My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 3 [The Board’s duty to promote the regulatory objectives etc]:
[Amendment No. 32A not moved.]
moved Amendment No. 33:
33: Clause 3, page 2, line 35, at end insert—
“(4) In assessing what is proportionate in the regulation of approved regulators the Board shall have regard, inter alia, to—
(a) the regulator’s resources (including voluntary resources) and the effect on them of the Board’s acts; (b) the effect on regulatory fees; (c) the extent to which the Board’s acts might discourage entry to or retention in the regulated sector; (d) the extent to which the number of persons regulated by a regulator might be reduced in consequence of the Board’s acts; (e) the extent to which the regulator might be disadvantaged and another regulator might derive an advantage, in particular through the movement between regulators of regulated persons as a consequence of the Board’s acts.”
The noble Lord said: This amendment has been inspired by the patent and trade mark attorneys, who are a much smaller body than most of the other regulators affected by the Bill. Their resources, premises and personnel, for example, are more limited than those of the Law Society or the Bar Council.
The wording of the amendment requires the Legal Services Board to act proportionately in respect of these smaller regulators in discharging its functions. What is appropriate for some of the regulators is certainly not appropriate for others. In particular, the board should consider the resources and viability of the regulators that will be affected by its decisions and actions.
Such regulators are, I suggest to the Committee, low-risk, non-consumer-focused professionals with excellent conduct records, and they should be recognised as such in the new regulatory regime. The regulatory costs to the associations, as well as to their members, are low, and they place a very low burden on the wider regulatory system.
One characteristic of trade mark and patent attorneys is of particular importance: they are in the unusual position of being able to opt out of their associations. These associations anticipate a real risk that over-regulation of those who have the freedom to opt out could well reduce or restrict entry to their professions. It is not currently mandatory to be a member of either of the two main professional associations connected with these activities in order to practise or represent clients. The members can leave the regulated system at any time they wish. The costs could clearly increase after the Bill has been enacted if members leave the system and, in those circumstances, the position of both the main regulators could, in time, become untenable.
The purpose of the Bill is to ensure more effective regulation of the legal profession. That is of course well understood, but one unwelcome side effect is to reduce the effectiveness of regulation in the more specialised or technical areas of the law. That is the background to the amendment. I beg to move.
I support the amendment. It concerns proportionality, but proportionality is like a piece of a jigsaw: when this is put together with other amendments to the Bill, it serves, in effect, as a safeguard for the implementation of the Bill in a manner that can retain public confidence. It cannot and ought not to be dealt with in isolation. It is an essential safeguard to the implementation of a Bill that is designed for the control of legal services. If one reads it in context with Amendment No. 3A, which was not moved but which in my respectful opinion is an invaluable amendment—I hope that it will be moved on Report—and if one reads it in context with the public interest amendments to Clause 1 and with Amendments Nos. 32A, 33A, 34, 35 and 46 to 51, one has the pattern to which I speak.
The amendment defines parameters within which the discretion of the LSB should be exercised. That is crucial because, as matters stand, it appears to have an absolute discretion, without means of ultimate judicial resolution. The LSB is set up under the aegis of the Secretary of State with a lay majority and a lay chairman. It has an almost absolute administrative discretion affecting approved regulators. Inevitably, some of the decisions of the board would be flawed as regards some of the grounds that have been set out in the judicial review amendments, Amendments Nos. 52 and 139F. It is a worrying situation. The drafting of the amendments to which I have referred—the judicial review amendments on which I shall speak later—will have to be reconsidered in consultation with my noble friends Lord Hunt and Lord Kingsland because to some degree there is an overlap with Amendment No. 3A and with the pattern of amendments to which I have referred.
In any event, perhaps the amendments will have to stand as a long stop against rejection of certain other amendments. It is not really acceptable, with or without this pattern of amendments, that the LSB should act as judge and jury in its own cause to control legal services without resort to any form of judicial supervision. I pay tribute to my noble friends Lord Kingsland and Lord Hunt, and to the noble Lords, Lord Thomas and Lord Maclennan of Rogart, for having devised this pattern. It is not easy to unscramble a parson’s egg.
I strongly agree with my noble friends. Indeed, it may reassure my noble friend Lord Campbell of Alloway to know that in the next group we debate the important Amendment No. 33A. In the mean time, I congratulate my noble friend Lord Kingsland on Amendment No. 33. It is vital to get the balance right and it will have given a great deal of pleasure to the Minister’s many friends on all sides of the House to see her happy, smiling face looking out at them from page 6 of the current edition of the Law Gazette. Underneath her beautiful photograph is the caption “Ashton not closing the door”. I hope that we are pushing at a door not half closed but half open. Although the Minister rejected the amendment tabled on the previous day in Committee—namely, that the board should act in partnership with the approved regulators—she will give careful consideration to how best we can reflect proportionality in the legislation.
I am even more encouraged by this week’s edition of The House Magazine. I make these quotations to show not only that I monitor these important publications, but that a clear message is coming from the Government. The Minister’s colleague Bridget Prentice, in her article headed “New champion in Chambers”, says:
“Good regulation of legal services should be tailored to the needs of the specific marketplace. It should be risk-based and proportionate”.
Later in the article she says, importantly:
“But it will not replace day-to-day regulators like the Bar Council or the Law Society—instead it will work with them to set high standards across the sector”.
That is clear and welcome.
At Second Reading, in summing up the debate, the Minister said that,
“in Clause 3(3)(a), we have tried to address the issue in the context of the work of the board. We think that it is appropriate, as opposed to using Clause 1 as noble Lords have suggested. Because we have talked about accountability, proportionality, consistency and so on, we think that that is a way to tackle the issues that noble Lords have raised”.—[Official Report, 6/12/06; col. 1208.]
We were making the point about independence, but the Minister is returning to the theme of proportionality. That is what the clever amendment tabled by my noble friend Lord Kingsland is all about and I am pleased to see fellow members of the Select Committee in the Chamber. Unanimously in our joint report we echoed the important phrase of proportionality. We reported that the OFT had told us that the appointment of the LSB as an oversight regulator would be,
“a fundamental step towards ensuring that regulation is necessary, proportionate and meets the consumer interest”.
The NCC, reflecting the views of consumer groups, was sure that,
“the LSB will act with a proportionate touch”.
Sir David Clementi told the Select Committee that he would not describe the model that he and the Government are adopting,
“as light touch or heavy touch. Like others, I hope it is proportionate”.
So the members of the Joint Committee reached the unanimous conclusion that,
“we hope that the LSB will act in a proportionate manner and in accordance with the framework envisaged by Sir David Clementi”.
I hope that the Minister will be able to give us some comforting words because, as the president of Law Society, Fiona Woolf, pointed out, the Bill does not reflect the theme of proportionality. Although she accepts the challenge of the Bill providing the opportunity to create a modern, efficient and enabling regulatory framework that protects the competitiveness and innovation of our law firms, she is concerned that overlapping powers are proposed for the professional bodies as regulators. She rightly said that that could invite confusion and conflict.
I hope that the Minister will give us some comforting words and say that the Government will work with us in Committee to try to find a way of ensuring not just a light touch, but that proportionality is maintained and that the Legal Services Board will be seen as the overseeing regulator but will leave day-to-day regulation to the Law Society, the Bar Council and the other key bodies. As we get into the Bill, we will discuss this in more detail, but some comforting words from her today would be much appreciated.
I hope that in this debate we will go beyond comforting words to a little more precision about how the Government intend to ensure that the general principle of proportionality, to which they have given assent, will be reflected in the Bill in a manner that reassures those who have been engaged in dialogue with the Government from the two organisations that regulate a relatively small number of specialist attorneys—the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys—that their particular problems have been recognised.
I have been advised that those organisations have been in direct dialogue with the department and that the language of the amendment is particularly addressed to deal with their concerns. When looking at the Bill, one has to consider whether by embracing their concerns one may be opening up wider problems, but, on the face of it, the recommendations embodied in this useful amendment seem to go a long way towards spelling out the apprehended opportunities for a disproportionate response to the regulation of relatively small regulators. I view this as a valuable opportunity not only to probe the Government’s benevolent general intentions in these matters—“beneficent” might be better than “benevolent”—but also to probe how they are approaching this. We will come back to the issue of proportionality on the broader canvas on later amendments.
I found that an interesting debate. I have to confess that I did not know where the amendment came from, although I could see that noble Lords would want to have this debate not only at this point, as noble Lords said, but throughout the Bill’s passage. Perhaps I may say through the good auspices of noble Lords and through Hansard that I would be very keen to meet the trade mark and patent agents’ representatives, whom I have not seen, to discuss this further. They have been in touch with the department, but there is nothing quite like having the conversation oneself to seek to reduce concerns. I take the point made by the noble Lord, Lord Maclennan of Rogart. My nice comfortable little words may be all well and dandy but he would like something that goes a bit further.
At this stage in our deliberations perhaps I may say a little more about “proportionate” and take up the point about the “jigsaw effect” raised by the noble Lord, Lord Campbell of Alloway—who discussed the subject with me earlier today. I think that that is a good way of describing some of the themes running through the Bill. When we eventually end this Committee stage perhaps he will reflect on whether we have covered all the elements of the jigsaw and on the possible discussions on that.
I would expect the board to have regard to much of what has been set out by the noble Lord, Lord Kingsland: the regulator’s resources, the effect on regulatory fees and the extent to which entry to or retention in the regulated sector applies. I agree with the organisations that are concerned about a “one size fits all” approach that the regulations should not attempt to provide such an approach . We have sought to define a way of dealing with that in Clause 3 by saying that the board should be proportionate. It very specifically looks at how to ensure that the regulation is appropriate for the bodies that are to be regulated. We have not defined it in the Bill specifically because we want “proportionate” to be considered on a case-by-case basis. That is a very well-trodden path not only in legislation but, more importantly, in how we try to deal with it in practice. I am not sure that we could find a definition that would not lead us in some ways to an arrangement that could have a detrimental effect on consumers or the legal professions themselves. Perhaps I may give an example.
The board could find itself under a lot of pressure, where one regulator might be disadvantaged and another might derive an advantage because people moved between one regulator and another, to ensure that its actions did not lead to one regulator losing members. However, that might be a natural and even—dare I say it?—desirable consequence when there is a regulator that might be damaging the regulatory objectives. The board’s decision could lead, if you follow the principle, to restricting competition in the provision of those activities. That would be inconsistent with the regulatory objectives to promote competition—which we have already discussed—in the provision of reserved legal services. We could end up unable to tackle the issues underpinning the regulatory objectives as effectively as we might. I absolutely take the point that if we are to use these words, we need to be clear what we are trying to do. Perhaps I may say a little more about that.
As noble Lords will know, the Hampton review on regulatory inspections and enforcement looked at this question. In Section 2(3) of the Legislative and Regulatory Reform Act we established that,
“regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent”,
“regulatory activities should be targeted only at cases in which action is needed”.
Looking across legislation and good practice, we believe that—rather than setting out a definition of proportionality, which I think would move us into a “one size fits all” arrangement—the term has a natural meaning which is widely accepted.
In Clause 48 we have enabled the board to issue policy statements about the work that it will be doing. That may be a way of addressing the specific point—by including in the policy statement the issue of further work on defining what we mean by “proportionality”. Those being regulated might find a policy statement a better place to consider the issue. It would be very clear, and everyone would be absolutely sure about what was being looked at. It would also have the benefit of enabling additional information or changes to be effected appropriately.
It is important that the board, the Office for Legal Complaints and the regulators consider what is meant by “proportionate”, but that could be done on a case-by-case basis. We should not try to constrain them with definitions that will not be appropriate in every case and that would result in the board having to think about a “one size fits all” approach.
Finally, the noble Lord, Lord Hunt of Wirral, returned us to the issue of the Legal Services Board and the regulated bodies working together in close partnership. The whole thrust of the legislation is underpinned by achieving clarity about the roles of the different bodies and about the nature of the relationship between them. Again, we will return to this theme as we work through the Bill. It is essential that they collaborate and work together co-operatively to address these issues.
I therefore resist a definition for the reasons I have given. I do, however, accept that proportionality is essential for resolving the problems mentioned by those who have helped to draft the amendment, and I am grateful to the noble Lord, Lord Kingsland, for tabling it. I hope I have assured noble Lords that we accept that clarity is essential and that it is essential that the bodies behave in that manner. In that spirit, I hope noble Lords will feel that we have at least begun to address the issue and that they can take some comfort from my words to the Committee.
I want to explore further exactly what the Minister means. I agree with the noble Lord, Lord Maclennan, that the patent and trademark attorneys will be very grateful for the opportunity to go through their concerns in detail, and I welcome the way in which she proposed it. However, my point was that the larger regulators, too, feel that the balance is not yet right. Although the Bill is generally welcomed, the new chairman of the Bar Council, Geoffrey Vos QC, made the following point, which I would like the Minister to deal with.
“When it comes to the proposed oversight regulator … the thresholds allowing it”—
“to intervene in the day-to-day work of frontline regulators are set too low”.
That, of course, is a matter for the Bill to make clear. I hope at some stage as we go through the Bill that the Minister will be able to satisfy us either that the thresholds will be changed or that we need something akin to the excellent amendment of my noble friend Lord Kingsland to make that clear up front in the Bill.
The third option is that I will convince the noble Lord that the thresholds are right. I am grateful to Geoffrey Vos, who has been to see me to discuss this. I know that the Bar Council in particular and other regulators are looking to ensure that the descriptions that we have given in your Lordships’ House and another place have clarified the essence of what we are trying to do. We will talk about thresholds later on in Committee, and I hope that, as we go through the Bill with Members of your Lordships’ House and with those who will be regulated, I will be able to say more to address their concerns directly.
We should bear in mind that the tighter we make the definitions in the legislation, the less room there is for those negotiations, discussions and debates between the oversight regulator and the regulators themselves, which I would be reluctant to lose because there is a lot to be done there. I am hoping that, by setting out the way in which those debates and discussions would be conducted and the essence of what would be in them, we may provide the comfort that those organisations are looking for. It is not always a question of changing the Bill, as noble Lords know; it is about expressing precisely what we are trying to do in a way that gives comfort to those who want to see us do it properly.
I am most grateful to the Minister for her response and, indeed, to all noble Lords who have participated in the debate on this amendment. The Minister was especially helpful when she said that she would be prepared to meet representatives of patent agents if they thought that such a meeting would prove fruitful.
I am also very pleased to hear the Minister’s general remarks in support of the principle of proportionality. Undertakings made by Ministers at the Dispatch Box have some constitutional value in binding the conduct of Ministers thereafter, but their value is less clear in the effect of such statements on third parties. When the Legal Services Board comes to take decisions, it must balance what a Minister said about how it should behave against the wording in the Bill. If that wording conflicts with the Minister’s statement, an organisation such as the Legal Services Board may well feel safer following the text of the Bill rather than the speech of a Minister such as the noble Baroness, however cogently she expressed herself.
I share the view of, I think, most noble Lords who have intervened that it would be preferable to have something more specific in the Bill. The noble Baroness said that the right approach would be to work on a case-by-case basis, but unless those bases are considered in a framework such as the one provided by the amendment, I am not sure how much further that would take us.
The noble Baroness drew our attention to the Legislative and Regulatory Reform Act, which might prove a helpful source of further guidance on the meaning of “proportionality”. I would prefer, however, to have the expression dealt with in the context of the specific responsibilities of the Legal Services Board. The noble Baroness is reluctant to make provision in the Bill, but perhaps she might consider the issuing of guidance under the Bill to inform the meaning of “proportionality”.
The example of patent attorneys is particularly instructive because, although they are an approved regulator under the Bill, their position is quite different from that of, for example, the Law Society. The Law Society is constantly dealing with what one might describe in the marketplace as consumers; it operates in the economic equivalent of the retail sector. However, patent agents deal almost exclusively with other professionals; they operate, in a sense, in the wholesale market and inhabit a very small, highly technical world, a long way away from that of the Law Society. The Legal Services Board will have to make very different considerations when exercising its supervisory role. Unless the board is constrained to act as such, we may find considerable overregulation in the world of patent agents.
That is a very helpful response. In those circumstances, I need not grapple with the point any further. I thank the noble Baroness and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 33A:
33A: Clause 3 , page 2, line 35, at end insert—
“(4) The role of the Board is to ensure that the approved regulators act in a way which is compatible with the regulatory objectives.”
The noble Lord said: As the Committee is well aware, when Sir David Clementi initially issued his consultation paper that formed the background to his subsequent report, he portrayed two possible solutions to the regulation of legal services. One was based on the model of the Financial Services Authority, whereby a regulatory body was established that performed the function of direct regulation. The other model was one where the regulator would not directly regulate but would act as the supervisor of other regulators. As a result of the consultation, he concluded that the second model was the right one; the professional bodies would continue to be the approved regulators; and the Legal Services Board would act in a supervisory role intervening only if one or other of the approved regulators was delinquent. This model was described much more fully in Sir David’s final report and, when the Government came to respond, they said that they accepted it in its entirety.
