House of Lords
Tuesday, 8 May 2007.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of London.
Tributes: Lord Weatherill
My Lords, I rise to pay tribute to Lord Weatherill. Bruce Bernard Weatherill, known to all as Jack, made his mark on public life as Speaker of the House of Commons. He reached a far wider audience than his predecessors because his tenure as Speaker from 1983 to 1992 coincided with the introduction of television cameras to the Commons Chamber. He became known to millions for his interventions during Prime Minister’s Questions. In Parliament he was known for his belief in making government accountable and in making Parliament matter.
Lord Weatherill was born in Guildford. His father owned a Savile Row tailoring business and it was into this trade that he was apprenticed aged 17 after completing his education at Malvern College. He remained involved in the family business throughout his life. Commissioned in 1940, he served as a Bengal Lancer during the Second World War. He referred to this period as “formative years” and many of his experiences clearly had a lifelong impact. He was proficient in Urdu, became vegetarian after seeing famine in Bengal and practised meditation. He maintained an interest in the region throughout his life. Noble Lords may recall his interventions in this House on the subjects of the Kashmir earthquake and the readmission of Pakistan to the Commonwealth.
After the war he focused on the family business. In 1964 he won election as the Conservative candidate for the seat of Croydon North-East. He retained his seat until 1992, standing as in independent candidate in 1987 after he had become Speaker of the House of Commons. He served as a Whip in opposition and, in government, as Deputy Chief Whip. He was elected as the 154th Speaker of the House of Commons in 1983. His years of service were marked by a desire to encourage the free flow of debate and the expression of all opinions. He championed the role of Back-Benchers and his tenure as Speaker was sometimes an uncomfortable period for the Government of the day.
Lord Weatherill also made a significant contribution to this House. He was raised to the peerage in 1992 and from 1995 to 1999 served as Convenor of the Cross Benches. From the beginning he commanded tremendous respect from all sides of the House. He was a Convenor at a critical time in the development of the role of the Cross Benches and was always helpful and absolutely fair in his dealings, ensuring that the interests of the Cross Benches were well represented in the usual channels.
Lord Weatherill was always modest about the role he played during the passage of the House of Lords reform Act of 1999, but this House will not forget it. It was in large part due to him that an agreement was reached which allowed the Bill to pass. He used his skills to considerable effect at what was an extremely challenging time for this House.
It is difficult to do justice to a life characterised by such a broad range of interests and experiences. Lord Weatherill will be remembered as a remarkable man; respected by all and missed by many. He is survived by his wife Lyn, their three children and seven grandchildren. I am sure that all sides of the House will wish to join me in sending our condolences to Lord Weatherill’s family and friends.
My Lords, I agree wholeheartedly with the Leader of the House in everything that she said about the late Lord Weatherill, whose death has saddened the whole House. We on this side, who were proud that he was a Conservative, deeply share her expressions of sympathy for Lady Weatherill and the family. They have lost much, but they will know that they were also given much, as was every one of us.
Jack Weatherill was a rare figure; someone who had, as Speaker of the Commons, been for millions the embodiment of that House but who, in coming here and being chosen as Convenor of the Cross-Bench Peers at such a critical time in their history, became part of the fabric of this House also. Those of us who saw him well into his 80s, with that crisp, swift, upright walk along the corridors, could have had no doubt that he was a military man in younger days—a cavalryman, indeed, who saw service in India and retained not only his love of horses from those days but some of his habits of life; his vegetarianism, for example, and his practice of meditation. As a horseman, it was apt that he personally sewed the riding breeches used by the king and queen at the Trooping, and it was no accident that the Royal Warrant was given to his firm.
It is as a true parliamentarian—someone concerned for, and about, the standing of Parliament inside and outside these walls and for his great and dedicated service to Parliament—that Lord Weatherill will be remembered. It has been widely commented that he was the Speaker who encouraged, over the heads of many doubters, the introduction of television to the other place—a House, incidentally, that was so much more reluctant to innovate than this House was at the time. That introduction was to the good of Parliament, as was so much that he did. He was rough only with Ministers who preferred the “Today” studio to the House for their announcements. One of today’s obituaries calls him, rightly, a great Speaker. He was famously independent, not always to the delight of the Government, but he won the trust and affection of all Members; his ready wit and light humour were always there to defuse any situation that might risk getting out of hand. He opened up the Speaker’s House to all Members and to their families, and he took pride in the fact that at least once in every Parliament an MP and his wife would have been to dine.
When Lord Weatherill came to this House, he was Convenor of the Cross Benches at a time when a government Bill threatened the removal of 226 Cross-Bench Peers, nearly two-thirds of the then strength of those Benches, which are so vital to the character of this House. As the noble Baroness has outlined, Lord Weatherill played a major role in the compromise that led to the eventual House of Lords Act, moving the Weatherill amendment that shaped that legislation and saw the present House created with massive majorities in both Houses. Out of conflict he helped bring compromise and a House whose performance and independence since 1999 should surely have gladdened him who helped to mould it so much.
For all his great offices and achievements, Jack Weatherill always retained a great humility, symbolised by the famous thimble that he carried to remind him of his origins. For his epitaph, he wanted simply this: that he always kept his word. That he did; and with that word he kept a trust, a faith and a dignity that all of us who knew him will sorely miss.
My Lords, since the Lord President and the Leader of the Opposition have not mentioned it, I start my tribute with the story that Lord Weatherill told so often against himself. He used to say that when he was elected in 1964 as a young Conservative Back-Bencher, he found himself in the gents’ toilets down the other end of the Corridor and heard two of the Conservative knights of the shire talking. One said to the other, “I think this place is going to the dogs. My tailor is in here now”. He loved to tell that story.
As the noble Lord, Lord Strathclyde, has said, it would be difficult not to see Lord Weatherill as both a tailor and a solider: dapper, crisp and well dressed. He was a skilled Deputy Chief Whip. Indeed, he has one of the few battle honours that any Opposition Whip could have: he brought down a Government, as the pairing Whip during the 1979 Government. As has been said, he was a respected chairman of Ways and Means, and an even more respected Speaker—our first TV Speaker. The fact that he was able to move from a background as a Whip to Convenor of the Cross Benches is also a clue to his character. He had a personal integrity that allowed him to be at certain times partisan and at other times absolutely neutral. I once attended a dinner at the Pakistan High Commission when he was there, and was impressed by his affection for and deep knowledge of the subcontinent.
I was never in favour of the Weatherill amendment, but admired the skill with which he played poker with the Government of the day. They blinked first. Apart from the epitaph given him by the noble Lord, Lord Strathclyde, it can truly be said of him, “If you seek his memorial, look about you”.
Lord Weatherill was a parliamentarian who had affection and respect at both ends of the Corridor. We on these Benches share the sense of loss that his family must feel at this moment, and send them our deep condolences.
My Lords, the death of Bernard Weatherill—always Jack Weatherill to his friends here—is a sad occasion for the whole House. I express my sympathy, as others have, to Lyn and his children.
Today is a particularly sad day for the Cross-Benchers, because Jack Weatherill was a most distinguished and respected member of the Cross-Bench group. Here in Parliament we think of him as a remarkable parliamentarian, embodying for me the spirit of our democratic Parliament; as a Member of the House of Commons, one of the most distinguished Speakers and a national figure in that office; and as a real star in this House. We on the Cross Benches also like to remember how he was always willing to share his knowledge and experience. He was invariably helpful, often humorous and a source of much wisdom.
I had many contacts with Jack Weatherill myself, in particular because he was one of my predecessors as Convenor of the Cross Benches, from 1995 to 1999. He was a true independent Member and an independent spirit here, as we saw with his role in the last reform of the membership of the House. I learned a lot from him, and can honestly say that I never once failed to enjoy our meetings and discussions. He gave of his experience not only in this House but also more widely, in the organisations and charities that he supported. I particularly remember the Industry and Parliament Trust which he chaired for nine years and supported very effectively, reflecting both his affection for Parliament and his links with commerce and industry—particularly small businesses, since he was not only a great parliamentarian but also, from experience before he entered politics, the best tailor in the House. His interests extended far beyond our shores. He held office in the Commonwealth Parliamentary Association for many years and had lots of contacts with Parliament, Government and people, particularly in the Indian subcontinent and other countries with close links to the United Kingdom. We shall miss Jack Weatherill very deeply. Parliament has lost a great servant.
My Lords, on behalf of these Benches, I add our condolences to those of other noble Lords who have spoken. We have the title “Lords Spiritual”, but Jack Weatherill was one of the Lords Spiritual in reality. We have heard about the integrity of his life and the thimble of humility; he was a genuinely spiritual person. In addition to the services to Parliament, about which Peers with better right to speak have referred, he cared for the coherence of the whole of society. I think of his work on the Speaker’s Commission on Citizenship, for example, which gave birth to the Institute of Citizenship Studies.
He saw his own contribution to the story in the light of the continuous story of the generations. He looked back to some of the great Speakers of the past; he located himself in a continuing story and saw himself as making a contribution to something in which we all have a share. The Speakership was almost a perfect expression of his gifts.
He was conspicuously fair and inclusive. It was typical of Lord Weatherill that he was the patron of the Three Faiths Forum, and its members were all keen to share him as their own. I remember vividly him describing the first time that he was under fire, not politically but in that period to which the Lord President has referred—the Second World War. He was in a vehicle, the bullets were buzzing around him and it was being driven by a Sikh. The Sikh turned round to him and said, “Put your trust in God, sahib, he’s a very reliable fella”. So we believe, but so, more importantly, Jack Weatherill lived.
My Lords, my first encounter with Jack Weatherill was when he was chairman of Ways and Means in the other place. I had just been made a chairman of a Standing Committee there. I was very wet behind the ears. My first big committee meeting was a housing committee. At a Division, I thought that all the Members were there, I called for the doors to be locked and for the Division to take place. I had locked out the Opposition Whip and the Opposition Front Bench Member dealing with the Bill. A hullabaloo broke out. It was a Thursday morning and I spent a terrible weekend because I knew that I was being reported to the chairman of Ways and Means, whom I did not really know. On Monday morning, I went into Jack Weatherill’s office to see him and confess all, believing that my days of chairmanship were well and truly over. I opened the door and he came in and said, “come along, Betty, come and sit down. I don’t care what you’ve done, but I am totally in support of you. I am on your side”. Throughout the years that I worked with Jack Weatherill, that was his attitude to all those who worked with him. He was totally loyal, committed and supportive. He was my dear friend and mentor. I shall miss him very much indeed.
My Lords, as is usual on Europe Day, the flags of all 27 EU member states and the European Union flag will be flown in Parliament Square. The Minister for Europe will be visiting a comprehensive school in west London tomorrow to mark Europe Day, with pupils involved in the German presidency’s “Ambassadors in Schools” initiative. This will also enable him to promote the year-long “Learning Together” initiative which was launched in March as part of the 50th anniversary of the EU. This school partnership project is one of a range of activities that helps to raise awareness and debate on EU issues.
My Lords, I thank the Minister for that Answer. At least the flags are flying in Parliament Square today and tomorrow, but are not the Government being characteristically shy and modest about the European Union? After 34 years of membership, could we not have celebrations up and down the country instead of just one school visit in London?
My Lords, we believe that Europe Day is an extremely important opportunity to raise awareness about the European Union and the importance of our membership of it, but every day is an important occasion on which to raise awareness of the European Union and we celebrate that.
My Lords, in addition to celebrating Europe Day, will the Government give a little more thought to how we celebrate Commonwealth Day alongside it? The two need not be rivals. Although we have the Commonwealth Day service in Westminster Abbey, there seems to be a lack of enthusiasm about distributing information about the Commonwealth to schools. This country’s place in the Commonwealth network is vital for our future position and prosperity, so will the Minister urge her colleagues and the Foreign and Commonwealth Office to give far more emphasis to the future importance of the Commonwealth, which contains some of the richest and most advanced countries in the world and whose development is crucial to the stability of the whole planet?
My Lords, I fully agree with many of the noble Lord’s comments. It is entirely proper that we raise awareness about the Commonwealth. I draw the House’s attention to the “Global Gateway”, a government initiative for schools. I believe that that website refers to aspects of the Commonwealth, although I will check that. That is a good way of making the Commonwealth much more visible to the children of this nation.
My Lords, I am sure that the noble Baroness is aware that the European Union does not constitute the whole of Europe and that therefore “Europe Day” is a misnomer. As the Government’s policy is now to promote Britishness, does she agree that perhaps we should have a British Day, even though it might be called St George’s Day?
My Lords, in factual terms the noble Lord is correct. The continent of Europe is wider than the European Union, although, thankfully, the European Union keeps growing, but we all know the shorthand behind Europe Day. As regards 23 April, it is indeed St George’s Day, and people celebrate it as they wish, just as they celebrate Europe Day as they wish.
My Lords, the greatest leaps forward in Europe—the accession to the Rome treaty, the Single European Act and the Maastricht treaty—were all achieved by Conservative Administrations, although without referendums being called. What do the present Administration see as their greatest achievement in their 10 years in power?
My Lords, our greatest achievement is perhaps in ensuring that the European Union focuses its attention on practical issues that are important to the daily lives of the people of this country. I am talking about issues such as climate change and the environment, which we have to address in this 21st century but which we cannot address alone; we have to work on them in partnership with our European colleagues.
My Lords, if Her Majesty’s Government really wish to raise awareness and increase debate about our membership of the European Union, would it not be more appropriate for them, rather than having a visit to some comprehensive school in west London or whatever the Minister said the celebrations were to be, to commission and release for debate a genuinely independent cost-benefit analysis of all aspects of our membership of the European Union? Might the Government not then discover whether the 68 per cent, at the latest count, of the British people who wish to reduce our relationship with the European Union to one of free trade with the single market are right?
My Lords, I referred not to just some comprehensive school but to a particular school in London which we are very pleased is a part of the Comenius project. I very much hope that schools such as Eton are also a part of these projects but I do not have those facts at my fingertips. As for a cost-benefit analysis, although I know what the noble Lord is referring to, many such studies are already available in this country. The Government firmly believe that the costs of the European Union are far outweighed by the benefits to the people of this country.
My Lords, does my noble friend agree that the less than 1 per cent of total UK expenditure which is the cost of our membership of the European Union represents some of the best value for money that this country has ever had? That was recognised by the last Government; it will continue to be the case under this Government and even further under future Governments of this country. To do anything other would be an act of isolationism which would damage every interest that we hold important.
My Lords, I fully agree with my noble friend. It is another of the Government’s achievements. In 1997, when we became a Government, we were totally isolated in the European Union; now, we are not isolated. We are part of the mainstream, and I am glad about that.
My Lords, on this auspicious day when the shared devolved Government of Northern Ireland take their position at Stormont, does the Minister agree that one of the substantial contributions to that great achievement was the Irish Republic’s remarkable economic growth under the European Union? It is one of the outstanding achievements of that Union.
EU: National Vetoes
My Lords, the draft constitutional treaty provided for an extension of qualified majority voting in some areas. However, there is at present no consensus among EU partners on the way forward regarding the constitutional treaty, or any new treaty. These issues will be discussed at the European Council in June. Her Majesty’s Government have always taken the view that QMV can deliver practical benefit in some areas, but as in all things we will consider what is in the national interest.
My Lords, as ever I am grateful to the Minister for her reply, but did the Prime Minister not talk much about red lines that he would not cross prior to negotiations on the European constitution? Admittedly, he did not pay much attention to them in the event, but are we not entitled to know what his red lines are this time? In how many areas where we now have the veto is he prepared to sign away the rights of this Parliament without consulting the people?
My Lords, the Government are considering all those issues and how best they may negotiate on them at the Council in June to ensure that any agreement made is, indeed, in the best interests of this country. The Government are not prepared to conduct those negotiations in public.
My Lords, can the Minister confirm that the British Government are rarely in the minority on qualified majority votes in the European Union, and that our national interests are much more often damaged in votes by unanimity where one or two Governments block a decision that would clearly be in Britain’s interest? Therefore, like Mrs Thatcher’s Government on the Single European Act, the current Government would be in line with the extension of Britain’s national interest by accepting some further extension of qualified majority voting.
My Lords, the noble Lord is right: without the use of QMV, a single country could block the EU decision-making process. We have made recent progress in the services directive, for example, precisely because of QMV. That is extremely important, so this Government will undoubtedly seriously consider extending QMV, just as previous Conservative Governments did—including that of which the noble Lord, Lord Waddington, was a member.
My Lords, has the Minister noticed the recent 14 April edition of the Economist, hardly a Euro-sceptic magazine, which stated that it was the biggest of all Euro myths that enlargement required more decision-making to be made by QMV? The Economist asked why, if that is the case, is there no logjam of legislation and why, as a recent study by Sciences Po University in Paris demonstrated, decision-making in the European Union is 25 per cent faster than it was before enlargement. If decision-making is so difficult, how has the European Union been able to agree a very important open-skies agreement with America, and a climate change agreement which Chancellor Merkel described as historic? Surely there is no real argument for what the Government are considering.
My Lords, the Government are considering QMV because it was on the table under the German presidency. But many other issues are on the table, such as the size of the European Commission. QMV is just one of a series of issues on the table. The noble Lord is absolutely right to say that enlargement is progressing under the current system—or has progressed, we have Romania and Bulgaria now—and that the European Union is functioning well. However, it could function better. If there is to be further enlargement, steps must be taken, for example, to ensure that members of the European Commission are revised as per the Nice treaty.
My Lords, further to the penultimate question, what is the Government's strategy to reduce the 26 national vetoes held by other member states which, for instance, frustrate the establishment of the single European market and frustrate opportunities for British business to succeed therein?
My Lords, we are glad that the Government are considering all those matters; so they should be. Does not the Minister agree that Parliament would like to consider them as well? Could she therefore press her colleagues very hard to ensure that before proposals begin to take shape in concrete, which will be very soon—in fact, at the forthcoming summit on 21 June—the Parliament of this country and this House in particular has an opportunity to offer its views on how these matters should be resolved, because they will shape the future for all of us in a very important way?
My Lords, the usual channels will indeed be discussing that but, as my noble friend Lord Triesman stated in the House the other day, after the European Council, there will be a Statement for debate in this House and the issue will be referred to the excellent European Committee chaired by a noble Lord in this House.
My Lords, the Government are absolutely clear that we will retain the national veto in the areas of national interest—the areas that we believe to be in the national interest—such as tax, social security, defence and key areas of criminal procedural law.
