On a point of order, Mr. Deputy Speaker. I observe that a member of the legal profession is moving the Second Reading of the Bill. I seek your guidance on the question of interests arising. I realise that the hon. and learned Gentleman is a Minister of the Crown, although in his ministerial function he appears in court with the Treasury Solicitor no doubt briefing him from time to time.
I am sure that the hon. and learned Gentleman will not mind my saying that throughout the whole of his professional life he has been totally dependent on solicitors and, indeed, is not allowed to receive a legal income from other persons except through solicitors, who are the subject of intimate concern of the Bill.
Some weeks ago, through the Clerk of the House, I gave Mr. Speaker notice that I intended to raise this point of order if the necessary circumstances arose. It should be made quite plain that if, for example, we had a Nurses Bill, as we did a few years ago, we would not except a nurse to move its Second Reading in the House. It would not be impossible, because I believe there is a trained nurse among our colleagues. The same applies to other professions.
There seems to be a strange belief relating to this particular profession not only that any question of interest should be forgotten, but that it should be reversed and, therefore, that Second Reading of the Bill should be moved by someone with an interest. May I have your guidance, Mr. Deputy Speaker?
As for speaking in the House, one would expect—and I am sure it will happen—that those who have interests will declare them. The question of voting may properly arise after someone has voted so I do not feel called upon at the moment to reply to that point.
It is true that I have the honour to hold the office of Solicitor-General but as the House knows I am a barrister and I say that merely to emphasise what has been perhaps misguidedly raised by the hon. Member for Nottingham, West (Mr. English) in his point of order. I do not stand here as a representative of the Law Society or the solicitors' profession. I speak for the Government because this is a Government Bill. We have inherited it from the Law Society and we have made a number of changes.
I am grateful to the Solicitor-General for giving way. I do not propose to persist in interrupting him. I hope that he will make it plain that the fact that this is a former Private Member's Bill which has been adopted as a Government Bill is a gross breach of faith on the part of the Government. As he is no doubt aware, the Leader of the House and his predecessor said that they would never make Government time and Government support available for a Private Member's Bill. That principle has now been broken. What is more, all this happens to be unnecessary because, as I understand it, the opponents of the Bill after three years have reached a measure of agreement with the Law Society upon it. This procedure is probably unnecessary but it nevertheless represents a breach of faith and I hope that fact will be made plain.
It may be almost a record in this House that I was stopped virtually before I had finished my first sentence. The reason this is now a Government Bill—as would be clear to anyone who had considered it—is that it was twice a Private Bill beginning in another place. However, it involves serious matters of public interest, particularly with regard to the fees which must be paid by solicitors to the Law Society in order to enable it to carry out its very important duties, it being very much in the public interest that it should. Any reduction in these fees would after a time have reduced, much to the public detriment, the duties and services rendered by the Law Society.
We inherited the Bill from the Law Society and we made certain changes. In these we have had the constant and wholehearted co-operation of the Society, and I pay tribute to it for its initiative in originating most of the provisions in the Bill and its support given during the preparation of the Bill.
The Bill started life twice as a Private Peer's Bill in another place. On each occasion it completed its progress there and when it came to this House it was objected to by certain hon. Members. Of course, they had every right to object to it. However, I believed at the time and I still believe that those objections were misguided. It appears, as may be gathered from what was said by the hon. Member for Nottingham, West, that they were seeking some element of lay participation in the process of dealing with complaints against solicitors. That, I suggest, was a matter more for debate than ultimatum.
On a point of order, Mr. Deputy Speaker. This is grossly unfair. Of course we would have raised the matter in debate had there been a Second Reading debate. I hope to speak today when there is such a debate. However, the Bill came on perpetually on a Friday at four o'clock when there was no opportunity for debate. That is the basic reason why the Bill was blocked.
