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Freedom Of Probate Bill

Volume 79: debated on Friday 17 May 1985

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Order for Second Reading read. 1.2 pm

I beg to move, That the Bill be now read a Second time.

I am moving Second Reading of the Bill because the hon. Member for Ipswich (Mr. Weetch) is unfortunately indisposed today. It is a modest little Bill, but it contains a great principle—that lawyers cannot be above the law and cannot be witness to restrictive practices. It enshrines the great principle that the Government have followed, that no interest group is above the law and that, to the greatest extent possible, all the people should be enabled to act for themselves in the speediest way possible without coming across restrictive practices.

Can the hon. Gentleman explain why, if this is such a terrific Bill, he did not append his name to it when he had the opportunity?

I cannot speak for the hon. Member for Ipswich. No doubt he had his reasons for asking certain people to append their names. I am deeply honoured to be given an opportunity to move this important, if small, amending Bill—[Interruption.] I did not catch what the hon. Member for Cambridgeshire, North-East (Mr. Freud) said. As he is obviously taking a close interest in the Bill, he will no doubt wish to make a lengthy speech after I have sat down.

Probate is a serious issue, which often comes into people's lives at a time of great distress. Clearly many ordinary people do not have to deal with probate if they are the subject of small estates. However, many middle-income families, perhaps with property still tied up with building societies, can find probate difficult to understand at a time of great distress. This simple Bill seeks to open up and make probate much simpler for ordinary people to see their way through the morass of law at a difficult time.

Probate is concerned with the administration of wills or, in the absence of a will, obtaining letters of administration. Probate can either be contentious or non-contentious. Approximately one quarter of the applications made in 1977 for grants of probate or for letters of administration were made by applicants in person. As I said, many ordinary people do not come across probate.

If a case is contentious, it is covered by section 20 of the Solicitors Act 1974. The overwhelming majority of probate matters are not contentious. In such cases, section 23 of the Act applies. This Bill seeks to amend that Act. Section 23 states:
"If any person to whom this subsection applies, directly or as an agent of any other person, whether or not that other person is a person to whom this subsection applies—
  • (a) takes instructions for a grant of probate or of letters of administration, or
  • (b) draws or prepares any papers on which to found or oppose any such grant,
  • he shall, unless he proves that the act was not done for or in expectation of any fee"—
    this is the point that the Bill addresses, because if the act is done in person it is not being done for a fee—
    "gain or reward, and without prejudice to any other liability or disability to which he may be subject under this or any other Act, be guilty of an offence".
    The Bill seeks to amend the restriction on people other than solicitors acting in probate matters if they are doing so for a fee. Under that section, it is an offence if that person takes instructions for reward. The effect is that solicitors alone may, for reward, apply on behalf of others for a grant of probate or letters of administration and may take instructions for that purpose. The principle of the Bill —I believe that the Government accept the arguments for a similar principle in relation to house conveyancing — is that the market should be opened up to people other than solicitors. This is an important principle which I think most progressive lawyers would accept.

    It is common practice for a testator to nominate a trust corporation as the executor of his will. The Bill is primarily concerned with that position. The expression "trust corporation" includes the Public Trustee, a corporation appointed by the court to be a trustee and a corporation entitled under rules made under the Public Trustee Act 1906 to act as a custodian trustee. A corporation is so entitled if it is incorporated in the United Kingdom or any other member state of the EEC, is authorised by its constitution to undertake trust business in England and Wales, and has an issued capital of £250,000, of which not less than £100,000 has been paid up in cash. Examples of such trust corporations are the Public Trustee, part of the banking system and insurance companies. In effect, the Bill will allow such trust corporations to take part in probate.

    A trust corporation is like any other executor and is entitled to administer the estate in respect of which it has been appointed. However, as the trust corporation receives a fee for being an executor and is not a qualifed person for the purposes of section 23 of the Solicitors Act 1974, it cannot prepare the executor's affidavit, which is the document on which the grant of probate is founded. A trust corporation, being a body corporate, cannot, like an individual executor, apply for probate, as an application is a court proceeding. It must, therefore, act through a solicitor.

    As the present law is restrictive and, in effect, gives a kind of monopoly to solicitors, it is not surprising that the Law Society objected when the matter was being looked at by the Royal Commission. In the evidence to the Royal Commission on Legal Services by the Association of Corporate Trustees and the Committee of the London Clearing Banks, it was said that
    "trust corporations should be permitted to apply for grants of representation without the intervention of a solicitor."
    One would, of course, expect the London clearing banks to say that. The association said that
    "all necessary preparatory work is done by the trust corporation concerned and the solicitor's functions are, in this respect, largely formal."
    I am sure that the Government will welcome the principle of the Bill, and I am looking forward to hearing the Minister's comments. Where the solicitor's work is largely formal, he should not be allowed to preserve a monopoly. We want to open out all the legal services as widely as possible, whether in relation to house conveyancing, probate, or anything else.

    I have been listening to my hon. Friend with some interest. Would he take his argument a stage further and say that where the work of counsel appearing in the Crown court is largely formal—for example, undertaking cases in which there is a plea of guilty—that work should also be open to competition?

    My hon. Friend has made an interesting point. I believe that he is a solicitor. I, unfortunately, am a barrister. I detect in my hon. Friend's remark a slight tilt at my profession. I do not know whether he intended it. I have often appeared in court, having been given a very slender brief by the solicitor briefing me, so that I have had to do all the work, and I have wondered why the solicitor should be paid at all. If I may say so, I believe in a unified profession. I see no reason why a solicitor should not appear in the High Court. I believe in opening up the legal profession. It is a great principle, worthy of the Government and the principles on which the Conservative party was elected.

    I do not see why there should be restrictive practices in the legal profession any more than in the trade unions or anywhere else. I do not think that the Government can reasonably take a hard line against restrictive practices in the trade unions and still insist that if I want to become a barrister I must eat a certain number of dinners, as I had to do. The Bill is in line with what I believe in and what I hope the Government believe in.

    It is not surprising that, when the Law Commission was considering the issue, the Law Society opposed it. I do not blame it for that. The Law Society exists to protect the interests of solicitors. Solicitors have enjoyed a monopoly and it is not surprising that they should wish to oppose this progressive measure. They have opposed any relaxation of the present restrictions.

