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Lord Hardie: I am grateful to all noble Lords who have contributed to the debate on these amendments. I am also grateful to noble Lords for their explanation of the amendments, which seek to widen the definition of "the legal profession" for the purposes of the exception that was made to the reservation of competition policy.
It seems to us that that is an appropriate definition. I believe that the legal profession--indeed any profession--ought to be limited to those who can be said to be part of that profession or related to it and subject to its professional rules and practices.
If I may deal with the point raised by the noble Lord, Lord Selkirk of Douglas, in relation to notaries public, I accept that from what I have said it would appear to follow that they ought to come within that definition because they are clearly part of the legal profession, are related to it and are subject to its professional rules and practices. However, the point may be academic. It is my understanding that all notaries public in Scotland are in fact solicitors. Therefore the word "solicitors" in the definition encompasses notaries public and it would be unnecessary to include them in the definition.
Lord Selkirk of Douglas: I am grateful to the noble and learned Lord for giving way. If notaries public are covered by the word "solicitor", would it not be enormously helpful if that could be clarified in the legislation? In other United Kingdom legislation they are not covered by the word "solicitor". It would make a great difference to notaries public throughout Scotland if that matter could be clarified and tidied up with an amendment.
Lord Hardie: With respect, I do not think that that is necessary. The concept of a notary in England is quite different. It is my understanding that, whereas in Scotland all notaries public are solicitors, the position is different in England and Wales, and in that case I can understand that there would be a need for a specific reference to notaries public in English legislation. In Scotland, where all notaries are solicitors, they are encompassed by the definition in the Scottish legislation.
I intended to go on to anticipate a point. The noble Lord referred to a provision in the miscellaneous provisions Act which has not been introduced. I can see that the question might be raised as to what would happen if at some stage in the future it were possible for a notary public to be admitted who was not a solicitor. If the position in Scotland were to change so that notaries public were not also solicitors, the matter would be reconsidered at that time. Clause 29 provides a mechanism for making changes to the schedule of reserved matters, and we can thus allay the fears of the Law Society of Scotland in that regard.
As far as estate agents are concerned, I am surprised that the Law Society of Scotland is promoting an amendment to include estate agents as part of the legal profession. As I understand it, the Law Society of Scotland has for many years been at pains to explain that estate agents are not solicitors and that they provide a quite different service, and a different quality of service, from that provided by surveyors who act as estate agents--with all due respect to the noble Lord, Lord Rowallan.
The position of estate agents is regulated in another way. Estate agents are reserved and are subject to regulation by the Department of Trade and Industry in the context of consumer protection. That regulation will apply not only to estate agents who are surveyors and
As the noble Lord, Lord Selkirk of Douglas, very properly pointed out, Section 25 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 is not yet in force and there are no present plans to commence the provision. Again, I am surprised at the Law Society of Scotland suggesting that, once this provision was in place, someone who qualified under it should be seen as a member of the legal profession. They would have gone through a different training exercise from that undertaken by solicitors. If one went out into the street and asked members of the public what they understand by the term "the legal profession", I am sure that in England they would say, "barristers and solicitors", or, in Scotland, "advocates and solicitors". One can see why it would be extended to people undertaking executry business under the Law Reform (Miscellaneous Provisions) (Scotland) Act because solicitors tend to undertake executry and trust business. If this provision came into force, one would be dealing with other professions, but non-lawyer groups, who would then be encompassed in the definition. In my respectful submission, it would not be appropriate to include such people in this definition--all the more so because the provision is not in force.
Lord Rodger of Earlsferry: I wonder whether the noble and learned Lord the Lord Advocate can help me with one matter, on which he may wish to write to me. The definition of the legal profession is given as, "advocates, solicitors", and so on. But, as the noble and learned Lord will know, certain foreign lawyers set themselves up in Scotland and can deliver services there under various pieces of European legislation. In that regard, there is to be an establishment directive. So far as such people are subject to UK regulation, would they be subject to regulation by the Scottish parliament, or would that remain a reserved matter? Prima facie, unless they became solicitors, and so on, by virtue of the establishment directive, it does not appear that they would fall within that definition.
Lord Hardie: I should like to consider that point in some detail. As the noble and learned Lord observed, once the establishment directive is in place, if such people became, in terms of the directive, members of the profession of solicitors or of the
The Earl of Balfour: As I think the noble and learned Lord, Lord Hardie, said, the law would need to be changed if notaries public were not necessarily solicitors. Who would change the law, the United Kingdom Parliament or the Scottish parliament?
Lord Hardie: Clause 29 would regulate that situation and Her Majesty, by Order in Council, would modify the schedule in the way in which Her Majesty considered it necessary or expedient. Accordingly, it would be an Order in Council in this Parliament which would alter the provision.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, am I right in thinking that the Clause 29 procedure would require affirmative resolution of both the Scottish parliament and this Parliament? This may be a matter on which we touched the other night, but as I read Clause 102(1) and 102(3) of the Bill, we see "29" in both. As I construe what are inevitably complicated provisions, both parliaments would have the right to have a say as to whether a matter goes one way or another.
Lord Hardie: The position that I put before the Committee was that it would require the agreement of the Scottish parliament. I should like to stick with that position. If I am wrong on that, I shall write to the noble and learned Lord.
I have been given advice, but in the exercise of my discretion I would rather check up and be precise. It would involve affirmative resolution in both Houses of this Parliament and the agreement of the Scottish parliament. Whether it would then require a specific affirmative resolution of the Scottish parliament, I am not prepared to say at this stage.
The Earl of Mar and Kellie: Before the noble Earl, Lord Balfour, concludes, I believe that the Lord Advocate said that there is a level playing field and that all estate agency regulations will continue to come from this Parliament. I intend to withdraw my amendment. But I wonder whether that is the way everybody sees the situation. No doubt we shall return to this issue at Report.
The Earl of Balfour: I should be grateful if the noble and learned Lord, Lord Hardie, would be kind enough to send me a copy of his letter. I should like to read what he says. Although I shall withdraw the amendment, I reserve the right to come back with further questions at Report if I am not satisfied with his response. I beg leave to withdraw the amendment.