My Lords, is it not essential that QMV is introduced in the areas of agriculture and fisheries in particular? Otherwise, there is no chance of achieving a fundamental change in the common agricultural policy and abolishing the common fisheries policy and replacing it with something far more sensible?
My Lords, it is time to move on.
My Lords, the UK Government support the aims of the fair trade movement and recognise the enormous difference that fair trade can make to disadvantaged communities and its contribution to sustainable development. We have not been invited to become involved in World Fair Trade Day. However, the Government would like to congratulate the London Borough of Waltham Forest on recently receiving fair trade status, which is being celebrated at one of the UK events on 12 May.
My Lords, I thank my noble friend for that reply. Does he agree that fair trade and trade justice are still the great hope of civilisation for the millions of people in impoverished countries who are seeking through such practices to bring themselves out of poverty and, by obtaining a fair price for their products and services, to challenge rich and prosperous countries to assist them? Will he use his good offices to encourage all government departments to embrace fair trade initiatives and practices and to mount an international campaign for fair trade by championing positive procurement policies to assist in this vital and majestic cause?
My Lords, first, I pay tribute to my noble friend’s work in this area to ensure that a range of fair trade products are available in the Houses of Parliament, including your Lordships’ House. I also thank him for his work in international development. I certainly agree with his sentiments about supporting people in developing countries. As he will know, between 2002 and 2007, DfID has given more than £1 million of support to the Fairtrade Foundation, and the UK is in the lead in the fair trade movement. It is very welcome that, between 2005 and 2006, UK fair trade sales increased by about 50 per cent with sales now estimated at about £300 million. That is benefiting 368 producer groups from Africa, Latin America, the Caribbean and Asia who are selling to the UK market. We would like to see that success replicated across the globe.
My Lords, a successful Doha round would go a long way towards creating fairer trade rules for the developing world. What recent representations has the Minister made to Peter Mandelson, the European Trade Commissioner, to ensure that European tariffs and farm subsidies will not continue to hold back the Doha trade round and reduce the export earnings of the developing countries to which the noble Lord referred?
My Lords, further to that question, what concrete steps have been taken towards completion of the Doha round since substantive negotiations were resumed in February? Is the noble Lord aware of any proposals by the German Chancellor, Angela Merkel, to promote fair trade that will be tabled at the G8 summit at Heiligendamm?
My Lords, having been involved in the issue as the chairman of a charity, I saw how direct marketing by people making panama hats in Ecuador enabled them to increase their income per hat from less than £1—I think it was about 50p—to many pounds. Can the Minister say what proportion of the money in fair trade goes directly to the producers and how much to operating the system?
My Lords, the fair trade standards are laid down to ensure that organisational, social and environmental criteria are met so that producers can be certified as fair trade producers. Smallholder co-operatives and other organisations must be instruments for the social and economic development of their members. Issues such as standards of employment and health are also incorporated in the standards. Price is a question of negotiation, but the system is such that the fair trade criteria establish a minimum guaranteed price for the producer that covers its costs of production and ensures a living wage for the workers and growers. That can vary, but obviously it is tailored to the particular needs of the producers.
My Lords, is the Minister aware of the number of local councils around the country that have passed resolutions to become fair trade councils? Is it possible to collate these figures and to publish them as a means of encouraging people and raising awareness of the importance of fair trade at a local level?
My Lords, the right reverend Prelate makes a very important point. I can tell your Lordships’ House that, as of 23 February 2007, there were 262 UK fair trade towns, cities, boroughs, villages, zones and islands, and that 219 UK towns are working towards fair trade status. I agree with the right reverend Prelate that the more we can do to publicise that and to encourage that example, the better.
My Lords, can we perhaps have a slightly less ambitious target and, instead of trying to change the whole world to fair trade, persuade the House of Lords to take fair trade bananas in the Bishops’ Bar? I have been active on this several times but, so far, without success.
My Lords, my noble friend is absolutely right that we should be looking at that, and I hope that the appropriate committee of the House is investigating it. I understand that we have been trying to purchase fair trade bananas for the Bishops’ Bar and think that it should be looked at as a matter of urgency.
Afghanistan: Combat Vehicles
My Lords, I am sure that the whole House will wish to join me in extending our sincere condolences to the families and friends of Major Nick Bateson and Guardsman Simon Davison, who died last week in Iraq and Afghanistan respectively, and of Private Kevin Thompson, who died over the weekend of injuries received in Iraq. There is currently no shortage of combat vehicles in Afghanistan.
My Lords, I thank the Minister for that reply. There continue to be very disturbing media reports of shortages, quoting service personnel in theatre, including a report about combat vehicles, which prompted my Question. Another report yesterday, headed:
“Army equipment cupboard is bare”,
“Even troops preparing to serve in Iraq and Afghanistan will have at best a third”—
“of the equipment they need”.
Does not this indicate a shortage of equipment overall for the forces undertaking the tasks that they have been set by this Government?
My Lords, I am aware of the press reports to which the noble and gallant Lord refers. I have carefully studied the data on the availability of combat vehicles in Afghanistan, and can confirm to the House that requests for combat vehicle equipment that come up through the chain of command from theatre have been met in all cases. Those in theatre do have the combat vehicles that they require to carry out operations. I had a conversation this morning with the Chief of the Defence Staff on this very subject, and he confirmed that to be the case.
My Lords, will the Minister confirm that he saw the article to which the noble and gallant Lord referred? It is extremely damaging to morale, not least to that of the families of those who are going to serve in both these operational theatres. Will the Minister undertake to publish and put into the Library a full response from the Government to all the points made, not only about armoured vehicles but about the general issue of all the equipment referred to in the article, so that, if he is correct that there are no shortages, this matter can be officially confirmed? Otherwise, it is extremely damaging.
My Lords, I am happy to place in the Library the data that I can provide on the availability of our combat vehicles. I cannot be specific about each vehicle type because that would prejudice operations, but I can give data relating to the total number of combat vehicles, their availability and the trend thereof.
My Lords, we on these Benches join in offering our condolences to the families of the three soldiers killed since we last met. The Minister will be aware that the reports in the press are drawn from the leaked document, Equipment Reverse—SITREP No. 2, which since the weekend has been in the public domain. It confirms what the Minister said—that the forces are well equipped on operations—but it spells out in detail the difficulty of sustaining that situation. The phrase it uses is “LAND’s cupboard is bare”: in other words, the cupboard of the headquarters of the Army’s operations is bare. What changes is the Minister making, given his new responsibilities, to ensure that he can sustain the necessary spares, which are lacking; replace the equipment, which is wearing much faster than expected; and change the assumptions on attrition rates?
My Lords, the noble Lord, Lord Garden, highlights exactly the points on which we need to focus. The level of operations with which we are now coping puts pressure on equipment and means that equipment priorities for operations have consequences for the availability of equipment at home base. Dealing with these issues is about investing in more equipment where required. We are addressing the availability of spares. More importantly, the reforms we are putting in place and the way we manage equipment—for example, the whole-fleet management of combat vehicles—is at the heart of improving the availability of vehicles both for operations and back at base. These reform initiatives, which we are putting in place as a result of investment and the proactive approach to reform that comes from bringing together defence equipment and defence support, are at the heart of these issues.
My Lords, as I have said a number of times, there is no such thing as a perfect vehicle that will protect our troops against all threats. There is a balance between the mobility of the vehicle and the threats it comes up against. The key is for commanders to have a range of vehicles from which they can choose the most appropriate for the given mission. The measures that we have put in place to deliver to theatre a much greater range and number of vehicles give commanders what they need to do the job. There is no magic solution that will provide perfect protection for our troops. We need to recognise that.
My Lords, let me absolutely clear about this. We have the number we need of each type of vehicle. I can put in the public domain—and, therefore, in the Library—the total number of vehicles and their availability. I cannot break that down by individual vehicle type because our policy is not to put into the public domain the specific numbers of, for example, Viking, Snatch and Mastiff vehicles. That would give information to the enemy.
Human Tissue and Embryos Bill (Draft): Joint Committee
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Commons message of 2 May be considered and that a committee of nine Lords members be appointed to join with the committee appointed by the Commons to consider and report on any draft Human Tissue and Embryos Bill presented to both Houses by a Minister of the Crown and that the committee should report on the draft Bill by 25 July;
That, as proposed by the Committee of Selection, the following Lords members be appointed to the committee:
B Hollis of Heigham,
L Jenkin of Roding,
L Mackay of Clashfern,
Bp St Albans,
That the committee have power to agree with the committee appointed by the Commons in the appointment of a chairman;
That the committee have leave to report from time to time notwithstanding any adjournment of the House;
That the committee have power to appoint specialist advisers;
That the committee have power to adjourn from place to place;
That the quorum of the committee be two;
And that the reports of the committee from time to time shall be printed, notwithstanding any adjournment of the House.—(The Chairman of Committees.)
On Question, Motion agreed to; and a message was sent to the Commons.
Legal Services Bill [HL]
My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
334: After Clause 118, insert the following new Clause—
“Board’s functions in relation to complaints
(1) If it appears to the Board that complaints about any authorised person are not being handled effectively and efficiently by the OLC, the Board may exercise in relation to the OLC such of the powers in subsection (2) as it considers necessary.
(2) Those powers are—
(a) to investigate the handling of complaints about authorised persons;(b) to make recommendations in relation to the handling of complaints about authorised persons; and(c) to require the OLC to submit to the Board a plan for the handling of complaints about authorised persons.(3) Where the Board requires the OLC to submit to it a plan for the handling of complaints about authorised persons but the OLC—
(a) fails to submit to the Board a plan which it considers adequate for securing that such complaints are handled effectively and efficiently, or(b) submits to the Board such a plan but fails to handle complaints in accordance with it,the Board may give directions to the OLC.”
The noble Lord said: My Lords, the subject matter of the amendment was given consideration at an earlier stage of the Bill. As so often during that time, the noble Baroness expressed the view that the language of the Bill was already sufficient to ensure that the failure of the Office for Legal Complaints in the eyes of the Legal Services Board would not render a stalemate and that it would be possible to bring about changes. However, on further reflection, it has appeared to my noble friends that the position is not entirely satisfactory and that the Legal Services Board has no adequate powers to investigate the Office for Legal Complaints.
There is no direct provision for the board to intervene if it believes that the Office for Legal Complaints is not handling complaints properly. The amendment would transfer to the Legal Services Board the current powers enjoyed by the Legal Services Complaints Commissioner. The powers would allow the board to look strategically at how the Office for Legal Complaints is operating and to intervene if it appears to the board that the OLC is not handling complaints efficiently and effectively. That would help to ensure that information on complaints can be used to improve the whole system of legal services delivery for consumers. It seems clear that if the OLC fails to deliver an efficient and effective service, appropriate sanctions should be available.
Even at this stage of consideration of the Bill—it has been thoroughly trawled—it is not entirely obvious who would deal with the OLC and how. Clause 118 allows the Legal Services Board to set performance targets for and to monitor the OLC, which is welcome. But there are no further direct powers over the OLC, particularly in the event of its failure, other than the power and ability to remove the OLC chair and board, which might be thought to be a sledgehammer to crack a nut. The inclusion of the power to investigate concerns would allow for sensible and reasonable target setting if this became necessary. It is also desirable to consider how to stiffen the Legal Services Board’s ability to ensure the OLC’s compliance with its directions. I hope that these amendments will commend themselves at this stage to the Government. I beg to move.
My Lords, I am grateful to the noble Lord who, as he has indicated, returns to an issue that we debated in Committee. The amendments would produce a hybrid between the present Legal Services Complaints Commissioner and the proposal in the Bill in relation to the LSB and the improved regulators. Having looked again at the provisions in the Bill, as I said I would do, I believe that we have satisfactory arrangements to make sure that the board has the appropriate range of controls over the OLC.
I will demonstrate this in six key ways. First are the overall arrangements in Part 6 which provide for the OLC to operate through a series of rules which, in Clause 152, must receive the consent of the LSB before they can take effect. The LSB will have complete oversight of the way in which the OLC’s rules are framed and, provided they are adhered to, how the OLC operates. Additionally, in Clause 153, the board may amend or modify any of those rules if it considers that they are deficient.
Secondly, in Clause 115, the OLC is accountable through its annual report to the LSB, which must deal with any matter that the board has directed. For example, they may have to show how they have dealt with the speed with which complaints are resolved. Of course, the OLC has a separate annual report to the LSB because it has a distinct function and its status is as a distinct non-departmental public body. The LSB will present both its annual report and the OLC’s annual report to the Secretary of State, who will lay them before Parliament. This will reflect the fact that the OLC reports to the LSB.
Thirdly, Clause 117 allows the board to require the Office for Legal Complaints to prepare a report on any matter relating to its functions. This might include, for example, a strategic plan for how it proposes to remedy a particular failure to meet a performance target. Fourthly, the power to set performance targets in Clause 118 allows the board to impose conditions on how those targets are met and, crucially, to monitor performance against targets. This will allow the LSB to monitor systematically how complaints are being handled.
Fifthly, the LSB’s ultimate power in relation to the Office for Legal Complaints is at Schedule 15(8)(b). As the noble Lord has said, this allows the board the power to remove members of the OLC. The noble Lord described this as, perhaps, a “sledgehammer to crack a nut”, but it is important as the ultimate power, only to be used on members of the OLC where there is obviously a significant failure in the discharge of their duties. Finally, in addition to the above statutory powers, as a non-departmental public body, the Office for Legal Complaints will be accountable to Parliament for the efficient use of resources and the discharge of its statutory responsibilities in a way that the current complaints-handling and regulatory bodies are not.
We consider that, taken together, these six key points provide an appropriate and effective control over the Office for Legal Complaints and the way it operates, intentionally different from those the board has in relation to approved regulators, designed specifically to govern the relationship between two distinct non-departmental public bodies with different functions, but with the OLC being subordinate to the LSB. On that basis, I hope the noble Lord can withdraw his amendment.
My Lords, I express my gratitude to the Minister for giving further thought to the issue. It was dealt with at some length at an earlier stage and she has canvassed powerful arguments for the point of view she has been expressing. As she has described, there are powers. I acknowledged this in my opening remarks, but begged leave to doubt whether they were sufficiently targeted to the problem of complaints. In the circumstances I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 335 and 336 not moved.]
Clause 122 [Jurisdiction of the ombudsman scheme]:
[Amendment No. 337 not moved.]
Clause 125 [Parties]:
[Amendment No. 338 not moved.]
339: Clause 125, page 64, line 13, leave out “Secretary of State” and insert “Lord Chancellor”
340: Clause 125, page 64, line 27, leave out “Secretary of State” and insert “Lord Chancellor”
341: Clause 125, page 64, line 36, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
Clause 126 [Pre-commencement acts and omissions]:
342: Clause 126, page 65, line 9, after “mark” insert “attorney”
343: Clause 126, page 65, line 17, after “mark” insert “attorney”
On Question, amendments agreed to.
Clause 127 [Orders under Section 125]:
344: Clause 127, page 65, line 20, leave out “Secretary of State” and insert “Lord Chancellor”
345: Clause 127, page 65, line 21, leave out “Secretary of State” and insert “Lord Chancellor”
346: Clause 127, page 65, line 22, leave out “Secretary of State” and insert “Lord Chancellor”
347: Clause 127, page 65, line 30, leave out “Secretary of State” and insert “Lord Chancellor”
348: Clause 127, page 65, line 31, leave out “Secretary of State” and insert “Lord Chancellor”
349: Clause 127, page 65, line 32, leave out “Secretary of State” and insert “Lord Chancellor”
350: Clause 127, page 65, line 33, leave out “Secretary of State” and insert “Lord Chancellor”
351: Clause 127, page 65, line 34, leave out “Secretary of State’s” and insert “Lord Chancellor’s”
On Question, amendments agreed to.
Clause 129 [Continuity of complaints]:
352: Clause 129, page 66, line 21, leave out from “rules” to “specified” and insert “must make provision permitting such persons as may be”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 353, 355, 357 to 360, 379 and 380, 382, 394 and 395, 402 to 404, 427, 434 and 446. This group of amendments, aimed at further protecting the consumers of legal services, responds to amendments debated in Committee which I agreed to take away and consider. While some are minor and clarificatory, I hope noble Lords will agree that others are of real substance and will improve the Bill.
Amendments Nos. 352 and 353 respond to amendments helpfully moved by the noble Lord, Lord Kingsland, in Committee. They will require scheme rules to make provision permitting specified persons to continue a complaint following the death or incapacitation of the original complainant. This means that the Office for Legal Complaints must give proper consideration to, and consult on, which persons should be allowed to continue a complaint. Complainants and their relatives or representatives will be certain whether and when they are eligible to continue a complaint.
Amendment No. 355 arises out of helpful points made in Committee by my noble friend Lord Whitty clarifying the limits on the power of the Office for Legal Complaints to award costs against a party in favour of the OLC. As I said in Committee, it is important to strike a balance between allowing the Office for Legal Complaints to call to account complainants who, although they may have a genuine complaint, add disproportionately to the costs of determining it by utterly unreasonable behaviour, and preventing members of the legal profession from abusing this provision by deterring well founded complaints by suggesting that the complainant might have to contribute to the costs. We think that the wording of this amendment will produce the right balance. Noble Lords agreed in Committee that it is enormously important that the ombudsman scheme should not deter in any way genuine complainants from complaining, and therefore this amendment sets a high threshold for the award of costs against a complainant.
Amendments Nos. 357, 358, 359 and 360 make it clear who can exercise the power of summary dismissal of a complaint. I agreed with the noble Lord, Lord Kingsland, on the fifth day in Committee that this should be a power exercisable only by an ombudsman, and the wording has been reconsidered with a view to making it entirely clear.
Amendments Nos. 379, 380 and 382 have been drafted in response to amendments tabled earlier by the noble Lord, Lord Kingsland, and my noble friend Lord Whitty. In those circumstances, which we expect to be rare, where a respondent fails or refuses to comply with an ombudsman’s determination, these amendments will give ombudsmen the power to take enforcement action in relation to that determination on a complainant’s behalf, and we will set out the exact details in the scheme rules. These amendments therefore provide additional protection for vulnerable people who might not wish or know how to seek a court order themselves. Individuals may of course take action themselves, if they so wish, without the ombudsman’s assistance.