    The Law Society has said that difficult questions of law could arise in the administration of an estate. That sort of thing is always said. When a Royal Commission is looking at ways of opening out the legal profession, the Law Society always says that difficult questions of law arise. However, that did not seem to the Royal Commission to be a strong point. The Commission said that
    "in the interests of their clients and also to protect themselves from charges of breach of trust or negligence trust corporations are punctilious in seeking legal advice when the need arises."
    That is why I do not understand the objections to banks and building societies taking a greater part in the conveyancing process. I believe that they would be as punctilious as any solicitor in dealing with such matters.

    The Royal Commission said:
    "The Law Society also said that a trust corporation was not under the same duty as a solicitor to the client and to the court".
    That may be an interesting point, and my hon. Friend the Member for Derby, North (Mr. Knight), who is a solicitor, may want to deal with it. It is true that the local solicitor has a particularly close relationship with his client, and that is perhaps a fair point for the Law Society to make.

    The Law Society also said that the fees charged by trust corporations
    "were not subject to any control and might, from the date of death, be quite different from those in force when the testator made his will. Trust corporations have for a long period been allowed to administer estates for reward."
    The Royal Commission did not find, in the evidence put before it, any grounds for a general change in that respect. However, it considered that some control should be exercised over charges. I hope that it could not be said by those who oppose the Bill that it will somehow open up the gates against trust corporations overcharging. That is not a valid objection. They are responsible bodies, such as banks, and so on. I do not see that happening.

    On a point of order, Mr. Deputy Speaker. As everyone on the Government side of the House seems to be nodding agreement, and as no Opposition Member is moved to dissent, I wonder whether we might vote on the Bill now and get on with one of the more important Bills that come later.

    I shall have to disappoint the hon. Gentleman. What is being said is perfectly in order.

    I am horrified that the spokesman for the Liberal party should have said that. Here is a worthy measure trying to give people in distress an opportunity to circumvent the delays engendered by the law, and the only member of the Liberal party who has bothered to turn up on a Friday is objecting to it. That is absolutely disgraceful.

    The hon. Gentleman has clearly not been listening to his own speech, but he did not even listen to my intervention. I am totally in favour of him having his way. Why does he not agree and sit down so that we can vote in favour of the Bill?

    It would be an insult to the House if an important Bill were not debated properly. I must tell the hon. Gentleman that if my hon. Friend the Member for Lewisham, East (Mr. Moynihan) catches your eye, Mr. Deputy Speaker, unfortunately he intends to oppose the Bill. I am sorry about that, but my hon. Friend is an honourable Member of the House. I know that he is deeply concerned about these issues, has studied them closely and wishes to give a detailed speech to explain why he opposes the Bill. That is a matter of great regret to me. I feel bound to explain why this worthy measure should go through. I may not win, but I retain the hope that my hon. Friend will be convinced by my argument. I know that he is listening closely to my speech.

    Surely it is reasonable that a trust corporation, approved for the purpose by the Bank of England, should be permitted, in non-contentious cases, to apply for probate of a will, in which it is named as executor, without the intervention of a solicitor. That is all that this modest measure seeks to do. It is attempting to open up the probate business.

    The implementation of that recommendation requires amendment to section 23 of the Solicitors Act 1974, which I have already quoted, and the granting of a right of audience to the proper officer of a corporation sufficient to enable it to perform that function. The Royal Commission emphasised that its recommendations were confined to non-contentious cases. I emphasise that, too. It is a different situation when large estates and contentious probate matters are involved. However, the vast majority of cases in probate are non-contentious. The Royal Commission also said that there should be a requirement that if a probate case becomes contentious the trust corporation must cease to have the right of audience and be required to appear in front of a solicitor.

    Let me outline what this short measure seeks to do. Clause 1 proposes that
    "section 23 of the Solicitors Act 1974 (unqualified persons not to act in preparation of papers for probate etc.)"
    should be amended. Clause 1 (a) provides that
    "for the words 'Subsection (1) applies to' in subsection (2) there shall be substituted the words 'Subject to subsection (3) subsection (1) applies to'."
    I know that some hon. Members here today are not lawyers, and the Bill may seem difficult to understand. However, it is clear. All that it is seeking to do is to introduce a new subsection (3) into the Solicitors Act 1974 so that, whereas the law will stay as it is in contentious cases, in uncontentious cases the new subsection will be slotted in. The new subsection (3) states:
    "Subsection (1) does not apply in any non-contentious or common form probate business in which an approved trust corporation acting by and through any officer of that trust corporation authorised for the purpose by that trust corporation or its directors or governing body is the applicant or, as the case may be, one of the applicants for a grant of probate or administration."
    Wrapped in legal language, as it must be, that provision simply gives effect to the very simple principle that I have enunciated.

    This is a small, slim Bill, but I believe that it enshrines a great principle. I hope that the House will give it a Second Reading today.

    12.20 pm

    I rise to seek clarification because I am not a lawyer and, although my accent may suggest otherwise, I am affected by the Bill because I live in England, although that was not always the case.

    I wonder whether the Bill will assist people in the circumstances in which I found myself some years ago when my father chose to die in England and leave an estate here while I lived in Scotland. Telephone engineers do not tend to accumulate vast estates, and at the end of the day the difficulties of trying to get probate in England were just not worth it and I left things as they were. There is probably still about £200 lying in a bank somewhere in Kent because even in those days the legal fees involved would have been a great deal more than that. I was the only son of a father who died without any surviving relatives. His brother and sisters had died, so I was the only person who could have claimed the estate. Will the Bill help a person in that situation?

    Will the Bill help a properly qualified Scots solicitor seeking to apply for probate in England? When my father died my Edinburgh solicitors were unable to act for me. They would have had to instruct an English solicitor on my behalf, but as they were good Edinburgh solicitors, and as Scots are canny people, they advised me not to proceed with the matter because the entire estate would have been eaten up by the legal costs and I would have been left with considerable residual costs.

    The Bill appears to limit the category of people who can apply for the easier procedure to officers of trust corporations. I am. concerned about the many small cases in which the surviving relative, often in a shocked state and fairly horrifying circumstances, merely wishes to tidy up the estate. My case arose in the middle of the famous miners' strike and even the lift at the crematorium was out of service because of the power cuts. Many people find themselves in similarly difficult situations. I hope that if the promoter is able to speak again in the debate he will comment on that aspect.