We do not want to continue this for ever. I should have thought that the hon. Member would know that it would be in Committee that these alterations would be made. The Government well understand the complaints about those who appear to be judges in their own cause. The Law Society is a stern judge of its members but it still remains that the professional conduct of solicitors directly or indirectly concerns the public they serve. It is arguable that the public should have some say in determining issues of professional conduct and should make some contribution in formulating the standards which the profession ought to adopt for its wellbeing.
I will come to that in more detail later, but Clause 9 demonstrates that the Government have accepted this argument because it provides for lay membership of the Disciplinary Tribunal which will replace the Disciplinary Committee, that being the forum which hears complaints against solicitors. I do not believe that it is necessary for me to deal with minor matters in the Bill today but I should be glad to deal with any points of substance on which hon. Members would like further explanation.
I propose now to go through the various clauses emphasising the Bill's central theme—the furtherance of the public interest and the interest of the profession in the services which solicitors provide. Clauses 1 to 5 deal with admission of a solicitor and certain aspects of his practice. Clause 1 abolishes the rule prohibiting a foreign national from becoming or practising as a solicitor, he being almost unique in the professions in that respect. The fetters were imposed as a result of the Act of Settlement 1700 and it would seem to us—and the Bill represents this—that a foreign national should be qualified to practise a profession in this country. That proposition is recognised by the Monopolies Commission and in the European sphere by the Treaty of Rome so it seems that after some 273 years the bar to aliens who wish to practise the profession in this country will now be removed.
On this most interesting point, will the Solicitor-General say whether there is a reciprocal provision in the Common Market countries for the admission of our nationals to their professions in a similar way? One would imagine that the Government would have sought this kind of arrangement. I know there is agreement in the Common Market Treaty about it but what steps have been taken to ensure that this takes effect?
The hon. and learned Member has caught me in a position in which I am unable to answer him now. I hope that he will be satisfied if I deal with that point when, with leave of the House, I wind up the debate.
Clause 3 is important and I commend it most strongly. It removes the existing statutory maximum on the fee which every solicitor has to pay in taking out his annual practising certificate. From these fees the Law Society derives most of its revenue which makes it possible to provide the public and the profession with essential services, notably in legal education, law reform, the handling of complaints, resolving misunderstandings between solicitors and clients, certifying bills of costs for non-contentious work and so on. The present maximum of £20 was reached in 1970 and is entirely inadequate for the Society to continue its activities on their present scale. That was one of the reasons which pressed upon the Government the need to take over the conduct of the Bill in order that it should not be delayed again.
If those activities were curtailed that would lead to serious disadvantages to the public, law reform and the general improvement of the solicitors' profession. The fact that the statutory maximum will be removed is not a matter of anxiety because the fee is fixed by the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice and the amount therefore will be settled thereafter by the responsible authority. We may be confident that any increases that are inevitable will be fair to all concerned.
Clause 4 merely enables all practising solicitors to act as if they were commissioners for oaths. It is based on a recommendation of the Law Society and it is heartily endorsed by the Lord Chancellor whom, incidentally, it relieves of the burdensome task of appointing commissioners individually and of the less burdensome task of collecting £10 on the appointment of each commission. It will be of great advantage to the public who are often inconvenienced by the difficulty of finding a commissioner, especially in country districts since the solicitor who is acting for the person who is making the affidavit may not be a commissioner for oaths.
Clauses 6 to 8 concern the Law Society's powers to intervene in a solicitor's practice to deal with the compensation fund and the professional indemity insurance. Clause 6 introduces Schedule 1, the statutory provisions for the Law Society's intervention in the practice of those few solicitors who apparently are guilty of dishonesty, or where there has been undue delay or some similar failing. The provisions are highly complex but I hope that the House will find the arrangement in Schedule 1, with the division into two parts, helpful. It rationalises and clarifies the law in this difficult sphere.
For example Part I of the schedule enables the Law Society to act on reasonable suspicion of dishonesty whereas it must now have a reasonable cause to believe. It also enables it to act when a solicitor has failed to comply with the statutory accounts rules or is bankrupt or in prison. It gives it certain powers to apply for a court order that a third party hand over documents in his possession relating to a defaulting solicitor's practice. That closes a loophole in the present law whereby dishonest solicitors—and fortunately there are very few—can evade the clutches of the Law Society by transferring papers to someone outside their firm.