Amendments Nos. 394, 395 and 446 address concerns expressed in Committee by my noble friend Lady Henig, who is not in her place today. They enable approved regulators to respond quickly and effectively in cases of widespread wrongdoing, where potentially large numbers of consumers may be affected, but they may not know that they have a complaint or, indeed, the procedure for complaining. In circumstances where an approved regulator suspects widespread wrongdoing, these amendments will ensure that approved regulators can require authorised persons to investigate their files, and if they find signs of potential wrongdoing, alert the consumer and initiate the internal complaints process. Because of the importance of maintaining a clear role for the Office for Legal Complaints in providing redress, the amendments I have tabled do not allow approved regulators to award redress or require authorised persons to pay redress.
Amendments Nos. 402 to 404, 427 and 434 again are tabled in response to persuasive arguments made in Committee by my noble friend Lord Whitty and others who have rightly identified that it is important for the OLC to have the power to administer a voluntary complaints handling scheme. The amendments will therefore give the Office for Legal Complaints the necessary powers to establish a voluntary scheme, subject to and within such boundaries as may be set by an enabling order made by the Lord Chancellor on the recommendation of the OLC or the LSB. I beg to move.
My Lords, I am most grateful to the Minister for addressing the point made in Committee about the continuity of complaints. Although this is only a minor concession, I appreciate that it will now be a requirement for the OLC to set out in its scheme rules the circumstances in which complaints may be continued on behalf of a person who has died or is otherwise unable to act. That removes what was certainly an inequitable lacuna in the Bill’s coverage.
On Question, amendment agreed to.
Clause 130 [Operation of the ombudsman scheme]:
moved Amendment No. 354:
354: Clause 130, page 67, line 12, at end insert—
“(ha) for an ombudsman to award costs against the respondent in favour of the OLC for the purpose of providing a contribution to resources deployed in dealing with the complaint if—(i) the complaint against the respondent is determined or otherwise resolved substantially in favour of the complainant, or(ii) in the ombudsman’s opinion the respondent failed to deal with the complaint in accordance with the regulatory arrangements which the relevant approved regulator has made under section 109.”
The noble Lord said: My Lords, I will speak also to the remaining amendments in the group. The most important reason for supporting the amendment, and those that flow from it, is one of principle. Those exonerated following investigation or litigation should not be penalised for being found blameless. Accordingly, to require an authorised person under the Bill to pay the Office of Legal Complaints for the costs of handling a complaint when the complaint is unfounded and the person has handled the matter properly in house would be wholly unjust.
It would also deter practitioners from acting in those fields of law where unjustified complaints are disproportionately likely such as in the areas of criminal and family law. In any case, since it will not be the Government or the OLC but the authorised persons in general who will have to pay instead through the general levy, neither the Government nor the OLC have any financial interest in sustaining the scheme set out in the Bill.
The Bill’s provisions are founded on the approach adopted by the financial ombudsman scheme. There, financial service providers are required to pay charges in respect of the handling of a complaint whatever its outcome. The Government believe that the OLC should be free to adopt the same approach; but the circumstances of the provision of legal services are different from the provision of financial services. Unfounded complaints, for example, from those who have lost a court case or whose house purchase has fallen through, are far more likely than in financial services. Furthermore, some practitioners are disproportionately likely, as I have indicated, to be the subject of such complaints. We think it is imperative that the administrative convenience of the OLC is not allowed to cause the clear injustice to lawyers of having to pay costs even where a complaint is not upheld and where their in-house handling of the complaint has been exemplary.
Yet if the OLC has an unrestricted power to charge, it is likely to opt for a case-handling fee in all circumstances simply because that would be administratively more convenient to operate. I would add parenthetically and, I hope, reassuringly that of course we accept that the power to order authorised persons to pay charges cannot sensibly be confined only to cases where the complaint is upheld after a determination by an ombudsman. The likelihood is that the great majority of complaints will be conciliated in one way or another. It would not be satisfactory if authorised persons could avoid any liability to pay simply by settling the matter shortly before a determination would have to be made.
Our amendment would also have the added attraction of encouraging practitioners to operate proper in-house complaints resolution systems. Failure to operate proper in-house procedures damages one of the Bill’s key objectives; namely, ensuring that complaints can be resolved as rapidly as possible. Leaving all matters to be sorted out by the OLC is unsatisfactory from the perspective of complainants and involves putting an additional burden on the OLC. There is no reason why the profession collectively, rather than the practitioner who has failed to deal properly with the matter in-house, should bear the cost of that.
In conclusion, it is important for the Bill to set out the limits of the OLC’s discretion to impose charges. It would be quite wrong to put administrative simplicity ahead of the need to avoid causing injustice to those authorised persons who are the subject of unfounded complaints. I need add nothing to what I have said about the Minister’s proposition that complaints that have got as far as the OLC must be partially justified. That assertion was effectively demolished in Committee. I beg to move.
My Lords, I support the amendments as being of principle, for the reasons given by my noble friend. There is not, and never has been, any entitlement to costs. An award of costs is entirely a question of discretion. In this case, with the ombudsman or the OLC, it is an exercise of quasi-judicial discretion. There is no entitlement; there never has been. The exercise of quasi-judicial discretion imposed by a mandatory costs order under primary legislation is anathema; it is ill-conceived and outrageously unfair.
The exercise of such discretion, whether judicial or quasi-judicial, takes due and fair account of factors relevant to the case. I never cite cases here, but there was one in which I won in the Privy Council against my erstwhile noble friend, the late Lord Ripon, in which I did not get my costs. There was another in your Lordships’ Appellate Committee, in which I lost and I did not have to pay any costs. The details do not matter—they are all recorded in the law reports—but what matters is the principle on which the court or the tribunal makes a fair decision.
Is it really the business of Government to impose a costs order upon a lawyer who has committed no misconduct because he or she happens to have rendered legal services? How on earth did this happen? Well, you start off by calling the lawyer a “polluter”. You take a spin for a placebo to feather, perhaps, the legacy nest. You conjure up in your mind a puppet show on the seaside in the old days: consumer with a truncheon clobbers bewigged polluter, and everyone screams with enjoyment. Why on earth were the recommendations of the Joint Committee, on which I had the privilege to serve, rejected? I would like that question to be answered.
Why cannot the Clementi soft touch be found in the Bill? My noble and learned friend Lord Mackay of Clashfern mentioned this the other day, albeit in another context. Why was it ignored?
I have another question which is relevant for answer. Is it the business of government to usurp this quasi judicial function as to costs? For the reasons given by my noble friend, which I have sought to supplement, I suggest that there is no justification for that whatever.
My Lords, I appeal to my noble friend to respond affirmatively to these amendments. I have not entirely made up my mind about this; I remain to be convinced. Prima facie, I do not think that the Government’s approach can be justified. I find it mysterious that they have moved in this direction. For that reason I remain to be convinced about the arguments.
I share the view of the noble Lord, Lord Campbell of Alloway, that there ought to be discretion here, as there is at the moment. Why does my noble friend depart from that view? I also share the view that in exercising that discretion—which the Government purport to avoid—the court should not be deprived of being able to listen to the arguments conveyed and make up its own mind. As I say, I find this whole thing very mysterious. I hope that it will be possible for the Government to change their mind.
My Lords, I, too, support these amendments tabled by the noble Lord, Lord Kingsland. I am particularly concerned about Clause 133 and the requirement that the respondent who is in receipt of complaints by the applicant should be required to pay charges to the OLC. As a retired judge, I put a slightly different perspective on this. In some cases, judges force an agreement, settlement or, indeed, outcome over which the lawyer may have no control. They may be situations in which, for a number of very good reasons, there is absolutely no point in going to appeal but that is the basis of the complaint to the OLC. You cannot put the judge in the dock and it is extraordinarily unfair to put the lawyer in the dock for a situation over which he had no control. An absolute obligation that the respondent should pay charges would be manifestly unjust, like many other circumstances that have been referred to. I should not like to think that this Government acted unjustly in this sort of circumstance.
My Lords, I am the only non-lawyer pleading for more money in lawyers’ pockets, but on this occasion I think that they are right. Will the noble Baroness take it from a non-lawyer that on this occasion we must say, “Poor pathetic lawyers, they need looking after”?
My Lords, I make two points in support of the noble Lord, Lord Kingsland. First, the comparison with financial institutions really is not right. In so far as the buyer is concerned, this burden will fall primarily on those who practise in the less well remunerated fields such as criminal law and family law and primarily on the younger members of the profession who have to deal with the more difficult and unreasonable clients. They are sole practitioners and would have to find those costs out of their own pockets.
Secondly, there is the very important difference that if a nasty client who may cause trouble comes along, a financial institution can say, “I am sorry, I do not want to do your work”. The poor unfortunate barrister, according to the cab-rank rule, has to take on the work even if he knows that the previous six people who acted for this client have all had complaints made against them, and that he is absolutely doomed to a complaint unless by very remarkable chance he happens to win. There he is, he takes it on because the rules say that he has to, and then he is landed with a bill for costs as a thank you for doing so.
My Lords, I have spoken on previous occasions on this issue, and I have made clear my view that this is a thoroughly unjust provision and that the amendment is right. I have a specific question for the Minister. There is the usual certificate on the back of the Bill that all its provisions are in accordance with the Human Rights Act. Has some Minister actually considered that, if there are proceedings in which the accused is acquitted, it is in accordance with the human rights convention that what amounts to a financial fine can be imposed on him?
My Lords, may I ask one further specific question? If this provision is incorporated into the Bill, can the Minister think of a single more enticing invitation to make a malicious complaint against someone who may have given you uncongenial advice than this one? If she can, will she specify it?
My Lords, I venture to say that no provision in the Bill has aroused stronger or more carefully argued opposition than this one. At this stage, since the arguments have been deployed extensively, I sense that the House is anxious to hear the views of the Minister and to reach a conclusion.
My Lords,I do not think that I said that I demolished her; Isaid that her argument had been demolished in Committee.
Indeed, my Lords, but I like to give the noble Lord credit where credit is due for at least some denting.
I looked very carefully at these issues, because I hope that noble Lords accept that it is my wont, certainly in Committee, to listen very carefully to what is being said. The only issue that divides us on the amendment is whether we define in the Bill at this point how a charging regime might operate, or whether we leave that to the Office for Legal Complaints, which must do it in consultation with the approved regulators, with the consent of the Legal Services Board and of the Lord Chancellor and in line with the regulatory objectives.
The Government’s position is that the latter route is more appropriate in seeking to set out in the Bill how it would happen, not least because it allows for flexibility and it ensures that the charging system can change and adapt over time on the basis of the sort of experience and good practice that noble Lords would wish to see the OLC consider. I know that noble Lords are worried and concerned about how the Office for Legal Complaints would exercise that flexibility, but I emphasise that the flexibility does not happen in an unconstrained way. In drawing up its rules, the Office for Legal Complaints must have regard to the regulatory objectives, including the public interest, and to the ombudsman scheme best practice, which is in Clause 113. It is also under a duty to consult on the content of the rules, which is in Clause 195.
The Legal Services Board will have to give its consent to the rules under Clause 152 and, in doing so, must have regard to the regulatory objectives we have debated at length. The consent of the Lord Chancellor is required under Clause 152 and, taken together, we expect the oversight of both the Legal Services Board and the Lord Chancellor to be an important check, if needed, on how the Office for Legal Complaints drafts the rules to ensure that they are fair and proportionate.
I could add that the Office for Legal Complaints and, indeed, the Legal Services Board are responsible to Parliament for the operation of the scheme, including the system of case fees. They will have to produce the annual report and, if need be, appear before—
My Lords, if the noble Lord will let me continue, I will deal with that point.
As I was saying, the OLC can also be required to appear before a parliamentary Select Committee to give evidence on the operation of the scheme. Ultimately, the decision of both bodies which set out the rules is judicially reviewable on the usual grounds. So my first proposition is that the constraints ensuring that the system of case fees operates fairly are in place.
We come to the proposition, which I have seen in briefing material for today’s debate, that Clause 133 is manifestly unfair. I could not disagree more. Nowhere does Clause 133 say that a flat fee will apply for every complaint the OLC receives. Nowhere does it say that every lawyer will have to pay the same rate of charge. Nowhere does it say that the lawyers will pay the charge even if the complainant is vexatious or frivolous. It says that the scheme rules will set out how charges against lawyers are to operate. I have been through this in great detail because I was much taken with our debate in Committee. The implication of many speeches in your Lordships’ House has been that we were setting out a system under which every lawyer has to pay regardless. Nowhere does Clause 133 say that. It says that the scheme rules will have to set this out. As to whether it is human-rights compliant, I am the human rights Minister: it is my job to ensure, certainly within my own department, that it is compliant. It is.
The critical point is that the clause does not say what has been implied, and there is therefore an unfounded concern in your Lordships’ House. It is possible that the OLC, having considered representations made and having read the deliberations of your Lordships’ House will decide that it would be unfair to charge a fee for complaints that are not upheld. There are other circumstances, as noble Lords have indicated at Second Reading and in Committee, and repeated today, where it might also be deemed unfair to charge a fee. My argument is simple: the Office for Legal Complaints should take a view on the circumstances in which fees should and should not apply, based on appropriate oversight and the consultation required under the clauses I have indicated.
We cannot argue that the rules are unfair, because they have not been made. Nothing in the Bill suggests that there must be a blanket charge for any lawyer, whether or not they have fulfilled their obligations under an in-house complaints system, or have been taken to the Office for Legal Complaints in a vexatious way. Quite the opposite: the Office for Legal Complaints must draw up rules and, in doing so, consult the professions and the Legal Services Board, and consult and deal with the Lord Chancellor. There are currently no rules, and it is important that we let the Office for Legal Complaints design the rules within the process and constraints I have identified.
On the case-handling fee being disproportionately high, nowhere in Parts 6 or 7 does the Bill say what the split will be between the levy and charges. Nowhere does it indicate how that will be calculated. Parts 6 and 7 say that the Legal Services Board and the Office for Legal Complaints should decide what the split should be between the levy and the charges under Clause 133. In the absence of their having made that decision, we cannot speculate on what the case-handling fee would be. The truth is that until they have decided we will not know what the split will be. Until the OLC has had its rules approved we will not know what the case-handling fee is.
In conclusion, I am arguing for flexibility; let the Office for Legal Complaints make the decisions within its constraints. It will take into account not only your Lordships’ words, but also its consultation with the professions. On that basis and with my assurances, noble Lords will see that there is nothing in Clause 133 that says that any lawyer has to pay regardless. It says that there should be rules that set out the circumstances in which lawyers should pay or not pay.
My Lords, will the Minister accept that the failure that we are concerned with is not that there is no statement giving the power that might be abused, but that there is a total silence with regard to a priceless principle—a person who has discharged him or herself of services in a proper professional way should be condemned in costs? Is it impossible to include such a statement of principle which would deal with the problem simply?
My Lords, throughout this legislation we have debated fairness, proportionality and the regulatory objectives. I completely understand the concerns that have been raised. Having looked at the Bill, it is my view that those issues with which noble Lords are concerned are inherent within it in the context of people behaving in a proportionate and fair manner. That is an important part of the way that the OLC would operate.
There is nothing in the Bill that does what noble Lords fear. There is everything in the Bill that says that the OLC must make rules and identify those who should pay and not pay. I understand noble Lords’ concerns that those that have been brought in a vexatious way should have that recognised by the OLC and I agree with them.
My Lords, your Lordships have asked the Government to enshrine in the Bill the principle that an authorised person should not be penalised for being found blameless. The Government have been unable to do that. In the circumstances I wish to test the opinion of the House.
355: Clause 130, page 67, line 16, leave out from “opinion” to end of line 19 and insert “that person acted so unreasonably in relation to the complaint that it is appropriate in all the circumstances of the case to make such an award;”
On Question, amendment agreed to.
moved Amendment No. 356:
356: Clause 130, page 67, line 47, after “(3)(h)” insert “, (ha)”
On Question, amendment agreed to.
Clause 131 [Delegation of an ombudsman's functions]:
357: Clause 131, page 68, line 15, leave out “(but not determination)”
358: Clause 131, page 68, line 17, leave out from “Part” to end of line 18
359: Clause 131, page 68, leave out line 19 and insert—
“(2) Nothing in subsection (1) applies to the following functions—
( ) the function of determining a complaint;( ) the function of deciding that a complaint should be dismissed by virtue of rules under section 130(3)(a));”
360: Clause 131, page 68, line 21, leave out “and”
On Question, amendments agreed to.
Clause 133 [Charges payable by respondents]:
moved Amendments Nos. 361 to 364:
361: Clause 133, page 68, line 41, at end insert—
“(1A) The rules must provide for the OLC to reduce or waive a charge in circumstances where—
(a) the complaint relates to activity undertaken otherwise than for reward, or(b) it appears to the OLC that the amount of a charge, unless reduced or waived, would be disproportionate having regard to the gravity or nature of the complaint, the value (if any) of the subject matter of the activity to which it relates, or the consideration payable for the services used by the complainant which consist of or include that activity, or(c) it appears to the OLC that the amount of a charge, unless reduced or waived, would cause the respondent undue hardship.(1B) The rules must also provide for the refund of the whole or part of a charge where circumstances coming to the OLC’s attention since the charge was paid are such that it appears to the OLC that the amount of the charge, unless wholly or partly refunded—
(a) is disproportionate having regard to the gravity or nature of the complaint, the value (if any) of the subject matter of the activity to which it relates, or the consideration payable for the services used by the complainant which consist of or include that activity, or(b) causes the respondent undue hardship.”
362: Clause 133, page 68, line 41, at end insert—
“( ) Scheme rules must provide that any charge in relation to a complaint shall not become payable by a respondent unless the complaint is determined or otherwise resolved substantially in favour of the complainant.”
363: Clause 133, page 68, line 43, at end insert “(other than one to which rules pursuant to subsection (1A) apply)”
364: Clause 133, page 69, line 3, at end insert “(other than circumstances in which rules pursuant to subsection (1B) apply)”
On Question, amendments agreed to.
Clause 134 [Determination of complaints]:
[Amendments Nos. 365 and 366 not moved.]
Clause 136 [Alteration of limit]:
367: Clause 136, page 70, line 23, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
[Amendment No. 368 not moved.]