The difficulty for us is that the Bill does not reflect either the picture painted in Sir David’s final report or the Government’s response. Amendment No. 33A seeks to enshrine the Clementi philosophy in the Bill. The purpose of the amendment is to make absolutely clear that the board’s role is that of a supervisory regulator. It supervises the approved regulators and ensures that they follow the regulatory objective. It is not a front-line regulator. The Government have on a number of occasions—at Second Reading and on the first day in Committee a fortnight ago—agreed with this philosophy, and I see the noble Baroness nodding. But it is our view that more needs to be done to the text of the Bill in order to ensure that the Legal Services Board understands that that is its task.
A distinct though related issue bears on the balance of power between the Legal Services Board and the approved regulators—the very important consideration of cost. The cost of the new Legal Services Board is a major issue for all the approved regulators, for reasons which I do not need to go into because they were very well canvassed at Second Reading. The Government have provided us with certain estimates for start-up and running costs, which are based on the understanding that the Legal Services Board will be a supervisory body. If it turns out that the board sees its role as being more micromanaging than that, the Government’s cost estimates will prove to be wholly inaccurate. So the two issues are linked.
My noble friend Lord Hunt drew to your Lordships’ attention a related issue, which is not directly dealt with in this amendment. We will come later to amendments which are an important counterpart to Amendment No. 33A; that is, amendments which deal with the level of intervention thresholds. It is a necessary complement to the principle of the balance of power between the supervisory and the direct regulatory role that what are termed, I think, by the professions as the trigger thresholds for intervention by the LSB are not too low. Rightly, those amendments have not been grouped with Amendment No. 33A because they raise distinct and rather technical issues; but they should be borne in mind when we consider this issue. I think that I have made the point sufficiently well for it to be understood. It is an important point of principle, which we believe should inform all subsequent drafting of the Bill. I beg to move.
I am pleased that my noble friend Lord Kingsland has raised the question of cost. As we plough through the regulatory impact assessment, we of course become aware that:
“The estimate assumes that the underlying nature and volume of regulatory activities under the new LSB will not be substantially different from those performed under the current regulatory framework”.
That is the basis on which the new regulatory framework is proceeding. Sir David Clementi said several times that this is not the FSA but a new regulator—the Legal Services Board—with a clearly defined supervisory function.
In our Select Committee report we questioned the costing, particularly in the light of some of the evidence we received. The Bar Council, for example, argued that the assumption in the RIA was,
“incompatible with the way the Bill is drafted, and would not be sustainable even if there were a genuinely light touch regulator”.
The then president of the Law Society told us that:
“Our perception is that the costings are actually based on the light touch model that Sir David Clementi and the Lord Chancellor have in mind, which we do not think is in the Bill”.
Other witnesses were concerned that the Legal Services Board might move away from the light-touch model over time. PricewaterhouseCoopers’s conclusions about the costs of the Bill are explicitly based on the assumption that the LSB will operate at a level of activity not substantially different from that performed under the current framework.
If one compares the RIA with the Bill, there are clear differences, and I suppose what my noble friend is doing so cleverly in this amendment is stressing that the role of the board is to ensure that the approved regulators act in a way which is compatible with the regulatory objectives—a clear supervisory approach over the front-line regulators. If this amendment were put in the Bill, how much more sensible would be the relationship between the RIA and the Bill itself? That lies at the heart of the concerns so clearly expressed by my noble friends Lord Kingsland and Lord Campbell of Alloway, and that is why I agree with what they have said.
I strongly support the words of the noble Lord, Lord Kingsland, about the centrality and importance of this amendment. He has eloquently made clear that the two routes considered by Sir David Clementi for advancing the regulation of legal services were properly debated within that study and were subsequently considered by the Joint Committee, of which the noble Lord, Lord Hunt, was the distinguished chairman, while the Government themselves have lent support to the second role for the regulator, the Legal Services Board. It is remarkable that this is not clearly spelled out in the Bill. It is possibly a reasonable implication, but powers are also given to the Legal Services Board enabling it to go rather beyond the second option. I particularly draw attention to the phraseology of Clause 3(2), allowing the board to,
“so far as is reasonably practicable, act in a way … which the Board considers most appropriate for the purpose of meeting those objectives”.
That is a very widely drawn power indeed, which, unless the objectives are much more clearly spelled out, provides practically no limitation upon the possibility of what might be described as regulatory creep—a substitution of the Legal Services Board’s judgment for that of the front-line regulator as a matter of principle.
This is not the last time we will have the opportunity of doing so, but it is important to define these concerns at this stage and to recognise that they arise from the language of the Bill. I know that parliamentary draftsmen are always extraordinarily reluctant to admit that they could conceivably have overlooked something, especially when the Government have made their objectives plain. I do not know whether that kind of professional obduracy about the language of the Bill is behind the Government’s position, but I would like some indication in this debate that the Government are conscious that the language of the Bill is not reassuring. The regulation of the regulators is the prime purpose, and ought to be spelled out. I hope that this debate will allow the opportunity to give that reassurance. If not, we shall certainly have to return to it.
The noble Lord, Lord Maclennan, is absolutely right to say that the purpose of this stage of our deliberations is to define the issues that noble Lords feel are of great concern. I hope that he will recognise that one of my roles—I am not the policy Minister on this legislation—is to carefully consider what is said in debate. That is why I am grateful to all noble Lords who have, helpfully, intervened and spoken.
Of course, I would say that I think that the language is clear, but I take the point. Parliamentary counsel—who, as the noble Lord will appreciate, are always wonderful in all circumstances—are, in my experience, alive to ensuring that issues raised in your Lordships’ House have been appropriately dealt with. I know—and I say this not so much to your Lordships but, through your Lordships, to outside bodies—that your Lordships have the advantage of being used to working in the language of parliamentary counsel. It is sometimes quite hard for those unfamiliar with it to see that, by being written in a particular way, the language does not suggest what a lay person might immediately think of. It is also possible to define things in a way that might appear helpful at first, but actually lends itself to difficulties later on, as mentioned in our previous discussions on the word “proportionate”.
The Government’s policy has always been that day-to-day regulation rests with the approved regulators. We want them to use their regulatory experience and knowledge to ensure that high standards are maintained and that the oversight regulator intervenes only where regulators fail to meet these high standards. We do not intend in any way, shape or form that the board should become a micromanaging regulator. That is why there is the statutory duty in Clause 3 to ensure that, when carrying out its activities, the board has to have regard to better regulation principles. That includes the fact that activity should be targeted only at cases where action is needed. Those principles are extremely important in the context of this debate.
We think that this is sufficiently clear in the Bill; part of our purpose is to make sure of that. We want the board to be in a position to take action where acts or omissions on the part of an approved regulator have had or are likely to have an adverse impact on the regulatory objectives. That means that, where a regulator is failing, the board can enforce the statutory obligations under Clause 27 on the approved regulators to act in a way that is, as far as is reasonably practicable, compatible with the regulatory objectives. We think that this creates a sufficient demarcation of the roles of the board and the approved regulators without placing the duty suggested in statute. Looking at this clause and Clause 27 in concert might enable noble Lords to see more clearly what we have been seeking to do. The amendment could have the opposite effect and lead to more micromanagement, which is not what noble Lords, the Government and, I am quite sure, the professions want.
The Government’s clear principle is that the costs will be paid by the professions. My discussions with them have shown that there is a concern to make sure that we set up the regulatory framework in a proportionate way. Sir David Clementi looked at preparing some broad cost estimates. PricewaterhouseCoopers prepared its report based on its knowledge and assumptions; we asked it to do so because of its great expertise in this area. It worked with the professional bodies in estimating the costs that noble Lords know about.
As we establish the Legal Services Board and the OLC, we will continue to work to constrain any costs. In so doing, we are making sure that we do not add on any proposals for greater activity from the Legal Services Board. The implication is generally, although not always, that adding on activities costs more. Our firm position—and I have offered to talk further to the professions about this—is that costs should be considered in terms of the clear understanding that we expect them to be paid by the professions.
We hope that in what we have sought to do in the Bill we have clearly demarcated the relationship between the regulatory bodies and the Legal Services Board. We are mindful of the costs issue and want to make sure that the principles of better regulation are followed, meaning that the Legal Services Board intervenes only where necessary. I hope that noble Lords will support that fundamental principle.
I think that we should press the Minister a little further on this important amendment. Nothing in the Bill indicates that the Legal Services Board is intended to act as a supervisory regulator, leaving day-to-day responsibility with the approved regulators and exercising its powers only where they are clearly failing. The Bill is cast in terms that would enable the Legal Services Board to set out detailed templates for the way in which it considered approved regulators should discharge their functions, to micromanage them and to substitute its view for theirs, even where their approach is plainly within the range of reasonable decisions. That is the Bill as is stands.
We wrestled with this problem in the Joint Committee. We were mindful of the fact that Sir David Clementi had looked at two options. The first was a unitary system of regulation with a body along the same lines as the Financial Services Authority taking over responsibility from the professional bodies. Secondly, he looked at the continuation of regulation based on the professional bodies, but with a new board with supervisory powers to ensure that the approved regulators carried out their tasks effectively. Sir David’s final report favoured the second option, but that is not in the Bill. The Joint Committee spent some considerable time taking evidence on that point, and I want to press the Minister on this amendment because it would solve at least one major problem.
Unanimously in the Joint Committee, we said at paragraph 176 of our report:
“We believe it is important that the LSB has an effective range of powers, but it is also important that the draft Bill ensures that they are only used where necessary, in order to avoid undue micro-managing of the approved regulators”.
We continued in paragraph 178:
“The draft Bill should ensure that—consistent with the Government’s policy that lead responsibility should rest with the approved regulators—the Legal Services Board acts in partnership with the approved regulators”.
The Government appeared to favour that approach, stating in their response to the Joint Committee’s report:
“The LSB should exercise its powers only where approved regulators are clearly failing”.
There is nothing in the Bill to indicate that the LSB is that supervisory regulator.
When the Legal Services Board is established, it will not look to the Government’s response to the Joint Committee’s report in order to determine what its powers are and how they should be exercised; it will look to the Bill, which will then be a statute. Surely the Minister must realise that there is a considerable problem here, which can be addressed only by amendments to the Bill. That is what the Joint Committee recommended and what the speakers in this debate have said. So far, the Minister has not been able to respond positively. I hope that she will reflect and return to the House with a clearer guideline to the LSB, set out in statute, that it is the supervisory regulator and does not have any day-to-day responsibility.
To conclude my attempt to persuade the Minister, I point out that there are a number of advantages in continuing to base regulation on the professional bodies. First, it is much easier to ensure that regulation is independent of the Government. Secondly, the professional bodies are well established and building on them avoids the need to incur the costs of setting up a new regulatory approach. Thirdly, the professional bodies may be more successful than a regulator on FSA lines in getting the profession to agree. Lastly, the professional bodies are closer to day-to-day practice and thus able to decide what is necessary and to develop appropriate regulatory responses. The Government accepted Sir David Clementi’s recommendations, so why are they not yet able to put them into practice and into effect in the Bill?
I am grateful to the noble Lord for spelling out the detail on this matter and I will try to respond. I do not think that anything divides the Committee and the Government in terms of wanting the front-line regulators to do the regulation and the Legal Services Board to act in the manner that we have described.
The difficulty is twofold. First, the amendment would not do what noble Lords want it to, because it would make the LSB be more active than the Government want. It would give it a more positive role, in making it check that things are being done, rather than being able to act and operate, as we all agree that it should, when there is clearly a problem or issue that needs to be resolved. I know that that is not the intention, but the odd thing about the amendment is that it would make for more activity rather than the right level of activity, which is what noble Lords want.
The second part of the twofold issue is that, in many ways, what the noble Lord seeks is in the Bill as a whole. Noble Lords are dissatisfied; if I am reading them correctly, they are saying, “That’s all well and dandy, but the issue about supervisory function needs to be clearer, earlier, rather than being there but being there in a totality sense”.
What we want the Bill to make clear is that lead responsibility is intended to rest with the professional bodies, with the LSB exercising its powers only in the event of a regulatory failure. That is what Sir David Clementi recommended, but it is not yet in the Bill.
I am grateful to the noble Lord. We think that what he asks for is there in the totality of the Bill. Reasonably, he is saying that that is not as easy to see as I claim that it is. The best thing that I can do, as he may or may not be astonished to hear, is to have a look at it again. In principle, I do not think that there is a division between us on this issue.
To put it in the context of what I said about the twofold problem, we must ensure that we do not accidentally create a problem by making the board do more than we originally envisaged. I am sure that that would not be in the noble Lord’s mind. I commit to nothing with regard to changing what is in the Bill, but clearly there is a concern, which I am happy to look at.
In some ways, yes. But the difficulty with the amendment is that it says that the LSB must ensure that the functions are being carried out, which is a more proactive approach than the one that the Government envisage. In other words, under Clause 27 there are clear things that the front-line regulators must be doing with regard to the regulatory principles; that is established. When there is a concern, the LSB will act. But the issue is not about constantly making sure that the board is doing the job that it should be doing; it is how the amendment could be interpreted in terms of what the LSB will do on a daily basis. So on the principle behind ensuring that the regulators operate effectively there is nothing between us, but the practical implications of how the amendment would work would take us to a place that is not quite where the noble Lord, Lord Kingsland, would wish us to be.
If the Minister is right in her answer to the noble and learned Lord, Lord Mackay of Clashfern—and I would beg to doubt it—it adds to the incubus that rests on her shoulders to come up with a better form of words. To my mind, the form of words that has been tested and argued by many lawyers, with the Law Society playing a considerable part in the formulation, goes towards meeting a deficit in the Bill. I would be reluctant to abandon this form of words on the—if I may say so—mere bland assertion of the noble Baroness that it would open the door to wider action by the Legal Services Board than is intended. That is not the way that I read the plain meaning of the words.
Reading the measure, I understand that the intention is to have a light touch, but it allows for a heavy touch. That makes me as worried as other noble Lords who have expressed concerns. Unless something is put in to guide the board, there is a real danger that the measure might activate a heavy touch and defeat the Government’s intention.
I appreciate the noble and learned Baroness’s intervention, but I had a further point to make. The Minister drew our attention to Part 4 and suggested that there was something in the drafting of Clause 27, on the duty of the approved regulator, which might give comfort. I am bound to say that I find no comfort at all in Clause 27 with respect to the purposes of the amendment that the noble Baroness claims is redundant. Part 4, by its very location as the fourth part of the Bill, seems to me to deal with a series of subordinate issues. Those issues are important, but those clauses do not deal with the primary role of the Legal Services Board. Clause 27, to which the Minister drew our attention, concerns the approved regulator, not the Legal Services Board. Frankly, it is by the way to the argument that we seek to deploy.
I prefer to complete my remarks. I have already given way twice. It might help if I conclude my argument before resuming my place.
On a number of occasions, the Minister has said that she does not have an issue with the objective that we are discussing. That has been clear at every stage—the Government have accepted the recommendations of Sir David Clementi. But it is not clear that the Government are incorporating their decisions in the Bill. Considerable efforts have been made to find appropriate words to reflect the Government’s intentions. It will not do to tell us that they are there without being able to show us where they are in the Bill. At no stage have the Government succeeded in doing that to my satisfaction. I have acknowledged that this is not the final occasion on which we will consider these matters, but I hope that, although the Minister may not like our language, we shall at least get an admission from the Government today that there is a serious lacuna that needs to be filled.
I shall be very short. Is it the Government’s intention, or is it not, that the board should maintain the quality and independence of the legal services? If it is, that is not in the Bill and it is not in one of the regulatory objectives. If we are to try to get straight what should be in the Bill, I respectfully ask the noble Baroness to give some consideration to that.
I am very grateful to the noble Lord. I thought it might be something of that nature, but I did not know. I am sorry if I am bland; that is not a word that I associate with myself very often. I will attempt not to be. Please accept that for me the purpose of this discussion was to understand what noble Lords felt was missing from the Bill and to explain the concerns that I had about the amendment. I have taken legal advice and advice from parliamentary counsel on the amendment, as noble Lords would expect, and there is a concern that because the Legal Services Board might be thought to be responsible for every aspect of what the regulators were doing, it would require it to be more active than would necessarily be the desire of those behind the amendment. I felt it was perfectly reasonable to say to your Lordships that that was my concern. I know it is not the intention of the amendment, but it could be an effect. That was why I wanted to think about how the amendment was worded.