The compensation fund is the subject of Clause 7. It exists to help the unfortunate few who are damnified by the acts or omissions of dishonest or defaulting solicitors. There is a notable innovation in that when a grant from the fund is refused—and it must be remembered that the grants are discretionary—the reasons for the refusal must be stated. At present grants, if refused, would just be refused and no reasons would be given. A statutory discretion is now required, and that is a discretion which must be properly exercised. Therefore, a person will be able to look at it to see whether it is properly exercised. The removal of the statutory limit on contributions to the fund will also be found in the clause.
A novel compulsory insurance is provided for in Clause 8. It is an insurance against professional negligence and other civil liabilities and not against dishonest solicitors. The victims of negligent solicitors can themselves have recourse only to the solicitor's pocket and not to the compensation fund. Unfortunately, some solicitors are inadequately insured, and a few are not insured at all. Clause 8 remedies that and makes flexible provisions for a variety of methods of compulsory insurance and appropriate sanctions against a solicitor who fails to comply with requirements which may be in force under the clause. It will be a matter for the Law Society, and the profession as a whole, to decide which of the various alternative methods they will prefer. In the end it will look after those few people who bring a successful action involving a sum which a solicitor is unable to meet by way of damages. The unfortunate litigent or client will still be recompensed in full.
I apprecithat under Clause 8 there will be power to compel insurance to be taken out and that this will provide cover for negligence provided that the solicitor has taken out insurance or has renewed it. But there are bound to be cases where for one reason or another that unfortunately has not happened. In those circumstances, will the right hon. and learned Gentleman explain why the compensation fund is limited? It rather looks as though if a solicitor is negligent but uninsured, the unfortunate client will have to whistle for his money and will not be able to call upon the compensation fund to reimburse him for his solicitor's negligent actions.
The compensation fund was set up by the profession to protect those who had suffered at the hands of dishonest solicitors, their clerks or any of their employees. The clause provides that there should be compulsory insurance to cover those cases in which a solicitor has been negligent and a claim against the solicitor has succeeded.
There are three ways in which that may be done under Clause 8. There is the mutual fund, which is paragraph (a), the compulsory insurance which is taken out by the society on behalf of the profession which is paragraph (b), or the requirement for individual solicitors or firms to insure, which is paragraph (c). Either paragraph (a) or paragraph (b) would cover the situation which the hon. and learned Gentleman has posed, but paragraph (c) would not. Those three alternatives have been provided for the Law Society to consider, with the profession as a whole, which they prefer. I have no doubt that if paragraph (c) were the one which was to be preferred the points which have already been made would be borne very much in mind.
Clause 9 is important. In the Acts passed in 1888 and 1919 the Disciplinary Committee was created and given jurisdiction to deal with complaints against solicitors' professional misconduct and related matters. The committee consisted of past and present members of the Council of the Law Society, appointed by the Master of the Rolls. Originally it could report only to the court, but by the Act of 1919 it was given the power to strike solicitors off the roll or to suspend them from practice in appropriate cases. Those provisions were included in the Solicitors Act 1957.
Jurisdiction generally has been extended considerably since 1919. Clause 9 has changed the Disciplinary Committee to a Disciplinary Tribunal. It was perhaps right to form a committee in 1888 when it had power only to report to the court. The committee will now be a tribunal and it will have an extended membership in that lay members, in the true sense, who are neither solicitors nor barristers, must be appointed. Solicitor members may include any solicitor of at least 10 years' standing.
There will be a much wider range of solicitor members than now exists. There will also be lay members who must not have any legal qualifications. The committee has always been independent of the Law Society, being appointed by the Master of the Rolls. Under the provisions contained in Clause 9 the tribunal will remain independent of the Law Society. It is proposed that the lay members should be appointed by the Master of the Rolls. They will be paid out of public funds and not from Law Society funds, which might give at least some outward appearance of a connection.