369: Clause 136, page 70, line 25, leave out “Secretary of State” and insert “Lord Chancellor”
370: Clause 136, page 70, line 29, leave out “Secretary of State” and insert “Lord Chancellor”
371: Clause 136, page 70, line 37, leave out “Secretary of State” and insert “Lord Chancellor”
372: Clause 136, page 70, line 38, leave out “Secretary of State” and insert “Lord Chancellor”
373: Clause 136, page 70, line 39, leave out “Secretary of State” and insert “Lord Chancellor”
374: Clause 136, page 70, line 40, leave out “Secretary of State” and insert “Lord Chancellor”
375: Clause 136, page 70, line 41, leave out “Secretary of State’s” and insert “Lord Chancellor’s”
On Question, amendments agreed to.
Clause 137 [Acceptance or rejection of determination]:
[Amendments Nos. 376 to 378 not moved.]
Clause 138 [Enforcement by complainant of directions under section 134]:
379: Clause 138, page 72, line 13, after “complainant” insert “or an ombudsman”
380: Clause 138, page 72, line 16, after “complainant” insert “or an ombudsman”
On Question, amendments agreed to.
[Amendment No. 381 not moved.]
382: Clause 138, page 72, line 20, at end insert—
“( ) An ombudsman may make an application under subsection (2) or (3) only in such circumstances as may be specified in scheme rules, and with the complainant’s consent.
( ) If the court makes an order under subsection (2) on the application of an ombudsman, the ombudsman may in such circumstances as may be specified in scheme rules and with the complainant’s consent recover the amount mentioned in that subsection on behalf of the complainant.”
On Question, amendment agreed to.
moved Amendment No. 383:
383: After Clause 139, insert the following new Clause—
“Handling of complaints by approved regulator
(1) The Board may direct that complaints within the jurisdiction of the ombudsman scheme and of such description as are specified in the direction shall be determined by an approved regulator instead of an ombudsman.
(2) The Board may by further direction vary or withdraw a direction given under subsection (1).
(3) Before giving a direction under this section the Board must consult—
(a) the OLC,(b) the approved regulator concerned, and(c) such other persons as the Board considers it reasonable to consult.(4) If the Board gives a direction under this section, it must—
(a) give a copy to the OLC, the Lord Chancellor, the approved regulator concerned, and any person consulted under subsection (3)(c), and(b) publish the direction in the way it thinks fit.(5) A direction under this section may include—
(a) transitional provision in relation to complaints already being dealt with under the ombudsman scheme or by an approved regulator, and(b) incidental, supplemental or consequential provision, including provision applying a provision of or made under this Part, with or without modifications, to the determination of a complaint by an approved regulator.”
The noble Lord said: My Lords, Amendments Nos. 383, 392 and 393 provide for the delegation of complaints handling to an approved regulator by a direction of the Legal Services Board. Where such a direction is given, the approved regulator would be empowered to award redress to the complainant, which Clause 154 currently prohibits. The Legal Services Board would have power subsequently to vary or withdraw a direction. In deciding whether to give, vary or withdraw a direction, the Legal Services Board would be bound by Clause 3 to act compatibly with the regulatory objectives and the other regulatory principles of the Bill.
Part 6 establishes the OLC, the resolution body, for those who consider that their complaints have not satisfactorily been dealt with by the in-house arrangements of the relevant legal service provider. Under the Bill, the OLC will investigate service complaints itself but will refer complaints about misconduct to an approved regulator for resolution. However, approved regulators will no longer have the power to award redress to complainants.
The Law Society, representing 116,000 solicitors, received more than 17,000 new complaints against it in 2004-05, accounting for about 86 per cent of the total costs of legal complaints handling. By contrast, the Bar Standards Board, the regulatory arm of the Bar Council—the governing body for 14,000 barristers—deals with fewer than 1,000 complaints each year. The Bar Standards Board estimates that about 3 per cent of cases referred to the OLC will derive from the Bar.
As we saw in Committee, about 70 per cent of complaints against barristers involve allegations that, if true, would require both compensation for inadequate professional service and proceedings for misconduct. The approved regulator, where appropriate, should be in a position to deal with both aspects. It is both inconvenient and confusing for consumers to have to deal with two different bodies about different aspects of their complaints, especially if one body accepts the facts to which the complaint relates but the other does not. There is also likely to be duplication of work and therefore unnecessary expense. Moreover, the approved regulator has a range of powers, including powers to award redress, which are far wider than those proposed for the OLC. This enables it to ensure that the most appropriate remedy or sanction is provided through a single procedure.
By contrast, the proposed new complaints-handling system will involve decision making by salaried non-lawyers who are unlikely to be able to supply the analysis and expertise currently provided free of charge. It is one of the,
“many advantages that have been provided by the Bar’s handling of complaints”.—[Official Report, 6/12/06; col. 1186.]
That should not be lost by the Bill, as the noble Lord, Lord Borrie, a former director of the Office of Fair Trading, warned us at Second Reading.
As we saw in Committee, the Bar Council has established a body of expertise and maintained a complaints-handling service that is widely acknowledged to be of an extremely high standard. As we saw in Committee, the Legal Services Ombudsman has consistently given high marks to the Bar Standards Board for the speed and quality of its complaints service. Robert Behrens, the Bar Standards Board’s independent complaints commissioner, has said that there is a strong case for the Bar Standards Board to have delegated jurisdiction over complaints about poor service.
Clause 154 creates inflexibility in complaints handling and adds massively to its costs. We have concluded that the Bill as drafted is certain to offer a poorer service to consumers at vastly greater cost—at least as far as the Bar is concerned. The Bar Standards Board, the approved regulator for the Bar, is an independent, ring-fenced, regulatory authority. It already deals with both service and conduct complaints. It already has a significant lay element, and its decisions are subject to a lay veto. This is emphatically not a case of lawyers deciding on complaints against lawyers. The independent Legal Services Ombudsman has repeatedly said that the Bar Standards Board does outstanding work.
We had hoped that the experience and expertise that barristers and lay members bring to providing a professional, cost-effective approach to complaints handling would, in the interests of consumers, be recognised in the Bill. Instead, the Government are persisting with a scheme which will provide a sub-optimal service to consumers at a colossal cost to the service providers.
The Government’s proposals for amending complaints handling, and in particular the new clause inserted after Clause 154 by Amendment No. 395 and the new clauses after Clause 159 by Amendments Nos. 403 to 405, involve a voluntary scheme as an add-on to the main statutory one. However, the amendments do not address the problems that we have identified in the legislation. Nor do they answer our objections to the complete exclusion of approved regulators, with all their expertise from the ombudsman process. I beg to move.
My Lords, I support the amendments, but I could not do so in only a few words unless I had listened to my noble friend Lord Kingsland, who put the whole scene to the House so much better than I could ever have done. Therefore, accepting everything that my noble friend said, and his argument, I shall make a short point. This is a matter of principle. These are enabling amendments, which in no way break the structure of the Bill or the board’s control under it. If the amendments were accepted, there could be no requirement on the board to direct any approved regulator in any complaint that lies within the jurisdiction of the ombudsman, and, indeed, after consultation with the OLC, the approved regulator and any other person. This essence of consultation is highly commendable, as is the essence of partnership, to which my noble friend Lord Kingsland referred in another context. The ombudsman has approved the complaints procedure, as it stands, in relation to the Bar, but that does not mean that the procedure cannot be amended in consultation from time to time or that the directions in proposed new subsection (1) of the amendment would not be wholly justified. We are not in a static situation, and the amendment takes due account of that. It would comply wholly with the Clementi soft-touch approach. I cannot speak for any branch of the legal profession—probably not even for my own now—but surely it is right in principle that the amendment should be supported.
My Lords, for many years now, there have been independent reviews of the complaints system run in respect of solicitors and the complaints system run in respect of the Bar. Up to now, independent reviews, especially those conducted by the ombudsman, have, year in and year out, unanimously condemned the Law Society’s complaints schemes as defective, deficient and inadequate, whereas the system run by the Bar up to now has been praised as modest in charges and in price—taking advantage of the barristers’ willingness to do this kind of work free of charge—and has received a tremendous amount of praise. In the Bill as it stands, complaints about both solicitors and barristers are wrapped up together and given to a new statutory body, which will of course be quite expensive. The new system does not take into account the difference between the complaints systems of the two branches of the profession, which I have just mentioned.
The Bar Standards Board, to which the noble Lord, Lord Kingsland, referred, has a lay chairman and other lay members, as well as lawyers and barristers. Both kinds of people are helpful to one another, as I understand it. The Bar Standards Board can hardly be regarded as simply a lawyer’s charade. The only case the Government have for wrapping up together the complaints systems for both solicitors and barristers is that it is “tidy” and, as it were, fair to both branches of the profession.
The Law Society, in its briefing to me—and, no doubt, to other noble Lords—has admitted that its own schemes have been deficient. It does not pretend that its history is as good as the Bar’s in handling complaints. This amendment—or something like it, if I may put it that way to the noble Lord, Lord Kingsland—is surely desirable to modify the Government’s approach, to allow some flexibility which the history of complaints against the legal profession surely justifies.
My Lords, the speech we have just heard from the noble Lord, Lord Borrie, came as music to my ears; his arguments were extremely compelling. Uniformity does not necessarily mean that we will have a more efficient or effective scheme. The underlying concern about the basic thrust of the Government’s proposals is that they risk creating a rather bureaucratic monster which is not apt to deal any better with complaints that would previously have been handled by the Bar Council.
The issue of cost remains extremely important. It is clear that the Bar Council’s existing arrangements for handling complaints have been of great benefit to the consumer. We have not heard anything in the discussion of costs that has led us to believe that this problem will go away under the Government’s new legislation. It is time to draw a line and say firmly to the representatives of the consumer lobby, who have expressed a preference for uniformity of treatment, that this does not necessarily work to the advantage of those whom they represent.
I have found it increasingly distasteful in the course of these debates to hear opinions which almost suggest that lawyers are the enemy of consumers. That is a complete travesty of the truth. Lawyers are very often necessary to ensure that remedies are obtained. Their skills as advocates, and in some cases their selfless preparedness to investigate allegations, are worthy of commendation.
A brief from Which? which was passed to some Members of this House said:
“Consumers will not trust a regulatory system that allows lawyers to judge their own”.
That is simply a misrepresentation of the position of the Bar Council. Significantly, its conduct committee has 10 lay members whose decisions are subject to a lay veto, as the noble Lord, Lord Kingsland, stated. If that is the best argument that can be produced in favour of this inflexibility, it is a bad argument which ought to be roundly rejected by the Government.
My Lords, I shall speak briefly because the points have been strongly put by my noble friend Lord Kingsland and the noble Lord, Lord Borrie. I may be disappointed, but the noble Baroness may be about to stand up to tell us what good sense has been spoken. I sincerely hope so. It seems to me to be quite compelling to be able to save costs, to do justice better and to have less complexity, which would trump uniformity for the sake of uniformity every time. I very much hope that the noble Baroness will be able to give us more confidence than her recent headshake suggested.
My Lords, the noble Lord is very gracious in the way in which he puts forward his comments. Noble Lords have made strong arguments about the role of the Bar and I hope that they will agree that at no point in our deliberations have I indicated anything other than the highest regard for the way in which the Bar handles complaints. On the work going on with the Law Society and its regulatory body, I read out its latest report on its quality and success in handling complaints. Although I do not have the figures with me, I think that noble Lords will agree that it is being done in a better way than previously. I do not begin for one second to suggest that we are bringing it together to suggest in any way the wrapping-up of all the regulators or that they are failing, or that taking complaints away is a form of punishment. That is absolutely not the objective.
We have approached this issue from a different perspective. We know that there is an issue of public confidence. It may be more perception than reality in the context of the Bar. I did not know how the Bar handled its complaints procedure until I was involved in this job. It is not really surprising if the public do not know about the way in which the Bar handles complaints. None the less, whether it is right or wrong, there is an issue about perception in public confidence and the way in which complaints generally are handled.
Inevitably, there is an inconsistency in the way that the various complaint-handling arrangements work. Among some people who wish to bring forward complaints, there is some confusion about where to take them. That is probably particularly important where, for example, a solicitor may have instructed a barrister and the consumer has to try to determine where the fault lies and to whom to complain. Noble Lords may not like it, but there is an issue about independence—real or perceived—of complaints about lawyers being handled by their own professional bodies.
The noble Lord, Lord Maclennan, read out part of a letter, which I think that noble Lords have received. The letter is addressed to me, dated 4 May, from the National Consumer Council, Citizens Advice and Which?. The noble Lord may argue that they do not necessarily represent appropriately the people whom they seek to, but they are the most prestigious bodies we have for consumer affairs. Therefore, noble Lords would expect me to take note of what they said. As the noble Lord said, the letter states:
“Consumers will not trust a regulatory system that allows lawyers to judge their own”.
“Independence is the single most critical principle in any redress system. Separating the regulatory and representative functions of the professional bodies will be insufficient to command consumer confidence in this respect, especially given the relevant governance and complaint committees will continue to have professional majorities”.
That may be inaccurate in the context of the Bar, but that is what they say. They go on:
“The Bar can be reassured that the Office of Legal Complaints will be, and must be, an entirely new body. The emergence of alternative business structures will further blur the boundaries between the legal professions. In this new world, consumers should not be left to navigate a regulatory maze to resolve their disputes”.
Noble Lords will have seen the letter. I shall make sure there is a copy in the Library of your Lordships’ House.
As I have said, because we are also introducing alternative business structures, there will be opportunities for solicitors and barristers to work together in other ways. As the letter points out, this will add to the potential confusion for those who seek to complain. We believe it is more sensible in creating a new system to have one body that handles complaints about all legal professionals. That is clearer and more consistent; the system is straightforward, people know where to go and it can be dealt with properly. The most clear and consistent message since Sir David Clementi’s report, and before that, is to make sure that we deal with any perceived or real loss of confidence in the way that legal professional bodies have dealt with consumer complaints about their members.
I have had the privilege of talking to the Bar Council and to Geoffrey Vos, who has passionately and straightforwardly put the concerns of the Bar. One issue has been to make sure that the expertise and experience that could be available to the Office for Legal Complaints is not lost. I have indicated to Geoffrey Vos that we have looked carefully at Schedule 15(15), because that allows the OLC to enter into arrangements with regulators to provide it with assistance as it sees fit. There is no question that the ultimate decision-making must rest with the ombudsman—it must be an independent process. Yet I would expect the OLC to be in discussion with the regulators, and to think about what expertise might be available that it could usefully use while retaining the independent system. The Bar and other regulators may well assist under the new arrangements.
The key difference between this and what the noble Lord, Lord Kingsland, proposed is that, in line with Sir David’s philosophy, the OLC can make the best of existing arrangements by drawing on the Bar’s or any other bodies’ expertise, rather than completely delegating the responsibility it has to the public to ensure quick and fair redress. Within that context, I hope the noble Lord will feel able to withdraw his amendment.
My Lords, it really pains me to stand up at the Opposition Dispatch Box and once again take issue with what the noble Baroness says, especially as she has spoken in such measured and conciliatory tones. Yet she must know by now, having had these exchanges not only at Second Reading but also in Committee, that what she has said simply will not wash.
I find it difficult to understand how the noble Baroness can in one breath say that she absolutely accepts everything that has been said about the high quality of the Bar Standards Board and the way the Bar deals with complaints, and yet, in another breath, say that, even if in reality these standards are high, the public have doubts—that there is a public perception that somehow these standards, which she knows are met, are not being met. Where does this perception come from? What evidence does the noble Baroness have that there is a public perception that, despite all the evidence, the Bar Standards Board falls below requirements that have been tested over a long period? There is no such perception.
Then the noble Baroness says that there is concern that it is lawyers judging lawyers. The noble Lord, Lord Maclennan, had the complete answer to that: there are 10 lay members on the Bar Standards Board. The ultimate say on whether a Bar Standards Board decision stands is made by a lay person.
Why does the noble Baroness think that the Legal Services Board has nothing to do with the law? There will be lawyers on the board. Further, why is she so convinced that the Legal Services Board is independent, whereas the Bar Standards Board is not? Did not your Lordships pass an amendment requiring the Lord Chancellor to have concurrent advice from the Lord Chief Justice precisely because the House does not believe that, as presently structured under this Bill, the Legal Services Board is independent?
I know how hard the noble Baroness has striven to resolve this particular problem in the Bill; but I have to say to her, most disappointingly, that I cannot accept her arguments as a satisfactory substitute for these amendments, and therefore again I wish to test the opinion of the House.
Elections: Scottish Parliament
My Lords, with the leave of the House, I would like to repeat a Statement given by my right honourable friend Douglas Alexander in the other place. The Statement is as follows:
“A great deal of wholly legitimate public concern has been expressed over certain aspects of last Thursday’s election. I entirely share these concerns. They focus mainly on three areas: the arrangements for the administration of postal ballots; the operation of e-counting machines; and the significant number of spoilt ballot papers.
“Mr Speaker, when it became apparent in the early hours of Friday morning that difficulties were emerging, I contacted Professor Sir Neil McIntosh, the Scottish Electoral Commissioner. I expressed to him my concern that these issues be addressed as part of the statutory review of the Scottish elections that the commission is obliged to undertake, as a matter of urgency. Sir Neil was able to offer me this reassurance and this investigation is indeed now under way.
“The Electoral Commission has a statutory duty to report on the Scottish parliamentary elections. At the request of the Scottish Executive it will also be reporting on the local government elections. The commission is an independent body and is committed to ensuring a full and independent review of the Scottish elections.
“In those areas where the commission itself has an operational involvement—for example, in its statutory duty to promote public awareness of electoral systems—the commission will ensure independent evaluation of its own work, as it has in previous statutory reports. The commission is currently finalising the scope and timescale of the review, but intends to publish a report in the summer.
“A focus of public concern has been the adoption of a single ballot paper for the Scottish elections and the holding of those elections on the same day as the local government election. The poll for the Scottish Parliament elections is set in the Scotland Act. It has a predetermined cycle that Parliament at the time supported fully. I am not aware of any calls to change that. The decision to hold the local government elections on the same day was entirely a decision for Scottish Executive Ministers. It was enshrined in legislation which was fully debated and passed by the Scottish Parliament in 2001.
“Without wishing to prejudice the findings of this inquiry I should like to set out to the House the sequence of recommendations, consultations and decisions that led to the adoption of a single ballot paper for both elements of the Scottish Parliament elections, which are matters for which the Government have legislative responsibility.
