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Clause 13

Volume 889: debated on Monday 24 March 1975

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Disqualification Of Solicitor Who Is A Justice

I beg to move Amendment No. 6, in page 9, line 39, after "pro ceedings" insert:

'in which the said solicitor is participating in his capacity as a justice of the peace".

With this amendment we may discuss Amendment No. 7, in page 10, leave out lines 3 and 4 and insert:

"for a licensing division, being a division in which the solicitor does not ordinarily exercise any functions as a justice of the peace in a licensing court".

An amendment in these terms was proposed in Committee and the Government then said that they would be prepared to consider the matter before Report. Sadly, though the Government have considered the matter, they have not chosen to table an amendment to meet the point, so it is necessary for us to press the matter.

The clause would secure that where a solicitor happened also to be a justice, neither he nor anyone employed in his firm would be able to participate in any of the proceedings that might come before the district court. Although clearly no one would expect it to be right or proper that a solicitor who was a justice of the peace should participate through his firm when he was sitting on the bench, this prohibition or restriction should not apply when the solicitor in question was not even sitting on the bench—in other words, when the solicitor or justice of the peace was not involved in a matter before the court. There should then be no prohibition or restriction affecting any persons employed by the firm for which he worked.

This is important because, unless the amendment is accepted, there could be serious consequences, especially in rural areas. In many rural parts of Scotland there is only a small number of solicitors' firms. In many places such as Stornoway there are only two firms of solicitors operating. If a solicitor belonging to one of the firms were also a justice of the peace, it would mean in effect that the other firm would have a complete monopoly of legal work before the district court. Clearly this is not the Government's intention, but it would be the automatic consequence of the Bill as it stands.

The Minister will doubtless say that the restriction in the Bill is similar to restrictions which have existed for a long time, apart from the fact that the restriction is now extended to cover people in the firm who may not be partners. However, there is a very important distinction as a result of local government reform. Whereas the burgh courts and many county courts served only a relatively small geographical area, with the creation of the new local government units encompassing much greater areas we have a situation in which, because one solicitor happened to be a justice of the peace, his firm would be unable to participate in any legal work before the district courts in an area of hundreds, if not thousands, of square miles.

In an area where there is a large number of solicitors' firms this will not matter, but where there is only one firm or two or three firms the public will effectively be denied the right of choice in their legal representation before district courts.

Either the public will be deprived of choice in the way I have indicated or solicitors will feel unable to accept the responsibility of being justices because of the problems this will entail for themselves and their firms. Neither of these results is within the Government's objectives. I know that the Government have sought to meet the objective of the amendment. If for various detailed reasons this amendment is not desirable, the Government should consider, when the Bill goes to the other place for its final consideration, tabling an amendment to give the Secretary of State discretion in cases where he thinks fit to allow the prohibition not to apply.

The Minister will know that the Law Society has made strong and repeated representations to him on the matter. It is a point which will concern only a relatively small number of people but it will be of particular importance in rural areas. I hope that the Minister will not reject the amendment out of hand but will give it the serious consideration it deserves.

The hon. Member for Edinburgh, Pentlands (Mr. Rifkind) is correct in saying that in Committee I gave an undertaking without commitment to consider the clause with a view to determining what could be done against the background that he has outlined.

Having considered the matter, I am bound to say that the contents of the amendment and the principle involved in it arc not acceptable to the Government. It is contrary to the whole principle of legal justices not only in Scotland through the ages but in England and Wales. We would have a situation in which a justice who was also a solicitor could grant legal aid to an accused and the following week a member of that justice's firm could represent the same accused. Such a situation would bring the legal profession into disrepute. The one thing that I want to do is to guard the reputation of the profession with jealous care, particularly in Scotland.

I owe a brief explanation to the House on Amendment No. 7. The effect of the amendment is to clarify the circumstances in which the disqualification under Clause 13(1) of a solicitor who is a justice from appearing before a district court, a licensing court or a court of appeal is disapplied by Clause 13(3). The amendment makes clear that a solicitor who is a justice may act as a solicitor before a licensing court for a licensing division other than one in which he acts as a justice. The amendment also removes the reference to a court of appeal for a licensing division—namely, a court which will no longer exist after 15th May. The form of words we now insert is meant to clarify the position.

The hon. Member for Pentlands made great play, and rightly so, of the effect in the rural areas of our rejection of the amendment. The relaxation is contained in Clause 13(2), where a legal justice on the supplemental list can have the disqualification removed should the need arise, and particularly against the background of the circumstances that the hon. Gentleman outlined.

With those assurances, I hope that the hon. Gentleman will seek to withdraw his amendment. If he does not choose to do so, I ask the House to reject it.

Amendment negatived.

Amendment made: No. 7, in page 10. leave out lines 3 and 4 and insert:

'for a licensing division, being a division in which the solicitor does not ordinarily exercise any functions as a justice of the peace in a licensing court'.— [Mr. William Ross.]