    I should also like to know why the provisions are limited to approved trust corporations as defined in clause 1(4). When the words "non-contentious or common form" appear in the same sentence one wonders whether the Bill is quite the liberalising measure that the hon. Gentleman suggests. Like the hon. Gentleman, I am concerned about closed shops. My union does not have one, but the Law Society has a very effective one. I wonder whether officers of approved trust corporations are not just solicitors in another form, or people who probably are solicitors but are being paid from a different source rather than by the client direct. That is the suspicion at the back of my mind.

    I should be interested to hear why the hon. Gentleman thinks the Law Society operates a closed shop. I should have thought that that term was more applicable to a rule or regulation preventing people from being employed unless they belonged to a union. The rules of the Law Society require that a person may practise as a solicitor only if he has passed certain examinations. There is a distinction, is there not?

    I am an engineer, and some engineers are allowed to practise at certain levels of engineering only after passing examinations. The Institution of Electrical Engineers does not then take decisions about the fees that we may charge, act as a court over us, negotiate our conditions of service or do many of the other things that the Law Society does. It is not, therefore, the same as the other professional institutions with which I am involved and am describing.

    I am open to correction by hon. Members who are more qualified in such matters, but I understand that, while the Law Society sometimes operates rather like a trade union, at other times it assumes a quasi-judical function. It cannot be equated with, say, the Institution of Electrical Engineers, the Institution of Mechanical Engineers and various other bodies with which I am associated. To that extent the Law Society operates a closed shop. It certainly operates to protect the monopoly of solicitors in dealing with certain types of work. Hon. Members are aware of the lobbying that occurred on behalf of the Law Society when my hon. Friend the Member for Great Grimsby (Mr. Mitchell) introduced his House Buyers Bill.

    I am sure that the Law Society will continue vigorously to protect the interests of its members in matters affecting lawyers, and I make no complaint about that. That is its function. Our job, however, is to consider how reasonable that representation is in the context of the way in which people must deal with members of the legal profession.

    I hope the hon. Gentleman will accept that there are some Conservative Members who believe that the Law Society should be in the same position as the Institution of Electrical Engineers, for example, that there is an anomalous situation and that the legal profession should be opened up. The hon. Gentleman has made some strong points against the closed shop in the legal profession. May we assume from his remarks that he is against the closed shop generally?

    I was not implying that Conservative Members were not equally concerned about the issue. That is clearly not the case. My union, the National Communications Union—I declare my interest, but only to the extent of our attitude to the closed shop—does not operate a closed shop. We have 95 per cent. membership without one. An advantage of that is that we need not have people in the union whom we do not like, people who might cause us other difficulties.

    I do not want to stray into the whole issue of why some unions need a closed shop. My union is an industrial body and is basically a one-industry union. We have one employer, and it is easy to make arrangements, so that the level of organisation is high. In other areas, such as retail distribution, that is not the case, and the level of organisation is lower.

    The closed shop principle for trade unions is different because non-unionists often accept the advantages which trade union members enjoy without paying for them, in the same way as some people accept taxation benefits and try not to pay their tax. That is why the closed shop principle is considered to be important, although I, too, would like to see it interpreted more liberally. That does not apply to the professions, which cheerfully have a tightly rigged closed shop; so tightly rigged that they not only do not have any voting, but also in many instances restrict entry. They can ruin a person's career by the activities of what are little short of kangaroo courts.

    I am grateful to my hon. Friend for that intervention. I hope that I did not imply that I was unaware of the need for the closed shop and the arguments in its favour. I do not like people riding on my back. I pay my union subs, the union negotiates a pay rise and all its members receive it. When I was a branch secretary, some of my colleagues were Jehovah's Witnesses. They did not wish to be members of the union, for good religious reasons. The three in my branch paid the equivalent of their union subs to a charity. They gave me the opportunity to nominate a charity, but I told them to choose the charity to which they wanted to donate. They all chose a different charity. One selected the Cancer Research Campaign, the second decided to support the British Heart Foundation and the third decided to support a missionary charity. These three people did not ride on anyone's back, and I respected them for that.

    I support the Bill, but I recognise that it has shortcomings. I share the view that it does not go far enough. A few years ago I had the task of trying to wind up a small estate. It was impossible for the matter to be contentious as there was no legal heir other than myself. There are many similar cases. I was unable to wind up the estate as I could not meet the costs involved.

    Unfortunately, I did not qualify for legal aid. I was not quite that poor. I would have qualified for legal aid if I had been trying to do something rather more substantial than wind up a small estate. I do not think that legal aid provision is sufficiently wide, pervasive or generous to enable the public in all cases to obtain the legal advice that they need. We have a National Health Service and I am convinced that we need a national legal service.

    My hon. Friend will appreciate that law centres are being threatened, in addition to the restrictions that are placed on legal aid. Law centres should be funded nationally, but the Lord Chancellor is refusing to do so. The Government are refusing to fund the centres and 55 will be closed in the next year or two unless local authorities pick up the bill. They are unable to do so because they are being rate capped.

    The law centre at Gateshead is in exactly that position. The Tyne and Wear metropolitan county council provides the major funding of the centre, but the council will cease to exist in April 1986. The local authorities cannot afford to fund the centre. As my hon. Friend rightly says, they are being rate capped and they are short of money. I am an ex-city treasurer and I know that the funding of the Gateshead law centre does not amount to the product of a 1p rate in the borough. However, it seems that that does not matter. There are many other things that we would like to support, but we are unable to do so. The law centre is one of the services that will have to go unless the Government or others pick up the tab.

    If law centres were properly funded, they would be able to assist in overcoming the problem that I have been trying to explain. Unfortunately, they will rapidly cease to exist, except those that are run on a voluntary basis by solicitors who are prepared to give up their own time. I know that this happens, and that it will continue to happen. but the service is bound to be patchy. If someone is able to have access to that help and advice, it will be a matter of luck., depending on where he lives.

    I appreciate the free legal advice scheme which the Law Society operates. It is true that that helps very many people. However, it is only a matter of one interview and one letter, and that is not sufficient to gain probate even in a simple case. Substantial costs remain.