I am sure that the House will agree that lay members who are brought in to assist should be remunerated and should receive expenses. It must be that the public purse should bear the comparatively small cost which would be involved. Although every tribunal which sits to investigate a complaint about a solicitor must always have upon its board a lay member, such members will be a minority because it is proposed that the tribunal sitting to consider complaints shall consist of three people, two of them being solicitors. They may both be quite young or one may be senior and the other may have 11 or 12 years' experience as a solicitor. There will also be a lay member.
Lay membership and the eligibility of the relatively young solicitor is an important and fundamental change. I say that without implying any criticism of the present system. The present Disciplinary Committee has a reputation as an impartial body. In my experience it has been a vigorous champion of high professional standards throughout its life. It is right now, from the public's point of view, that changes should be made. They were in a sense initiated by what was said by my right hon. and learned Friend the Minister for Trade and Consumer Affairs on 17th May when he announced that the Lord Chancellor and the Secretary of State for Scotland proposed to discuss amendments. I understand that an answer was given to a Question today to the effect that similar provisions are proposed for Scotland.
There is another outcome of this which has been foreshadowed in a newspaper article and in an article in the Law Society's Gazette. The tribunal's functions are principally judicial. But it also considers preliminary stages of complaints and there are a number of occasions when complaints are made which turn out to be more in the nature of negligence, or complaints which do not amount to misconduct—complaints nevertheless where the complainant is extremely distressed by what has happened and believes that his solicitor is to blame.
It seems that a large number of such complaints arise from a misapprehension as to what the Law Society or the Disciplinary Committee can do. The Law Society has the Professional Purposes Committee. Its staff provides an excellent service to the public and is scrupulously fair in dealing with complaints. There is no doubt, and we must face this, that there are a number of occasions upon which complainants are dissatisfied with the manner in which their complaint has been disposed of—when a letter is received from the Law Society saying that the Professional Purposes Committee has investigated the matter and decided that no further action needs to be taken.
The Government have agreed with the Law Society that even though this dissatisfaction may not be based on any justification it would be wrong to be complacent about it and to say, "This is the fact and the public must lump it." We do not think it is sufficient for the public simply to be assured that these complaints are misconceived and, when nothing further has been done, such complaints have been properly dealt with. We have again the comment that the Law Society appears in such cases to be a judge in its own cause.
The Lord Chancellor has taken the view, all along with the co-operation of the Law Society, that the time has come for an independent lay element to be introduced into the Society's system for investigating complaints. What is proposed is that there should be what would be called a lay observer to review complaints in certain cases. The circumstances contemplated are as follows. A lay observer would be appointed by the Lord Chancellor to consider those cases in which the complainant is dissatisfied with the treatment of his complaint by the Law Society's Professional Purposes Committee and wishes the matter to receive further consideration. The lay observer's main task would be to consider whether the Society's handling of the complaint had been satisfactory. In discharging this task he would be given full access to the relevant papers.
If, having looked at all the papers, the lay observer is satisfied with the way in which the complaint has been treated he will so inform the complainant. If he is dissatisfied he will be expected to communicate his views to the Law Society and, if he thinks it necessary, to recommend to the Society such further steps as he thinks it should take. For example, he may advise that the solicitor should be seen again, or ask for further explanations or that the matter should be expounded more fully to the complainant, or even that proceedings should be brought before the tribunal.
The observer will be free, if he thinks fit, to take before the tribunal a complaint which the Law Society does not consider justifies disciplinary proceedings. The observer will be required to make an annual report of his activities to the Lord Chancellor. Again, so that there should be no suggestion of his acting as an agent or of there being any sort of link with the Law Society, it is proposed that the lay observer will be paid out of public funds.