I also said to noble Lords that the principle of the operation between the Legal Services Board and the regulated bodies was one on which I felt there was a great deal of agreement. I said that noble Lords had expressed extremely succinctly their concern that they did not feel that this was effectively laid out, in the early part of the Bill in particular. I said that I understood the points that had been made, and I was prepared to go back to discuss this with my colleagues in the department and to look at it again. But I was also trying to say that it was not that the Government did not intend it to be the relationship that noble Lords wanted, but rather we hoped that we had achieved it in the totality of the Bill. I apologise to the noble Lord if that was a bland set of statements, but it was not meant in any way to raise the temperature in the Committee; quite the opposite. It was meant to say that our intentions are the same. If noble Lords believe that we have not quite got it right, of course I will go away and think again. That is what noble Lords would expect me to do at this stage in the Bill. On that note, I hope that the noble Lord will be able to withdraw his amendment, with the commitment that I have made.
I am most grateful to the noble Baroness for her response and to all noble Lords who have spoken. It is a well known technique from the Government side of the Committee to attack the details of an amendment and not address the principle that lies behind it. I am certainly not going to accuse the Minister of taking that approach towards this amendment this afternoon. As I understand it, what the noble Baroness is saying to the Committee is that the principle that lies behind the amendment, as has been reflected in all speeches by noble Lords this afternoon, is entirely acceptable to the Government. That is to say, the task of the Legal Services Board is supervisory, and direct regulation is the task of the approved regulators. I see the noble Baroness nodding so we are ad idem about that.
The difficulty that the noble Baroness has with Amendment No. 33A is that it goes too far in the wrong direction. There is a danger with the text of Amendment No. 33A that it would allow the Legal Services Board to stray beyond its supervisory role. Is there any objection to the Government, on Report, coming up with a better amendment than Amendment No. 33A, which would reflect exactly the balance that the noble Baroness and all noble Lords who have spoken want to achieve? I see the noble Baroness nodding—
I interrupt the noble Lord only so that he does not have to interpret my body language again. I need to discuss this with my ministerial colleagues in the department, because I do not have the policy responsibility here. I hope that noble Lords will know that I recognise the strength of feeling in the Committee, and I can see no reason why we should not consider the principle behind what the noble Lord has said. It would be for me to persuade noble Lords before we reached the next stage if that was not an appropriate way forward and to find another way.
I am most grateful to the noble Baroness for that response. It was genuinely helpful, not just in the way that members of the Diplomatic Service sometimes use that word. The difficulty that I and other noble Lords who have spoken have is that the noble Baroness is really saying, “We agree with the principle, but we believe that if you look at the whole Bill, it reflects that principle”.
Unfortunately, it is extremely difficult for the vast majority of people who will take an interest in these matters, once the Bill becomes law, to have to read the whole Act in order to find out what the function of the Legal Services Board should be. It would be much simpler if that function was crisply stated early on by one phrase or sentence. The noble Baroness has, I think, accepted that by some very clear body language—a vigorous movement of the head.
I think we are making progress and I shall not endanger that by saying anything further on this matter; but I wanted to raise one other related issue. The noble Lord, Lord Maclennan of Rogart, in his first intervention, talked about the Legal Services Board questioning the judgment of the front-line regulators. This is an important and distinct point that is dealt with in a series of amendments, beginning with Amendment No. 45. My noble friend Lord Campbell of Alloway said, in a crisp intervention, that if this matter were to be an issue, we would probably need a clause that somehow constrained the discretion of the Legal Services Board.
I simply state the problem, without wanting to open up a separate debate under an amendment that is less appropriate than Amendment No. 45. Suppose that a front-line regulator considers the objectives set out in Clause 1—competition, consumer interest and so on—balances them all, takes into account all the considerations that it should have done, makes a judgment and acts. Suppose that the Legal Services Board looks at that decision, looks at the objectives, takes into account also all the objectives that it should have done, but makes its own judgment, different from that of the approved regulator. When we reach Amendment No. 45, I will submit that it would be wholly inappropriate for the Legal Services Board to intervene in those circumstances. The fact that it did not agree with the front-line regulator should not be grounds for intervention by the Legal Services Board, as long as the regulator has properly addressed all the considerations that it should have addressed. That is precisely the same approach that the administrative court would take in relation to a decision by a Minister.
The noble Lord, Lord Maclennan of Rogart, rightly said that it would be wrong for the Legal Services Board to stray into the area of an approved regulator. I picked up that point because it struck me as an important contribution to the debate; but it would probably not be helpful to the Committee to develop it now, because we will have an opportunity to do so when we consider Amendment No. 45. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Standards of regulation, education and training]:
moved Amendment No. 34:
34: Clause 4, page 2, line 37, leave out from “must” to end of line 38 and insert “ensure the development and maintenance of standards in relation to—”
The noble Lord said: Amendment No. 35 is grouped with Amendment No. 34 but I do not intend to move it, and I can be extremely telegraphic in my comments on this one.
The amendment relates to Clause 4, which deals with standards of training and education. It is a probing amendment with which I seek to ask the Government how they envisage the role of the Legal Services Board in this area. Broadly speaking, the amendment is tabled to reinforce the principle of the legal services supervisory role in the Clause 4 area. In our respectful submission, the board should be entrusted with overseeing the approved regulators and ensuring that they promote appropriate standards of training and education.
We believe emphatically that the Legal Services Board should not actively assist the promotion of education and training. This is a classic example of problems associated with cost. I do not need to remind the Committee that education and training is potentially an extremely expensive area of activity. It is very important that the Bill makes clear the limits of the Legal Services Board’s responsibilities in this area; otherwise, we are likely to be presented with a board that has a special education and training department with all sorts of functions, which could be very costly. I beg to move.
I support the amendment but I want to be a bit of a bore again. In relation to this or some other amendment, does there not have to be an obligation to maintain the independence of the profession and the quality of the services? Would this be the place to put such an obligation or should we include it under the objectives in Clause 1? It has to go in the Bill somewhere.
I agree with my noble friend. Like my noble friend Lord Kingsland, I do not propose to move Amendment No. 35, which stands in my name as well as his. So far as concerns Amendment No. 34, I should like to hear from the Minister how she envisages that the Legal Services Board will carry out its regulatory objective of increasing public awareness of the legal rights and responsibilities of individuals, especially consumers.
I should also like to hear the Minister’s response to my noble friend Lord Campbell of Alloway on the issue of quality. I know that the ombudsman, who made representations to us along the lines of the amendment, is very concerned that there should be a real influence on the quality of legal services and standards within the professions. If the LSB is to justify its existence, and especially the significant costs associated with its establishment and continuing operation, the ombudsman feels that it must be able to demonstrate a willingness and an ability to make a real difference to the customer of legal services, particularly the high-street client. Allied to the point made by my noble friend is one of the key points behind this legislation: there must be some way of ensuring that the very high quality and independence of legal services continues.
Once again, I declare, as I have on many occasions, my interest as a practising solicitor. The new chairman of the Bar Council, Geoffrey Vos, said that our reputation is excellence, and excellence has become the passport for legal services across the world. It is vital that we ensure that quality remains right at the heart of these reforms, and any reassurance that the Minister can give us on that point will be very welcome.
I declare an interest as chancellor of the University of the West of England, which provides an excellent Bar vocational course and an equally excellent practice course for solicitors. Our law faculty is rated as excellent. It is checked annually not only by the Bar Council but by the Inns of Court, which specify whether the 10 or so universities providing the Bar vocational training are good enough. I hope that the Minister will be able to assuage my concern about whether the regulator—the board—will interfere or will underpin and support the existing excellent arrangements for the Bar and solicitor training. There is a real possibility that it might interfere rather than support. To some extent it could damage what the noble Lord, Lord Campbell of Alloway, has been saying about the importance of underpinning independence in the way in which the Bar and solicitors are trained.
I begin with the concern of the noble and learned Baroness, Lady Butler-Sloss. I can categorically say that there will be no interference in the excellent provision of services to which she referred. I have had the privilege of talking to the ombudsman about these matters. She has concerns that I hope we shall be able to address, although in a slightly different way from the one originally suggested by the ombudsman. I am waiting to hear from her about further issues that she wants to raise with me.
It is important to recognise who should do what. The role of the regulators is very important; for example, we believe that the Law Society is best placed to inform consumers on the role of solicitors within the system and what can be expected of them; and the Bar Council is best placed to inform on the role of barristers. In those circumstances, we would want the board to ensure that the information was provided consistently across the sector. The Law Society's guide, for example, on the professional conduct of solicitors sets out what can be expected of solicitors, including rules on client care, fees, conflicts of interest and confidentiality.
We would not wish to do what the noble Lord, Lord Kingsland, began with, which was the setting up of an education department that would second-guess, duplicate or attempt to do something that I do not believe would be appropriate for the board at all. My ambition is that, working with the excellent provision of advice, support and so on available through the professions and other organisations—not least the university sector—the board would ensure, looking across the system, that that was provided but that the board should not be concerned with the provision. I do not believe there is anything between us on this. I hope the noble Lord will feel comforted by that agreement with him in principle.
I am most grateful to the noble Baroness for her response and to all noble Lords who have intervened in the debate. Throughout the Committee, I believe there is a consensus about the role of the Legal Services Board and how dangerous it would be if it sought to interfere with a system that is plainly working extremely well.
The Government have given me confidence in the view expressed by the noble Baroness that there is no intention whatever that the Legal Services Board will be proactive in this area. It merely has a duty to ensure that a system is out there in civil society to ensure that the appropriate standards are kept. Provided the board is satisfied that that is the case, that is the end of the matter and there will be no activism under Clause 4.
I continue to believe that “ensure” is better than “assist”, but I will leave the noble Baroness to reflect on that between now and Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34A had been withdrawn from the Marshalled List.]
[Amendment No. 35 not moved.]
[Amendment No. 35A had been withdrawn from the Marshalled List.]
Clause 4 agreed to.
moved Amendment No. 35B:
35B: After Clause 4 , insert the following new Clause—
(1) The Board must assist in the maintenance and development of standards in relation to—
(a) the training of paralegals employed by authorised or exempt persons, and (b) the proper supervision and monitoring of paralegals employed by authorised or exempt persons. (2) For the purposes of this section, a “paralegal” is a person who is not a lawyer as defined by this Act who provides legal advice, support, assistance or representation.”
The noble Lord said: This, too, is a probing amendment. It seeks to address what some believe is an anomaly that a group of individuals, generally described as paralegals, are not currently included under the remit of the Legal Services Board’s responsibilities. Apparently—I was not aware of this until recently—there are approximately 500,000 non-lawyer legal practitioners in the United Kingdom who work with or advise on the law. None of them will be covered by the Bill. Most strikingly, 50,000 paralegals work either for law firms, solicitors’ practices or in-house legal departments. These practitioners all work for bodies which will be regulated by approved regulators, and often account for more than one-fifth of fee earners in many firms, but; as the Bill stands, they will not be subject to direct legal regulation.
The majority of paralegals see clients. Indeed, they frequently do work which a decade or so ago would have been done by either a solicitor or an employed barrister; for example, giving advice on employment law or probate matters. Despite that, the majority have no formal training, are usually unsupervised and are not subject to any form of regular assessment.
The purpose of the Bill is to provide better legal services, acting in the interests of both the consumers and the public. It therefore seems desirable that it should take into account this important sector.
That might be one of the Government’s responses in replying to the amendment. This is a probing amendment which seeks to air what many people believe is an omission in the Bill. In promoting the amendment, I have not yet made up my mind whether the Bill ought to deal with the matter. However, as widespread concern has been expressed outside this House about the absence of a section dealing with paralegals, it is right that the issue should be aired in your Lordships' House, which is why I have done so.
The noble Lord, Lord Clinton-Davis, made a perfectly valid point: one may well say that paralegals are indirectly regulated because their principals are regulated under the Bill. I do not say that that is necessarily a satisfactory answer, but it is an important component of the argument. It might be said that it is wrong that the Bill should leave unregulated such a large section of legal activity. In drafting this amendment, we tried to strike a balance, and we hope that the Minister will reflect on it accordingly. I beg to move.
The point made by the noble Lord is correct—that this is a probing amendment. However, I want to point out that paralegals are not without the possibility of making representations, and so they will. They can make representations to the professional bodies without any difficulty and, as far as I know, they will be taken seriously. I do not perceive that there would be any purpose in the Minister accepting this amendment. As far as their actions or inactions are concerned, the representations that the paralegals make are bound to be taken seriously because the integrity of the legal profession is at stake, and especially the integrity of solicitors. For that reason, I hope my noble friend will not make any concessions.
As always, I declare my interests: I am a practising barrister and a former chairman of the Bar, and I was on the Joint Committee that looked at the Bill. At the weekend, I was surprised to receive a letter from the Institute of Paralegals, a body that I do not think I had heard of before. The extremely informative letter states that there are 500,000 paralegals and that 50,000 of them serve with ordinary law firms, mainly with solicitors and other people who would be authorised under the Bill. But that leaves another 450,000 paralegals who are not linked with any law firm and, as I understand it, the amendment deals with employees of authorised or exempt bodies, essentially those within the legal profession.
I am sure these people have the most admirable intentions, and their letter claims that they are trying to ensure that high standards are required of all paralegals wherever they may be engaged. It seems that what they want—and the amendment reflects this—is support in training, which is slightly counter to the argument that we have just been listening to. There are already excellent bodies that provide training, such as the Inns of Court and the universities, and it is hoped that the LSB will not interfere. This argument seems to be the other way round as it comes from an aspirant body that started life calling itself an association. Another bit of law I learnt over the weekend is that an association is upgraded to an institute if it gets enough people to back it. It has now become an institute, and the people behind this have the highest aims.
I will be corrected by the noble Lord, Lord Hunt of Wirral, if I have this wrong, but my memory is that we heard not one whisper about this on the Joint Committee. I see a bit more body language; I think I am getting support to suggest that we did not hear anything about it. The last-minute appearance on the stage of a cast of an extra half a million is quite surprising. All I am saying is that these people who are in the legal net need to be thought about with a bit of care.
I address the noble Lord, Lord Clinton-Davis: of course it is correct that those law firms, or whoever may be the employers in the strictly legal world, will be responsible for claims of negligence or anything like that, but we do not know who will be responsible for these other people outside that. I just think that it needs a bit of thought, even though it comes up at the last minute.
After checking Appendix 2 in the Joint Select Committee’s report, I agree that we did not receive evidence from the Institute of Paralegals, which I understand was founded in 2003. We are very grateful to the noble Lord, Lord Neill of Bladen, for describing the representations that we have only just received from James O'Connell, who is described as the chief executive of the Institute of Paralegals. Although the noble Lord, Lord Clinton-Davis, knows the solicitors’ profession even better than I feel I do, these paralegals include, as the noble Lord, Lord Neill, pointed out, a whole range of people who have nothing to do with law firms. I am struck by the fact that 13,000 of them work in Citizens Advice Bureaux up and down the country—13,000 non-lawyer paralegal volunteers. They are therefore a group of people to whom we should pay attention. It is just sad that we had not heard from them before. But we have now heard from them, and I look forward to hearing—
I do not want to pose as an enemy of paralegals—they serve a very useful purpose—but it is entirely wrong to suggest that they are entirely without supervision. Even if they act in the capacity announced by the noble Lord, they are still subject to some supervision, are they not?
Yes, of course they are. The noble Lord is right. In the firms of which he has had experience, and indeed in my firm, Beachcroft LLP, there are a number of paralegals, who are closely supervised. We are proud to have the Investors in People accreditation, and we have an academy that does pioneering work in education and training for all who work in Beachcroft LLP. But we are not dealing only with the firms that the noble Lord and I know so well—and I hope that noble Lords will forgive me for the commercial which I have just enunciated; it is, I hope, untypical. However, it is an important reminder that there are areas where these paralegals are alleged to be unsupervised. I quote from the representations from Mr O’Connell. He says:
“Most paralegals are not properly supervised and even fewer are properly trained”.
If so, it is good that it has come to our notice. As I said, we look forward to hearing the Minister’s response.
I agree with noble Lords that this has been an interesting debate. I, too, have only just been contacted, and I think that I have the same paper as other noble Lords have. I was therefore pleased that the noble Lord, Lord Kingsland, has tabled this amendment as it enables us to talk about the issue.
No one is suggesting that we want the Legal Services Board to get involved in the training of practitioners and so on. I know that that is not the purpose of the amendment, and I shall not use a technical argument to persuade noble Lords about it. As this is a probing amendment, the noble Lord, Lord Kingsland, is not seeking to persuade me to do anything other than what the noble Lords, Lord Neill and Lord Hunt of Wirral, wanted me to do, which was to say something about our approach.
As my noble friend said, paralegals are not permitted to provide reserved legal services except under the supervision of an authorised person. When they do so, it is the responsibility of that authorised person to ensure that they are properly supervised and competent to do that job. That is the right approach. The point about the quality of the supervision, training and education of paralegals is as yet unproven, and although it is quite right and proper that that issue should be raised, it is wholly inappropriate for us to respond to it without considering it more carefully.
I certainly was not saying that. I was saying that it is the rule that they are not permitted to provide reserved legal services except under the supervision of an authorised person. I do not think that the noble Lord, Lord Neill, was claiming the 450,000 as his; I think he was referring to a document that he had received describing that as the case.