    The banks must do well out of the situation. There is about £200 lying in an account in Strood in Kent which I will not and cannot touch. The money has been there for nearly 14 years. There must be money in bank accounts all over the country on which banks receive interest and which no one else can touch because it is too expensive to get probate. The bank might consider operating a national scheme. They could easily fund it from the interest that they receive from unclaimed moneys lying in accounts.

    I hope that the hon. Gentleman would not wish to take the Bill too far. Does he hold that anyone should be allowed to handle anyone else's probate? That would be dangerous. I see why the hon. Gentleman wishes to extend the Bill, but there must be some restriction, and at least one can trust a trust corporation.

    The hon. Gentleman spoilt an otherwise helpful intervention by his last sentence. Unfortunately, in a number of cases, that has been proved objectively not to be true. I am not trying to take the Bill too far, but it is very important that people in tragic circumstances who have an uncontentious claim to probate and administration should be able to establish it.

    I am not an expert on this, but if the hon. Gentleman were to accept some free advice from me and apply for probate himself he might be able to look forward to a nice summer holiday. The sum of £200, plus the interest accrued over a number of years, should give the hon. Gentleman a lovely holiday.

    I have been told that free legal advice is worth exactly what one pays for it. However, in this case, I am prepared to disregard that saying. The right hon. and learned Gentleman is right. It is probably through laziness that I have not done so, but many years have passed and I do not wish to stir up some old memories. Individuals may apply for probate, and I am quite capable of doing so. However, many people are not. There is a problem. To take up the point made by the Member for Gainsborough and Horncastle (Mr. Leigh), I was not arguing that I should be allowed to set myself up in a corner shop in Blaydon shopping precinct under the sign "Get your probate here". I do not suggest that anyone should be permitted to do that. We must make certain that people get the best professional advice when they need it. My argument is that, somehow or other, the system seems to become very expensive very quickly. We have quick and cheap divorces these days. Perhaps we should also have quick and cheap probates in uncontested cases. Some arrangements could and should be made to make that possible. I did not mean to imply that anyone should be able to deal with matters of probate. That would be very dangerous. I do not wish to lead people down that path.

    Perhaps, however, the Bill does not go far enough. I hope to hear something helpful from the right hon. and learned Gentleman about this, and about some of the other matters to which I have addressed myself.

    The Bill is a modest measure, but it is welcome. I do not denounce it for being modest. There is an old Scottish saying to the effect that one should make haste slowly. Perhaps more progress may be made by a series of modest measures than by a single blockbuster which would upset the Attorney-General's and the Lord Chancellor's Departments. I hope that the Government will accept this welcome measure. I hope also that the Government will give us some assurances about the other matters I have raised.

    1.39 pm

    The House should ask what the purpose of the Bill is. I know that for many months my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) has felt passionately about this subject. I also know that he has done a lot of research on it and that he is delighted to have had the opportunity to introduce the Bill today.

    The first question is: what can be done to reduce costs? The first thing that people can do is to make a will. When an estate needs to be wound up, problems often arise because the deceased failed to make a will. However, it does not just end there. The will needs to be made in a proper manner.

    I well remember a case some years ago of a bank manager—who one would have thought would have known better—who went, I believe, to Woolworths and bought a will form which then cost 6d. He made out the will form himself. I think that he had been separated from his wife for about 15 years, and in his will he said something like, "My wife and I have lived apart for many years, and I wish to bequeath to her in this will only that amount that the law indicates she should have, had I not made this document." He then died, and the interpretation placed on the will was that if he had not made it his estate was such that the wife would have got everything, and so she did get everything. A man of intelligence and position who should have known better thus made a will whose effect was quite contrary to his intentions.

    If we wish to ensure that the public obtain value for money and that costs are not run up unnecessarily on an estate, we should try to ensure that wills are properly drawn up, and properly attested. Ultimately, it is a question not only of trying to cut costs but of ensuring that the public are protected.

    I understood my hon. Friend the Member for Gainsborough and Horncastle to say that if a trust corporation is allowed to carry out the work in winding up an estate without having to employ a solicitor, it will be cheaper. My experience is that that is not so. If people say in their will that they would like a bank to act for them, the costs charged are often far higher, even discounting the cost of the solicitor employed by the bank. Thus, I suspect that my hon. Friend's measure may not cut costs at all.

    I think that my hon. Friend has missed the point. If someone goes straight to a solicitor, the solicitor may well be able to act more cheaply than a bank. But the Bill is saying that if, for some reason, someone wants to start with a bank, and the bank does all the work, it should not be incumbent on it to go to a solicitor at the last moment just to conform to the Solicitors Act 1974.

    I accept that there is some weight to that argument, but my hon. Friend would be wise to take into account several points. For example, what happens if a difficult question of law arises when administering the estate? It may be that a solicitor should be called in then. My hon. Friend touched too briefly in his opening remarks on the charges that a bank can make. There is no control over the charges that trust corporations can impose, but there is control over solicitors' charges. The Bill would be more acceptable if it contained a mechanism to ensure that somebody could supervise the charges that such trust corporations may make.

    I am also concerned about the provision granting a right of audience to some person in a trust corporation.

    In answer to an intervention of mine earlier my hon. Friend said that he was in favour of widening all professions. He went on to say that he was even in favour, if I understood him correctly, of breaking the banisters' monopoly. I fear that he may have been carried away by his own rhetoric on that point. If a private Member's Bill seeks to break the barristers' monopoly, it will be interesting to see whether he is one of its sponsors.

    Be that as it may.

    The hon. Member from the Opposition Whips' Office made a number of valuable points.

    Much as I would like it, the Opposition Whips' Office is not represented in the House by a Member. I am the hon. Member for Blaydon.

    I am grateful to the hon. Gentleman. I could have said that he was the Member for the Kremlin bar, but that might misrepresent the valuable work that he does in the House.

    I am not being facetious when I say that I have some sympathy with the case which the hon. Gentleman put forward. I am sorry to hear that he has a sum of money locked away in a bank account. Let me say in all seriousness that I would gladly undertake the legal work for him for nothing if he were prepared to donate half the sum to the Conservative party.