As the Solicitor-General will realise, this is of immense importance to me, since although it is in a different form to that which I suggested, this is really the ombudsman I have asked for over the past two or three years. May I ask why this is not in the Bill? The Law Society has mentioned this proposal and the Solicitor-General is now putting it forward. It seems that we are not agreed on the details, but these are Committee points. Is the hon. and learned Member giving us an assurance that this will be done in Committee? Not only is this not in the Bill but his last statement is not included in the Money Resolution. It seems that there will need to be an amendment of the Money Resolution. I take it that this will be moved in Committee because it is all very airy-fairy at the moment.
The lay observer will not be an ombudsman in the sense that we know at present. If we compare the duties which I have said will fall upon his shoulders and the circumstances in which he will investigate matters, the difference will be clear. I do not want to take up the time of the House any further at this stage.
It has been considered whether this should be part of the Bill and decided, I think rightly, that it should not. It is an experimental suggestion at the moment, something which will have to be considered after it has been put into practice. It may need changes of all sorts. However it was written into the Bill it might be found, within a few months, that it was not working in quite the way in which the Law Society and the Lord Chancellor wanted it to work. It might not be quite as effective as it could be if there were a free hand to change it.
The concessions made and the interest shown in this by my noble Friend makes it quite unnecessary that there should be express provisions in the Bill. As for the cost, which will not be very great, it will be borne out of the Lord Chancellor's Vote as an incidental expense relating to the administration of justice and therefore does not have to be included in the Money Resolution.
These proposals have been made with the fullest co-operation from the Law Society. They are a considerable step forward. They are a recognition of the interest that the public has in those professions and occupations—we have had examples of others over the years—where the allegation is that the profession or occupation is the judge in its own cause. I invite the House to welcome the wholly novel idea of scrutiny by an independent and responsible layman on these occasions.
I emphasise that it will not be the task of the observer to give rulings on professional conduct. That is a matter for the tribunal to which everyone, including the observer, will have access. Equally, the observer will have no jurisdiction to determine questions of professional negligence. These again—and this has led to some misunderstanding in the past—are matters for the court.
But he may well wish to consider the kind of case in which the Law Society maintains that the complaint is one of negligence, for the court to deal with, and not one of professional conduct for the Society, and invites the complainant to exercise his or her remedy in the courts. It is possible to envisage occasions on which the observer might say to the Society, "I want you to reconsider this. It seems to me there is also an aspect of professional conduct here for the Society to consider and if necessary to send to the disciplinary tribunal."
Clause 11 is a technical one putting beyond doubt the power of the Law Society to supply the Director of Public Prosecutions with information obtained under its statutory power concerning solicitors' accounts, which is obviously good sense and which will speed up investigation and inquiry in cases concerning dishonest solicitors. Clauses 12 to 14 are highly technical, dealing with costs and taxation. Unless the House wishes me I will not deal with them in more detail. They are amendments which are designed to assist the client rather than the solicitor, save in one case. In the past a solicitor in non-contentious business had to get his costs taxed. Nowadays that will not be necessary unless the client raises objection—except in cases of infants and those under a disability.
I suppose that my credentials to speak on the Bill will meet with the approval of my hon. Friend the Member for Nottingham, West (Mr. English). I am not a solicitor and I am not a barrister, but it was thought by my colleagues that it was desirable that a layman's point of view on the Bill should be put from the Opposition Front Bench.
The two forerunners of the Bill ran into trouble. They were Private Members' Bills. As we all know, the House treats Private Members' Bills abominably. Such Bills frequently run out of time or are blocked by noisy or persistent minorities' and other diverse wickednesses can be inflicted on them. Therefore, I do not complain that the Government have decided to introduce a Bill of their own.
The Bill contains some important recommendations, many of which will be better discussed in Committee. However, we should not give an impression, as I rather think the Solicitor-General did, that we are legislating by leave of the Law Society. We are grateful for the Law Society's co-operation and help but I do not like the phrase "inheritance from the Law Society". I hope that it is not a Law Society Bill. It is a Government Bill, and it is no less important for that.