I am a simple seeker of the truth. What the letter claims is that some or all of the 450,000 people are giving advice to the public. Some are paid to do so, others are voluntary, and they are not working in law firms. That, as I understand it, is the claim.
Indeed, but I am making a distinction between the role of the regulator and the supervisory regulatory board in the context of reserved legal services. It seemed to me that, as this issue had been raised with noble Lords through the documents that were received, we should see what was available in the Bill. I have made the point that education and training are available through the Institute of Paralegals, which has already been referred to, and the National Association of Licensed Paralegals.
Clause 159, as noble Lords will know, makes provision for the board to provide assistance to persons for the purpose of improving standards of service and promoting best practice in any legal activity. This would be an appropriate approach to the question.
Of course I was not implying that the noble Lord, Lord Neill, was father to these 450,000 paralegals. However, they seem to have emerged from behind the stairs in the course of the debate, and if anything like that number of people are working and giving advice without any form of legal supervision, is this not a rather major matter that requires urgent investigation, not now but at some point, and rather more information about the facts?
The question is what we mean by “providing advice”. People working for citizens advice bureaux, for example, are trained to give advice. That does not necessarily mean that they must be legally qualified or legally trained. Even I, with proper training, would be allowed to give advice in a citizens advice bureau.
I shall repeat that for the benefit of those who missed it. The noble Viscount said that he could not think of anyone more suitable. He may think it is a better career for me; I am inclined on occasion to agree with him.
I was really trying to set this against the context of the Bill. We have a document that has simply arrived. I am sure there are many people giving high-quality advice appropriately. This is not a question of reserved legal services. We are very clear that those services are provided under supervision, and we think that the regulatory framework deals with that. I was merely pointing out, because this issue has been raised by the noble Viscount and the noble Lord, Lord Neill, in particular, who have described their concerns about it, that Clause 159 may provide an appropriate way of dealing with this because it enables those kinds of arrangements to be put in place, particularly when there is a concern about legal services that are not reserved. It enables such arrangements to be put in place and entered into, particularly when there is concern about legal services that are not reserved. It does not alter the thrust of the legislation, and we have not taken on board prima facie the information that we have received without checking it or collecting evidence. The legislation provides an opportunity to look at this and perhaps to provide support where it would be deemed appropriate.
I do not think that noble Lords are looking for me to do more than that at this stage. I think that we have a way through this. We are dealing with information that has just been received. I do not think that that has altered our approach to the regulatory framework.
I am most grateful to the noble Baroness. As I said, this is a probing amendment; and we have had an opportunity to air the matter. I reassure the noble Baroness that I will certainly not press it to a vote today.
I was confused by the noble Baroness’s reference to Clause 159, entitled “Voluntary arrangements”, in Part 7, whose title, “Further provisions relating to the Board and the OLC”, appears at the top of page 82. I had always taken Clauses 158 and 159 to deal solely with the relationship between the board and the OLC. I hasten to add that I have not considered the matter in detail, so I may well be wrong about that. But if I am wrong and it is possible to deal with paralegals under Clause 159, it raises the concern referred to by the noble Lord, Lord Neill of Bladen. Paralegals have an institute, but one of its main concerns is standards of education and training for paralegals. We decided in our discussion on the previous amendment that training and education were pre-eminently extremely expensive activities to undertake. If the noble Baroness is suggesting that the Legal Services Board could use Clause 159 partially to embrace paralegals, my preoccupation would be whether that could result in considerable cost.
That is an absolutely fair point. The purpose of Clause 159, which is about the board’s relationships externally, is to provide for circumstances where its expertise could be made available to organisations such as, in this case—it is perhaps a very good case in point—the Institute of Paralegals. We have tried in subsection (2) to list the kind of things that we have been talking about, such as,
“advice on …
the best regulatory practice, or
the contents of the code of practice or other voluntary arrangements”.
It is absolutely not a move away from the focus and primary responsibilities of the LSB; it is not a backdoor route to do things with organisations outside the main regulatory framework that you would not want to do inside; and it is absolutely not about creating lots of additional costs. This may not be a case in point, but it occurred to me that it could be: the knowledge available could be of benefit in addressing the underlying issue of raising standards.
I am most grateful to the noble Baroness. We have had an opportunity to air this matter.
Quite reasonably, Clause 159(3) states:
“Arrangements … may include provision as to the terms on which assistance is to be provided by the Board (including provision as to payment)”.
So, in circumstances where the board offers these services, one could charge.
Once again, I am most grateful. This is a probing amendment. Members of the Committee have had an opportunity to discuss it and it has been a most helpful discussion. I do not propose to take it any further now and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Annual report]:
36: Clause 6, page 3, line 14, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
On Question, Whether Clause 6 shall stand part of the Bill?
Clause 6(2)(c) will now read:
“such other matters as the Lord Chancellor may from time to time direct”.
Will the Minister give an example of the “other matters” which the Government have in mind that the board might deal with in their annual report? Under Clause 6, the annual report is said to deal with,
“the discharge of the board’s functions”,
“the extent to which, in the Board’s opinion, the Board has met the regulatory objectives”.
Under paragraph (c), do the Minister and her colleagues have in mind the sort of “other matters” that the board might deal with from time to time or is this just a typical sweeping-up provision to catch anything that the board might want to do from time to time, in which case I have my usual concerns about these sweeping-up paragraphs?
I would not describe it as a sweeping-up paragraph. One of the great opportunities in setting up a regulatory framework of this kind with an overview is ensuring that particular areas of interest might be explored in an annual report. That might not necessarily involve being critical of the regulators—far from it. There may be areas of interest around what is happening in the range of services per se. As the noble Lord knows well from his own experience, it is difficult to define those circumstances. This is not meant merely to sweep up lots of different things; it is to accept that from time to time either the board or the Lord Chancellor in conjunction with the board might be interested in broader areas that may be of interest either to your Lordships’ House, another place, consumers or the professions. It is meant to be of that nature.
This gives me the opportunity to give notice to the future Legal Services Board that, when its annual report is laid by the Lord Chancellor before Parliament—and I very much hope that we shall have the opportunity to debate it—we will want to check against all its activities that it has been a light-touch regulator. Therefore, we shall adjudicate on its performance in its first year on the principle of abstinence. The Legal Services Board can demonstrate to us that it has not interfered with the day-to-day regulatory business of the front-line regulators, but that it has genuinely developed a supervisory role and has intervened only when one of the front-line regulators was clearly failing. I say this in the hope that we will make that even clearer in the Bill at Report stage.
Whether or not we do anything about making that clearer, it is important to stress that noble Lords should keep an interest in how the legislation works out in practice, although I am not sure about the word “adjudicate”. Indeed, I hope that the noble Lord himself, given that he has played such an important role in the legislation so far and no doubt will do so during the remainder of its passage through this House, will make sure that we debate these issues. It is important not least because I think that it will be a great success and increase confidence to see the legislation working effectively.
Clause 6 agreed to.
Clause 7 [Supplementary powers]:
On Question, Whether Clause 7 shall stand part of the Bill?
If ever there was a sweeping-up provision it is Clause 7, entitled “Supplementary powers”. It gives rise to all my fears and concerns. I hope that the noble Baroness will reassure us on this, but asking us to enact that the board,
“may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions”,
gives cause for concern. Will the Minister reassure us, either by reference to other legislation where we have allowed something like this to slip through or by justifying the need for these supplementary powers?
I love the idea of your Lordships’ House or indeed the noble Lord himself allowing anything of this nature to just “slip through”. I cannot at this moment recall precise pieces of legislation where these words have been used, but in legislation generally we have had on occasion to think about making sure that there is sufficient clarity to allow a body to operate and achieve its objectives within a framework that states, “Here are things that the body must do, but from time to time as a consequence of the way things work out in practice, there may be a need to ensure that it has the breadth of power to be able to operate”.
I accept that the noble Lord sees this as a rather broad approach, but it is entirely to ensure that within the regulatory objectives and what has been said in the Hampton review on how regulatory inspection should operate—transparently, proportionately and so forth—the board will have the discretion to do other things if they are thought to be appropriate. Although the power might look broad, it applies only within the framework of the way in which the board can operate in any event.
I should say to noble Lords that we have sought to recognise that when primary legislation comes along, we put in it the things that are important. The operation of the board needs to be set up in a way that is as clear as possible and does not underestimate the fact that from time to time the board may have to do things that are not specified in the legislation. I am sure that the noble Lord will recognise from his own experience that, if one frames a Bill too tightly and does not make provision for occasions when things need to be done within the regulatory objectives and modus operandi of the body, one has to wait for another piece of primary legislation either to make corrections or, more important, to enable the body to do something. While this may look like a catch-all provision, it will operate absolutely within the framework of the Bill.
I have just been told that the Access to Justice Act 1999 and the Communications Act 2003 both contain this provision.
The all-encompassing nature of this enabling clause reinforces the remarks that I made on an earlier amendment, inviting the noble Baroness to be a little more precise about the ambit of the board’s authority. She indicated in her answer to noble Lord, Lord Kingsland—on Amendment No. 30, I think—that she would look at that again, so we might want to consider her answer to this debate in the context of what she brings forward in response to the noble Lord’s amendment.
I recognise these words, which are familiar from the memorandum of association of limited companies; they have been pretty standard for 100 to 150 years. There is a lot of case law about what they do or do not permit. I suggest that one of the Minister’s team might have a look at that.
I thank the Minister and ask her to reflect, between now and Report, on whether we should put some more restrictive words in here. The Bill states that,
“The Board may do anything”,
without real limit, except so far as,
“the carrying out of any of its functions”,
is concerned. Although the noble Lord, Lord Neill of Bladen, is quite right—I, too, recognise these words—I am not sure that they are particularly appropriate in the context of this legislation. I hope that the Minister might have another look at the wording.
I certainly will. This is where I have the disadvantage—or advantage, I am not sure—of not being a lawyer but, as noble Lords will know, “anything” is not anything; it is anything within the context of how the legislation is framed. I will look at it, but the noble Lord will know that “anything” is not used in the traditional sense of that word, meaning that the board can do anything.
Clause 7 agreed to.
Clause 8 [The Consumer Panel]:
moved Amendment No. 37:
37: Clause 8, page 4, line 23, leave out paragraph (a) and insert—
“(a) appointed by the Board following public advertisement and selection by the prevailing standards for selection of members of public bodies and appointed on terms and conditions determined by the Board, and”
The noble Lord said: The amendment refers to the Consumer Panel, which is dealt with in Clauses 8 to 11. In stark contrast to the detailed consideration given to the Consumer Panel, it is notable that there is no reference in the Bill to a practitioner panel; that is a matter to which later amendments will come. On the Consumer Panel, however, the amendment has a limited objective, which relates to the appointment procedure for the panel’s chairman and members.
The Bill allows the Legal Services Board to determine the terms and conditions of appointment. The amendment ensures that there will be public advertisement for any positions and that the prevailing standards for selection should be those applying to the selection of members of any public board. The Bill might currently give the impression that the Consumer Panel is simply a creature of the board; there has already been criticism that the Bill leans too heavily in the direction of the consumer interest at the expense of the public interest. It is important that that impression is not reinforced by how the board is seen to select members of the panel. In a sense, the amendment is partly about perception: it is intended to ensure that there is no perception that the Consumer Panel will simply do the board’s bidding. Perhaps the Minister could enlighten us as to the terms and conditions of appointment for the panel. I beg to move.
I agree with the noble Lord about making sure that members of the Consumer Panel should be appointed in accordance with the prevailing standards of public appointments. I also agree that public advertisement is often the best way of ensuring that the most suitable candidates are given the opportunity to apply for the relevant positions. The noble Lord will not be surprised to hear that I do not want to set out the detail in the Bill. It is not in line with the way in which consumer panels in other walks of regulatory life have been dealt with; equally, we want to make sure that the prevailing standards of the time can be used. As I have said, and as the Government believe, public advertisement is often the best way of doing this.
The appointment provisions for membership of the consumer panels of other regulators, such as the Financial Services Authority and the Office of Communications, do not set out the detailed procedures to be followed. The arrangements appear to work well, which is why we have chosen to follow that route. I am not aware of any criticisms about the appointment of consumer panel members in either case. Those were the precedents that we sought to follow.
What lies underneath the amendment is the desire to make sure that the processes and procedures used are transparent and can be examined. When producing its annual report, the board should include details of the Consumer Panel, how it is operated and how the functions for the panel and the board have been discharged; we would also expect it to include information on the appointment of members. That is the best place in terms of transparency and accountability—the board is of course accountable to Parliament through its annual report—to ensure that this has been dealt with effectively and well. Including this information in the board’s annual report to Parliament, which can then be challenged, is better than putting it in the Bill. I hesitate to put it in the Bill, as we should enable best practice to be pursued. I hope that the noble Lord will feel that including this information in the annual report, so that it can be challenged, will make the process crystal clear and transparent.
I am grateful to the noble Baroness for her reply. As far as the parallels with the Financial Services Authority are concerned, the authority also has a balancing practitioner panel which, as drafted, the Legal Services Bill does not. With respect, I do not think that that parallel ought necessarily to apply to this legislation.
I can, of course, see the usefulness of the terms of appointment and, indeed, any other matters that relate to the selection of the Consumer Panel being dealt with in detail in the annual report. However, that report will be produced after the appointments are made. My concern is the ex ante position. How will the board go about selecting the members of the panel? I am not quite sure that I fully understood what the Minister said in that respect. I think that she said that the terms relating to public appointments would normally apply and that she was not prepared to place them in the Bill because, plausibly, the details are changed from time to time and if they are enshrined in the Bill they can quickly become out of date. I accept that argument. My concern is not with the details but with the principle that selection conforms to the normal standards. However, I want to be a little clearer than the Minister left me over the question of public advertisement. Is she saying that public advertisement for the Consumer Panel as described in the Bill is desirable?
I was going to say little more than that, if that is all right. It is desirable. We expect equal opportunities, probity, openness, transparency and proportionality—all those key words within the appointment guidance—to apply to these circumstances. It is not beyond the realms of possibility that the board could say in advance how it proposes to appoint, which may deal with the noble Lord’s point about being open and clear.
If the noble Lord will indulge me, I will say one more thing about selection. We have made one key distinction between the appointments for this Consumer Panel and other such panels—those under the Financial Services and Markets Act and the Agriculture Act, Ofcom and so forth. All of those are appointed with the approval of the Secretary of State—or the Treasury, in the case of the Financial Services and Markets Act—but in this case the board will appoint. It is worth making that distinction because it may be welcomed.
There is nothing between us. I am quite happy to think about whether the board should say in advance how it proposes to deal with appointments. As I said, it is desirable to have public advertisements, but not to specify that in the Bill.
That clarification is very helpful. I look forward to seeing at some stage in the future at the back of the Sunday Times or some other reputable newspaper an advertisement for members of the Consumer Panel of the Legal Services Board. I see the Minister nodding her head, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Committees and the procedure of the Consumer Panel]:
On Question, Whether Clause 9 shall stand part of the Bill?
I know that we will have an opportunity later to deal with the whole question of a practitioner panel, but I would welcome further information from the Minister about the Consumer Panel. On what precedent are these clauses based? I recognise some of them from previous Bills, but further background would be helpful.
As for the committees that might be established by this Consumer Panel, we will discuss in a moment the question of representations from practitioners, but I am slightly nervous about Clause 9(4), which states:
“The committees established by the Consumer Panel may include committees the membership of which includes persons who are not members of the Panel”.
Which people does the Minister have in mind? Subsection (6) states:
“Where a person who is not a member of the Consumer Panel is a member of a committee established by it, the Board may pay to that person such remuneration and expenses as the Board may determine”.
What sort of figures do the Government have in mind for the budget of the Consumer Panel? It would be helpful to have a more comprehensive description of exactly what the Minister has in mind, especially when we move on to debate what other panels might be created, particularly the practitioner panel. Can we have some further explanation of the work behind the Consumer Panel?
I am grateful to the noble Lord for the opportunity to say a bit more. I am not sure that I can give him detailed figures at this stage, but I shall endeavour before the next stage to look at the matter in greater detail. Undoubtedly he will know that we need to think about how this will be set up and, therefore, what we will be looking for.
We thought carefully about the establishment of the Consumer Panel after Sir David Clementi proposed it in his review of legal services. It is an area in which we have wide support from stakeholders because it presents an opportunity to get proper representation of consumers within the legal services framework. We have based the provisions on a number of other regulators, including the Financial Services Authority, which have similar panels providing expert advice on consumer issues and needs.
Under Clause 9, we have allowed the Consumer Panel to establish committees to serve the purpose of advising it on matters relating to its function. Clause 9 also allows the panel to regulate its own procedures as well as the procedures of any committee that it establishes, subject of course to the panel ensuring that each committee contains at least one member of the panel.