    I am grateful to the hon. Gentleman for his offer, but my hon. Friend the Member for Hammersmith (Mr. Soley) has just worked out how much that £200 has turned into, and the hon. Gentleman's proposal does not have a chance.

    I suspected that at the end of the day that might be the case.

    Insufficient attention has been paid to the Benson report. It dealt with the problem in page 226 under a paragraph headed "Litigation". I do not want to read out all the report; I am sure that interest in the subject is such that every hon. Member present has read it from beginning to end. In essence, its conclusion was that we should do something along the lines of the Bill.

    With the greatest respect, I must say that the Benson report is wrong and perhaps underestimates the objections of the Law Society. Paragraph 19.24 said:
    "The Law Society opposed any relaxation of the present restrictions. It said that difficult questions of law could arise during the administration of an estate."
    That is so, but it went on to say:
    "This does not seem to us a strong point, because in the interests of their clients and also to protect themselves from charges of breach of trust or negligence trust corporations are punctilious in seeking legal advice when the need arises."
    I wish that I had the Benson committee's confidence in how trust corporations carry out their business. I fear that I do not have that confidence and that the objections have been understated.

    The report goes on to say:
    "The Law Society also said that a trust corporation was not under the same duty as a solicitor to the client and to the court and that the fees charged by the trust corporations were not subject to any control—"
    there it is; they are not subject to any control
    "and might, at the date of death, be quite different from those in force when the testator made his will."
    We all on some occasions have had cause to take out a bank loan or even a mortgage loan. At some stage during the period when that money is outstanding we have seen fluctuations in interest rates and often people, who have taken out what they considered to be a modest loan which they were able to repay easily, have suddenly found that it has become an oppressive burden because of shifting interest rates. I accept that that burden is not too prevalent under a Conservative Administration, but it can happen.

    The Benson report went on to conclude that control should come through the taxation of costs. If I catch your eye, Mr. Deputy Speaker, I hope to refer to that, but if my hon. Friend will comment on that, I can respond to him as well.

    That is a fair point, but where one is seeking to amend the law, and where there is a problem of charging — I think that all hon. Members would accept that the fees that the trust corporations can charge are a problem — surely the correct way to go about matters is to bring in legislation which covers both points at the same time. I should be happier about supporting the measure if it were amended to bring that about. My hon. Friend the Member for Gainsborough and Horncastle made no reference to doing that. Apparently he is not prepared to widen the Bill in that way. If the Bill goes through before the House has the opportunity to examine ways of controlling trust corporation charges, innocent beneficiaries of small estates might be fleeced by unscrupulous or inefficient trust corporations which charge high fees.

    I agree with what my hon. Friend says about trust corporations. Does he accept that, subject to articles of association, any company constituted in the United Kingdom or an EEC state with issued capital of £250,000, of which only £100,000 needs to be paid up in cash, comes within the present definition of a trust corporation?

    I hesitate to offer advice in the presence of my right hon. and learned Friend the Attorney-General, but I understand that that is so. My hon. Friend the Member for Lewisham, West (Mr. Moynihan) is in a much happier position than me. With the funds that he has, he might be considering starting a business along those lines. That is way beyond the means of the average Back Bencher, even in his wildest dreams.

    The Benson report stated:
    "we consider that some control should be exercised over charges."
    Those who support the Bill and who pray in aid the Benson report should examine that sentence carefully. Unless an assurance is given that some control is to be exercised, I shall have reservations about supporting the measure. The dangers should not be underestimated.

    The hon. Member for Blaydon (Mr. McWilliam) made a number of interesting comments. I was interested in what he said about setting up a national legal service. He speaks from the Opposition Benches with the voice of authority. Is it Labour party policy to nationalise the legal profession? If it is, Labour Members will lose a rot of votes.

    The idea is tempting, but Labour party policy does not cover nationalising the legal profession. Perhaps the hon. Member for Derby, North (Mr. Knight) should not put such ideas into our heads.

    I am delighted with that assurance. I am sure that we shall attempt to hold the Labour party to it.

    The danger is that those who merely consider the question of the costs charged for administering an estate will regard the problem as comparable to that of the housewife who goes shopping. A beneficiary should not have to shop around to see who will administer the estate most cheaply. That would lead to lower standards and lower safeguards, which would put the public at risk.

    Throughout the world, the courts are littered with cases involving people who have abused the trust placed in them either by making off with money or bungling their job. As a result, people lose out on their entitlement.

    That is a telling argument. The problem exists in other than the legal profession. Voluntary liquidations are sometimes bungled and people lose everything because someone has not acted professionally.

    I accept that. However, it is important to remember that when dealing with a large estate worth several hundreds of thousands of pounds, if the mistake or the incompetence leads to the loss of £1,000 or £2,000 the effect is relatively minimal, regrettable though it may be. But what about the average estate, that of the working man who has put away a bit in the bank and perhaps has a house on mortgage? If errors are made in administering his estate and a loss accrues or costs are run up unnecessarily to the tune of £1,000 or £1,500, that may be virtually the whole estate. It is not all that uncommon to find that, because of the way money was invested and the complexities of the case, a good deal of legal work was required and at the end of the day the fees have eaten up most of the estate. It is bad enough already in cases where that happens, but if we have no control over the charges of trust corporations, how many more cases shall we see? In my view, the House should tread warily.

    Last night, the House dealt with another matter affecting solicitors—the attempt by the hon. Members for Ipswich (Mr. Weetch) and for Great Grimsby (Mr. Mitchell) to enable non-solicitors to undertake conveyancing work. Today we are discussing another measure which seeks to alter the Solicitors Act 1974. I supported last night's measure because I believe that we should proceed with it and see how it goes, but today's Bill is far more serious, because we have been given no guarantees about the costs that trust corporations can charge and about all the other matters that I have laid before the House. Unless my hon. Friend the Member for Gainsborough and Horncastle makes it clear that he is prepared to amend the Bill radically and to give the protection that I seek, I regret to inform him that I shall oppose this measure.

    1.57 pm

    I wish to refer to a number of my fears about the Bill. Like my hon. Friend the Member for Derby, North (Mr. Knight), I look forward to hearing the reply of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) to discover whether he can allay those fears.

