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5.18 pm
Mr. John McFall (Dumbarton): I thank the Minister for his comments, which are welcomed by the official Opposition. As he said, the three bad rules in contract law were an impediment to the law in Scotland. It is commendable that the Scottish Law Commission report has sent us on our way to making better contract legislation. I commend the Minister on the way in which the Bill was introduced. The draft Bill was produced in September and sent to interested parties for their comments. That is the proper way to do it, and if other legislation were treated in the same way, we might get better laws.
The Bill will make the Scottish legal system more cogent. The Minister mentioned the Law Society of Scotland, which has been closely involved in the Bill. The Law Society's secretary, Michael Clancy, has commented to me that the society is happy with the Bill, especially the provisions on
Question put and agreed to.
Bill accordingly read the Third time, and passed.
Mr. Malcolm Chisholm (Edinburgh, Leith):
I beg to move amendment No. 1, in page 2, line 42, leave out from 'and' to 'the' in line 44.
The Bill is largely uncontroversial. It clarifies and extends the existing powers of the legal services ombudsman, and gives extra powers to the local government ombudsman. We welcome the new power for the legal services ombudsman to recommend that a professional organisation--the Law Society of Scotland or the Faculty of Advocates--should pay compensation of up to £1,000 to a complainant who has suffered loss or distress because of its poor handling of his complaint. The amendment is motivated by our concern about the handing over of confidential information or documents to the ombudsman.
The issue was first raised in the Scottish Grand Committee by the hon. and learned Member for Fife, North-East (Mr. Campbell), my hon. Friend the Member for Linlithgow (Mr. Dalyell) and myself. The Minister tried to reassure us by saying:
Mr. Charles Kennedy (Ross, Cromarty and Skye):
He did a good job.
Mr. Chisholm:
I agree. The hon. and learned Gentleman made a helpful speech in Committee. Although I accepted the substance of his amendment, I was not entirely happy with the wording, which is why I have tabled my amendment today.
The amendment is partly about protecting the interests of third parties. In Committee, the hon. and learned Member for Fife, North-East gave the example of an accident involving two passengers in a car. The complainant might agree to his medical documents being handed over but the other passenger might not. The example of medical records is the most obvious type of document that some people might not want handed over, because they contain confidential information about previous medical history.
Dr. Norman A. Godman (Greenock and Port Glasgow):
I am grateful to my hon. Friend, although I do not know why, after this morning's performance. The Minister's performance was even worse. They both talked about E. coli 0157, when they should have been talking about the care of the elderly.
If the amendment is not accepted, could the ombudsman overrule a complainant's legitimate objections about confidential documents and acquire them anyway?
Mr. Chisholm:
That is precisely the point. The Bill would give the ombudsman the power to do so, if it is not amended. The Minister tried to answer the point about medical records in Committee. He said:
Mr. Norman Hogg (Cumbernauld and Kilsyth):
Does my hon. Friend agree that there is some logic in all the ombudsmen having precisely the same powers and remit, so that there is no confusion in the public mind? I can see no argument at all for this ombudsman having powers greater than those of, say, the Commissioner for Local Administration in Scotland. I do not understand what the Government are doing.
Mr. Chisholm:
My hon. Friend makes a good and pertinent point. Consistency is not a hallmark of the Government, but perhaps the Minister can rise to the challenge of that point when he replies. It is up to the Government to explain the discrepancy between the powers of the legal services ombudsman under the Bill and those of other ombudsmen.
"the admissibility of extrinsic evidence to prove an additional term of a contract or unilateral voluntary obligation; the supersession of a contract by a deed executed in implement of it; and the obtaining of damages for breach of contract of sale."
The principle of the Bill is sound, its passage has been commendable, and it will improve Scots law on contract.
"The ombudsman can require bodies to produce such information only if he considers it to be relevant . . . The ombudsman is concerned only with the Law Society's handling of a case--confidential papers from solicitors' offices are not relevant . . . I am a lawyer . . . I have no desire for the ombudsman to be involved with confidential papers".--[Official Report, Scottish Grand Committee, 9 December 1996; c. 74.]
Therefore, we were surprised that a Government amendment was tabled in Committee that provided that the supplying of confidential documents to the ombudsman could not be legally challenged on grounds of breach of confidentiality. To be fair, the amendment contained other changes that we welcomed, but we were surprised by the inclusion of the words:
"notwithstanding any duty of confidentiality owed to any person by the professional organisation as respects any such information or, as the case may be, documents, the organisation shall comply with such a requirement."
We take the view that it would be better to leave that open to legal challenge so that the greatest possible care would be taken in handing over confidential documents. To be fair, the word "relevant" provides some check. Clause 1 also states:
"the ombudsman . . . may require the professional organisation . . . to provide him with such information, being information which is within the knowledge of the professional organisation, as he considers relevant to his investigation; or . . . to produce to him such documents, being documents which are within the possession or control of the organisation, as he considers relevant to his investigation".
The question of who decides what is relevant still arises, and the answer is that the ombudsman decides. In Committee, the Minister also told us:
"the Secretary of State for Scotland will direct the ombudsman to use only information or documents that are obtained in the exercise of his powers in connection with his statutory functions."--[Official Report, First Scottish Standing Committee, 28 January 1997; c. 5.]
26 Feb 1997 : Column 370
That may provide some small comfort, but other checks are necessary.
I considered tabling an amendment to provide that the consent of the complainant should be required before documents were released. If our amendment is accepted, it would be wise for the consent of the complainant to be obtained before confidential documents are handed over, because that would give the Law Society and the Faculty of Advocates some protection. However, the wording "with the consent of the complainant" would not have covered every eventuality, because the confidential documents could belong to someone else, as the hon. and learned Member for Fife, North-East pointed out in Committee.
"Medical records could be released only with the consent of the individual concerned . . . consent is implied when a complaint is made".--[Official Report, First Scottish Standing Committee,28 January 1997; c. 14.]
That may sound contradictory, but it amounts to saying that consent would not have to be specifically asked for because it would be implied when the complaint was made. In other words, the power of the ombudsman will override confidentiality. That power is not held by the local government ombudsman or the Parliamentary Commissioner for Administration. Indeed, the Parliamentary Commissioner must seek the agreement of a complainer before confidential documents are handed over.
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