order 2002.
On behalf of the Committee, I wish to say how pleased we are to see you in the Chair, Mr. Taylor.
It is proposed that the instrument be made in exercise of the powers conferred on the Lord Chancellor by section 47(1) of the Access to Justice Act 1999 to amend section 11(3) of the Solicitors Act 1974. The order is subject to affirmative resolution by virtue of section 47(2)(b) of the 1999 Act.
Section 1 of the 1974 Act gives the Law Society the power to require solicitors to hold a practising certificate in order to practice. Section 11(1) of the Act provides that the Law Society may charge a fee for the issuing of practising certificates. Section 11(3) of the Act provides that all moneys raised by the issuing of practising certificates
''shall be applied in such manner as the Society may think fit for the purposes of the Society, including facilitating the acquisition of legal knowledge''.
The purpose of the order is to ensure that the application of fees raised by the Law Society from compulsory subscriptions is, unlike hitherto, restricted to those purposes that the Law Society performs in the public interest and from which both the public and Government benefit. In seeking approval of the order, I wish to make it clear that the Government believe that it is right that a professional body should be able to spend money generated from compulsory subscriptions on certain activities only. However, the Government have no wish to stifle the many useful functions in the public interest that the Law Society currently performs and from which both the public and the Government benefit.
The Lord Chancellor made the position clear to Parliament during the passage of the Access to Justice Act when he said that
'' 'practice support' or practice management and the 'raising and maintenance of standards' will be covered by compulsory fees . . . These activities are entirely compatible with the role of a regulatory body''.—[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 458.]
Mr. John Burnett (Torridge and West Devon): Will the Minister explain whether the rules that are currently before the Committee will prevent the Law Society from vigorously campaigning, as it has in the past, against the objectives of a Government?
Ms Winterton: As I shall explain, the rules will enable the Law Society to comment—and perhaps
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lobby—on any aspect of the Government's policy that affects the legal profession. The type of work to be undertaken is defined to enable money to be spent on saying whether the Law Society agrees or disagrees with a particular aspect of the Government's legislation that applies to the legal profession. I think that such details will become clearer later in the debate when I set out the specific areas to be covered.
Section 47(1) of the 1999 Act provides that the Law Society should be restricted in its application of fees raised from the issuing of practising certificates to
''(a) the purposes of the regulation, education and training of solicitors and those wishing to become solicitors, or
(b) both those purposes and such other purposes as the Lord Chancellor considers appropriate.''
Proposals made to the Lord Chancellor by the Law Society have been considered by the legal services consultative panel. The panel recommended that the wording that was proposed by the Law Society should be adopted in any order made under section 47(1) of the 1999 Act.
The Lord Chancellor has considered the Law Society's proposals and the advice that was given to him by the legal services consultative panel. The Lord Chancellor has taken account of the desirability of approving purposes for the Law Society that are broadly similar to those that have already been approved in respect of the General Council of the Bar. I know that Committee members were present during the approval of that draft instrument. The Lord Chancellor has concluded that, subject to various drafting changes, the Law Society's proposals should remain essentially unchanged. Those proposals have been agreed by the Law Society and the Master of the Rolls.
The order would amend section 11(3) of the 1974 Act by specifying revised purposes for which the Law Society may apply funds that are raised from the issue of practising certificates. Those revised purposes are the regulation, accreditation, education and training of solicitors and those who wish to become solicitors, including maintaining and raising their professional standards and giving advice on practice management and practical support for a solicitor's practice; the participation of the Law Society in law reform and the legislative process; the provision by solicitors, and those who wish to become solicitors, of free legal services to the public; the promotion of the protection by law of human rights and fundamental freedoms and the promotion by the Law Society of professional interests through discussion with, and participation in the activities of, relevant national and international bodies, governments and the legal professions of other jurisdictions. All of those activities, which are already undertaken by the Law Society on the basis of subscriptions from its members, are useful functions and are clearly in the public interest.
The provisions of the order, which amends section 11(3) of the 1974 Act, are compatible with the rights that are set out in the European convention on human rights. The order, which amends and adds to the purposes for which fees might be raised by the issue of practising certificates, was anticipated during the debates on the Bill that became the 1999 Act. For
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that reason and because section 47(1) makes specific provision for the exercise of the amending powers, I invite the Committee to approve the order.
Mr. Nick Hawkins (Surrey Heath): May I join in the Minister's heartfelt welcome to you, Mr. Taylor? I am sure that the Committee is grateful to you for stepping into the breach at short notice.
I shall be brief, but I start by declaring an interest. For the record, I am a barrister, not a solicitor, and I do not currently undertake cases in court. I have received a helpful brief from the Law Society that says that it
''has been fully consulted on the drafting of the provisions.''