Part of the reason for this is that we cannot foresee necessarily what skills the LSB may need on the Consumer Panel. For example, it may want an organisation to nominate someone with specific experience. The CBI might be asked to nominate someone who could provide expertise on the interests of commercial consumers. That may be an appropriate thing to do under a committee structure, and we want to provide the flexibility to enable the panel to do that.
The provisions that allow for remuneration and expenses for members of the committee who are not also members of the panel are standard provisions that, again, we have extracted from other legislation so that the panel can carry out its functions appropriately and, in the example that I have already given, when there is some particular area of expertise that it would be appropriate to have.
Clause 10 deals with the duty on the board to consider representations made by the panel. It provides that the board must give an explanation in the form of a notice if it disagrees. This provides a transparent procedure that ensures that the panel’s representations are considered by the board. It is very much about allowing for the first time the consumer’s voice to be heard in the legal services framework and about ensuring that the board has to say why it disagrees with representations. In a sense, it is about ensuring that we have consumer confidence in the new framework.
With what I have said about seeing whether there is anything further that I can give the noble Lord on costings, I hope that that gives him a flavour of what we are seeking to do in these clauses.
Clause 9 agreed to.
Clauses 10 and 11 agreed to.
moved Amendment No. 38:
38: After Clause 11 , insert the following new Clause—
Section 10 shall apply mutatis mutandis to representations by approved regulators whether in their regulatory or representative capacity.”
The noble Lord said: This is another amendment inspired by the patent and trade mark attorneys and foreshadows the arguments thrown up by the amendments grouped with Amendment No. 38A, which would introduce a permanent practitioner panel. As we have just seen, the Bill provides for a Consumer Panel but gives no opportunity for a professional representation. While consumers need protection they do not always understand the realities of running a legal practice. In our submission the LSB needs to hear both sides of the story to make informed and proportionate decisions.
The Chartered Institute of Patent Agents and the Institute of Trade Mark Attorneys believe that some measure of professional input is required. Either the regulators ought to be allowed to represent themselves or at least their representative arm should perform that role. They say that this is particularly important for the smaller professions and especially necessary for areas of more specialised expertise.
I should explain the relationship of this amendment to the next group. In some respects, the Opposition prefer Amendment No. 38 to Amendments Nos. 38A, 38B, 38C and 38D because of a concern that a handpicked practitioner panel set up under the Bill could bypass the professional organisations. Its representations might be seen as being the voice of the professions thereby undermining the views of the professional organisations themselves, for example, the Bar Council, the Law Society or, indeed, the Chartered Institute of Patent Agents or the Institute of Trade Mark Attorneys, in circumstances where those views are distinct from those of the practitioner panel.
However, we accept that a practitioner panel may be a more realistic objective to pursue, not least because it follows the recommendations of the Joint Committee. In any event we believe that a provision along the lines of Amendment No. 38 or 38A must be in the Bill. I beg to move.
I support the amendment proposed by the noble Lord, Lord Kingsland. It appears a sensible amendment to provide that the professions should have the opportunity to make representations about matters which fall within the ambit of the responsibility of the Legal Services Board. If there are differences of opinion between the bodies—the designated regulators, the approved regulators and the board—there should be complete transparency about those differences, particularly if the differences relate to changes of policy or anything that might be regarded as establishing a norm for the future which would result in, as it were, a legislative role being exercised by the Legal Services Board.
It seems clear that no interest is crossed by a requirement of openness, which this amendment would provide, and that it would provide a protection for the smaller bodies whose specialist knowledge may well not be represented directly on the Legal Services Board, and which might pass the notice of, or even possibly not be understood by, the members of the board if these representations are made available and published. It is entirely a matter for the discretion of the approved regulators whether they do so. Generally the measure would be in the interests of consumers as well as of those providing the services because it would bring to bear on particular issues the experience of those who are, at least in some cases, skilled and knowledgeable.
I strongly agree with my noble friend Lord Kingsland and the noble Lord, Lord Maclennan. The Government have decided to set up a Consumer Panel in this legislation. One needs to ask why. As the Minister is aware, there is strong feeling that there is an over-representation of the consumer interest here. I refer back to the debates that we have had about the public interest and the independence of the profession. But the Government have decided to go beyond allowing the normal representations from consumer bodies and have laid down in statute that there should be a Consumer Panel. In an earlier debate the Minister said that that was modelled very much on the Consumer Panel set up inter alia to advise the Financial Services Authority. But that is only one part of the mechanism by which the Financial Services Authority is informed. It has a Consumer Panel but it also has a practitioner panel. We shall deal with the detail of a practitioner panel in just a moment, but the Minister needs to explain why the Government have gone with just one limb of the expertise which the Financial Services Authority can draw on.
It is a slightly dangerous analogy for the Minister to use because the Government and, in particular, Sir David Clementi, said that the Legal Services Board is not the FSA. I suppose that the Minister could say that this is an example of why it is different because it does not have a practitioner panel. But that is not really an argument. Why is it thought necessary to have the consumer interest so strongly represented? I agree with the noble Lord, Lord Maclennan, that CIPA and ITMA have a strong case when they say that there needs to be some guarantee of professional input, particularly for the smaller professions. It is especially necessary for areas of more specialised expertise such as patent or trade mark practice.
The Financial Services Authority, a confessed light-touch regulator—although some of us have our doubts about that—needs the expertise of the practitioner as well as the consumer interest right at the heart of its operations. So why have the Government decided to seek only a Consumer Panel in this instance? My noble friend’s amendment is very good. In fact, it is so good that I see that I have appended my name to it. The Minister needs to explain why the new clause that we are discussing cannot be inserted. If she is about to accept Amendment No. 38, I shall have to rethink whether I shall move Amendments Nos. 38A, 38B, 38C and 38D. I look forward to her explanation.
It has just occurred to me that it might be desirable to have a Consumer Panel as is proposed in the Bill, but not a practitioner panel. The reason I say that is that in relation to the consumers of legal services, although there are in existence today a number of bodies—the CAB movement, the Consumers’ Association, Which?, the National Consumer Council—that from time to time consider the consumers of legal services and offer advice and research and so on, they are general bodies interested in the interests of consumers as a whole for the purchase of goods and services of all kinds. It is only occasionally that they alight on legal services as something on which they ought to comment. The Legal Services Board, as I understand it, will from time to time want to have the views of consumers of legal services, and the convenience of a panel is that it is a group of people who are interested in consumers of legal services as such and will be available on tap to give that advice.
When the Legal Services Board wants the views of practitioners, there are in existence bodies such as the Law Society and the Bar Council, but also the patent agents and the trade marks attorneys, which have their own organisations—as we know because they have given their views on these matters. They are available now and will be available in the future, once the LSB is set up, and they will be there on tap, just like the Consumer Panel will be there on tap to consider the consumer aspects and to give advice on that angle.
I take the point that has just been made by the noble Lord, Lord Borrie, but ought there not to be an obligation on the LSB to take advice? He says that it will take advice; I am not so sure that it will. If that is the objection, surely some amendment could be tabled to put an obligation on the LSB to seek the advice at all events of the smaller bodies.
I find that I nearly always agree with everything that the noble Lord, Lord Borrie, says, but today is an exception. He is missing some of the politics, with a small “p”, here. One of the motivating forces driving this Bill, to which the Government have responded, seems to me, based on the evidence that we heard in the Joint Committee, to be the consumer interests. They have been extraordinarily articulate, particularly Which?, and I congratulate it on the skills in advocacy that it has deployed.
The consumer interests have run a very strong case in favour of a Bill such as this one, and they are very strong on the imperfections in the delivery of legal services by the existing professions, of which they are highly critical. They are also very critical of the proposal, in an amendment that we will debate later, on the practitioner panel. They want the chairman of the LSB always to be a lay person, and so on. The position that they are coming from is really one of strong animus against a watchful eye over the whole legal profession. That being the basis on which the Consumer Panel is founded, it seems to me only fair, on the basic principles of natural justice, that there should be some other panel to represent the interests of the professions, including the very small professions, which have been referred to, including trade marks and patent agents. Trade marks are smaller numerically. To have a body that could make an input into the LSB from practitioners would be a very healthy balancing and would make the whole of this new set-up look much fairer.
It seemed to me that the noble Lord, Lord Campbell, had conclusively answered the point made by the noble Lord, Lord Borrie. It may well not be necessary to set up a new body to represent practitioners, because they have a body. At the moment in the Bill, as I understand it, this board, which has a majority of laymen, is bound to listen to representations from consumers and to answer those representations and explain why it is not accepting them. As far as I know, there is no obligation on the board to listen to practitioners at all or to answer practitioners. It would be fairly extraordinary, would it not, to have a body of laymen regulating the provision of medical services that was bound to consult patients but need not listen to doctors at all? Subject to being corrected, that is what the Bill says. It may not be what the Bill intends, but it is what the Bill says.
I start from the principle that the legal professional bodies are well established, well organised and well funded to represent their interests. They may disagree with that, but it says in my notes that they are well funded. I have no doubt that will remain the position under the regulatory framework that we are proposing. Indeed, it could be argued that separating out regulatory and representative functions could make that much easier. They would be able to lobby the Legal Services Board more effectively and more freely than they do at present. The same applies to the regulatory arms that will be created.
As my noble friend Lord Borrie said, the consumer position has not been so clear-cut. There is no doubt that many individual consumers have lobbied the legal professions over the years, and they have lobbied the Government too, but there would not be any dispute that they have not had a great deal of success. In large part, as my noble friend said, that is because there is not the co-ordination, focus, force or the opportunity to develop the experience and knowledge that might be appropriate.
We have said categorically that there is no question that the role of the consumer is critically important in this legislation, and I make no apology for that. It is very important that the regulatory framework that we set up recognises that its purpose is to make sure, within the public interest as we have talked about, that good services are provided for consumers. I make no comment on the quality of services provided now. That is what it is for, and that is what we have to focus on. We want to make sure in so doing that the consumer voice is appropriately heard, with appropriate expertise and experience.
It may have been dangerous to link it to the Financial Services Act, but I was merely attempting to show the kind of way in which it would be organised, to put a picture in noble Lords’ minds. For me, there is no doubt that what we are doing with the consumer panel is evening up the position, where the approved regulators will have the relationship and the opportunity, and the professional bodies will have the relationship and the opportunity to lobby. I consider it inconceivable that they would not be listened to in the appropriate way.
Where I have some sympathy with what is being proposed is in the question of making sure that smaller bodies are given a voice. That is very much about the modus operandi of the board in ensuring that how it thinks about talking to different bodies is taken into account, so I take that point. We are clear that we need a Consumer Panel to make sure that the consumer’s voice is heard appropriately. We believe that there is no question but that the representative bodies will be able, as they already do, to make their representations clearly. Therefore, the amendment is not needed.
Will the noble Baroness deal with my point? Clause 10 compels the board to listen to representations of the Consumer Panel. It compels the board either to accept them or to explain why it disagrees, and to make a report about why that is the case. Does she not realise that there is no such provision for representation by practitioners? Could she at least undertake to introduce an equivalent to Clause 10 in relation to professional bodies?
Will the noble Baroness consider the matter again in the light of what the noble Viscount has just said? There is clearly an imbalance here, as there is in the exercise of what has been called the “supervisory” function of the board. It is essential that there should be fair representation for smaller bodies. To exclude it would be to create—I know that this is not the intention—an unfair and somewhat oppressive situation which does not accord with fundamental principles of natural justice.
I support what the previous two noble Lords have said. In Clause 10 the board must consider representations and must set out whether it agrees or disagrees. In Clause 11, the Consumer Panel,
“may, at the request of the Board … carry out research for the Board”,
“give advice to the Board”.
But there is nothing here to say that the board has to listen to any of the legal bodies at all. If we were to insert in Clause 10 that it must consider any representations made to it by the Consumer Panel, the Bar Council, the Law Society or any other legal organisation, that at least would level up the board. Despite the Minister’s comment that powerful bodies already exist, it is not a level playing field. A body can be extremely powerful, but if there is no obligation to listen to it, it really is effectively non-effective.
I hope the Minister will reconsider this, not just in the context of providing natural justice but as an explicit recognition that, in dealing with a consumer grievance which may have been articulated by the Consumer Panel, the consumer interest may best be advanced by a specialist approach that cannot be applied to the issue raised by somebody other than the body which we are seeking to have represented. Too often in these debates, perhaps understandably because of the long-standing sense of the consumer lobby that its voice has not always been heard, we have treated the consumer interest and the provider of the service as being at odds with each other in an adversarial relationship. That is perhaps natural for lawyers who come to this debate in our system. But it is also possible that, in providing for the consumer interest, the legal service provider can make substantial and helpful proposals on how practices should be changed or why a proposal from the Consumer Body is not apt to deal with the problem identified.
I very much take the point made by the noble Viscount, Lord Bledisloe, arguing on an analogy with the medical profession. If a problem has arisen in these matters of patent, agencies and so forth, surely those bodies should be consulted in order to provide the right answer—the enforceable answer, the effective answer, the equitable answer—in the interests of the consumer. Setting up these practitioners’ bodies is not purely emblematic; it is about ensuring that the relevant arguments are heard and addressed.
Perhaps I may be forgiven for speaking again. There was something of an air of unreality about some of the statements made by noble Lords and, with respect, by the noble and learned Baroness, Lady Butler-Sloss, who seemed to imagine that the Legal Services Board—this new body with a lay chairman and a lay majority, but with lawyers on it as well—would not consult with and take note of what had been said to it on specific matters, or more general matters, by the Bar Council and the Law Society and, for that matter, in relation to these fields of special interest, by the professional bodies representing patent agents and trade marks. The Government are justified in making particular reference in the Bill to a Consumer Panel. The consumers of legal services presently do not have an organised, identifiable, discrete body, which they would have if the Consumer Panel were set up under the Bill. The legal profession does not need that. Certainly, the Legal Services Board would be crazy if it did not consult, listen to and take note of—though not necessarily agree with—everything that was said by the professional bodies representing lawyers of all kinds.
Briefly on the point made by the noble Lord, Lord Borrie, there is no obligation on the LSB to say, “We have had professional recommendations from the consumers. What have you got to say?”. There is no notice. Why not? Should the discretion be exercised without giving notice and without hearing at least what the smaller bodies have to say?
Throughout the legislation there are opportunities where the board is required to consider representations. Clauses 48, 49 and 195 provide that the board must have regard to and consider representations on matters such as policy statements, the rules to be made and so on. One of the difficulties with this argument is that, if we were talking about two bodies that are exactly the same, it would look very neat to specify one body and then the other. The purpose of the legislation is to regulate the legal professions through the LSB and the front-line regulators—the legal professions. The route of representation, and the route whereby the regulators could take the board to judicial review, is therefore well established and well documented throughout the Bill.
The missing bit when we put the Bill together did not concern whether the consumer dominated the debate. In the relationship between the board, the front-line regulators, the professions and their opportunities to make representations on representation and regulation, the missing bit— because of the nature of that relationship, because we have specifically stated in the Bill that their representations must be taken in to account, and because they have the right as regulated bodies to claim judicial review—was that no formulation stated that the board also had to listen to consumers in the way that my noble friend Lord Borrie described—in a manner that is co-ordinated, focused and so on—while bearing in mind the breadth of work that consumer organisations traditionally undertake.
This is about balancing back. Within the Bill the legal professions and the regulators are well covered. Nowhere do we say in terms that, to balance that, it is also appropriate that the board listens to consumers. It sets up a panel consisting of people with the right sort of expertise and, through the structure, it can bring in expertise—I gave the example of going through the CBI—so that commercial consumers’ interests are taken on board. The board has to listen to the panel. It cannot just put it in a corner and ignore it. That is what we sought to do. This issue is not about ignoring the practitioners; quite the contrary—it is about saying that this legislation relates to all those people who are involved one way or another in the legal profession, and we must not forget the consumer.
I am very comfortable about discussing this matter before the next stage of the Bill, but I urge noble Lords to look at the way in which the Bill is structured and at all the representations. When all that is balanced against this clause, I hope that noble Lords will feel that we have ensured that consumers are represented, although I do not mean that they will dominate in a negative and unhelpful way. I absolutely agree with the noble Lord, Lord Maclennan, that this measure is not designed to be adversarial among consumers. I also absolutely agree that those involved through the regulatory functions, together with practitioners, may often be best placed to talk about what needs to happen next. I agree with that completely but, looking at the Benches that the noble Lord represents and the champions of consumer interests that many of his noble friends are recognised to be, I think he will also agree that it is right and proper to ensure that the consumer is not lost in this. That is the basis of this measure.
I hope that Members of the Committee will at least reflect on that explanation and feel that it repositions the issue. I also hope that the noble Lord will feel able to withdraw the amendment, particularly as there will be an opportunity to discuss this matter further between now and the next stage.
I would not wish the noble Baroness to be in any doubt about the importance that the Opposition attach to Amendment No. 38. Inevitably, our debate on this amendment has foreshadowed many of the issues that will be raised when my noble friend Lord Hunt introduces Amendment No. 38A and the other amendments in the same grouping.