My qualifications, if I can call them such, for taking part in the debate are that after years of very hard study and frequent exposition I qualified for the unique status in the eyes of the Law Society of a well-informed layman. In the course of broadcasting for over 10 years on the BBC "Can I Help You?" programme I wandered into most interesting human affairs, including divorce, marriage, bastardy, landlord and tenant matters, noise, nuisance—the lot.
In the course of that I studied Hill and Redmans "Law of Landlord and Tenant", Wills's "Workmen's Compensation"—a book recently called into use by my right hon. Friend the Leader of the Opposition in another connection—"Williams on Wills", McGarry on "The Rent Acts" and many other works. The question then arose as to whether I was purporting to give legal advice, especially in the voluminous correspondence I had from listeners at the time. Three qualities of my work came under professional criticism: first that it was free, second that it was clear, and third that, on the whole, it was better advice than was available on some matters from a then depleted profession. All were serious criticisms to make of a well-informed layman.
After much negotiation with the BBC I was flattered to receive notice that I had been graded by the Law Society as a well-informed layman, and I was permitted to live up to my reputation. Those are my credentials. Over the years I received probably thousands of letters from citizens on legal matters and in particular their relations with solicitors.
The Bill is partly intended to remove out-of-date limitations upon the entry to the profession and upon what I describe as union contributions. Secondly it is intended to provide better consumer protection. That second object is the important part of the Bill. The limitations on entry which are to be removed have been mentioned by the Solicitor-General. They include the prohibition on non-British subjects being admitted as solicitors. I do not think that the Solicitor-General mentioned the removal of the condition that a candidate must be morally fit to be a solicitor of the Supreme Court. The term "moral fitness" in previous legislation is to be substituted by a reference to an applicant's character, his fitness and his suitability to be a solicitor. This is a more realistic and appropriate test of fitness. We should not get involved with moral issues in considering the suitability of a person for appointment as a solicitor.
I am sure I can say that the Trades Union Congress is fully in support of the provision in Clause 3 which removes the statutory limitation on union dues. At present the dues can be fixed by the Law Society with judicial consent but shall not exceed £20 a year. This limitation is a grave embarrassment to the Law Society. If it is not removed the society will become bankrupt. It will not be able to function on that miserable contribution, which at present is the maximum prescribed by law. The Bill leaves the fee under the control of the judges, but subject to that judicial control there is no maximum.
Clause 5 contains an interesting change in the law. Apparently if a solicitor asked for his name to be restored to the roll, it having been removed at his own request, he had to apply to the disciplinary committee. It was an indignity that he had to go before the disciplinary committee, before which he had not previously appeared, to have his name put
back on the roll. The Bill provides for the name to be put back by application to the society.
I turn now to some elements of consumer protection, beginning with that which relates to the greater convenience of the public and which is in Clause 4. It enables practising solicitors to act as if they were commissioners for oaths without appointment as such. This will remove a serious grievance which many citizens have had in scouting around to find a commissioner for oaths. They have gone into a solicitor's office only to be told "We are not commissioners for oaths. We cannot help". A caller who asks where the nearest commissioner for oaths is may be told to take a 24 bus, get off at Trafalgar Square and look around, as it is believed that there is a commissioner for oaths in that area. People cannot understand this.
What do commissioners for oaths have that other solicitors do not have? No one has ever offered an explanation, except that some solicitors have licences to be commissioners for oaths while others have not. Some solicitors may not want the bother of being commissioners for oaths. When a citizen with an affidavit or declaration that he wishes to sign and declare before a commissioner for oaths pops in to the office and asks "Can I swear to this document?" it can be a disruption of other work, but a commissioner for oaths is under an obligation to provide that service.
I hope that one inconvenience will not be replaced by another. The clause enables but does not require a solicitor to act as a commissioner for oaths. I hope that there will not be a great deal of contracting out of acting as commissioners for oaths because solicitors find the function a little too much trouble and not sufficiently remunerative.
The position could be worse if, instead of scouting around for a commissioner for oaths and knowing that when one found him he would do the job, one now had to scout around for a solicitor who would act as a commissioner for oaths. I hope that the Law Society will impress upon solicitors the desirability of their acting as commissioners for oaths under the power the clause will give them.