“On 25 May 2004, my predecessor as Secretary of State, my right honourable friend the Member for Edinburgh Central, announced the creation of a commission under the chairmanship of Sir John Arbuthnott to examine the implications of Scotland having four different voting systems. This commission was independent and included nominations from political parties. The commission issued a consultation paper in January 2005 and spent 12 months gathering evidence and carrying out a wide-ranging and extensive inquiry.
“The Arbuthnott commission issued its report jointly to my predecessor and the Scottish First Minister on 19 January 2006. The report contained a series of recommendations and suggestions—some to the Electoral Commission concerning voter education; some to the Scottish Executive, such as a recommendation to move the date of the local government elections; and several recommendations to the Government.
“My right honourable friend made it clear that it was unlikely that we would be in a position to implement those recommendations from the report which would require primary legislation in time for the 2007 Scottish elections.
“However, there was one matter that could be progressed without the need for primary legislation—the suggestion that the two ballot papers for the regional list and constituency member be combined into one, with the regional list on the left-hand column, based on the example of the New Zealand paper.
“In the light of the views of the Arbuthnott commission I decided to proceed with a wider public consultation in order to test whether the suggested move to a single ballot paper commanded more general support, and to explore the appropriate design of such a ballot paper.
“The Scotland Office launched this consultation on 9 June 2006. In addition, my honourable friend the Parliamentary Under-Secretary met a range of interested parties, including representatives from disability rights groups, to explore these issues. There was a significant level of support for a single ballot paper. Of 29 respondents, the Scottish Senior Citizens Unity Party, the Liberal party of Scotland, Enable Scotland and Capability Scotland were not in favour of a combined ballot paper. I have requested that all responses to this consultation are placed in the Library of the House.
“The major political parties that expressed a view were largely in favour: Derek Barrie, chief of staff, on behalf of the Scottish Liberal Democrats, responded on 15 June:
‘The Scottish Liberal Democrats warmly welcome and fully endorse the proposal to have one ballot paper only for the next diet of Scottish Parliament elections in May 2007. This is one recommendation of Arbuthnott that we fully agree with’.
“Peter Murrell, chief executive of the Scottish National Party, responded on 16 August 2006:
‘The Scottish National Party is in support of the proposed move to a single ballot paper for both votes in the Scottish Parliament elections. We believe that this will aid understanding of both elements of the voting system and, in particular, remove any misunderstanding that the regional vote is somehow a second preference vote’.
“Lesley Quinn, the General Secretary of the Scottish Labour Party, responded:
‘The Scottish Labour Party strongly supports a single ballot paper, as this will simplify voting, counting, voter awareness and understanding. A single ballot paper will reduce the potential for voter confusion and be easier for people to use’.
No response to the consultation was received from the Scottish Conservative Party.
“Beyond the political parties, the Electoral Reform Society responded:
‘The Electoral Reform Society supports the use of a single ballot paper for the Scottish Parliament elections’.
SOLAR—the Society of Local Authority Lawyers and Administrators in Scotland—responded:
‘The SOLAR elections working group unanimously agreed to support the proposal that both Scottish Parliament contests be contained on one ballot paper’.
“In order to further explore those issues in advance of a decision as part of the consultation, the Scotland Office also requested the Electoral Commission to research with voters the impact of any possible change to the ballot paper format. On 4 August 2006, Sir Neil McIntosh wrote to the Parliamentary Under-Secretary, enclosing the findings of that research, which involved focus groups carried out in Glasgow, Edinburgh, Inverness and Dundee. A copy of the research has been placed in the Library of the House, together with the covering letter from the Electoral Commission. In that covering letter, Sir Neil McIntosh wrote:
‘As you can see, the research draws a number of clear conclusions for the design of the Scottish Parliamentary Ballot Paper. These conclusions point to the interests of the voter best being served by: A design of ballot paper that incorporates both the regional and constituency ballot papers alongside each other on a single sheet of paper’.
The findings of the focus groups supported the move to a single ballot paper, with a significant majority of respondents agreeing with the overall preference in favour of a single combined ballot paper rather than two separate papers.
“Only after that extensive consultation involving the widest possible range of stakeholders, the support of the main political parties that expressed a preference, the research received indicating the best interest of the voter being served by a single ballot paper, and clear official advice, was a decision taken to proceed with a single ballot paper for the Scottish parliamentary elections.
“There is also the issue of delays in the administration of postal ballots. The handling of postal votes is increasingly of public interest and concern, which is why we already have stiff penalties in legislation to prevent fraud. The use of postal votes in higher numbers than before makes that all the more important. When it became clear that such delays were occurring in the days prior to polling day, I instructed my officials to contact the Electoral Commission to ensure that these matters would be fully investigated.
“However, the process at local level for the preparation and delivery of postal votes is for returning officers and their staff. They make the contractual arrangements that they judge appropriate for their area. They are well aware of the tight timescales involved in getting out the papers to voters. When the Electoral Commission reports, I will of course examine whether there are steps that the Government can take to help ensure that the postal vote problems that certainly beset regions such as the Highlands, Dumfries and Galloway, among others, do not happen again.
“Finally, I will turn to the issue of e-counting. In 2005, the Scottish Executive approached the Scotland Office to discuss the option of using e-counting at the combined poll. That arose mainly because of the benefits of handling a count of ballots under the single transferable vote method. Manual counting of STV would take many days and be highly complex. My predecessor as Secretary of State, after careful assessment of advice, gave an agreement in principle to the option, but stressed the need for systematic testing and evaluation of the equipment and software.
“That took place through late 2005 and into 2006, up to the final procurement decisions. Many tests and demonstrations were held for electoral administrators, political parties, special interest groups and others. Various contingencies were tested, including power failures and ballot papers that had been creased or folded. The process was led by a steering group comprising officials from the Scotland Office, the Scottish Executive and the Scottish Parliament, as well as representatives from the Convention of Scottish Local Authorities, the Association of Electoral Administrators, the Society of Local Authority Lawyers and Administrators, the Scottish Assessors Association and the Society of Local Authority Chief Executives. I am advised that none of these simulations gave any evidence of the kind or scale of problems we saw in some centres on Thursday night and Friday morning. Clearly, this is an issue which will be absolutely central to the Electoral Commission’s report.
“Mr Speaker, there are clearly a number of issues that need to be explored in relation to the problems encountered in the conduct of these elections. The Electoral Commission must now be allowed to undertake its statutory review which, as I have said before, will be available by the summer. I will, of course, update the House at that stage, in the light of their conclusions”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement made in another place. Speaking of the Scottish elections, it would be remiss of me not to congratulate the noble Lord, Lord Foulkes of Cumnock, who is unfortunately not in his place, on his successful election to the Scottish Parliament. His only sadness must be that it looks as though he is to be denied the opportunity of asking the same kind of congratulatory questions of government Ministers there as he was able to do in this place.
Scotland has been wished four different voting systems. That has been a source of confusion for a start. The Government were warned by no less an authority than the Electoral Commission, and equally by the Arbuthnott commission, of the dangers of trying to hold an election for two different systems on the same day. The Labour and Liberal Democrat Members of the Scottish Parliament were likewise warned by the Scottish Conservative Members of the dangers of combining the local government elections with the Scottish parliamentary ones. Still they persisted. Does this not bring to mind the fiasco that we have all witnessed over the single farm payments in England, where an arrogant belief in a rational and intellectual but complicated system runs completely foul of reality?
The outcome is causing anger and dismay across Scotland. Noble Lords will be aware that in one constituency, Shettleston, there were over 2,000 spoilt ballots. A small country that thought that it was being offered the chance of a higher profile on the world stage has been turned into a laughing stock. I notice that it was claimed in another place that all the spoilt ballots from a few constituencies are not known. Can the Minister tell us how many spoilt ballots are known?
The final legislation for both elements of these elections was passed through this House after a Grand Committee on 7 March. The Statement highlights the problems of postal ballots. There have been stories of postal ballots being delivered on 2 May for an election on 3 May, or not at all. Can the Minister say why so little time was given to the returning officers to complete their tasks? The Statement talks of the tests and demonstrations of the machines for the electronic counting systems. Was the lateness in finalising the design of the ballot papers a factor in the electronic counting fiasco? What proportion of the votes was subject to recounting? In particular, did they have to be recounted manually as a result of the e-counting malfunction?
The Minister is a good and decent man. In his heart of hearts he will be as dismayed as the rest of us by the mess that the Secretary of State has created; yet another example of the consequences of the Government’s constant tinkering and messing about with our tried and trusted voting system. If the Prime Minister is looking for a legacy, he need look no further than the complicating and discrediting of a voting system once unquestioned anywhere. Once we sent out the international election inspectors and advisers; now they are heading to Holyrood to find out why Scottish electors are being robbed of their votes in their tens of thousands. What a shambles and a disgrace.
Is the Minister aware that in 11 general elections from 1964 the proportion of spoilt ballots was never more than 0.38 per cent, and usually below 0.2 per cent? In the first round of the recent French election, with 12 candidates and 37 million voters, spoilt ballots were only 1.4 per cent. By contrast, does he recall the fiasco of the London elections in 2004, the closest parallel to these events? Several voting systems were run in parallel on the same day and over 500,000 Londoners saw their votes spoilt; 3 per cent of mayoral votes and nearly 7 per cent of the Assembly votes were rejected. What was said then? The senior returning officer said that the legislation was not passed in time. The Electoral Reform Society said that the problems were foreseen but ignored. The Government said that they would learn the lessons. The shameful reality is that they did not listen then and they did not learn. As a direct result, Scotland has suffered a similar fiasco.
It is all very well the Electoral Commission and the Government promising an inquiry now and the Liberal Democrats calling for one, but they have all been complicit in creating the debacle. The most obvious place to look for solutions is not from those who presided over the debacle in the first place. I do not consider that the appointment of an inquiry into this fiasco, while necessary, is enough to absolve the Government of all responsibility.
My Lords, I join in thanking the Minister for repeating the Statement of the Secretary of State. Dismay at the outcome of the elections held on the same day is widely felt throughout Scotland. In passing, I note that the Scottish Conservative Party was not among those that gave advice about the process of having a double ballot on one paper. Some of us would prefer not to jump to conclusions as to which of the novelties was responsible for what appears to have been a catastrophically mismanaged election.
We welcome the Electoral Commission’s decision to put in hand the inquiry into the spoilt ballots, the postal voting and electronic counting; all of them had novel features and appeared to have contributed in some measure to denying perhaps as many as one in 20 of the Scottish electors the opportunity of contributing to the outcome of the election, as they believed they had done. There have been instances of voting for two authorities on the same day in the United Kingdom, including Northern Ireland in 2005. There was a warning issued by the Electoral Commission at that time. In the report on that election it stated:
“If combined elections are to become the norm then much more needs to be done … to ensure the electorate understands the different voting systems”.
I think that it is fair to say that not much had been done in Scotland prior to the elections last Thursday. The Minister’s Statement indicated that the Government considered that there was not a sufficient gap between the decisions and the election to introduce legislation. Is legislation is really necessary to enable the education of the electorate to take place?
The problem has unquestionably vitiated the authority of those democratic elections. With such a high proportion of spoilt ballots, there must be great grievances in particular constituencies. It is extremely difficult for individuals who may have suffered from this to pursue their cause through an election court, particularly as there are so few precedents to guide the returning officers on what was appropriate behaviour and to enable the court to decide what would be unreasonable. I hope that, in considering these matters, the Electoral Commission will give thought to the possibility of manually checking e-ballots where the voter’s mind was not able to be read. The old system of manual checking was regarded as being effective and pretty accurate by and large.
My final point is on the review. In so far as there may be questions about whether the Electoral Commission conducted all the necessary preliminary inquiries and took the necessary steps, and given that it is, in a sense, involved in the outcome of this election, the Government will have to give some thought to whether further independent consideration needs to be given to those matters where it might be invidious for the commission to pronounce on its own performance.
My Lords, I thank the noble Duke, the Duke of Montrose, for his kind words about my noble friend Lord Foulkes. We on this side will miss him, and I personally will miss him a great deal, as he has been a breath of fresh air.
I disagree with the noble Duke’s point that this mess was created by the Secretary of State. That is a good political point, but if he listened to the Statement, as I am sure he did, he will know that the Scottish Executive made a number of decisions and local returning officers were responsible for many of the activities that resulted in the problems that he is laying at the feet of the Government. As I said, that is a good debating point, but it is not particularly fair.
The import of my right honourable friend’s Statement is that a number of things have gone wrong. He and the Government are determined to find out what went wrong. We have asked the Electoral Commission—an independent body with a statutory right and duty to look into these matters—to look into all aspects and report back. As my right honourable friend said a few minutes ago in another place, if, as a result of the Electoral Commission’s report, there is a need for further matters to be inquired into, we will not hesitate to do that. The intention is there; we are not avoiding any issue. That is an important point for all noble Lords to take on board.
Let me answer some of the specific points that the noble Duke, the Duke of Montrose, raised. The poll has been criticised, but the Scottish Parliament has, under the Scotland Act, the duty to come to those decisions. The local government elections are for Scottish Executive Ministers, not London, to decide on. There has been great discussion and concern about spoilt papers. As I have said, and as my right honourable friend said in another place, although that is a matter for the returning officers we think it would be unwise to comment upon it until we have the final tally. I am absolutely prepared to give an undertaking that these figures will be released once we have that tally.
On criticism of the Government about postal votes, and for not allowing enough time for those to be sent out effectively, their timetable is set by local returning officers. E-counting has clearly not gone as smoothly as anyone would have wished; that will also be an important aspect of the Electoral Commission’s report.
Again, we cannot give precise figures at the moment on the spoilt ballot papers. There is a figure of 100,000 going around, but there is just a feeling—one to be confirmed or otherwise by the Electoral Commission—that that is rather high. We have no details yet of the local government ballot papers, so again it is best to wait to see what the actual figures are. On the high incidence of spoilt papers, I must underline that the Electoral Commission is impartial and can get an independent element into the review if so needed. If there is concern about the Electoral Commission, I should say that it can and will get independent, impartial advice within its review.
I turn to the points made by the noble Lord, Lord Maclennan. The combined poll issue will form part of the Electoral Commission’s review, and the Government will consider carefully what is said on all points once that is available. I am afraid that we cannot comment on individual poll results, as there may be the possibility of further action. I hope that answers the major points that have been raised.
My Lords, I thank my noble friend for his Statement, but I am disappointed by a number of aspects of it. First, I find it incomprehensible that some six days after an election we are not yet in a position to know the final tally of figures. It is the first election for 30-odd years, or nearly 40, at which I have not been present; had I had any involvement, I certainly would have been demanding that these figures be provided before the lights were put out in the counting stations. That point should be taken on board.
Secondly, none of us has any faith whatever in the Electoral Commission. Its ability to get behind the system in electoral politics seems almost the equivalent of a Chinese bureaucrat—a mandarin looking at a complex problem—who has a solution that does not necessarily bear any connection with reality.
Thirdly, on the counting of the papers, and the spoilt ones, as far as I can see there was no consideration given to a consistent approach to the issue. One would have thought otherwise, given the possibility for complexity—and I speak as a first past the post person, for I like the British electoral system when it is simple, with a result where you can kick up hell if you get beaten, knowing at the end of the day that you must wait four years to really solve that. It is extremely naive to assume that we would somehow have spoilt papers of the order of 0.1 or 0.2 per cent, as we would in a general election. We who have participated in general elections all know that the spoilt papers come at the very end. Most people are tired—the victors are elated and the defeated usually sickened—and not in a position to make rational judgments. Although the returning officer may only start work at 10 o’clock on election night, the rest of us have had rather a busy period before that and are probably too tired. Yet there is no excuse for abdicating responsibility and saying, “We’ll just set them aside”.
This was a disgrace and an embarrassment that lays grave questions on the competence of the officials who gave advice to hapless Ministers, who acted upon it in all good faith. I blame not the Ministers but the system, and I worry terribly that the same incompetents are to be required to report on themselves.
My Lords, I am grateful—I think—to my noble friend for his comments. He regards it as a scandal and a disaster that spoilt ballot papers have not been counted several days after the election, but I have said that we will come back to that once we know the tally. We do not know it, and there is no point in noble Lords getting up and complaining about it when that reality confronts us today. As I have said, that issue must and will be looked into and the figures will be passed on.
I must protest and disagree with my noble friend’s views on the Electoral Commission, which I have worked with for a number of years. It is independent and quite brilliant in the work that it does. Section 5 of the Political Parties, Elections and Referendums Act 2000 requires the Electoral Commission to review the conduct of each parliamentary election. It can involve external elements in reviewing an area where it feels that any previous involvement on its part—real or perceived—could prejudice its impartiality. I call on noble Lords to have confidence in the Electoral Commission; I am convinced that, when it reports, it will deal with all the problems that we have been talking about this afternoon, and that we will then be able to learn from what has happened and move on.
My Lords, the Statement that we have just heard was quite disgraceful. I have never seen so much buck-passing. It was the Government who introduced devolution and a different system for every set of elections in Scotland, and the Government must carry responsibility for this absolute scandal. With 100,000 people disfranchised, surely the issue we should be talking about is not whether the Electoral Commission should report, but whether we should rerun the election from start to finish. Hundreds of people have been disfranchised in their constituencies; the Minister has come here to say that we do not actually know how many spoilt ballot papers there were, when I heard them being declared—two thousand here, a thousand there—in constituencies where the majorities were tiny.
This is a huge democratic scandal that has reduced Scotland to a status that no self-respecting banana republic would have regarding its democratic procedures, and the Government must take responsibility. For the Secretary of State to make such a Statement shows that the Government have no idea of the anger and resentment in Scotland because of bungling by Ministers who will no longer take responsibility for the consequences of their own policy.
My Lords, I hear what the noble Lord, Lord Forsyth, says but, first, we are talking about a Statement on which noble Lords are invited to ask questions—not, in my view, to deliver an answer to a Statement to which the noble Lord did not enjoy listening.
Things have gone wrong. We are determined to find out why, and we feel that the Electoral Commission will do that for us. If there is the need for further inquiries after that then, as I have said, we will put those in place. I feel that the noble Lord is being most unfair to my right honourable friend in another place who, in my view, gave a Statement that accurately describes what has happened and said what was going to be done about it. We all need to learn from the unfortunate events of 3 May, and move on. I hope that all noble Lords will be able to move on with the Electoral Commission, once it gives its independent report.
My Lords, I begin by joining in the congratulations to the noble Lord, Lord Foulkes, on his election to the Scottish Parliament. There were three of us from this House in the first Parliament; he is now the only one. We wish him well, although we will miss his habitual trenchant criticism of Her Majesty's Government in this House.