Amendment No. 38A seeks to put a practitioner panel in the Bill. In response to Amendment No. 38, the noble Baroness said quite simply that there is no practitioner panel in the Bill because it is unnecessary: the approved regulators and their associated representative bodies are powerful, well-informed and highly professional communicators, who can perform the role of a practitioner panel just as well. That is one reason for accepting Amendment No. 38. I am not saying that the Opposition accept the noble Baroness’s view that a practitioner panel is unnecessary but, just supposing that we did, that should provide her with a golden opportunity to say that she accepts Amendment No. 38. The cost of not accepting the amendment is to invite the criticism that the noble and learned Baroness, Lady Butler-Sloss, levelled against the government Benches—that the Bill as drafted does not provide a level playing field.
Why should there be an obligation for the Legal Services Board to consider what the Consumer Panel proposes but no obligation to consider the representations of the bodies that the noble Baroness said are a perfectly acceptable substitute for the practitioner panel? I confess that I find it very difficult to see how the noble Baroness can advance any sensible argument against that.
The fact is that there is no level playing field at the moment. If the noble Baroness wants a solution that avoids a practitioner panel, it seems to me that she has no alternative but to accept Amendment No. 38. As the noble Viscount, Lord Bledisloe, said in one of his typically perspicacious interventions in a debate on a legal matter, if the Government accept the principle, why on Earth do they not put it in the Bill? Not to do so is wholly inconsistent with the contentions advanced by the noble Baroness when she first intervened. In my submission, this is an extremely important issue. It will not go away.
The noble Baroness has captured me just before I have reached my cruising altitude. In those circumstances, it would be prudent for me to sit down as quickly as possible and beg leave to withdraw the amendment.
She said that she accepted it in principle.
Amendment, by leave, withdrawn.
38A: After Clause 11, insert the following new Clause—
“Practitioner Panel The Practitioner Panel
(1) The Board must establish and maintain a panel of persons (to be known as “the Practitioner Panel”) to represent the interests of practitioners and consult them on the extent to which its general policies and practices are consistent with its general duties under section 1.
(2) The Board must appoint one of the members of the Practitioner Panel to be the chairman of the Panel.
(3) The Secretary of State’s approval is required for the appointment or dismissal of the chairman.
(4) The Board must have regard to any representations made to it by the Practitioner Panel.
(5) The Board must appoint to the Practitioner Panel such—
(a) individuals who are authorised persons, (b) persons representing authorised persons, as it considers appropriate.
(6) The chairman and other members of the Practitioner Panel are to be—
(a) appointed on terms and conditions determined by the Board, and (b) paid by the Board in accordance with provision made by or under the terms of appointment.”
The noble Lord said: The Minister did not accept Amendment No. 38 and therefore I am now forced to move Amendment No. 38A.
Perhaps I may say one thing and then of course I shall give way. It was the unanimous view of the Joint Committee—Members of both Houses, lawyers and non-lawyers—that, to quote paragraph 185:
“We believe it is in the public interest that the LSB should establish and consult a Practitioner Panel alongside the Consumer Panel. We recommend that the draft Bill be amended to require the LSB to establish a Practitioner Panel which should include representation of legal academics”.
I give way.
I merely point out that I cannot accept anything other than in principle, which the noble Lord may have noticed I just did. I need to take the amendment back and consider how it would fit into the Bill, what it would mean and how we would interpret it and so on. Accepting the amendment in principle is not disrespectful; it is simply the only way that I can accept the amendment at this point—on my own, as it were.
I need a short adjournment to work out exactly what the noble Baroness has just said. Be that as it may, the Minister said that she was painting for us a picture about why there was a Consumer Panel. She said that she had taken it from the Financial Services Authority. Taking the example which the noble Baroness has already given and which we have already discussed, the Joint Committee was persuaded by the fact that there is a practitioner panel alongside the Consumer Panel to advise the Financial Services Authority. Perhaps we are in danger of simplifying the word “practitioner”. I think that the Joint Committee had it in mind that a whole range of practitioners, including, as I have just carefully read out, legal academics, would not otherwise have the opportunity to be consulted on key aspects of these new reforms.
Surely the noble Baroness has gone far enough for the moment. She has generously accepted the principle, and surely any minor points of this kind can be sorted out in discussion between the noble Lords, Lord Hunt and Lord Kingsland, and the noble Baroness. The Committee is being a little ungracious to the noble Baroness in not welcoming her generosity so far and calling it a day at that.
I do not believe the Minister needs the assistance of the noble Viscount, Lord Bledisloe, as I was about to demonstrate. We need a structure and these amendments give us an opportunity of reflecting on what kind of structure should follow the Minister's acceptance, in principle, of the balance that was so effectively argued by my noble friend. I hope the noble Viscount accepts that there needs to be some kind of structure. If one simply allows representations from the most powerful bodies, one will neglect a number of different areas that might not be covered. I think the Joint Committee was persuaded that the practitioner panel should sit alongside the Consumer Panel on grounds of balance.
In the regulatory objectives there is already a duty on the board of,
“protecting and promoting the interests of consumers”.
It will be assisted in that by the Consumer Panel. Those objectives are not yet worded to our satisfaction but there is also the objective of,
“encouraging an independent, strong, diverse and effective legal profession”,
and the objective of,
“promoting and maintaining adherence to the professional principles”.
The Joint Committee had in mind that in reaching conclusions on how to meet those regulatory objectives it would be of assistance if the Legal Services Board had the opportunity to consult a practitioner panel, not only on day-to-day regulation, but also in areas similar to, say, Clause 11 on the need to promote research and to explore further, with practitioners, how best to achieve the regulatory objectives. If one asks the Financial Services Authority whether the practitioner panel has been of value, it would answer in the affirmative. In defence of the noble Lord, Lord Borrie, who probably needs no defence from me, he argued at Second Reading very effectively that the chair of the Legal Services Board should not be prevented from being a lawyer. He did not feel that lawyers should be excluded from becoming chair of the Legal Services Board because that would,
“carry too far the view that lawyers must give way to laymen in this modern age”.—[Official Report, 6/12/06; col. 1187.]
That was a very persuasive intervention.
This Bill must be all about balance and I hope that when the Minister considers how to take forward the commitment that she has just given, she will also bear in mind the unanimous view of the Joint Committee.
I raise a point that is contained in the paragraphs headed “The Practitioner Panel” and related to the paragraphs headed,
“Committees and the procedure of the Practitioner Panel”.
In the first instance, the Secretary of State has a role. His approval is,
“required for the appointment or dismissal of the chairman”.
Amendment No. 38B subsection (6) states:
“Where a person who is not a member of the Practitioner Panel is a member of a committee established by it, the Board may pay to that person such remuneration and expenses as the Board may determine”.
Should the board not at least be required to consider in conjunction with the Secretary of State the remuneration? There seems to be some contradiction on that.
I shall reflect on what the noble Lord has said. I think the wording used follows very closely the wording in the Financial Services and Markets Act and the subsection he quoted follows closely the existing Clause 9(6) of the Legal Services Bill, which I quoted a little earlier when pressing to know what the budget was. He has raised a very important point which I shall, of course, consider carefully.
When considering that point will he also consider the provision under Clause 8 which provides for the board, in accordance with the provisions of the terms of appointment, to consider the salary. I think there should be some consonance between that and what we are considering at the moment.
I agree with the noble Lord. Although the Secretary of State’s approval is required for the appointment or dismissal of the chairman—that is clearly set out in Amendment No. 38A—in subsection (6), as he rightly points out, the terms and conditions will be determined by the board and not by the Secretary of State. Merely the dismissal or the original appointment would require the Secretary of State’s approval. The point about committees and people who are not members of the practitioner panel is identical to the provision on the Consumer Panel. If there is a fault it is in trying to mirror the Consumer Panel with the practitioner panel. The noble Lord is quite right and I shall carefully consider the points that he has made.
We are returning to the whole issue of balance, which is why these detailed clauses are being put forward. If we are to have panels and if the Minister is to utilise the Financial Services Authority as an example, I hope that she might now be able to justify why she and her colleagues have not followed the precedent a little further and why the picture she painted for us earlier is an unfinished painting. Were she to accept these amendments, the painting would be complete. I beg to move.
My noble friend has just said that there has to be a structure. That is quite right. Without such a structure one can argue the merits one way and the other. That structure must have procedural provisions on the face of the Bill which ensure that the legal profession and the various approved regulators can be heard in reply to what is said by the Consumer Panel. That is all I am suggesting. I assume this is a probing amendment. If that is right, perhaps some consideration could be given to the structure that should be adopted.
The FSA is a front-line regulator, so there is no opportunity for representations to be made from regulatory bodies as there are none. Although I use the analogy in the context of the Consumer Panel, that does not run all the way through what I have said.
The comparisons are always difficult, but the Financial Services Authority utilises the Law Society as a frontline regulator. There is an agreement between the FSA and the Law Society that activities that would otherwise be within the aegis of the FSA are the responsibility of the Law Society.
I give that only as an example. My only reason for giving the analogy of the FSA is that it is the example the Minister provided.
It is the example the Minister provided in the context of a Consumer Panel and only a Consumer Panel. I did not take it much further. But we are quibbling.
The noble Lord knows well that in setting up a new regulatory framework there are examples to which one looks as good models from which to borrow. You do not necessarily buy them wholesale because the purposes of a new regulation will be different. That is all I am saying. Therefore, although in one set of circumstances it may be appropriate to go further, it is not in another.
I was taken with the question of balance. It reminds me of a Moody Blues album I have from the 1970s and I am now merrily listening to it in my head. My worry was that, having been generous in my sudden acceptance of the principle, we have shifted from what I consider to be balance to what other noble Lords consider balance to be. I want to be clear that I can shift it back a bit.
We have moved from my acceptance of the principle that within the legislation we are trying to address the balance as set out in Amendment No. 38 to saying that despite what I have already said—and I stand by that—there are several points in the legislation at which it is essential the Legal Services Board listens to, takes account of or deals with issues that will be raised by the regulatory bodies and the professionals—the practitioners, if you like—and that nowhere other than Clauses 8 to 11 do consumers get that kind of look-in. That is my balance and in accepting the principle I was saying that we must frame the provision to ensure that it is absolutely understood. However, the argument has shifted from that to being, “Ah, well, we’ll have that; and we’ll have a practitioner panel, the lawyer as a chair and we can go on some way further”.
Like it or not, one of the issues underpinning the regulatory framework is consumer confidence; ensuring that we get the balance right between good regulation involving the interests of the profession set out by the noble Lord, Lord Maclennan, in terms of expertise—often its members can be more radical in terms of the future and so forth—and saying that the consumers must get a look-in. Consumers have to be taken account of. You cannot ignore them; you have to take note of them. I accept the principle of that balance and the principle behind what the noble Lord, Lord Kingsland, seeks to do. However, we are now moving the argument further down the track.
We believe that the structure of that is partly borne out by the nature of the relationship between the frontline regulators and the Legal Services Board. I have noted the point about smaller organisations or groups of practitioners and the need to consider them. If we were to enshrine in the legislation a provision along the lines of that described by the noble Lord, Lord Kingsland, the board needs to think about whether it already has that relationship set up with the Law Society and the Bar Council. They may not wish to have a separate body, but do they need to think about ensuring that other bodies get a look-in? That is the way I seek to look at the proposal.
I would therefore offer a caution. There is a principle that says that the views of the professions, through the regulatory bodies to the Legal Services Board, need to be taken into account. That thread runs through this Bill. However, this is the only place where the consumers get a look-in and this is the only way of providing that and setting up a structure that offers coherence. The balance exists and the issue raised in Amendment No. 38, which I will take away and consider in principle, is the way of enshrining that so that when the Legal Services Board functions it thinks about what it ought to do to ensure that that happens in reality. For that reason, I would resist the amendment.
In moving Amendment No. 38 the noble Lord, Lord Kingsland, indicated that he preferred it to this amendment, in part because it did not create a supererogatory structure. That argument might well have appealed to the Minister and have contributed to her important indication of her willingness to accept Amendment No. 38 in principle.
With regard to the structure contained in this and other amendments in the group, one particular principle must be borne in mind. If the Legal Services Board is addressing an issue that touches the operation of a frontline approved regulator, the view of that regulator needs to be considered—not just in the abstract but in respect of the particular case. That is true especially of there is to be any normative regulation or proposal that might adjust or alter the way the work is done by the frontline regulator. These various structures are seeking to ensure that that principle in introduced. If it can be done by some other clearer principle, I shall be content.
I agree with what the noble Lord, Lord Maclennan of Rogart, seeks to achieve. There is within Amendment No. 38 the principle that you would have to behave. It is all in Latin, so I am already at a disadvantage because my O-level Latin and I are a long time apart. I have agreed to take the amendment away in principle, which means I shall come back to the House on Report. That may be an appropriate time for me to spell out what would address the point.
I could not agree more and we await the Minister’s further contribution. I hope that the noble Viscount will forgive me for having introduced this short debate, but it is important to consider the kind of structures that might be put in place. If the answer is that no structures are necessary because there will be provisions in the Bill, I agree with the noble Lord, Lord Maclennan of Rogart, that the amendments are unnecessary. However, we await more detail from the Minister. I pay tribute to the fact that she is seeking to meet us and in that context I have pleasure in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38B to 38D not moved.]
Clause 12 [Meaning of “reserved legal activity” and “legal activity”]:
moved Amendment No. 39:
39: Clause 12 , page 5, line 25, at end insert—
“( ) will-writing for fee, gain or reward;”
The noble Lord said: This amendment raises an issue in stark contrast to the matters we have debated for the past three quarters of an hour or so. It concerns will writing. Its substance was another recommendation of the Joint Committee that was rejected by the Government. The Government’s view is that once the Legal Services Board is established, it will have the power to determine whether will writing should be brought under its regulatory control. However, the Government have already shown—for example, in claims management—their willingness to regulate in new areas if there is a convincing public need to do so. In our submission, they would be wrong to abandon this approach and leave it to the Legal Services Board to respond, for the sake of illustration, to some major scandal in the area of will writing that might occur at a future date. Our view is that the absence of regulation of will-writing combined with the fact that a defect in a will is normally identified only when it is too late to do anything about it provide a particularly strong need for regulation in this sector. There is a strong case for will-writing to be brought within the regime now, especially as it often requires a lot of tax advice and specialist knowledge.
In short, we urge the Government to follow the Joint Committee’s recommendation. We remind the Government that they were perfectly well able to get round the hurdles in relation to claims management in the Compensation Bill, and we see no reason why they should not get around similar hurdles—if, indeed, the Government perceives that there are such—in relation to this Bill. I beg to move.
I am most grateful to the noble Lord. I would have no objection whatever.
I am very puzzled by the Government’s attitude to wills. If one looks at paragraph 5 of Schedule 2, one finds that “reserved instrument activities” means preparing any instrument for transferring land and that “instrument” includes a contract for the sale or disposition of land, except a will. Why a disposition of land by me during my lifetime is a reserved instrument activity that has to be done by a qualified person but a disposition of land by me in my will is something that I can do without having my hand held is something that does not immediately commend itself to me as lucidly logical.
I agree with the noble Viscount, who raises a very important point. Amendment No. 40 is included in this group, and it omits paragraph 5(3)(a), “a will or other testamentary instrument”. To focus on Amendment No. 39 for a moment, I recall that when I first embarked in the legal profession in 1965 with the firm that I am with today, I had to unravel a homemade will. It was a simple, plain English will that the testator—what a wonderful word that is—felt was disposing of his estate clearly and unambiguously to a particular individual. However, the courts had decided that because the plain English words that were used had been interpreted by the courts in a case in 1861, I think, the will had the opposite effect to that which the testator wished. It had been drawn up on the back of an envelope and was duly attested by two witnesses who then in the presence of each other and the presence of the testator had appended their signatures, but the words used achieved the opposite of what the testator required. I give the Committee that example to demonstrate why I feel quite strongly about this amendment.
Given the increased complexity of family relationships and the increase in personal wealth, I agree with the Law Society and many other organisations that it is essential that the public should be able to rely on the competence and integrity of those providing will-writing services on a commercial basis. This is particularly important because, by the very nature of the service, problems with wills are likely to be discovered only when it is too late to do anything about them. It is said that you can live without lawyers, but you cannot die without them. The sad fact is that, if you do not consult a lawyer or somebody who is competent to draw up a will, he cannot reflect on all the decided cases that produce the ratio decidendi of the way in which our stare decisis system evolves.
This was something that the Joint Committee felt strongly about. Its unanimous recommendation in paragraph 216 of its reports was that,
“will-writing for fee, gain or reward should be included within the new regulatory framework. The draft Bill should be amended to provide for regulation subject to any exemptions necessary in the consumer interest. We note that there is currently no existing regulatory framework for will-writing and no existing professional body with responsibility for will-writing activities”.
