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Lord Hardie: I oppose the amendment for reasons which I can state no more clearly than as stated by the noble and learned Lord, Lord Rodger of Earlsferry. We are dealing here with business associations. The reservation of business associations is intended to include all business associations, including partnerships within the meaning of the 1890 Act, and limited partnerships within the meaning of the Limited Partnerships Act 1907. It would not make any sense to make a distinction between Scottish partnerships and partnerships south of the Border in this context. I accept, of course, that in terms of the Partnership Act a Scottish partnership has a separate legal persona. But that is really neither here nor there in the context of this provision. Indeed making a specific exception for Scottish partnerships would be anomalous in this context. Therefore I am sure the noble Earl will agree that there should not be competing regimes of business regulation--that is what we are talking about--north and south of the Border. For that reason I invite the noble Earl to withdraw his amendment.
The Earl of Mar and Kellie: I accept that competition policy is not being devolved. However, I am still left with the problem of knowing how the Scottish parliament will ask this Parliament to alter the law on Scottish partnerships when such an issue remains a minority one within all that the United Kingdom has
to arrange and decide. However, as I suspect there is no answer to that point, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendment No. 191 not moved.]
The Earl of Balfour moved Amendment No. 192:
The noble Earl said: Under the competition provisions of Schedule 5 I felt that in the interpretation of the legal profession we should include the ancient position of notaries public. I understand that goes back long before the Union of the Crowns. I wondered why it had not been included. I think most of us have received letters from the Law Society of Scotland on this point as we are dealing with the interpretation of the legal profession. I know that the noble Earl, Lord Mar and Kellie, has tabled Amendment No. 192A on this point. The inclusion of estate agents and other such bodies in the definition of "the legal profession" leaves me with some doubts. I am sorry, but I cannot support that proposal. I beg to move.
The Earl of Mar and Kellie: My Amendment No. 192A is grouped with this one. As the noble Earl said, that amendment goes further than his by adding definitions to "the legal profession".
The omission of notaries public, estate agents, those holding rights to conduct litigation and those with rights of audience from the definition is significant. I believe that the regulation of anti-competitive practices and agreements within the legal profession should be devolved. Aside from notaries public, estate agents are divided between solicitor estate agents and non-solicitor estate agents. An existing level playing field is now disappearing because the regulation of estate agents will fall under two different parliaments depending on whether they are solicitors.
Notaries public act wholly within Scots law; they are appointed by the Court of Session and are disciplined as solicitors. The position of those with rights of audience under Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 includes solicitor advocates as well as non-lawyers. As this section of Schedule 5 relates to competition policy, it would be appropriate to have one, rather than two, standards within the legal profession.
Lord Mackay of Drumadoon: I support both these amendments. They highlight a problem that has arisen in the drafting of this section of Schedule 5. A role carried out by certain professional persons is, in certain instances, a reserved matter and in others a devolved matter. I should perhaps declare an interest, having at one stage petitioned to be a notary public, but having abandoned the position because I had decided to be struck off the roll of solicitors pending my admission to the Faculty of Advocates. So I am a "suspended notary public", if that is a concept recognised by the law.
The council of the Law Society of Scotland has the role of preparing and presenting petitions on behalf of individuals to the Court of Session so that they can be admitted to public office as notaries public. As I understand it, it also has responsibilities for the regulation of notaries as they discharge their public duties and deals with any disciplinary matters which may arise.
Under the Bill, as is clear from Section 3 of Schedule 5, the,
is to be a devolved matter, and rightly so. The Law Society is concerned that part of its duties in respect of certain individuals is to be reserved and part is to be devolved. The society believes that there is a measure of illogicality in that.
The same point arises in relation to the amendment proposed by the noble Earl, Lord Mar and Kellie. The noble Earl has fully explained how the problem arises. The estate agent is the classic example. As noble Lords may know, a significant part of the work carried out in solicitors' firms involves the buying and selling of houses. The estate agency part of that transaction is frequently handled by solicitors in Scotland, whereas it is normally handled by estate agents in England. But estate agents in Scotland will be regulated under the Bill as a reserved matter, whereas solicitors doing exactly the same job will be regulated by the Scottish parliament as a devolved matter. That seems illogical. So, too, is the very limited possibility of people holding rights to conduct litigation and exercising rights of audience under the 1990 Act who do not fall within the qualification of being solicitors or advocates. These are helpful amendments suggested by the Law Society. Notwithstanding my lack of success with a previous amendment, I hope for a constructive response.
Lord Selkirk of Douglas: I support my noble and learned friend on this matter. It seems that the Government's drafting is based on a misunderstanding. I say that because the Scottish Home Affairs Minister, Mr. Henry McLeish, wrote to the Law Society of Scotland on 14th May. Perhaps I may quote from the letter. He said:
With the greatest respect to the Scottish Minister of State for Home Affairs, strictly speaking what he wrote was not correct. Notaries are admitted under the Solicitors (Scotland) Act; secondly, they are admitted by the Lord President of the Court of Session; thirdly, they are subject to the discipline of the Law Society of Scotland; and fourthly, they are capable of being prosecuted before the Solicitors Discipline Tribunal. I therefore suggest that as notaries have to sustain and endure the trials and tribulations of the legal profession, they should also be recognised for what they are. It seems that the definition of "legal profession" is defective for that reason. Should the Bill create a
Similarly, it is surely not appropriate that solicitors and advocates will be regulated by the Scots parliament, but that those with rights under Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act will be regulated by the United Kingdom Parliament. It could lead to problems with consumers in that it could create an uneven playing field. There might be difficulties in regard to local enforcement of competition rules.
I appreciate that Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act has not yet been enforced. However, it might come into force. If so, provision for that eventuality should be made in this Bill. It seems that for the purposes of competition law the Scots parliament should have jurisdiction over all the professionals acting in the same economic sector. If the Bill gives the Scots parliament powers over advocates and solicitors but fails to give those powers in relation to notaries and estate agents, the matter merits careful examination by the Law Officers. I hope that the noble and learned Lord the Lord Advocate will be able to give a favourable reply.
Baroness Carnegy of Lour: I have no owlish wisdom on this subject, except that some years ago I took through this House a Bill which became the Property Misdescriptions Act. That measure applied to both estate agents and solicitors acting as estate agents. I am wondering how the Act is affected by devolution. The noble and learned Lord may not be able to answer the question now. However, I believe it to be relevant.
Lord Rowallan: I must declare an interest as a member of the Royal Institution of Chartered Surveyors. The point raised by the noble Earl, Lord Mar and Kellie, needs to be examined closely. It seems totally illogical that estate agents and lawyers who are doing the same work should be dealt with in two different ways.
Page 70, line 5, after ("solicitors") insert (", notaries public").
7 p.m.
"Regulation of ... practices of the legal profession for the purpose of regulating that profession or the provision of legal services",
"As you say ... all notaries public in Scotland ... are solicitors",
"That does not mean, however, that notaries public, as such, form part of the legal profession".
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