The Law Society says that
''the terms of the order—and the thinking behind it—follow quite closely the provisions which the Law Society suggested in its submission to the Legal Services Consultative Panel.''
Those suggestions led to many of the provisions in the 1999 Act.
The Law Society says that it
''is satisfied that the terms of the Order will enable it properly to carry out its important regulatory activities—covering arrangements for submission to the solicitor's profession; making the Solicitors' Practice Rules and the rules concerning Indemnity Insurance; monitoring compliance with the rules; dealing with complaints about solicitors' conduct; and where necessary prosecuting cases before the Solicitors Disciplinary Tribunal.
In addition—as the Access to Justice Act envisaged—the Order enables the Law Society to fund its other public interest activities from practising certificate fee income.''
That matter was raised by the hon. Member for Torridge and West Devon (Mr. Burnett). I share the conviction that prompted his intervention, which was that everyone in a free society would share the view that it is important that professional bodies continue to be able to lobby Governments of any political colour or persuasion. That is vital. There was concern that some aspects of the 1999 Act might make solicitors' lives—and that of the Law Society—more difficult, but as I recall it those issues were thoroughly debated when the Bill was considered in Committee. I have no doubt that the hon. Member for Torridge and West Devon has some points to make, and I give way to him.
Mr. Burnett: The hon. Gentleman played a distinguished part in relation to the 1999 Act. I think that he would agree that the solicitors' profession had doubts concerning the possibility that the Act would be prejudicial to the public that solicitors seek to serve. Does the hon. Gentleman agree that those doubts have largely been vindicated?
Mr. Hawkins: I reciprocate the hon. Gentleman's kind words; he and his hon. Friends played a big part in relation to the 1999 Act. Although the matter that he mentions is not connected with the order, he is right that some concerns have been vindicated, particularly in terms of the opportunity for firms in the field of, say, personal injury, to deal with legally aided clients. He and I share views on that, but that is an issue for another day.
Given that the Law Society, having considered the order carefully, is happy that its ability to carry out its
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public interest and lobbying work and other public interest activities will not be compromised by the order, we Conservative Members have no reason to oppose it. I am happy to support what the Minister has said.
Mr. Burnett: I welcome you to the Chair, Mr. Taylor. We should not go on meeting like this; it seems that every week you chair a sitting of the Standing Committee in which I am involved. I must place it on the record that I am a solicitor, but I do not practise. I should like to thank the Government for producing an excellent explanatory memorandum. I have bellyached in the past about the inadequacy of the notes on the reverse of statutory instruments. The explanatory memorandums are very useful.
The statutory instrument disappoints me. I am surprised that it has been brought forward with the co-operation of the Law Society. I wonder what consultations have taken place between the society's members. Did the society consult widely with its members before sponsoring and co-operating with the measure? I realise that that is not a matter for the Minister—she does not run the Law Society—but that must have been one of the questions that she asked it.
I should have thought that the existing rules were satisfactory. My main question to the Minister is: are the Government intent on fettering or emasculating the Law Society as an independent organisation capable of vigorous campaigning against any Government policies of which it disapproves? I remember the Law Society's excellent campaign during the progress of the Access to Justice Bill, and was delighted to join with the Law Society in its attack on some aspects of the Bill, not least in expressing the view that there was a likelihood that civil legal aid would wither on the vine. That is beginning to be borne out.
I believe that the order is intent on curbing freedom, and I deeply regret that. It is contrary to public interest, which is mentioned in the so-called ''Policy Objective'' in paragraph 9 of the explanatory memorandum. I take the point, made by the hon. Member for Surrey Heath (Mr. Hawkins), that the Law Society is happy with the order, but I wonder how happy members of the Law Society are with their society's co-operation with the order.
I do not want to detain the Committee for too long, but I raise an esoteric point about the regulation done by the Law Society—I believe that that is in order. The regulation of the profession is one thing that is covered by the costs that solicitors pay for practising certificates. All too often, regrettably, the Law Society has to interfere in the affairs of solicitors' firms. There was a notorious recent case in north Devon involving breaches of trust and gross overcharging by such firms. I do not expect the Minister to respond to my point today, but I hope that she will write to me. The Law Society's intervention team has had a problem securing solicitors' premises and running down the firm from those premises. The team does not have the right to do that at present because often the premises are
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leasehold, and the Law Society has no right to stay in them. Files, records and accounts consequently have to be moved miles away. In the case that I mentioned, they had to be moved from Barnstaple to Bristol, and many important papers were lost.
Will the Minister consider granting the Law Society a statutory right to use premises for, say, 12 months following an intervention so that it may wind up the affairs of a defaulting firm of solicitors in as orderly a manner as possible? Legal problems of asserting a tenancy arise—