    I am pleased that the House has made good progress with its earlier business and has come on to a discussion of this Bill. At an earlier stage I was afraid that the House would not be able to debate the Freedom of Probate Bill. It is an important measure, which should be discussed at some length.

    Some of the remarks by my hon. Friend the Member for Gainsborough and Horncastle caused me a degree of concern. He seemed to speak with a lack of personal experience in these matters. Over the past 12 months I have been responsible for winding up the estate of a member of my family in which a trust corporation was not involved. With my wife, I have also just completed the revision of my will, where a trust corporation is involved. Therefore, I bring a modest amount of experience to the debate, having gone through the granting of probate and the administration of the estate of a relative where a solicitor was involved, but need not necessarily have been involved, and the preparations for my own estate through a trust corporation, where members of my family would not be responsible for the application for or the granting of letters of probate.

    I am not a lawyer, as are some of those present, but I am a chartered accountant. I am sure that my hon. Friend the Member for Gainsborough and Horncastle made some of his remarks in the spirit of levity, but if he did not, I take offence at some of them because he appeared to be implying that some of the great professions, including mine, operate a closed shop which is in some way against the public interest. He did not have an opportunity to develop that theme, and no doubt he will return to it later in the debate. My profession has no monopoly on auditing the accounts of public companies. Under the Companies Act 1948, other professional bodies are permitted to do so. It is important to note that many solicitors, including those in my constituency, welcome the broadening of one area to allow non-solicitors to enter the world of conveyancing. But there is a big difference between conveyancing — which is an economic act, which, although complex, is the transfer of property from one person to another—and probate. Although important points of law are involved, we are satisfied that non-solicitors, provided that they are properly licensed, can carry out that service.

    My hon. Friend the Member for Gainsborough and Horncastle is confused about the granting of probate. I wish to cite four points of difference between the granting of probate and other, perhaps more mundane, activities, such as the transfer of property or the auditing of public accounts.

    The first is the application of the principle of free market forces — of which my hon. Friend is a well known and eloquent advocate — to the granting of probate. The explanatory and financial memorandum says that one of the benefits of the Bill will be that of
    "saving time and expense to the beneficiaries of the estates concerned."
    That is very much in keeping with the principles of competition and free market forces which my hon. Friend argues would cheapen the cost of services provided by both professional and non-professional people.

    There is a difference. We are dealing not with the reorganisation of the British Steel Corporation or the Potato Marketing Board, but with the estates of people —money and assets that have been built up over a great number of years. There is a great difference between market principles being applied to the better management of a company, business or enterprise—which I would strongly endorse — and their being applied to people's rights.

    We are dealing with the estates of people who have died, not with people who are alive. They have no votes. They are not participating in this vigorous, competitive world in which my hon. Friend so keenly wishes us to partake. We are dealing with the estates of dead people. Therefore, we must be very careful before we apply the principle of free market forces in the granting of probate to those who are not members of the legal profession.

    With respect, my hon. Friend is making a travesty of the way in which I opened the debate. The Bill makes it clear that it deals with non-contentious cases. I hope that my hon. Friend, who takes a deep interest in these matters, has had a chance to read the report of the Royal Commission on legal services. I hope that he is not arguing that those distinguished lawyers on the commission did not understand that probate concerns are matters of deep distress and of great importance to families. I repeat that the Bill deals with non-contentious cases.

    I am grateful for that intervention, because it displays a misunderstanding of the point that I was trying to make. Of course I am aware that clause 1 defines non-contentious matters by reference to the Supreme Court Act 1981. The distinction between a grant of probate which is contentious and one which is non-contentious is not relevant to my argument. I am saying that in dealing with the estates of deceased people we must be careful about the application of market principles.

    Time is pressing on. Perhaps my hon. Friend will allow me to deal with his point under the last three of my four points of concern.

    I apologise for the fact that I did not hear the beginning of the speech of the hon. Member for Kettering (Mr. Freeman). Does he agree that the hon. Member for Gainsborough and Horncastle (Mr. Leigh) missed the essential point of probate matters—that they arise at an intensely personal and difficult time for widows and other relatives of the deceased'? It is a time when regrettably on a vast number of occasions old family scores rear their heads. Lawyers must he extremely careful in their dealings. One step out of place can lead to enormous complications and can speedily turn the non-contentious into the contentious.

    The hon. Gentleman has made the point far more eloquently than I could or did. I very much agree with him.

    My second point relates to clause 1, which refers to those who are unqualified. Section 23 of the Solicitors Act 1974, which the Bill seeks to amend, prohibits unqualified persons--those who are not solicitors—from acting in probate matters, except if members of the family or close friends are acting for no fee; in other words, when they are making a personal application.

    How are we to define the approved trust corporations which my hon. Friend the Member for Gainsborough and Horncastle wishes to enable to make direct applications in contentious cases of probate? The Bill defines an "approved trust corporation" as
    "a trust corporation approved for the purpose thereof by the Lord Chancellor".
    That concerns me because it involves an extra element of delay and bureacracy. It is not fair to say in the explanatory and financial memorandum that the Bill will
    "have no financial effects or effects on public service manpower".
    We know very well that the operations of the Lord Chancellor's Department are run on a tight purse string. This measure imposes an additional test at a time of distress for relatives. An additional delay is caused when a trust corporation, not necessarily approved already by the Lord Chancellor, seeks to act.

    I come to my third and fourth areas of concern. The Bill will enable any officer of a trust corporation, any director of an approved trust corporation or the governing body of that trust corporation to act. What is the sanction, other than through the courts of law, against an authorised officer of a trust corporation of, say, one of the big banks who acted hastily or incorrectly or misinterpreted what was meant by a non-contentious or contentious matter?

    If a solicitor is part of that process—I am convinced that that is the correct procedure as envisaged in 1974, when the original legislation was passed—there is a point of sanction, because the Law Society is responsible for the discipline of the legal profession. There is some form of redress against a solicitor who has been dilatory or inaccurate in the performance of his work. One hopes that there will not have been malfeasance or gross acts of negligence on the part of the solicitor. The important thing is that a sanction exists.

    My hon. Friend the Member for Gainsborough and Horncastle, in his opening speech, did not suggest any form of sanction that might apply to bank trust officers. I hope that he will deal with that point in his reply to the debate.