It also noted what my noble friend Lord Kingsland pointed out:
“We note that these hurdles have been overcome”—
in particular, by the Minister—
“in respect of the claims management sector, in the context of the Compensation Bill”,
which the Minister successfully piloted to Royal Assent. The recommendation concluded:
“We urge the Government to consider whether will-writers might be brought within the scope of the regulatory framework in a similar manner”,
to that in which claims management companies are presently regulated.
I shall highlight the issues that, in this complicated age, it is necessary to be advised upon by somebody when preparing a will. Who will be the executor of the will? How are minors or disabled children to be provided for? Who might the testator be said to have a duty to provide for or support in order to avoid claims under the Inheritance (Provision for Family and Dependants) Act 1975? Should gifts be left to charities or other such groups? Is a foreign will needed to dispose of foreign property? The full range of assets is now very complicated—jointly held property in various different forms, trust property, pension entitlements and so on—and there are business holdings and taxation questions as well.
The particular mischief that I want to remove by this amendment is that will-drafting services are provided on a commercial basis by unregulated, and often untrained, providers. The problem is those who are selling their services for money. So far as those who are giving those services free, the noble Lord is right: the same mistakes could well be made, so he raises an important point. However, I am particularly worried about the way in which those providing these services on a commercial basis are conducting—
The noble Lord is right. We should reflect on the point that he makes as there are a number of unregulated and untrained providers who supply the will completely free, provided that often unsuitable financial products are sold to the individual. I would like to reflect on what he has said about that.
The Minister will understand that the prime purpose behind my noble friend’s amendment and, indeed, Amendment No. 40 is to protect the public. I hope that the Minister can give us some reassuring words. In the mean time, I will reflect on the point made by the noble Lord, Lord Clinton-Davis. There is a need to protect the public in the case of will-writing.
I am grateful to noble Lords for giving me the chance to talk about this important issue. I start from wishing that all members of the public would make a will. That would be a good thing. The noble Lord will know that we have been considering whether will-writing should be made a reserved legal activity. The difference between will-writing and everything else that is provided for in the legislation is that the services set out in the Bill have been reserved for many years. This would add a new reserved service, which means that it would be restricted to members of authorised bodies. We cannot do that until we are absolutely certain about the evidence before us.
The same applied with our consideration of the compensation culture, on which there was a lot of evidence. Concern was felt across your Lordships’ House and, even more important, outside your Lordships’ House that the area needed to be dealt with, and the Government moved swiftly to regulate. So we have, as the noble Lord, Lord Hunt of Wirral, says, no concerns about regulating where necessary, but I have concerns about regulating without evidence to suggest that there is a real problem.
In March 2005, my noble and learned friend the Lord Chancellor said that we would consider the case for the regulation of will-writing. Since then, we have worked with consumer bodies, the legal profession, those who provide will-writing services and the Office of Fair Trading, and asked for evidence that would suggest that there is a systemic failure in the will-writing market. We received information about some cases, but it did not show the level of failure sufficient in our view to warrant regulation. In fact, we have had some evidence from the Probate Service of a higher number of probate applications from solicitors being rejected because they were not properly prepared. There is an issue around will-writing, but it is not necessarily around those who are not members of the legal profession.
We reached the conclusion that we did not have the evidence to suggest that this problem was systemic. That was supported by the National Consumer Council and Which?—consumers have therefore played their part through those organisations in looking at the evidence that we had. The Office of Fair Trading also supports our not regulating at this point. I accept that there can be problems where potential mistakes, as the noble Lord said, are not discovered for many years. I have already said that there is no evidence to suggest that will-writers are more likely to make such mistakes. But we agree absolutely that we need to ensure that standards are raised generally and are consistent with the regulatory objectives of the Bill, and that the LSB should work with current and future providers to achieve that, not least in terms of understanding. The noble Lord, Lord Hunt of Wirral, said that the changing nature of family relationships means that wills can be even more complicated for people with different kinds of families, and that that needs to be taken into account when considering how and by whom one’s will will be drawn up.
At the end of the day, we have to be proportionate and base regulation and bringing this provision into reserved activity on an assessment of risk. If we do not do that, we start to add in things—creating a more expensive system, I would argue—that do not provide additional benefit to consumers. So our approach to this has been to make sure that standards are raised. We would expect that to happen. Equally important, if real evidence emerges rather than—and I am not suggesting that it happens in your Lordships’ House—anecdotal evidence of a systemic problem, the area can be regulated under Clause 23 and, indeed, under the Compensation Act, on which I worked with the noble Lord, Lord Hunt of Wirral, when we enabled regulation of other areas where it was clear that that would be necessary. So the capacity to do that exists, but I would hesitate to suggest that we should bring the provision in without evidence showing that the problem is such that it requires will-writing to be made a reserved function and that full regulation should take place. Should that happen, we would do that, but it is not the case at the moment.
I am very grateful to the Minister for her response. It is clearly necessary that a more detailed investigation into consumer detriment takes place. In the Joint Committee, Mr Eddie Ryan of Co-operative Legal Services told us that he singled out will-writing and probate as items which should become restricted services. The AA also gave us evidence to that effect.
Clearly, more evidence needs to be accumulated. If I might return to this subject at a later stage, I will do a little more investigation on what evidence currently is in existence to underpin the arguments I have put forward. In the mean time, I seek leave to withdraw the amendment—sorry, I apologise.
I must say that the way my noble friend was perorating it sounded as though it was his amendment.
Indeed, as chairman of the Joint Committee my noble friend knows more about the substance of the amendment than I do. The Joint Committee’s recommendation was quite firm that will-writing should now be brought within the purview of the Bill. The Joint Committee clearly had evidence to that effect before it. The Government are contesting the strength of that evidence, as I understand it. I hope that between now and Report—I yield to the Minister.
I rise only because I would not want the noble Lord or Hansard readers to think that we were contesting the evidence from bodies that were clearly concerned. The contestability lies around the fact that there was not sufficient evidence to warrant removing will-writing and putting it in as a reserved activity, to be done only by certain people in certain circumstances. That is what the Government are contesting and not the evidence per se.
Nevertheless, I am sure the Government can be in no doubt about the importance of will-writing. The noble Viscount, Lord Bledisloe, has pointed out what I would regard as a glaring logical inconsistency in the Bill in the disposition of land. The noble Baroness has referred the Committee to Clause 23, which is the clause that deals with the manner in which the categories of reserved legal activities can be extended. I note that under Clause 23(1) it is the Secretary of State who may, by order, add to the definition of reserved legal activities in this category.
Perhaps the noble Baroness could indicate how the Secretary of State will be keeping a matter such as this under review. If it is the Secretary of State who has this power, I am sure that the Committee would like to be reassured that it is not a power that simply will lie in abeyance but that there will be some pro-action on behalf of the Secretary of State to review activities, which might more appropriately be reserved legal activities. Clearly, will-writing is a potential, if not an assured, candidate. How does the Minister see the Secretary of State keeping himself, or, indeed, herself properly informed about the responsibilities that he or she is given under Clause 23?
That is a completely fair question. Rather than try to deal with an area of policy for which I have no responsibility, it would much better if I were to do two things: first, to say more about our approach to the evidence that was presented and the work that was done between March 2005 and now on defining what needs to happen; and, secondly, to do precisely what the noble Lord, Lord Kingsland, asks—to set out the process that would be followed to ensure that the Secretary of State could keep abreast of the situation and how he, or she, would be alerted to the issue to ensure that that would happen. It is much better if I properly spell out the policy side and not only give it to the noble Lord, Lord Kingsland, but put it in the Library of the House.
I am most grateful. In so far as there is a division between the view of the Government and that of the Opposition, it is a matter not of principle but of evidence. I would like the opportunity to discuss this with my noble friend Lord Hunt between now and Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Schedule 2 [The reserved legal activities]:
[Amendment No. 40 not moved.]
Schedule 2 agreed to.
Clauses 13 to 18 agreed to.
Schedule 3 [Exempt persons]:
41: Schedule 3, page 125, line 24, leave out paragraphs (b) and (c)
The noble Lord said: Part 3 deals with the reserved legal activities. This is the part of the Bill’s scheme that says who can carry them out and who cannot. In essence, the people who can carry them out are either authorised or exempt. One would have thought that the question of who was exempt and therefore entitled to carry out those activities without fear of committing an offence and having a penalty would be fairly clearly spelt out. However, a provision is made in the schedule for the Secretary of State to amend the Bill using Henry VIII powers to exempt persons,
“in relation to any activity which is a reserved legal activity”,
to remove exemptions for any activity, and to amend the existing provision on exempt activities.
The Department for Constitutional Affairs addressed this matter in paragraph 23 of its memorandum, when it said that the paragraph 8 power,
“is made subject to the affirmative resolution procedure because it allows the categories of persons under the regulatory control of the Board to be varied without limitation, which affects the ambit of the Bill regime”.
This is a very considerable power that is granted the Secretary of State to widen the category of exempt persons who can carry out such things as litigation, conveyancing, probate or any of the other reserved activities without fear of committing an offence.
That explanation, and the provisions of the schedule, came under the scrutiny of the Delegated Powers and Regulatory Reform Committee, which, in paragraph 49 of its report, said that it found it difficult to accept the case that had been made for the width of the delegation of the power to the Minister so that he could in effect make an order, admittedly by the affirmative procedure, although we know the limitations of that procedure, that would extend exemptions to whatever class of person he or the Legal Services Board thought fit. The committee drew the matter to the attention of the House so that the House might seek a fuller justification for this very wide power. That is the purpose of the amendment that we have tabled. We seek a wider explanation than the one that appears in the original memorandum, and I look forward to hearing from the Minister in due course. She was saying that she did not have such a great command of Latin. I recall someone once saying that he could have been a judge if he had had the Latin. Perhaps the Minister has escaped that. I beg to move.
I should say that judges are not supposed to use Latin any more since the noble and learned Lord, Lord Woolf, said so six or seven years ago.
Perhaps I might add to what my noble friend has just said. Schedule 3 deals particularly with rights of audience—here, I declare an interest as a former judge—and the ability of the particular individual to appear in court. Under paragraph 1(7), the person is exempt if he,
“is assisting in the conduct of litigation … under instructions given … by an individual … and … under the supervision of that individual … and … the proceedings are being heard in chambers”—
in other words, in private—“in the High Court”. I did not think that we used “in chambers” any more; I thought we used “in private”, but not to worry. It continues,
“or a county court and are not reserved family proceedings”.
As I understand it—again, having been a family judge—family proceedings are heard either in open court or in private. Whatever “reserved family proceedings” are, they must be held either in private or in open court, and I do not understand why family proceedings have been extracted from bankruptcy or any other sort of proceedings that might be in private or in open court.
I am absolutely not going to take issue with what the noble and learned Baroness, Lady Butler-Sloss, has said. May I take that away and look at it? She will know that I do not know whether it should say “in private”, not “in chambers”. If it should, it must.
I am very grateful, and I will of course check that. I will also check the point made by the noble and learned Baroness about reserved family proceedings. I will not try to pretend that I can answer it, as that would be extremely foolish on my part.
I am grateful to the noble Lord, Lord Thomas of Gresford. It is a joy to see him in his place. I am glad that he has caught up with our discussions on Latin, which have played some role in our discussions. As I said, I have O-level Latin, although that was a very long time ago. Perhaps that is why I am not a lawyer or a judge. However, I am also glad that the noble and learned Lord, Lord Woolf, thought that the common touch was important and got the judges to talk to those of us for whom Latin will never be a language on which we will spend much time.
The noble Lord, Lord Thomas, will not be surprised to hear that we will deal with all the proposals made by the Delegated Powers and Regulatory Reform Committee. We will do whatever it has asked us to do, as ever. I am extremely grateful to the noble Lord for tabling his amendment, as I wanted to take the opportunity to spell out the provision in greater detail. This will be in Hansard so that the noble Lords, Lord Thomas and Goodhart, and the members of the Delegated Powers and Regulatory Reform Committee will have the chance to see it and, if appropriate, to comment.
On the specific drafting of the amendment, paragraph 8(1)(b) allows for the person to cease to be exempt. This is required, as the noble Lord, will know, to enable us to bring people within the regulatory framework in appropriate cases. It might, for example, be necessary to regulate the conduct of someone whose conduct of reserved legal activities is giving rise to concern. This is an important power for ensuring that public confidence in those providing legal services is maintained, and the board can respond when problems arise. The power in paragraph 8(1)(c) may be required to enable the Secretary of State to amend any existing provision made in Schedule 3 in respect of exempt persons. That power is necessary to effect the changes to Schedule 3 where there is a need to modify the provision. For example, the reference to the European Communities (Services of Lawyers) Order 1978 in paragraph 7 may need to be updated when a new order is made. Paragraph 8(1)(c) would allow the Secretary of State in such circumstances to revisit the drafting of the exemption in paragraph 7 to reflect the relevant changes and ensure that the provision is fit for purpose. It is an entirely technical provision, which, I hope noble Lords will accept, is necessarily broad to ensure that any appropriate changes can be made in the future.
Given the scope of the power, we have ensured that it is exercisable only in accordance with the affirmative resolution procedure, so that there is opportunity for Parliament to consider any provision made. Given how these technical changes would operate, the affirmative procedure would be highly appropriate—I know the limitations in amending which noble Lords worry about.
Let me further clarify the purposes of the power at paragraph 8 of Schedule 3, in line with the response of the Select Committee on Delegated Powers and Regulatory Reform, as the noble Lord, Lord Thomas of Gresford, has reported. As the committee mentioned in its report, the power to exempt is not without precedent. Section 6(2) of the Compensation Act 2006, for which I was responsible, provides for an order of the Secretary of State to exempt certain persons, or classes of persons, subject to the affirmative resolution procedure.
The power in paragraph 8(1)(a) of Schedule 3 serves a similar purpose to that in Section 6 of the Compensation Act, in that it provides a mechanism by which specific persons can be exempted, subject to parliamentary oversight.
As we highlighted in the government response, under the existing regime there are already a number of exempt persons who are able to carry out reserved legal activities by virtue of their office without committing an offence. For instance, officials working for local authorities have limited rights of audience in specified circumstances; for example, under Section 60 of the County Courts Act 1984. Under the Bill, such persons are exempt under paragraph 1(6) of Schedule 3. Those people represent a low regulatory risk and it would not be appropriate to require them to be regulated by an approved regulator.
It is also reasonable to assume that there will be similar persons, or classes of persons, who might need to be exempted from regulation in the future where a new reserved service has been brought under the regime.
I hope that that clarifies further the purpose of exemption clauses, that the noble Lord will be able to reflect on the matter, and that members of the Delegated Powers and Regulatory Reform Committee will also read this.
I am most grateful to the noble Baroness for her reply, which I shall read carefully in considering whether to take the matter any further. It seems curious that, at a time when there is so much legislation and such need for qualified people to advise consumers on how to get through the morass, there should be an attempt in some areas—we discussed wills a moment ago—to provide for non-qualified people to give advice for a fee. I can see all sorts of problems arising. That lies behind my concern about having a wide provision to exempt people so that they can carry on regulated legal activities—who knows what sort of qualifications will be required.
It might allay the noble Lord’s fears if I wrote to him with further examples of the kind of people to whom we are referring, such as the Attorney-General and the Solicitor-General. I will copy the letter to other noble Lords and place a copy in the Library.
moved Amendment No. 42:
42: Schedule 4 , page 132, line 40, leave out sub-paragraph (3) and insert —
“(3) Alterations are exempt unless the Board has directed that they are not to be treated as exempt for the purposes of this paragraph.”
The noble Lord said: We now return to the underlying issue of the responsibilities of the Legal Services Board in relation to the approved regulators. The amendment is designed to ensure that the Legal Services Board’s approval is not routinely required for changes to an approved regulator’s regulatory arrangements. It reverses the presumption as drafted in the Bill.
As the Bill stands, the board may exempt an alteration of regulatory arrangements only if it has already directed that they are to be treated as exempt. The amendment would alter that presumption and make any alterations exempt unless the board has directed that they are not to be treated as such.
There is also a resources implication. It must follow from the presumption in the Bill that the board will have more cases to review. This extra weight of work would inevitably mean that the board would have to expand its staff to deal with extra approvals, making it, in my contention, unnecessarily bloated. Shifting the presumption along the lines of the amendment should therefore contribute to a more cost-efficient system as well as reinforcing the supervisory character of the Legal Services Board. After all, even with the amendment, the board can still intervene if the altered regulatory arrangement adopted by the approved regulator is exercised improperly or ineffectively.
Amendment No. 42 would not take away the power that the Government wish to give to the board in the schedule. The board would still have the power to require advanced approval either in an individual case or for a specified category of changes to the rules. The only change proposed is a shift in the underlying presumption. I beg to move.
I agree with my noble friend. This is a simple amendment. It is a practical measure which will make the process more efficient and cheaper. I am concerned that the board would get clogged up with changes that, while routine, might take time. The amendment would prevent the board being an unnecessary clog, deliberately or otherwise.