Clause 8 deals with professional indemnity, which is very important. It confers new powers on the Law Society, which, with the concurrence of the Master of the Rolls, may make rules requiring payments to be made by solicitors for the provision of indemnity to meet liability for professional negligence. At present solicitors may take out insurance voluntarily, rely on their own resources to meet any award of damages against them, or simply neglect to have insurance or resources and be men of straw when the eventuality occurs. It is important that solicitors are properly covered for indemnity against actions for damages.
Clause 6 deals with the Law Society's powers of intervention in the affairs of solicitors, the compensation fund and so on. Those powers are fairly drastic. When the society has reason to suspect dishonesty by a solicitor, it can move in in a rather drastic fashion. Even in cases of complaint of undue delay, it will have powers under Schedule 1 to look into the affairs of the solicitor complained of.
I think that the main cause of complaint against solicitors is delay. It is infrequently negligence. The cause of delay is often overwork and the interruption of the rhythm of activity by urgent cases with which solicitors are asked to deal. Very few solicitors in practice are in command of the rhythm or volume of their workload.
A number of people complain about the time solicitors take to wind up estates and to deal with matters referred to them. Clients often do not understand the volume of work and the difficulty of completing the task in hand. The Bill provides that the powers of intervention shall apply, with certain reservations, to cases of undue delay.
The qualifications to the rather drastic rights of intervention are found on page 13 and in line 40 on page 16. In cases of suspected dishonesty the Law Society could, in certain circumstances, require a solicitor's mail to be redirected so that he does not have the opportunity to handle mail which would normally come to him. That right of intervention does not apply in the case of undue delay. The Law Society should have positive rights of intervention where the complaint is of serious delay.
The present limit of £10 as the annual contribution to the compensation fund is removed. The proposals about the fund appear to remove distinctions between provisions governing the two types of grant that can be made under the fund. The first concerns loss incurred through the dishonesty of a solicitor. The second is made on the ground of hardship, when a grant can be made without proof of dishonesty, where there is simple failure to account for moneys received. Even where there is no financial loss to the client, serious hardship could be caused by default. Clause 7 brings the two types of compensation within the same discipline.
Before coming to Clauses 9 and 10, I want to refer to a matter which would have been relevant to the Bill if a clause in an earlier version of the Bill had been carried forward into the present Bill. Clause 7 of the 1972 Bill, dealing with the restriction on practice as a solicitor, has been left out, because it was transferred to the Administration of Justice Act 1973, of which it forms Section 4. That clause extended somewhat the right of a practising solicitor who is a justice of the peace to sit as a magistrate in a petty sessional area in which he does not ordinarily practise. I understand that that was an extension of the right of a solicitor to act as a magistrate.
Section 4 of the Administration of Justice Act 1973 states:
Where the area for which a solicitor is a justice of the peace is divided into petty sessional divisions, his being a justice for the area shall not subject him or any partner of his to any disqualification under this section in relation to proceedings before justices acting for a petty sessional division for which he does not ordinarily act.
In my experience as Chancellor of the Duchy of Lancaster, however, I came across serious disquiet among members of the Bar at having on the bench a solicitor from whom barristers could and did receive instructions. It was possible for them to be appearing in court where on the bench sat a solicitor who in other cases was their instructing solicitor. They did not like it. Neither did I. As I happened to be, as Chancellor of the Duchy of Lancaster, the appointing authority for all magistrates in the County Palatine, I was able to decide for myself whether it was appropriate for a solicitor to be appointed a magistrate.
I believe that it is not a good thing to mix up the law and the lay magistracy. I would have preferred to see a disqualification of solicitors from being magistrates. I believe that the place of the lawyer is in the well of the court, not on the bench. I realise that that might deprive the bench of the great advantage of the intellect and experience of many solicitors. Nevertheless, we pride ourselves on having a lay magistracy. It would be desirable not to extend the right of solicitors to act as magistrates but rather to restrict that right.