    I do not think that my hon. Friend has any notion of the fees that the trust corporation of one of the larger banks would charge for the winding up of a modest estate of £10,000 or £20,000; nor do I believe that he knows what additional charges would be incurred if no solicitor were involved and the bank itself had to make the application. I shall tell my hon. Friend what would happen in those circumstances. The bank would still seek the ad' ice of its own internal legal department, and the total charges to the estate might not be any less; indeed, they might well be higher.

    How can the fee that the bank charges be relevant to the argument? The bank already has power to undertake the work and it is usual for it to consult its legal department.

    My hon. Friend, with great respect, has not answered my point. I hope that he will do so in his reply. I shall repeat it for his benefit. Can he tell the House the scale of fees normally charged and what protection there would be to the estate if no solicitor were involved and the bank had direct access in an application for probate?

    Is not another danger that the bank will do what it always does—deduct its charges and send the balance to the beneficiary? those circumstances, the only redress for the beneficiary is to take the bank to court. That is the last thing that a beneficiary upset by the death of a close relative wishes to do.

    My hon. Friend is correct. As I said at the beginning, I have had direct experience in recent months of the application for probate through a solicitor on behalf of a family. I have also explored in great detail what the fees, charges and procedures are where a trust corporation is involved. I have had the opportunity of comparing the two and looking at the protection and safeguards—that is the most important point--for the beneficiaries of the estate.

    For the reasons that I have given, I hope that my hon. Friend the Member for Gainsborough and Horncastle will provide some clear answers to the questions which have been raised. I think that that is necessary before we can carry the Bill further.

    2.8 pm

    Friday has often seen this House engaged in substantive, erudite and intelligent debate, and today has been no exception—so far.

    I hope that the points which have been made will be dealt with by my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) in his reply to the debate, to counter the many concerns. It is a great pity, given the substantial interest in the debate, that so little time is left. I know that many hon. Members would like to debate the Bill well into the afternoon.

    It is to be deeply regretted that the hon. Member for Ipswich (Mr. Weetch) is unable to be with us this morning. We all understand his circumstances. It was clearly his intention, as he expressed it on 5 February 1985. that the Bill should be a simple and limited measure, with important and beneficial implications for opening up the legal profession. That principle has considerable merit and a number of hon. Members have supported it, but the concern of many hon. Members relates to the detailed implications of the Bill in trying to achieve that objective.

    Substantive and important among those concerns is the fact that this Freedom of Probate Bill does not ask the simple question of who applies for the grant of probate. That involves a step in a court action. The Bill would set a precedent in giving direct lay access to a court of justice. That point needs to be addressed carefully, as does the important point about trusts and who controls trusts, particularly outside the United Kingdom. My hon. Friend the Member for Derby, North (Mr. Knight) went only halfway on the specific point when he quoted paragraph 19.24 of the widely read Benson report. I regret that he did not consider the answer to the questions that he was posing.

    I note with interest the hon. Gentleman's point about access to a court of law. Does he agree that the law says that any man can be an advocate in his own cause, but if one is an advocate in another's cause, at least one should be experienced and trained to be so?

    But is it not also the case that he who is an advocate in his own cause has a fool for a client?

    I am grateful for that exceptionally important, key point. Hon. Members know that that is true. However, that said, let me go a little broader and address the point raised by my hon. Friend, when he rightly said that we need to look at the scope of the Bill and the qualifications that trust corporations have to satisfy.

    This matter came up in an important part of the debate, but I believe that it needs to be emphasised. As I understand it, the definition of a trust corporation is not limited to the principal clearing banks. Anybody who constitutes a company in the United Kingdom with the right articles of association or, indeed, in a member state of the European Community, having issued capital of £250,000, of which only £100,000 needs to be paid out, constitutes a trust corporation within that definition. It does not require any expertise for an individual or a group of individuals to set up such a corporation. That is an exceptionally important, key point to the Bill. Despite the good intentions of the Bill overall, I hope that the Government will consider it closely, as well as hon. Members participating in the Committee stage. If it cannot be satisfied, regrettably I shall continue to oppose the Bill.

    Does the hon. Gentleman agree that one of the ways of easing the burden is to allow law centres to carry out the practice, which they can do? Will he join me in pressurising the Government to provide funds to ensure that law centres stay open?

    I am fully confident of the ability of local boroughs to fund. I noticed the point that was made, that local boroughs would not be able to fund because they were "all rate-capped". As the hon. Gentleman knows, that is not so. A small minority are rate-capped. I contend that priority that should be placed on law centres will be recognised even by those boroughs in financing law centres in future.

    I now come to the point about charges. I believe that it is important to put the Bill into the context of how it came before the House and how it was originally conceived. It is well known that the bank trust corporations have, for some years, sought to extend their executorship and trustee business. Indeed, in evidence to the Benson committee, the Association of Corporate Trustees made it clear that its members favoured the removal of the legal constraints against the preparation of papers leading to an application for a grant of representation and the making of the application itself.

    The Benson report accepted that that claim should be allowed to succeed, provided that the remuneration of trust corporations was brought under public scrutiny and controlled through the taxation of costs. The report states:
    "At present a trust corporation or any other person or organisation may draft a will in which it is nominated as executor with power to charge for its services. Except when a solicitor is so authorised, there is no check on the reasonableness of the charges made".
    I hope that that, too, will be dealt with in full if my hon. Friend the Member for Gainsborough and Horncastle has the opportunity to sum up.

    I believe that the intention of the Bill is first class, but I am very worried about the implications of its implementation. I hope, therefore, that it will not be given a Second Reading or, if it receives a Second Reading, that it will be scrutinised very closely in Committee. I trust that the Government and other hon. Members concur with that view.

    2.20 pm

    I congratulate the hon. Member for Ipswich (Mr. Weetch) on his initiative in producing the Bill and sympathise with his indisposition. He made a powerful contribution to our debate yesterday, and I wish him a speedy recovery. I also congratulate my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) on his initiative in stepping into the breach and taking over the Bill, which otherwise would have been lost. The hon. Member for Ipswich is a considerable and tenacious legal reformer. I hope that he will forgive me when he reads my comment that his popularity in the legal profession does not always match his popularity outside, but I suspect he knows that already.