Seriously, my criticism of the Statement is that its tone did not seem to echo the gravity of what people feel went wrong in Scotland. I have spent considerable time in my retirement advising Parliaments and political parties and monitoring elections overseas. I do not know how I will be able to show my face in Africa in future, where I have seen counts conducted with chalk on the floor of a village school with much greater efficiency and accuracy than happened with our sophisticated system in Scotland. It is an acute embarrassment and a matter of public anger that so many votes were discounted. The tone of the Statement did not reflect that.
I also appeal for a proper, quick, independent inquiry into what went wrong for two reasons: not just because, as my noble friend said, some of those matters were the responsibility of the Electoral Commission but also because some of them were not. They fell outside its remit. The fact that the two elections were held together was not its responsibility.
Postal votes were decided by returning officers, not by the Electoral Commission. The Minister may want to know that my noble friend Lord Kirkwood was one of the many people who got a postal ballot paper for the wrong ward. Why was that allowed to be contracted out to firms that did not know the local geography? That is extraordinary. It was not the decision of the Electoral Commission; nor was the introduction of the counting machines. There is a compelling case for having a proper, genuinely independent inquiry, whatever the Electoral Commission may do internally.
The Minister said that he does not know the actual number of spoilt ballot papers although, as the noble Lord, Lord Forsyth, said, we all heard them announced constituency by constituency. We have not yet been told how many spoilt papers there were in the local government ballot. It is a paradox that under the single transferable vote system for local government, there were far fewer spoilt papers than in the first- past-the-post ballot papers for the Scottish Parliament. As the ballot papers were modelled on those in New Zealand, I wonder whether we have any information about the number of spoilt ballot papers there. I suspect that it is more to do with the design of the ballot paper than the compilation of the paper in principle.
My fundamental point is that there must be a proper, independent inquiry and the Government must accept that.
My Lords, I am grateful to the noble Lord, Lord Steel, for his comments. An independent inquiry is exactly what the law requires. That is why the commission will conduct its review. It is the body charged with doing that work. Here we are, three or four days away from those elections. The Secretary of State has moved very quickly to get the Electoral Commission on board to do exactly what the noble Lord wants it to do, which attacks all the problems that arose last week. If the report is not satisfactory, the way is left open for further review. Although I take on board the noble Lord’s point that the Statement may not have underlined the gravity of the situation, it was absolutely clear from the debate in the other place taken in the whole, including the contributions from Front-Benchers and Back-Benchers, that it is seen as a very grave situation and one that must be addressed.
My Lords, after electoral chaos in Scotland, past postal fraud in Birmingham and even dead people turning up to vote in years gone by in Wallasey, could we have less preaching by the Government, specifically to Nigeria in its handling of the recent presidential round, and concentrate on subtle diplomacy?
My Lords, will my noble friend reflect that one of the main reasons that we have landed in this mess is that he has listened to the siren call that independent commissions can do the job better than the Government? Is it not about time that the Government took responsibility and faced up to the fact that criticism may be made on a partisan basis? On e-counting, will he reflect on the old story about computers: put garbage in and you get garbage out?
My Lords, it is a little too late for my noble friend to say that the Government should take responsibility for these matters. We are talking about a devolved country that, first, makes its own decisions and, secondly, has returning officers who, in two of the crucial areas that we have been discussing, decide what happens and how things are planned. Obviously, the Government have an important role to play. We are playing it, but it must be played with the help of other actors in this matter.
My Lords, I mention a past interest as an MSP in the Scottish Parliament for the past eight years. For clarity, I confirm that a Motion was tabled before the Scottish Parliament by the Conservatives to have the council elections on a different day, on the grounds that otherwise it could and would lead to confusion. There is considerable anecdotal evidence that people put crosses when they should have put numerals and possibly vice versa.
The Minister has fairly pointed out that the timing of elections was a devolved responsibility. If the Electoral Commission makes strong representations, will he be prepared to take them forward? If they relate to devolved responsibilities, will he be prepared to take them forward with the First Minister of the Scottish Parliament, who is about to be elected, and the Scottish Executive, who will be elected before long?
My Lords, we have asked the Electoral Commission to consider all those matters and report back to us. I assume that if the Electoral Commission and independent advisers make powerful points about what has gone wrong and the reasons for it, the Scottish Executive and the Government will take great note of what is said. It is a serious matter that must be sorted out and solved. The Government are in no way trying to say anything different. Constructive views from the Electoral Commission will be considered very carefully.
My Lords, of the three areas of focus mentioned in the Statement, I seek assurances on two. One is the e-counting machines. I understand very well the reasons for using them for the local elections: because of STV, it was thought necessary and a good idea to have e-counting machines. But for the parliamentary elections, I really do not understand why we could not have had manual counting. The parliamentary elections had not changed in any form, people were used to them, and we could have had manual counting. The only reason that I have heard given for having e-counting machines for all the elections is expense. Can my noble friend assure me that, in the light of what has happened, manual counting for the parliamentary elections will be reconsidered?
One of the real problems that led to so many voters voting inappropriately on the parliamentary ballot paper and thereby invalidating it was not so much because it was all on one ballot paper, but because of the instructions at the top of the ballot paper, which stated in very heavy print, “You have two votes”. Some people put two crosses in one column and none in the other, thereby completely invalidating their paper. Not just the question of whether there should have been one ballot paper but the question of what instructions go on the ballot paper should be carefully examined.
My Lords, all the matters raised by my noble friend will be carefully looked at. The paradox of the e-counting machines is that they were so widely tested before the elections yet went wrong on the night. That will need to be looked into because they were validated—and I can hear the Luddites having a good laugh at the back. For those of us who know a bit about computers, that is a very strange occurrence. I can assure my noble friend that all the points looked at will be considered. I have to say that Hansard from both Houses will be of great value to the Electoral Commission as it starts its inquiries and considers its agenda.
My Lords, from what I have derived from last Thursday’s events, an all- elected House of Lords is rather less likely than it might have been beforehand. More seriously, I shall attempt to bridge the divide that is going to open up between the Government’s view that this should be left to the Electoral Commission and the cries for a fully independent commission. Surely we can bridge that divide by instructing the Electoral Commission to include some non-executive directors—some independent members. That would, to some extent, disarm the criticism that they are the guards looking after themselves.
Legal Services Bill [HL]
Further consideration of amendments on Report resumed.
Clause 141 [Duties to share information]:
384: Clause 141, page 74, line 2, leave out from “to” to “approved” in line 5 and insert “the need to ensure that, so far as reasonably practicable—
( ) duplication of investigations is avoided;( ) the OLC assists”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 385 and 386. These amendments relate to the important provisions in Clause 141 on information sharing. Similar amendments were raised in Committee by the noble Lord, Lord Kingsland, and my noble friend Lady Henig on behalf of the Law Society. Although I felt at the time that the wording of the amendment raised at that stage was not appropriate for the Bill, I was persuaded by the importance of the intended effect. As a result, we have worked closely with the Law Society to return with these amendments.
I am happy to report that they represent a solution that both the Law Society and the Government are satisfied with. I hope that noble Lords too will be satisfied. It is of vital importance to the regulatory and complaints-handling framework that approved regulators and the OLC work in co-operation. I am confident that these amendments will facilitate that.
Amendments Nos. 384 and 385 will strengthen the LSB’s duties when specifying the requirements which the OLC and approved regulators must meet when drawing up their rules on information sharing. The LSB will now have to have regard to the need to ensure, as far as reasonably practicable, that the OLC and approved regulators, in sharing information, assist one another to perform their function. This elevation of “desirability” to “need” seems more appropriately to reflect the importance of the consideration that the LSB should give to these arrangements.
Amendment No. 386 will require the OLC and approved regulators to consult each other prior to submission of rules or arrangements for LSB approval and to require that if there are unresolved disagreements, these are reported to LSB when the rules or regulatory arrangements are submitted for approval. This reflects the particular relevance of these matters to the relationship between the OLC and approved regulators and will encourage the OLC and approved regulators to reach a consensus on what information should be shared and how, and will therefore further facilitate a co-operative relationship.
Amendment No. 386 covers much the same ground as Amendment No. 387, tabled in the name of the noble Lord, Lord Kingsland. Given the Law Society’s agreement on Amendment No. 386, the noble Lord may want to reflect on that when we get to his group of amendments. I beg to move.
My Lords, I am most grateful to the noble Baroness for bringing forward these amendments to Clause 141 and for her explanation for doing so. We accept the superior drafting of the government Amendment No. 386 to our own Amendment No. 387 and are delighted to see that the obligation for the OLC to consult approved regulators before publishing its scheme rules will be put on a statutory basis. It is right that both sides should co-operate as far as possible and identify to the board any part of the proposed rules where they have disagreed. We welcome these amendments.
On Question, amendment agreed to.
385: Clause 141, page 74, line 6, leave out “of approved regulators assisting” and insert “approved regulators assist”
386: Clause 141, page 74, line 9, at end insert—
“( ) The OLC must—
(a) before publishing under section 195(2) a draft of rules it proposes to make under subsection (1), consult each approved regulator to which the proposed rules apply, and(b) when seeking the Board’s consent to such rules under section 152, identify any objections made by an approved regulator to the rules and not withdrawn.( ) An approved regulator must—
(a) consult the OLC before making provisions in its regulatory arrangements of the kind mentioned in subsection (2), and(b) where an application is made for the Board’s approval of such provisions, identify any objections made by the OLC to the provisions and not withdrawn.”
On Question, amendments agreed to.
[Amendment No. 387 not moved.]
Clause 146 [Enforcement of requirements to provide information or produce documents]:
[Amendment No. 388 not moved.]
Clause 149 [Disclosure of restricted information]:
389: Clause 149, page 78, line 29, leave out “Secretary of State” and insert “Lord Chancellor”
390: Clause 149, page 78, line 31, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
Clause 152 [Consent requirements for rules]:
391: Clause 152, page 79, line 14, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
Clause 154 [Interpretation of Part 6]:
moved Amendments Nos. 392 and 393:
392: Clause 154, page 79, line 38, at end insert “unless in relation to a complaint which is determined by an approved regulator pursuant to a direction made under section (Handling of complaints by approved regulator)”
393: Clause 154, page 80, line 4, at end insert “and except as permitted by subsection (1)”
On Question, amendments agreed to.
394: Clause 154, page 80, line 19, at end insert “, or
(c) provision which by virtue of section (Regulatory arrangements not prohibited by section 154) is not prohibited by this section.”
On Question, amendment agreed to.
395: After Clause 154, insert the following new Clause—
“Regulatory arrangements not prohibited by section 154
(1) Section 154 does not prohibit the regulatory arrangements of an approved regulator from making provision requiring, or authorising the approved regulator to require, a relevant authorised person—
(a) to investigate whether there are any persons who may have a claim against the relevant authorised person in relation to a matter specified by the approved regulator;(b) to provide the approved regulator with a report on the outcome of the investigation;(c) to identify persons (“affected persons”) who may have such a claim;(d) to notify affected persons that they may have such a claim;(e) to provide affected persons with information about the relevant authorised person’s complaints procedures and the ombudsman scheme;(f) to ensure that the relevant authorised person’s complaints procedures operate as if an affected person had made a complaint against the relevant authorised person in respect of the act or omission to which the claim relates.(2) For the purposes of subsection (1) “claim”, in relation to a relevant authorised person, means a claim for redress resulting from an act or omission of that person.
(3) For the purposes of this section—
(a) “relevant authorised person”, in relation to an approved regulator, means a person authorised by that approved regulator to carry on an activity which is a reserved legal activity, and(b) a relevant authorised person’s complaints procedures are the procedures established by that person, or which that person participates in or is subject to, in accordance with regulatory arrangements made in accordance with section 109.(4) This section applies in relation to the Board in its capacity as a licensing authority as it applies in relation to an approved regulator, and in relation to the Board references to regulatory arrangements are to be read as references to the Board’s licensing rules.”
On Question, amendment agreed to.
Clause 155 [Legal Services Complaints Commissioner and Legal Services Ombudsman]:
396: Clause 155, page 80, line 26, leave out “offices” and insert “office”
The noble Lord said: My Lords, there is a weakness in the Bill in respect of the power of the claimant or respondent to review decisions made by either the OLC or the approved regulator. The Bill allows only for judicial review. That is costly and, in many cases, would prohibit or prevent any review taking place.
In addition, because complaints can contain elements relating to the service or misconduct or negligence, a complaint will have a determination of all matters by the OLC ombudsman. At the same time, before or after that decision, a further decision may be made by the approved regulator of the elements of misconduct and/or negligence.
Those decisions could be at odds with each other and result in two judgments being made against the respondent which would bring about a double jeopardy. There is a further problem: the ombudsman could award redress of up to £20,000 for misconduct or negligence and the approved regulator may not find that there has been a breach of its rules. As such, the respondent ought to have the power to have the ombudsman’s decision reviewed other than by means of a judicial review. The amendment was therefore tabled to provide an independent avenue for review of decisions taken by either the ombudsman or the approved regulator. I hope that the amendment is self-evidently sensible and that the Government will accept it. I beg to move.
My Lords, by virtue of Clause 137(4), an ombudsman’s determination becomes final and binding if accepted by a complainant. This is one of the cornerstones of the new scheme that we are putting in place. It provides complainants and respondents with the certainty that they are entitled to—a clear end to the complaints process. If the amendments to allow for an independent review were accepted, an ombudsman’s determination would no longer be final, and neither complainants nor respondents would have the necessary certainty. This is not only our view, but the view of the British and Irish Ombudsman Association. As we, and it, have said, complainants do not have to accept the determination of the ombudsman. They are always free to reject that decision and to institute court proceedings. It would therefore be wrong to have an independent reviewer able to second-guess the ombudsman.
As explained in Committee, we envisage that there will be several internal reviews of a complaint before it is passed to an ombudsman for a final determination. In Committee, the noble Lord, Lord Thomas of Gresford, said that the amendments arose because the Government had,
“failed to replace the position of the Legal Services Complaints Commissioner and of the Legal Services Ombudsman”.—[Official Report, 21/2/07; col. 1164.]
However, although of course the Legal Services Complaints Commissioner and the Legal Services Ombudsman fulfil a valuable role under the present system, there is no need to create these roles under the new system that we are putting in place. At present, consumers need there to be some independent oversight of the way in which the professional bodies handle complaints. This is because those consuming the services do not necessarily have confidence in a profession that is seen to be judging itself. That is not, however, the system that we are creating.
The amendments assume that the ombudsman scheme will work in the same way as the current complaints handling system, and so would require an appeals mechanism to an independent person. I hope it is clear, however, that the Office for Legal Complaints and the ombudsman are independent. The chairman of the OLC is a lay person, as is the chief ombudsman. Other ombudsmen cannot be practising lawyers, and every ombudsman is explicitly required to be appointed under terms that will guarantee independence. Ombudsmen’s decisions should be final. If there were appeals, the certainty that we are seeking to create would be lost. That would not be good for consumers or the professions. We are creating a system that we hope is quick and fair and that, crucially, has a certain conclusion to the process. It is a new system, and so does not work like the current one. There is therefore no need to recreate the roles that we had before. I ask that the amendment is withdrawn.
My Lords, I have heard the words of the Minister, and I thank her for considering further a matter that was considered at some length in Committee. I remain concerned that she has not fully answered my point about the possibility of there being a conflict between the redress awarded by the ombudsman and the regulator finding no breach of the rules. However, in the light of what she has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 397 to 399 not moved.]
moved Amendment No. 400:
400: Before Clause 158, insert the following new Clause—
“Board’s general duty to consult
The Board must make and maintain effective arrangements for consulting representatives of practitioners and consumers on the extent to which its general policies and practices are consistent with its duty under section 3.”
The noble Lord said: My Lords, Amendments Nos. 400 and 401 have been brought back from Committee. They would impose a general duty on the Legal Services Board to consult—a duty that, as your Lordships are aware, is otherwise absent from the Bill. In our brief exchange on this matter in March, the Minister agreed that,
“it is essential that the board consults on important points of policy and the framework under which it operates”.—[Official Report, 6/3/07; cols. 148-49.]
She concluded that it was an unnecessary amendment as the Bill already imposed enough specific duties to consult. At least part of her justification for her approach was that Clauses 8 to 11 already require the board to consult consumers, while her affirmation that she had accepted in principle what was then Amendment No. 38 meant that there would be a similar requirement to consider representations from approved regulators.
Her acceptance in principle has unfortunately not translated into acceptance on paper, so the Bill imposes no general obligation on the board to consider representations from the professional bodies. This is just one of the reasons why the overarching duty to consult proposed by Amendment No. 400 would be so desirable.
Nevertheless, the other important arguments still remain. Accepting the amendments would add to some of the changes that noble Lords have already made to the Bill by reaffirming the board’s role as a light-touch regulator by ensuring that the regulators would still have as much of a say as possible and by listening to the recommendations of Sir David Clementi. The Minister was reasonably receptive to these arguments in Committee. As what was Amendment No. 38 now looks unlikely to find its way into the Bill, perhaps she might consider these amendments more warmly. I beg to move.
My Lords, I strongly agree with my noble friend. It might be helpful if the Minister gave us a more detailed explanation of what has been going on behind the scenes. She gave us such a clear commitment in Committee, particularly with regard to Amendment No. 38, but that commitment seemed to disappear somewhere. Either she has been got at in some way that has not yet penetrated the consciousness of the Chamber, or she has changed her mind. In either case, we need an explanation. Amendment No. 400 seems to accord so much with the argument that the Minister previously accepted that it is surely right that there should be a general duty to consult practitioners and consumers on the extent to which the Legal Services Board ensures that its general policies and practices are consistent with its duties in Section 3. Amendment No. 401 lays down a reasonable structure within which the board’s general duty to consult would be exercised, and it is very difficult to understand why this is no longer as acceptable as it was. Perhaps the Minister has a convincing explanation, but we have not heard it yet. We await her response with eagerness and anticipation.
My Lords, I am delighted that the noble Lord awaits my response with eagerness and anticipation, but I am not entirely convinced that I will convince him of my argument. Let me describe the general context of Amendment No. 38, which we have discussed. It is absolutely right to say that I took the amendment away and considered the principle behind it, although I did not accept the amendment on the day on which we discussed it because it would have ensured that the Bill afforded consumers and the professions equal treatment. I think that noble Lords broadly accepted that putting in a consumer panel recognised that there was no coherent body representing consumers that would have the necessary force in the legislation but that there were organisations in the professions that had that coherent voice.