As my noble friend has pointed out, the amendment would not take away the power that the Government wish to give the Legal Services Board but merely shifts the presumption. It is therefore sensible. It is probably more appropriate that I speak to the other points that I wish to make about Schedule 4 during the debate on the Question whether Schedule 4 shall stand part.
I am grateful to noble Lords for raising those points. I have discussed the matter with the Law Society and the Bar Council, which understandably are concerned with what I think I described as dotting the “i”s and crossing the “t”s on everything.
Let me say something about our approach. It is completely reasonable for us to continue discussions to ensure that this is worked out in a proportionate way. We have already provided that certain aspects will be exempt, but the board will determine what those should be. That will ensure we do not delve into the kind of alterations where, quite reasonably, someone might say, “Well, those alterations obviously ought to be exempt because they will have no impact at all”. That is completely satisfactory and we are engaged in discussions with the Law Society, in particular, on that.
It is also right to say that the next stage is when proposals are put forward. If the alterations are clear cut, that will be it and the end of the line. The board will say, “Thank you very much for telling us about them. Go ahead, get on with it, and go and do it”. However, there will be a smaller group of alterations where the board might say, “We would like more information about what precisely you are doing”. There are a number of aspects to this.
In this amendment, Members of the Committee have sought to turn that on its head and say, “Well, everything is exempt unless you tell us it is not”. I have thought about this a lot and the difficulty I can see is that the onus would be very much on the board to find out what all the different bodies are doing. On the ability of the board to be able to do that, there are—
It would be very helpful for a moment to pause and reflect. The more I hear the words of the Minister, the more I realise that this is a crucial amendment if one is really concerned to avoid micromanagement and wants to take a clear stand for the light touch. It would still be open for the Legal Services Board to identify those areas where it wished to be involved, but we do not really want the system to be so clogged up with all these changes.
I agree with the noble Lord that we do not want to be clogged up with changes, but how do we get to that point? We are arguing about means, not ends, in this case. My concern is that the Legal Services Board will be required to think about every aspect of how changes could be made and how alterations could be dealt with. It will require quite a lot of resource to do that and will need to work out for the different regulators precisely what might be altered, and when and how it might be altered. In addition, it will need to decide, by looking very carefully and thinking very hard, what to and what not to exempt, how to make sure that it does not miss something by accident and how to know what might or might not be covered. It would have to span the entire spectrum of what might or might not be put forward.
Our drafting says, “If you are making an alteration, you tell the Legal Services Board”. In the process of its work, the LSB will have exempted certain things altogether. But alterations will be put forward. They can then either be ticked off immediately or further information can be sought. But the LSB will be working on reality, not speculation and conjecture, about what might or might not happen.
For me, clogging up the system would be the other way around. If you say that the board has to think about everything and then determine the exemptions, it would have to consider the full panoply of what could come before it, which would be very resource intensive. It would reasonably be nervous that it had covered everything—not because regulators would behave badly, but it could miss something that it felt later was important. The regulator quite reasonably could say, “Well, I am sorry. You did not mention it before; therefore, it was exempt”. In this way, the LSB deals only with changes that the regulators really want to make and it will become quite apparent, quite quickly, the areas in which the LSB would want to be more interested and more involved.
Our ends are in the same place, but this is not the way to make sure that the Legal Services Board is not resource intensive. If you want to make sure that the LSB deals only with things that it needs to, it needs to be in a responsive mode to those alterations being put forward. To achieve what is wanted, as I have indicated, it needs the ability to exempt large chunks of things, the ability to tick things immediately they come in—on the nod—and the ability to explore further. It does not mean that I do not accept the need to continue talking to the regulatory bodies to ensure that we have thought through, for example, the areas where the board might begin to think about exemption. To say everything is exempt unless the board says differently requires it to do a completely different job, which I think would be resource intensive.
The impression I get is that this gives the board something to do. It is required to look at every change in the rules, whatever field it may cover; for example, disciplinary procedures, training and qualifications. The schedule says that all those sorts of things will have to be put forward with a form explaining why they are needed, and so on, in order to obtain the approval of the board. One can see an enormous bureaucracy emerging to deal with applications of this sort. There will be delays when perfectly standard and ordinary alterations of the regulatory bodies’ rules are required. This is a very sensible amendment to make it necessary to get this approval and to fill out all these forms setting out the purposes and so on when the board thinks that it is necessary. That is the way in which this Bill should proceed.
If what happens is what the noble Lord has described, I would do nothing other than agree with him. We have said that the board can say at the beginning that there are areas to be exempt, or add areas to be exempt, precisely because, as he says—this is the discussion that I had with the professions—we want to make sure that we do not delve down to a ridiculous level of trying to be involved in small alterations or alterations which may seem quite substantial but are ongoing and clearly recognised to be normal practice in the professions. That is covered by the ability of the board to be exempt.
Starting from the premise that everything is exempt unless the board says otherwise, you have to ask how the board would go about determining on every aspect of the possibility of change what should or should not be exempt. My argument is that it would have to delve into and think about every possible permutation of change and alteration that could take place across all regulators. To achieve the same objective, it is much better to have the ability to exempt or, as I have said, to tick things off and the ability to look only at those changes that matter.
Rightly and properly, the professions have raised how that process will work in a timely and appropriate manner which does not involve massive form-filling and so on. I could not agree more. We have already undertaken to look at that to ensure it is appropriate. I simply argue that, whereas the objective behind the amendment to make the system simpler and easier would appear on the face of it to work, when thinking about it, the LSB would be put in a position where it would have to consider everything from the beginning rather than dealing with the practical issues that come up when alterations are made. In some areas no alterations would ever be made.
I respectfully suggest to the noble Baroness that the board will intervene only where grounds for concern have been conveyed to it by, for example, the consumer panel or someone else. It should not be nitpicking over everything that the regulatory bodies are determining to do. If the board comes out with a broad list of exemptions, such as, “We will not interfere in your disciplinary procedures; we will not interfere in your teaching, qualifications and so on”, that would be excellent. But I do not suppose that it will, because it has to do something. If the board is set up to control the regulatory bodies, it will want to control them. If it is given power, it will want to exercise it. The board should intervene when necessary because of an external concern that is voiced to it.
The noble Lord does not quite get my point, which perhaps demonstrates that I am not putting it very well. At the moment all rules are subject to the decision of the Secretary of State, so we are making it easier by giving some discretion to the board. The issue here is that if you want a position where the board has to think about all the possible areas where there is an alteration it might or might not be concerned about, you are creating work for the board in that initial consideration. Further, the consumer panel cannot argue about something that has happened if the regulator can say, “That is exempt because you did not tell me it isn’t; therefore, automatically it is exempt”. That does not get you where you need to be. The objective of what we are trying to do is that there is the capacity to exempt, but the board does not need to investigate or concern itself with questions of whether alterations have been made and further questions such as whether it should have looked at those alterations, what people think about them and so on. The board is able to deal with them simply and directly by saying, “These are all exempted and we can add to the list as we wish”. I agree that the list should cover a number of different areas; whether they are the right ones, I do not know, but the board can take a cursory glance at others and look in detail at those it feels it needs to think about in the context of its role. That is a simple and straightforward process.
I understand the concern is that everything will have to be brought forward and it could take for ever to deal with it all, and I agree that we have to make sure that that has been thought about. Indeed, I know that by the next stage I will have to convince noble Lords of that. The way in which it will operate will be set out properly and clearly, and will be reasonable. But in turning it around it will become much more resource intensive, meaning that the professions will pay more for a board that will have to spend its time constantly checking and asking questions along the lines of, “Have you made any alterations? What alterations have you made? Do we need to think about what exemptions we need to get rid of? Do we need to think about the write-across in changes to rules? Have we thought about what they might decide they wish to change, and therefore have we decided whether we want to make it an exception?”. Dare I say it, we both want the same desirable outcome. What we need to do is work out the best way of getting to it. I want to achieve it in a way which means that the board will not waste resources and spend its time looking for things, while equally respecting and recognising that its relationship with the front-line regulator should be such that it is able to exempt lots of things and be clear and timely about the process, and is able to operate in a spirit of working together in the best way. That is what we are aiming to do with the professions.
I am not suggesting that the board should carry out an exercise in looking for problems. My point is that the board is a safety net, if it is anything, and should respond to concerns expressed by outside bodies. It should not go around investigating in the way the Law Society and the Bar Council operate; it should just be there acting as a safety net if, for example, the consumer panel encounters a lot of problems in one or another area. At that point the board can take an interest. I do not suggest that the board should go in to the professions all the time. The problem is that this is micromanagement and it will fail.
I regard the proposition being espoused by the noble Lord as micromanagement and that our proposal is designed to move away from any suggestion of it by managing only where necessary. The difficulty with saying, “It is exempt unless we say otherwise”, is that the assumption will be that the Legal Services Board will have indicated all the areas where it has or in the future might have concerns and will have said, “These are not exempt. You must give us any alterations”. It assumes that the board will have looked across all the regulators and considered all the changes that could be made. That, I suggest to the noble Lord, is a much bigger and more challenging task than actually responding to changes that might be made at any given time, while recognising that how and the speed with which it responds is critical. If not, the board will spend at least part of its time asking regulators, “Have you made any alterations? What were they?”, in order to look at them, as well as making demands of the consumer panel. It is much better this way round.
I am sorry to interrupt the noble Baroness. How do the Government think sub-paragraph (3) is going to work? Having listened to the opposing views as to whether the board should be proactive or reactive, I say that surely the board will have to do a great deal of investigation to know whether an alteration should be exempt. It seems to me that nobody can do anything until the board tells them they can do it. So if they have made any sort of rule, however minor, which they suddenly realise may not meet the situation, the approved regulator will have to go to the board and ask whether they have the right to change it. They are going to have to do that on every occasion when an alteration of any sort is made. It seems to me that that is going to give the board a huge amount of work to do, whereas if it were to wait to be asked whether an alteration should not be exempt, I suspect there would be a great deal less work.
Looking at how this is going to work, given that it will be a new board with a lay chairman and at least half lay members, I think that the team working behind the board will have to do an enormous amount of investigative work to know what they should make exempt or not exempt. It will shake down after a year or two, but the beginning will be extremely hard work for the board if the government proposal goes through.
I hope the noble Baroness will forgive me for interrupting. I had no intention of being in any way critical of a lay chairman or lay members. I am a member of the QC panel. Our lay chairman and lay members are brilliant. It is nothing to do with that, but purely and simply how the board in shaking down is going to know, as a board, what it should exempt on alterations and what it should not. That is what is worrying me. Everyone will come to the board saying, “Look, we have made a mistake here and we should not have made this minor alteration”. How long will it take the board to look at all those queries? For how long will the board have to do this? Is everyone going to be held up on minor points because the board has to manage absolutely everything?
I was not suggesting that the noble and learned Baroness has anything other than the highest respect for lay chairs, but she referred to the fact that the board will have a lay chair and lay members, so it was worth making the point for anyone reading our debate.
Let us be clear where we are now. If you have rules relating to qualifications and conduct laid down by the Law Society and the Bar Council, they have to be approved now by the Secretary of State. All other rules are dealt with by the Law Society through the Master of the Rolls. All rules made by the Council for Licensed Conveyancers must be approved now by the Secretary of State. What we are providing for is a Legal Services Board with the discretion to exempt. In a sense we are arguing about two sides of the same coin here. The question is how to make sure that the Legal Services Board, in dealing with alterations to rules, is able to do that in the most effective way and, I think all will agree, without the overuse of resources, which has implications for those funding the resources. We are simply trying to decide which way around that will work most effectively.
If we take the proposition that everything is exempt until otherwise, then if the noble and learned Baroness is right—she usually is—in saying that it will take a while for it to shake down, there might be a tendency not to allow any exemptions for the present because that is a way of making sure that we know what is happening right across the regulatory framework. If we decide to have exemptions unless otherwise provided for, we have to make sure that we know precisely what is happening at any given time, and the onus will be on the board to establish what is going on with the regulators.
The point rightly referred to by the noble Lord, Lord Thomas of Gresford—here I paraphrase him—is about not having a proactive and therefore potentially interfering regulator operating in that way.
I thank the Minister for giving way. Are we not, I ask with respect, getting back to the discussion we had about the structure, as mentioned by my noble friend Lord Hunt of Wirral? One example is that if there is a complaint from the Consumer Panel, the professions should have an opportunity of notice and to answer it. The other example has just been given by the noble and learned Baroness, Lady Butler-Sloss. The panel has to operate on a complaint. It is not there to initiate criticism—or, really, to initiate at all. It is there on the basis that it services consumer interests, and, at the same time, to serve fairly the interests of the profession. That is the gap in the Bill. We are coming back to the same argument that the Minister was good enough to consider. Could we leave it at that?
I would be delighted to leave it at that, but I have one final point. As the noble Lord knows, I do not accept the premise that somehow this Bill is tilted in the wrong way. I stand by the fact that, because consumer interests have not previously been built in in the right way, we need to build them in. However, it is clear to me, although I am neither a lawyer nor the policy Minister considering the Bill, that we have taken due regard of many of the concerns; not only those of the Joint Committee—although the noble Lord, Lord Hunt of Wirral, would be right to say not every concern—but also of the professions themselves.
I shall just make my point, and then the noble Lord can reasonably interrupt me again. If we followed the route of this amendment in saying that there was an exemption unless otherwise stated, and the Consumer Panel were to identify, as noble Lords have suggested, that there had been a detrimental effect, and that that in turn was seen to have a detrimental effect on the regulatory objectives, the only option to the board would be to use one of the powers given within the Bill. It is much better that alterations are dealt with in dialogue between the board and the front-line regulator before we ever get to the stage that, because they did not discuss it, the only option open to the board is to use its power. That, above anything else, is an issue we should consider very carefully.
I am not suggesting that the Minister has not taken due regard. All I am saying is that that due regard, if it has been taken by the Government, is not clear in the Bill. That is essential, because for the purpose of administration it has to be clear in the Bill what is the parameter of the discretion that can be exercised by the Legal Services Board. We get bored, and we go straight back to square one every time.
I venture to suggest that both the Minister and the noble Lord, Lord Thomas of Gresford, have dug themselves into holes because they are determined to consider two opposite poles. One says we must have a negative procedure, the other says we must have a positive one. Surely the right answer is that a regulator who wishes to change his rules shall give notice of the change he intends to the Consumer Panel and to the Lord Chancellor, and if they do not like it, or are doubtful about it, they report it to the Legal Services Board and say, “I think you ought to look at this”. If they do not do so, it goes through on the nod if nothing has happened within a month or two. Approval is needed unless someone raises an objection. It is not for the judge of the Legal Services Board to search everyone’s case to try and find the objection; it is up to him to deal with objections if they are made. We want the concept not of “exempt”, but of “they are approved unless the Legal Services Board, on the recommendation of the Consumer Panel or the Secretary of State, says that they need looking at”.
In paragraph 21(1) of Schedule 4, we think we have more or less captured what the noble Viscount is saying. I am equally not in a hole at all, by the way. I am robustly trying to stop noble Lords spending the profession’s money, which is what I think would be the conclusion of this approach.
I feel I ought to apologise for tabling this amendment, because it seems to have consumed so much of your Lordships’ time when it perhaps might have been better served, not in your Lordships’ House, but in your Lordships’ Dining Room. Time is moving on.
This issue is just another example of raising the question of the appropriate role of the Legal Services Board as supervisor, as opposed to direct regulator. It is important, if I may say so, that the Minister bears in mind that the regulator is the approved regulator. There are several different regulators that have rather different regulatory problems to confront. They are the experts. They know all about the regulation.
The task of the Legal Services Board is simply to ensure that the regulation is done in a way that is satisfactory to all the interests affected by it, not least the consumer interest. That is why the point made by the noble Lord, Lord Thomas of Gresford, is so telling. The issue is not whether or not a particular alteration in regulatory arrangements conforms with what the Legal Services Board thinks is correct, but whether or not the activities of the approved regulator give rise to complaints. If they do not, it is clearly performing its task satisfactorily.
It is therefore right—to adopt the language of the noble and learned Baroness, Lady Butler-Sloss—that the task of the Legal Services Board here should be not proactive but reactive, if it only intervenes when in some way or other the approved regulators are falling below the standards that are expected. The philosophy here for the Government should surely be, “Trust the approved regulators”. That is the philosophy the Minister told us earlier in the day lies behind the Bill, and it is precisely the philosophy that the amendment seeks to advance.
I am not going to attempt to summarise all the arguments that have been advanced by noble Lords in this debate, except to say that I agree with them all.
Save, on this occasion, for the Minister’s. But she has been batting at the wicket for several hours now, so she can be forgiven for falling below her customary high standards at this stage of the evening.
We will be coming back with this amendment on Report, and we feel strongly about it. I therefore trust that the Minister will be thinking carefully about it, particularly in the context of the overall philosophy that she was keen to accept earlier today about the right relationship between the Legal Services Board and the approved regulator. Bearing all that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.