    The Government's competition policy applies to the professions just as it applies to the supply of other goods and services, and we share the hon. Gentleman's concern that the process of applying for grants of representation to the estates of deceased persons should be as economical and straightforward as possible. Application for probate will inevitably affect us all at some time, whether directly or indirectly.

    The House will be aware that the Government favour removing all unnecessary restrictive practices, but it is vital to ensure adequate protection for the consumer. The Government consider all such issues on their merits, the test being whether the existing restrictions remain desirable in the public interest. A balance must always be struck between encouraging competition and ensuring that the consumer will not suffer as a result of conflicts of interest or anti-competitive practices. That is where the public interest lies. In today's interesting and well-argued debate, there has been much comment on the recommendations of the Benson report. I wish to lay before the House one or two details of what happened after the report was published. The Government received further submissions from the Law Society and from the Committee of London Clearing Bankers, the latter in support of its case for implementing the recommendations. The Committee of London Clearing Bankers stated that there would be two specific benefits for the public in the removal of what it described as the
    "unnecessary involvement of a solicitor".
    First, the delays inherent in the present system could be significantly reduced by cutting the number of steps involved in obtaining a grant of probate. Secondly, there would be savings for the beneficiaries because they would no longer be charged the independent solicitor's fees.

    On the other side of the coin, the Law Society emphasised that application for a grant of probate was an application to the court and expressed the view that a trust corporation had no more right to apply for such a grant than to make application to or appear before any other court. The Law Society reiterated its view that the present restrictions were drawn up
    "to protect the public and to ensure the proper administration of the law".
    Nevertheless, the Royal Commission on legal services had recommended a change in the law in that area, which the Law Society countered by arguing that the recommendation should not be implemented "out of context".

    Two other considerations were relevant. First, as the Bill recognises, any change should be confined to non-contentious cases, and, in the event of a probate matter becoming contentious, the trust corporation must put the matter in the hands of a solicitor. I do not think that anyone has argued against that today. That view was fully accepted by the Committee of London Clearing Bankers, and it seems that the wisdom of such a safeguard is widely recognised.

    Secondly, the charges made by executors who are not solicitors should be subject to the same control as are solicitors' charges. Interested parties should have the right to require that fees and charges for probate be taxed by the court. Under this head should come any charges and financial advantages arising in the course of the administration. The Law Society also raised the question of conflict of interest and anti-competitive practices by which, it suggested, consumer protection would be endangered. It said:
    "Trust corporations are commercial institutions which use their considerable resources to advertise for probate and trust work and are not restricted by any professional code of conduct from persuading the public to use their services."
    We know of the impact of advertising on the reduction of conveyancing fees. That was made clear during our consideration of the Administration of Justice Bill yesterday evening. The society added:
    "The occasions on which the expense of employing a trust corporation as executor are justified are few but the occasions on which a local manager can persuade a customer to appoint a corporation are many. On some of these occasions when the estate is small the corporation subsequently renounces the executorship, thereby causing delay and difficulties in administering the estate: on other occasions trust corporations may continue to act and unnecessary expense is incurred by the beneficiaries. A bank may therefore be able to persuade a customer to appoint the bank as executor and trustee when the appointment is not in the best interests of the customer. The bank is also entitled to draw a will for a customer and to include in it a charging clause which is not subject to independent review and which enables quite high charges to be made."
    That matter was referred to quite often in the course of yesterday's debate on the Administration of Justice Bill. The Law Society continued:
    "If, in addition, the banks are able to extract the grant of probate without the details of the will being considered by an independent solicitor they would be in the position of having total control over all aspects of a deceased's estate from the preparation of the will, by way of the application for the grant of probate, to the administration of the estate and finally to the fixing and appropriation of charges. That in the council's view is entirely out of step with the continuing and increasing trend towards the protection of the public."
    I hope that the Law Society will forgive me if I describe those observations as totally predictable.

    Does the Attorney-General agree that there has been considerable disquiet for some time about the major banks' level of charges for probate? Does he further agree that perhaps the subject should be examined by the Office of Fair Trading? There are no statutoty regulations, and very often the small estates suffer the most.

    I would rather not get involved in the issues that the hon. Gentleman has raised. There is very little time left before the debate must come to an end. I shall confine my remarks to the Bill I share the hon. Gentleman's disquiet that there is really no control over charges made in such circumstances That is a sad omission from the Bill and is one reason why the Government are unable to support it. We are also rather unhappy about the Lord Chancellor being the person responsible for approval. It was suggested originally that the Bank of England should have that responsibility. In a way, the bank would be much more knowledgeable than my right hon. and noble Friend the Lord Chancellor.

    The Committee of London Clearing Bankers denied that there would be any conflict of interest. The two arguments that I am summarising for the House are entirely predictable. In the committee's submission, such an amendment would not impair either the proper administraton of justice or the protection of the public. It said at the time:
    "The corporations are not subject to judicial control in the same way as the legal profession, but far more so than the latter, they are subject to the restraints of the boards of their parent bodies, to public opinion and the media and to the Office of Fair Trading. The banks are quite properly very conscious of their standing with the public at large."
    Further, it agreed in principle to legislation which would subject the charges made by corporations to a reasonable form of control It considered, rightly or wrongly, that
    "the banks have nothing to fear in this respect."
    However, the Lord Chancellor, after much consultation, decided that it would not be right at that time to approve the relaxation of the existing controls. When the Government published their response to the report of the Royal Commission on legal services in November 1983, that position was maintained. The response stated:
    "The Government considers that application by a solicitor for probate provides a valuable safeguard for the public, and does not accept that, at present, a change in current procedure is justified."
    That is the background to this issue. Those, in brief. are some of the arguments that have been raised and will no doubt be raised again whenever this subject is considered. No doubt, too, the House can see why undertaking legislation on an issue such as this will require widespread consultation and thorough consideration, both of which are lacking at the moment.

    I have not mentioned yet, for example, the idea of the approved trust corporation. Would an approval by the Lord Chancellor be a viable and acceptable mechanism? What would the resource implications be and what would be the appeal and disciplinary arrangements, if any? All the legal and administrative aspects of the—

    It being half-past Two o'clock, the debate stood adjourned.