I took it away to consult officials and we went through the Bill. Having done so, I contend that the Bill affords, in equal weight, opportunities for the professions to have their voices heard, either because they are, as noble Lords know, well organised, well funded and very well established bodies, conversant in the art of putting forward their views; or, indeed, because the legislation itself requires that they are consulted at various points. It is not that I do not accept the principle behind what I said, but we believe that the Bill already does it. Noble Lords may disagree with that; that is for noble Lords to determine. There is nothing behind the scenes, as such. On examination, it was our view that we had achieved what was wanted. That is why I have not brought forward another amendment.
My Lords, it might be of great assistance to the House if the Minister could indicate where in the Bill she found this general duty to consult. I have not yet found any such provision. This is now such a huge Bill, with so many government amendments, that there may well be hidden away something that would satisfy us, but I have not yet found it.
My Lords, I think the noble Lord knows that there are specific requirements in different parts of the Bill which mean that consultation is necessary on particular issues. I cannot win on this. The Government bring forward amendments in order to respond; indeed, a number of amendments are specifically designed to support issues raised by the Law Society. A lot of them are very small, technical changes, but none the less important. That is why there appear to be many more amendments than usual.
Noble Lords will, I have no doubt, return to this issue at Third Reading, but that is my explanation. I shall deal with one particular point raised in the amendments. I have indicated that there are sufficient opportunities. Clause 3 specifically requires the board to have regard to key principles, including any other principle that appears to represent the best regulatory practice. In line with best regulatory practice—for example, the Better Regulation Executive’s code of practice on consultation—the board should consider representations made, especially if they come from those affected by its function. The code of practice does not require us to set out consultation provisions in legislation, but it sets out a number of principles of best practice. They include: identifying the relevant interested parties and those likely to be affected by the policy; providing feedback on responses and how they have influenced the policy; and paying particular attention to representative bodies, such as business associations and trade unions.
Given the requirement that the board follows best practice in respect of consultation, we should not have to set out in legislation practice which could become outdated and irrelevant as we move forward and become more detailed about the kind of consultation we wish to see. I do not want to narrow the focus of the board’s consultation, which I fear the amendment might if we were to limit the board’s consultation to the extent that its general policies and practice are consistent with its duty under Section 3, or the degree to which the board’s proposed activities are appropriately targeted, and whether or not the proposed programme of work is proportionate.
Instead, I submit that the combination of Clause 3 and the provisions that must be followed in respect of representation is the best approach. This would include the requirement for the board to have regard to any representations made to it in respect of policy statements, covered by Clause 49, rules made under the Bill, covered by Clause 195, and ensure that consumers and the profession have the opportunity to influence decisions by the board. The principles that I have outlined would also apply to any work plan, but it is not necessary to put a duty in the Bill.
The board is also under a duty, in Clause 3, to ensure that its activities are targeted and used only where appropriate and necessary. This, along with the duty for the board’s accounts to be laid before Parliament, provides sufficient financial accountability. I hope this explanation suffices and that the noble Lord is able to withdraw his amendment.
My Lords, I am most grateful to the noble Baroness for her response, though, as she might imagine, somewhat disappointed. I refer first to Amendment No. 38. In our discussion on that earlier in the Report stage, I asserted that the noble Baroness had given an unequivocal undertaking to incorporate Amendment No. 38 into the Bill. The noble Baroness begged to differ and was going to look at the matter and come back to the House at Third Reading. Of course, we still await her explanation of what she has decided to do about the amendment.
The purpose behind Amendment No. 38 has some influence over the amendment that we are discussing now. From what the noble Baroness says, I understand that she is reluctant to place Amendment No. 400 in the Bill. Nevertheless, her explanation for not wishing to do so appears to be that, in effect, the Bill already says what Amendment No. 400 states. Can I therefore take it that the Minister’s interpretation of the Bill is that the board is obliged to make and maintain effective arrangements for consulting representatives of practitioners and consumers, on the extent to which its general policies and practices are consistent with its duty under Clause 53?
My Lords, I am much obliged. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 401 not moved.]
402: After Clause 159, insert the following new Clause—
“Power to establish voluntary scheme for resolving complaints
(1) This section and section (Operation of voluntary scheme) provide for a scheme under which legal services complaints may be resolved quickly and with minimum formality by an independent person.
(2) The OLC may make rules (“voluntary scheme rules”) establishing such a scheme (“the voluntary scheme”), but only in relation to such kinds of legal services complaints as may be specified by order made by the Lord Chancellor for the purposes of this section.
(3) An order under subsection (2) may in particular specify a kind of legal services complaint by reference to the description of the complainant, of the respondent, or of the legal services to which the complaint relates.
(3) “Legal services complaint” means a complaint which relates to an act or omission of an eligible person (“the respondent”) in the course of that person providing legal services.
(4) For that purpose a person is eligible if at the time the act or omission took place there was no activity in relation to which the person—
(a) was an authorised person, or(b) is to be regarded as having been such a person by virtue of section 126.(5) Under the voluntary scheme—
(a) redress may be provided to the complainant, but(b) no disciplinary action may be taken against the respondent. (6) Voluntary scheme rules may confer functions on ombudsmen for the purposes of the voluntary scheme.
(7) Section 128 applies for the purposes of the voluntary scheme as it applies for the purposes of the ombudsman scheme.
(8) Sections 152 and 153 apply in relation to voluntary scheme rules as they apply in relation to scheme rules.
(9) In this section—
“legal services” means services provided by a person which consist of or include legal activities carried on by, or on behalf of, that person;
“the voluntary scheme” and “voluntary scheme rules” have the meaning given by subsection (2).”
403: After Clause 159, insert the following new Clause—
“Procedure for making orders under section (Power to establish voluntary scheme for resolving complaints)
(1) The Lord Chancellor may make an order under section (Power to establish voluntary scheme for resolving complaints)(2) only on the recommendation of an interested body.
(2) An interested body must, if requested to do so by the Lord Chancellor, consider whether or not it is appropriate to make a recommendation for such an order.
(3) An interested body must, before making a recommendation for such an order—
(a) publish a draft of the proposed recommendation,(b) invite representations regarding the proposed recommendation, and(c) consider any such representations which are made.(4) Where the Lord Chancellor receives a recommendation from an interested body for an order under section (Power to establish voluntary scheme for resolving complaints)(2), the Lord Chancellor must consider whether to follow the recommendation.
(5) If the Lord Chancellor decides not to follow the recommendation, the Lord Chancellor must publish a notice to that effect which includes the Lord Chancellor’s reasons for the decision.
(6) In this section “interested body” means—
(a) the OLC,(b) the Board, or(c) the Consumer Panel.”
404: After Clause 159, insert the following new Clause—
“Operation of voluntary scheme
(1) A complaint may be determined under the voluntary scheme only if—
(a) the complainant falls within a class of persons specified in voluntary scheme rules as qualified to make a complaint,(b) the complainant wishes to have the complaint dealt with under the scheme,(c) at the time of the act or omission to which the complaint relates, the respondent was participating in the scheme and voluntary scheme rules were in force in relation to the legal services in question, and(d) at the time the complaint is made under the scheme the respondent has not withdrawn from the scheme in accordance with its provisions.(2) A person qualifies for participation in the voluntary scheme if the person falls within a class of persons specified as qualified in voluntary scheme rules.
(3) In such circumstances as may be specified in voluntary scheme rules, a complaint may be dealt with under the voluntary scheme even though subsection (1)(c) would otherwise prevent that.
(4) Subsection (3) applies only if the respondent participates in the voluntary scheme on the basis that complaints of that kind are to be dealt with under the scheme.
(5) Complaints are to be dealt with and determined under the voluntary scheme on standard terms fixed by the OLC with the consent of the Board.
(6) The OLC may modify standard terms only with the consent of the Board.
(7) Section 194(3) applies to standard terms as it applies to rules made by the OLC.
(8) The standard terms may in particular make provision—
(a) requiring the making of payments to the OLC by persons participating in the scheme of such amounts, at such times and in such circumstances, as may be determined by the OLC;(b) as to the award of costs on the determination of a complaint (including provision for an award of costs in favour of the OLC for the purpose of providing a contribution to resources deployed in dealing with the complaint).(9) In this section “legal services”, “the voluntary scheme” and “voluntary scheme rules” have the same meaning as in section (Power to establish voluntary scheme for resolving complaints.)”
On Question, amendments agreed to.
Clause 161 [Disclosure of restricted information]:
405: Clause 161, page 84, line 9, leave out “Secretary of State” and insert “Lord Chancellor”
406: Clause 161, page 84, line 11, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
Clause 162 [Disclosure of information to the Board]:
407: Clause 162, page 84, line 35, leave out “Secretary of State” and insert “Lord Chancellor”
408: Clause 162, page 84, line 36, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
Clause 165 [Funding]:
409: Clause 165, page 85, line 16, leave out “Secretary of State” and insert “Lord Chancellor”
410: Clause 165, page 85, line 17, leave out “Secretary of State” and insert “Lord Chancellor”
411: Clause 165, page 85, line 22, leave out “Secretary of State” and insert “Lord Chancellor”
412: Clause 165, page 85, line 25, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
moved Amendment No. 413:
413: After Clause 165, insert the following new Clause—
(1) The Secretary of State shall pay to the Board, and to the OLC, such sums as the Secretary of State may determine to be the costs falling within subsection (2) incurred by each of them in connection with the establishment of the Board and of the OLC respectively.
(2) Costs fall within this subsection if they are incurred—
(a) before the passing of this Act, or (b) after the passing of this Act but before the last day appointed under section 201(2) in respect of any of sections 2, 111 and 119.(3) There shall be met out of monies provided by Parliament any expenditure incurred by the Secretary of State in connection with the establishment of the Board or of the OLC.”
The noble Lord said: My Lords, this amendment and those associated with it are designed to ensure that the Government meet the start-up costs of the Legal Services Board and a proportion of its running costs. As noble Lords are only too well aware, the Legal Services Bill is currently drafted on the basis that the whole cost of the regulatory structure, including the supervisory tier—the Legal Services Board—should be borne by the legal profession.
We accept that the profession should meet the full cost of the first tier of regulation; that is to say, the work of the approved regulators and the Office for Legal Complaints. However, the costs of the supervisory tier are another matter. The supervisory tier serves a purpose distinct from that of the front-line bodies. The regulatory structure could work perfectly well without a Legal Services Board. The approved regulators, having separated their representative arms from their regulatory arms, could simply be left to get on with the task. The Government have decided, following Sir David Clementi’s advice, to create a supervisory tier, the Legal Services Board, to provide a check on front-line regulators, to promote consistency and to resolve disagreements where necessary.
The board, provided it operates as a “light-touch” supervisor, may well discharge a useful function; but the Government’s decision to require the legal profession to meet the whole cost of the Legal Services Board is unreasonable.
Sir David Clementi said:
“The issue arises as to how the LSB should be paid for. At present a substantial part of the oversight function is paid for by the State: judicial oversight falls to the taxpayer, as does the cost of the oversight function carried out by Government departments. The arguments in favour of the Government contributing to the cost of oversight functions beyond the fact that it does already are … that the LSB, in pursuit of its objectives … such as ‘access to justice’ has a wider role in the public interest than the oversight of practitioners in the legal sector; and that an element of payment by other than the bodies being regulated confirms that the regulator is independent of the regulatee”.
“There is an interesting precedent in the proposed funding of the Financial Reporting Council. Its funding is to be split, two thirds falling to the private sector and one third to Government. How the split should be made between the private sector and Government for the LSB would need to be covered in statute and would, therefore, be the subject of Parliamentary scrutiny”.
As Sir David Clementi points out, the Government meet one-third of the cost of the Financial Reporting Council. The Government also meet the full cost of the supervisory tier of healthcare regulation, the Council for Healthcare Regulatory Excellence. The Government have given no adequate explanation of why they consider it appropriate to meet part of the supervisory tier of regulation in the accountancy field, but not in respect of legal services. So far as the Council for Healthcare Regulatory Excellence is concerned, the Government have suggested that it is appropriate to pay because it is important to demonstrate that the CHRE is independent of the medical profession. But that argument applies at least as strongly to the Legal Services Board, which needs to be demonstrably independent of the Government and of the legal profession.
One function of the Legal Services Board will be to consider whether additional legal services should come within the regulatory net. This function is currently carried out within government. It does not form part of the regulation of legal services and is carried out entirely in the public interest, rather than in the interest of providers of legal services. It is particularly unreasonable for the Government to expect those costs to be borne by the legal profession. The Joint Committee considered this issue and concluded that the legal profession should not be expected to finance public policy considerations currently funded by the Government.
The Government’s proposals would, in effect, transfer cost from the Government to the legal profession. The Government currently meet the costs of the Legal Services Ombudsman, whose functions will be absorbed in the Office for Legal Complaints, which will be funded exclusively by the legal profession, and part of the costs of the Legal Services Complaints Commissioner, whose post is also abolished by the Bill. The Government also meet the costs associated with the Legal Services Consultancy Panel, and the costs of the work in relation to legal services regulation of the Lord Chancellor and the senior judiciary. Continuing to contribute towards the cost of regulation would thus maintain the existing position, rather than represent a new spending commitment from the Government. The examples that the Government gave for regulators funded entirely by regulatees—the FSA, the FOS and the Pensions Regulator—are entirely beside the point. They are frontline regulators. We have no quarrel about that.
Ensuring a continuing contribution from the Government might also act as a brake on any tendency of the Legal Services Board to expand its activities unjustifiably. There is an obvious risk that if the board can simply re-charge the cost to the approved regulators it will grow substantially beyond what the Government say that they envisage. It is important for the Government to have a financial incentive to ensure that the board operates as the light-touch supervisory body that they have so often said they wish to establish.
It should also be recalled that this issue has to be seen in the light of the steadily increased estimate of the start-up and running costs of the board. The noble Baroness very generously did not need any probing to let us know that, yet again, last month’s cost estimates for the establishment of the board have gone up. We are now talking of a sum of no less than £46 million, with annual running costs approaching £30 million. These figures are a far cry from the context in which Sir David Clementi was operating. At the time he reached his conclusions, the estimated start-up costs of the Legal Services Board were less than £10 million. So the changing financial picture ought to be a very convincing new component for the Government in changing their view about how this new system is to be financed. I beg to move.
My Lords, I strongly support the amendments tabled in the name of the noble Lord, Lord Kingsland, and adopt the reasoning that he has advanced. I supported the line of reasoning expressed in Committee and have few additional points to make. However, the public interest in the Legal Services Board’s operating economically and effectively will be best discharged by the Government’s direct interest being continued through the financial mechanism. If the body is established and passes its costs on to the consumers of legal services, the Government’s continuing interest in maintaining the body in the form in which it has been described from the beginning will be put at grave risk.
The Government have clearly departed from the advice of the Clementi report, particularly on start-up costs. It is not surprising that the estimates for these costs have risen since Sir David Clementi reported. The duties which the Bill imposes on the Legal Services Board are far reaching and are by no means consonant with the concept that the board would intervene only when something had gone wrong. It is creating a huge framework of supervision by the indicative policies that the Bill requires it to embark on. These changes may or may not be necessary; although I am persuadable that the Government are right in thinking that they are required, there are downside cost consequences.
The second major point of principle, to which I think the amendments are addressed, is that the public have an interest in the delivery of justice in our society, which goes far beyond the ability of individuals to have access to justice. They have an interest in justice being done, being seen to be done and being available to all. The more expensive that this process of regulation becomes, the more inaccessible justice will be. If the professions have to bear the full costs, there will be no way of recouping them other than by increasing the cost of their services. I simply cannot understand why there is this belief that the proposal is in the consumer’s interest. The danger is that ever more people will find that legal assistance and access to the courts and advice are beyond their means. The Bill could contribute to that if it does not share out the costs between the taxpayer and the professions.
This is so much a point of principle that it does not seem capable of being dealt with other than by a direct rebuttal by the Government. I would find it difficult if the Government did not take the point. Costs are predicted to escalate although it may not be possible now to determine the precise amount. I cannot believe that the Minister has any expectation other than that the figures which have been produced are more than a base from which the costs will rise.
I hope to get this Bill off to a proper flying start. As the Minister knows, I have been a supporter of the Bill and, like noble Lords on all sides of the House, believe that it is necessary. She will recognise that citizens—citizens, as opposed to petitioners to courts for redress regarding the non-delivery of services—have an interest in this being done appropriately. Citizens will be prepared to pay the price.
My Lords, during the 20th century the legal profession, particularly the solicitors, came more and more into direct contact with the masses of the population as distinct from merely the better off, the commercial enterprises and so on. That was encouraged by the Legal Aid and Advice Act which the Labour Government brought in soon after World War 2. The legal profession, and I mean both parts of it, has always professed that it must have in mind the interests of the public—citizens in general—and not just their clients. Its behaviour, codes of practice and professional conduct require that that should be so. As we know, however, the legal profession has not always in practice come up to the high standards professed in the codes of professional conduct and the codes that, at annual meetings and so on, it maintains that it has.
I know that opposition parties do not agree fully with every aspect of the Bill but, bearing in mind the professions’ deficiencies in dealing with complaints, it is difficult for them to suggest that the Bill’s surveillance elements regarding the Legal Services Board are not required. The noble Lord, Lord Kingsland, distinguishes between the front-line regulators—which, as he would say, are properly paid for by the professions—and the Legal Services Board, which, on behalf of the public, ensures that it does a good job, or at least that is what it is meant to do. That is not a strong distinction. They are all needed. The surveillance of the Legal Services Board is needed because of the professions’ recent history. It is in the public interest to ensure that the professional standards which the professions have maintained and stated they believe in over so many years are in fact and in practice maintained.
It is rather difficult to argue that the people who use the services of lawyers should not pay for the work of the Legal Services Board as well as for the front-line regulators. I certainly do not see as a matter of principle the distinction drawn by noble Lords opposite on this matter. I recall certain connections with the regulation of the accountancy profession. I do not see any objection in principle to the fact that it does it by means of the Financial Reporting Council, as mentioned by the noble Lord, Lord Kingsland. There is a split, and some sort of split is desirable. I know that Sir David Clementi thought that that might be suitable in the legal profession.
I stress that the Government’s proposals are not out of the question or unprincipled in suggesting that those who need and have to pay for the services of lawyers should also pay, rather than the general taxpayer, for the provision of the surveillance of the Legal Services Board as well as for the front-line regulators.
My Lords, the noble Lord, Lord Borrie, has missed one of the key points in this debate: the whole issue of access to justice. That was why Sir David Clementi said that the Legal Services Board should have a wider remit in the public interest than just the oversight of the practitioners in the legal services sector. He also said—I felt persuasively—that to have a contribution from other than just the regulated would enable the regulator to demonstrate its independence from those it was regulating. If all its money came from the professions over which it had oversight, then issues such as access to justice and independence would not be seen as having the wider remit that the public would want.
In demonstrating my support for the words of my noble friend Lord Kingsland, and also finding myself in complete agreement with the noble Lord, Lord Maclennan of Rogart, I should also add that I am becoming increasingly concerned about the cost. When we last debated the Bill, on the second day of Report, we had just seen an extract from a report by Frances Gibb in the Times that the costs were escalating to a degree that none of us had really contemplated. In the Joint Select Committee, the estimate of costs was said to be, if I recall correctly, “at best speculative”. But I do not think that any of us on the Joint Select Committee contemplated that they would double before the final figures were known. It might be helpful if the Minister could bring us up to date in particular on the start-up costs but also on the running costs. It is a little while since we saw that report.
The Minister at least indicated that she shared our concerns about the costs suddenly running away from us in a way that would impinge on access to justice if the professions had to bear all those costs. Who is going to pay? The answer is that the consumer of legal services ultimately will pay through increased charges. I am very worried indeed about whether we have yet seen the final picture. When we last debated these issues, the noble Baroness said that she was taking a close look not only at the start-up costs but at the running costs as well. Now that we have this debate and a number like it this evening, it might be helpful if she could bring us up to date with where we are on the issue of costs so far as the Government are concerned.
Finally, experience tells me that written in bold capital letters on the Minister’s brief from the Treasury will be the word, “Resist”. I have come to have considerable respect for the Minister and I know that she would ignore any such mandate if she felt that there was a case to be argued. I do not know whether she will let us in on what arguments may be going on with the Treasury behind the scenes, but my noble friend Lord Kingsland has made a very strong point in moving this amendment. I hope, therefore, that the Minister will not reject it out of hand.
My Lords, I have not had any conversations with the Treasury. I do have the word “Resist” written on my brief, but it is not from the Treasury. Indeed, we have been in consultation with the Treasury to do precisely what the noble Lord has invited me to do, which is to give an update on the costs. Noble Lords will recall that when we considered this issue on 16 April, I said that I was concerned to look at the figures reported by Frances Gibb in the Times, as well as to consider the further analysis undertaken with the Law Society and the Bar Council. Rather helpfully, those with whom we shared the figures raised different points that they wished us to reconsider, which I duly asked officials to do. I also asked my officials to give me figures that I could use this evening in order to set out for noble Lords the position as it currently stands.
We have been looking to refine the implementation plans and to consider the amendments that have been made to the Bill, so it is absolutely right to reflect the current position by updating the costs. Noble Lords will recall that the original forecast by PricewaterhouseCoopers was £26.8 million. Following our further analysis, the figure now stands at £32 million, which takes into account inflation—that is, the costs are restated at 2007-08 prices—and includes VAT. It also reflects other adjustments which have led to decreases in costs in some areas and increases in others. In addition, in relation to the Office for Legal Complaints, we have assumed a year-on-year increase in the volume of complaints. That is based on an analysis of the compound annual growth rate of Law Society complaints, which account for approximately 96 per cent of the total annual volume of complaints. Building in this annual growth rate has impacted on both implementation and running costs, with the result that it is predicted that in 2007-08 the running costs are now predicted to be £19.9 million compared with the PricewaterhouseCoopers estimate of £16.8 million. The noble Lord, Lord Hunt of Wirral, specifically asked me for that figure. However, the revised figure still represents a saving on the current complaints-handling arrangements, costed by PricewaterhouseCoopers at £32.5 million in 2005.
While the analysis we have carried out is robust and based on sound assumptions, any operation of this size involves risks, no matter how carefully planned and managed it may be, so we have put together a risk register. It is therefore prudent to build in a margin for unforeseen costs, and I have suggested that we build in a margin of 15 per cent, which is approximately £5 million. That is based on an analysis of the risks associated with the reform process and the costs that may accompany those risks. It is right and proper to cite a figure that takes into account all the risks of change. Although I do not anticipate the risks, they could include problems such as not being able to find appropriate premises. These are risks that we do not believe will be realised, but none the less have to be taken into account.
We have also looked at the possibility of a spike in complaints volumes occurring two to three years after the introduction of the new scheme. We have analysed what has happened in comparable sectors and the evidence suggests a tendency towards a spike two to three years in. However, I emphasise that our forecasts already take into account a year-on-year increase, and of course the experience of different sectors does not necessarily read across. In addition, in practice we would expect to see economies of scale and a decrease in cost per complaint.
It is obviously crucial that noble Lords and the legal professions have confidence in these figures, so I should like to emphasise that the adjustments which have been made are based on a robust analysis. What is more, I can confirm that the revised figure will now form the basis of the implementation budget for the new organisations when responsibility is handed to the new boards; that is, it will be the budget that they are given.
My Lords, these are important figures, and they are higher than those given in the regulatory impact assessment. Is the Minister planning to issue an updated regulatory impact assessment? If she were able to give us that assurance, it would go some way to meeting our concerns.
Yes, my Lords, I can give the noble Lord that assurance.
Noble Lords will also want to know the detail of the adjustments that have been made. It may be helpful if I set out the position in writing as well as producing a revised RIA. I indicated previously that I would write, but noble Lords will know from our discussions on 16 April that I did not want to do so until I was convinced that the figures were robust. Indeed, I am grateful to our officials who have worked tirelessly during the past two weeks in order to drill down and make sure that the figures are right. Before Third Reading I shall write to noble Lords setting out the position in full, and that will include responses to questions raised by the professions about the position of VAT and double counting. We have been in contact with Her Majesty’s Revenue & Customs and received the best advice on the VAT position. I shall set all this out in detail, which I hope will be useful. I am grateful to noble Lords for their patience in allowing me to get to this point, one where the figures are now more robust. Noble Lords will see that the estimate is a decrease from the figure I was talking about for the professions, and I hope that that is welcome. However, I appreciate that they will want to see the detail before agreeing that the figures are indeed robust. Finally, noble Lords should feel free to put any questions to me before we return to these issues at Third Reading.
I turn now to the principle underlying the debates. The noble Lord, Lord Maclennan, put very well the concerns that have been raised on the issue of funding, but we remain convinced that it is entirely appropriate for the legal service providers to bear the costs of these reforms. Here I want to reiterate the basis of that conviction. I am glad to say that we have a thriving legal market with a turnover in 2005 of £22 billion. The legal professions have a privileged position as the providers of reserved legal services. I believe that confidence in the system will increase as a result of the demonstrably independent regulation and complaints handling procedures, and I believe that the legal professions will benefit from that. I also think that the opportunity created in the Bill for alternative business structures will be to their benefit. They will be significant beneficiaries, and on that basis the Government think it entirely right for the significant beneficiaries to pay for the reforms.
I acknowledge that the Government will make some savings as a result of these reforms, but the job of government is to consider where to invest and what are the priorities. We believe that investment is most needed in other priority areas, particularly those where other sources of funding are not available. While I agree with the noble Lords, Lord Maclennan and Lord Kingsland, that the Legal Services Board plays a public interest role, I do not accept that that provides an argument in favour of a government contribution to costs. At present the legal professional bodies raise fees from their members not solely to pay for the cost of regulation. They also fund important public interest activities performed by those bodies. I cite, for example, participation in human rights and law reform work. The same approach should apply to all the functions which will support the new framework provided for in the Bill.
In Committee, the noble Lord, Lord Kingsland, and others discussed a number of comparisons, including the role of the Financial Reporting Council. I undertook to look at the funding arrangements for that organisation in more detail. The Financial Reporting Council’s accounting, auditing and corporate governance activities are funded by a tripartite arrangement, funding received in equal proportions from the accountancy professions, the business community and the Government. Other costs, audit inspection, investigation and disciplining of accounts are funded entirely by the accountancy professions. However, the Government provide no funding in relation to actuaries. The FRC’s funding arrangements in relation to its responsibilities for actuarial standards and regulation are as follows: 10 per cent from the profession, 45 per cent from the insurance companies and 45 per cent from the pension funds. As noble Lords would expect, I have also looked at the funding arrangements of a number of other regulatory bodies: the Financial Services Authority, the financial services ombudsman, the Council for Healthcare Regulatory Excellence, the pensions regulator, the office of communication and the claims management regulator.
That analysis highlights that there is no rigid approach in terms of government funding. There are cases where the Government fund establishment or running costs and cases where they do not. The decision in effect is taken on a case-by-case basis, but the Government’s starting principle is that there should be no increase in public expenditure unless there is a compelling case for public funding. In this instance we do not believe that there is any such compelling argument. It is not inconsistent in terms of government policy to require the professions to pay. I know that the legal professions have argued that if the Government were making a contribution they would be incentivised to reduce costs. We are committed to ensuring value for money in these reforms and that is why we have built in the safeguards to ensure that. The levy rules are subject to the extensive consultation requirements, to the consent of the Lord Chancellor and to parliamentary scrutiny through the negative resolution procedure. Together these measures will ensure that the spending of the new bodies is properly contained.
For the reasons that I have set out, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.
My Lords, before my noble friend sits down, the Bar Council and the Law Society have made certain observations about start-up and running costs. They say that new entrants to the profession will be adversely affected. Is she able to deal with that argument now?
My Lords, I have never heard the argument that new entrants will be affected in that way. Perhaps my noble friend and I might discuss that issue separately. Certainly I have set out the issues to do with the costs and I will do so in greater detail.
My Lords, the quality of the debate on the amendment has been high even by the standards of the debates we have had on previous amendments throughout the course of the Bill. I was particularly thankful to the noble Lord, Lord Maclennan of Rogart, who made an exceptionally fine and demanding—from the Minister’s point of view—intervention on behalf of our amendments. Although the noble Lord, Lord Borrie, sought to disagree with me he was at his most eloquent and my noble friend Lord Hunt has always found a certain amount of liquid in even the driest of water courses. I am most grateful to all of them.
The noble Lord, Lord Borrie, rightly said that we should look at the role of the Legal Services Board in a context wider than that of the regulation of complaints. We on these Benches accept the establishment of the Legal Services Board but at no stage in the Bill’s course have we sought to amend it so as to remove the board. We also accept that there are certain functions of the board in supervising the complaints system that should legitimately be financed by the professions. But the functions of the Legal Services Board go way beyond the complaints arena. My noble friend Lord Hunt dealt particularly vividly with the wider public interest. A number of other public regulatory organisations have both their start-up and their running costs supported by the Government. I can think of no public regulator of the sort that the Legal Services Board purports to be that is not in some form or other supported by the Government. Moreover, the authorised persons will have no control whatever over the number of additional functions that might be heaped on the board for which they will have to pay. There is nothing in the Bill that controls that process on their behalf.
Moreover, a range of existing functions currently financed by the taxpayer will now be transferred and become a financial burden on the authorised users. The Government are a net beneficiary of that process. The legal profession will carry burdens in future that were formerly carried by the taxpayer. Given the scale of the costs that the profession is about to meet, that is, in my respectful submission, entirely unacceptable. Despite the noble Baroness’s attempt at calming words, I find the situation entirely unacceptable. At this late hour we would probably be imprudent on both sides of the House to vote, but nevertheless I will give the noble Baroness a week longer to consider the position. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 166 [The levy]:
[Amendment No. 414 not moved.]
415: Clause 166, page 85, line 36, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
[Amendment No. 416 not moved.]
moved Amendment No. 417:
417: Clause 166, page 85, line 40, at end insert—
“( ) In apportioning or imposing a levy the Board shall have regard, inter alia, to—
(a) the extent to which any resulting increase in the regulatory fees of a regulator will be reasonable and proportionate in comparison to the fees already levied on relevant regulated persons;(b) the extent to which the levy might discourage entry to or retention in the regulated sector;(c) the extent to which the number of persons regulated by a regulator might be reduced in consequence of the amount of the levy;(d) the extent to which the regulator might be disadvantaged and another regulator might derive an advantage, in particular through the movement between the regulators of regulated persons as a consequence of any differences in the levy imposed;(e) the likely ability of the regulator to raise the levy from regulated persons;(f) the impact of the levy on the regulator’s viability.”
The noble Lord said: My Lords, I can deal with this amendment telegraphically. The noble Baroness will recall that the two regulators concerned with patents and trademarks were especially concerned about the considerable financial burden of the levy and start-up costs. They believe that further safeguards should be put into the Bill and have proposed in the amendment the same wording that appeared in our previous Amendment No. 142A in Committee. I know that the noble Baroness has set her heart against a definition of proportionality in the Bill but nevertheless I hope that she will accept that the concerns expressed by the authorities, and the fears that flow from them, genuine. Even if she is not prepared to accept the amendment I hope that she will be prepared to provide powerful words of comfort instead.
Amendment No. 433 concerns the issue that debt may be recovered only from the practising fees held by a regulator. Those were particular concerns of the patent and trademark regulators and although I do not hold out a great deal of hope that the noble Baroness might find a way of putting the amendment in the Bill I hope nevertheless that she can give me some reassurance. I beg to move.
My Lords, I agree with my noble friend’s comments, particularly on Amendment No. 417. Proportionality is an important principle—it is an express principle in other parts of the Bill—and there are good reasons for applying it here. I hope the Minister will be able to give a positive response.
My Lords, I support this. Proportionality, yes, but in what context and in what sense? This truly gives guidance with legal efficacy, but there is no harm in that in this particular situation. Without that guidance, what is proportionality going to mean? I will not go on about this—it is getting late—but there is a good and important point in the amendment, which I support.
My Lords, I appreciate that the noble Lord, Lord Kingsland, has brought this issue back again. I have already indicated that we have talked to the smaller regulators, because I understand their concerns. I said as well that I would look at what else we might be able to do on this issue to give them clarity and comfort about the situation.
I said during the debate in Committee that the board must be satisfied that the apportionment of the levy would be in accordance with fair principles before making the rules, and I still firmly believe that that, rather than a list in the Bill of what would inevitably be a prescriptive list of factors, is the appropriate provision. Noble Lords will know that I have a general aversion to lists as they can never be exhaustive, and often they could preclude a factor that we do not think of at the time but could subsequently become important—perhaps more important than other factors. I do not wish to do that because it is important to enable the philosophy of proportionality to be interpreted with the factors at the time, depending on the circumstances.
I recognise that the list sets out what the board should consider inter alia, so other matters should be considered too, but any list puts pressure on the board to consider those matters before anything else for fear of being reviewed, and that would restrict the flexibility of the board, something the Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys have said they do not want. They do not want a one-size-fits-all approach. I agree, and we would argue that flexibility is exactly what is needed to prevent that. Reducing that flexibility through a predetermined list could ultimately be to their detriment, and none of us wishes to see that happen.
I do not want to set out the principles. In our thinking we have followed the approach in Section 2(3) of the Legislative and Regulatory Reform Act, which establishes that regulatory activities should be carried out in a way that is transparent, accountable, proportionate and consistent, and that regulatory activities should be targeted only at cases in which action is needed. We believe that the terminology set out in the Bill in respect of proportionality and fair principles has a natural meaning that is widely accepted and widely understood, but it gives the flexibility to provide for the smaller regulatory bodies, which I know are concerned about this. I hope, as we continue to discuss this with them—we will certainly do so—that they will feel increasingly reassured that there is no question that one-size-fits-all would be highly inappropriate in the context of ensuring the smaller regulatory bodies are well catered for. We are all in agreement on what we are seeking to do; our contention is that we have achieved it within the Bill.
On Amendment No. 433, we would generally expect money owed in respect of the levy to be paid from practising fee income, and Clause 50(4)(b) provides that it can be. I do not want to set out in the Bill that that is the only source of funds that could be used to meet a debt to the board, simply because we do not want to restrict the flexibility of the regulators to meet debt in the way best suited to their own financial arrangements. To do so could force an approved regulator to divert practising fee income away from essential regulatory functions in order to pay the board, when it might judge that it was less damaging to use some other asset or source of income. It is unusual for legislation to restrict the way in which money owed may be recovered and to fetter the court’s ability to enforce payment of debts. We consider that the standard procedures that apply to the recovery of debt should apply in this case. It is a question of allowing flexibility for the regulatory bodies for circumstances we cannot foresee, where it might be in their best interests to provide for that money in other ways than simply using the practising fee. I hope that on that basis the noble Lord will feel he has some shreds of comfort, and will withdraw the amendment.
My Lords, I am not willing to commit to saying that we will make this into formal guidance. I am sure, however, that, in the discussions I have mentioned with the smaller regulatory bodies, their concerns, which are reflected in some of the issues raised by the noble Lord, Lord Kingsland, need to be properly dealt with. I am prepared to commit that we will continue the dialogue with them. It is our shared objective to ensure that they are treated properly and fairly. In legislative terms we have achieved that; in practical terms, it will be for the bodies concerned to make sure it happens.
My Lords, I am most grateful to the Minister for her response. What she said about Amendment No. 417 will have gone some way to appeasing the concerns of the two small regulators who were really behind the promotion of the amendment. I recognise that she is against an amendment that specifies the component parts of proportionality; indeed, having heard the cogent way she has argued the point, I have some sympathy for her.
On Amendment No. 433, as the Minister will be aware, there is a specific difficulty for the patent and trademark regulators because of their relationship with their own members. There would be nothing to prevent the patent and trademark attorneys leaving their societies but, unlike the case of barristers and solicitors, continuing to practise as patent and trademark attorneys. That is likely to happen unless the terms of the amendment are what happens in practice. I accept entirely that the Minister hopes that the practice by the Legal Services Board will be as set out in Amendment No. 433. Nevertheless, there is no compulsion, and, were it to be the case that the board went beyond the stipulations she has laid down, that could have an extremely adverse effect on those two small regulators. Still, I am aware that the Minister has strained to provide me with the answers I hoped to get, and in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
418: Clause 166, page 86, line 2, leave out “Secretary of State” and insert “Lord Chancellor”
419: Clause 166, page 86, line 7, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.