Clause
12
Meaning
of “reserved legal activity” and “legal
activity”
Mr.
Djanogly:
I beg to move amendment No. 210,in
clause 12, page 5, line 26, at end insert—‘(ea)
preparation of
wills’.
We have
now moved on to part 3 of the Bill, which deals with reserved legal
activities, as defined by the clause. The Opposition propose that the
writing of wills should be included in the list of reserved legal
activities that may only be carried on by authorised persons. The
clause identifies six forms of legal activity that will be regulated as
reserved legal activities: the exercise of a right of audience in the
courts, the conduct of litigation, reserved instrument activities,
probate activities, notarial activities and the administration of
oaths.
This probing
amendment is intended to prompt the consideration of whether will
preparation should be added to that list, as recommended by the Joint
Committee on the Draft Legal Services Bill, which
said:
“We note
that the offences in clause...12 will apply to a range of
situations where consumers may need protection... We recommend
that will-writing for fee, gain or reward should be included within the
new regulatory framework. The draft Bill should be amended to provide
for regulation subject to any exemptions necessary in the consumer
interest.”
The Joint Committee noted that
there is no existing regulatory framework for will writing or existing
professional body with responsibility for will writing. Accordingly,
there is a significant risk of consumer detriment from the activities
of unregulated will writers. The Government identified a similar risk
in relation to the claims management sector in the context of the
Compensation Act 2006. In that case, they
wanted
“A major change in
quality and behaviour by claims management companies so that the
service provided to consumers is significantly improved and
consumers’ expectations are not falsely raised through
potentially misleading advertising and other sales
practices”.
Some bodies, including the Law
Society, consider that the same changes and developments should occur
in relation to will writing. In fairness, it is arguable that there are
differences between writing wills, which relate to only one person, and
complex litigation. For most people, an off-the-shelf, do-it-yourself
will, purchased from a high street shop, would probably be perfectly
adequate.
I should
like the Minister to tell us whether the Government have conducted any
research on the issue. In particular, would extra regulation be likely
to reduce the number of people making wills? That is a key issue,
because too many people currently do not make a will, and we should
encourage, rather than discourage, will making. The Government have
already made clear that they wish to increase consumer protection by
bringing will writers into the scope of the regulatory
framework.
Mr.
Kevan Jones (North Durham) (Lab): The hon. Gentleman
referred to claims handling companies—a type of organisation
that, frankly, I would outlaw altogether. Those organisations are now
covered by the Compensation Act 2006. If they were offering will
services, would not those activities be covered by their
regulator?
Mr.
Djanogly:
I am not sure what the hon. Gentleman is trying
to say. Is he saying that, if claims handling companies offered will
making services, they would be
regulated?
Mr.
Jones:
I am suggesting that those activities are already
covered by the Compensation Act 2006, which regulates claims handling
companies.
Mr.
Djanogly:
I do not think that that is the case; I do not
think that will drafting is regulated in any way
whatever.
To conclude,
my concern is that, if there were regulation, far fewer people might
make a will. Most wills are pretty straightforward documents; it is
when complexity comes into will making that the possibility of mistakes
increases. That is the potential problem area, and I shall certainly be
interested to hear the Minister’s
views.
1.30
pm
John
Mann:
I am a little confused by the hon.
Gentleman’s speech, because he appeared to argue against his
amendment at the end. To quote the helpful explanation under the new
Bill system, of which I
thoroughly approve, the Members’ explanatory statement for the
amendment says:
“To add will-writing to
the list of reserved legal activities which can only be carried out by
authorised persons.”
When
members of the Transport Salaried Staffs Association wish to
participate in debates on transport, they must exclude themselves from
the deliberations, because they are deemed to have a vested advocacy
interest. There are other such examples.
The Chairman of the Select
Committee on Standards and Privileges clarified the issue precisely on
14 May 2002, Official Report, columns 731-750. I shall
quote only the relevant line, which says that
“from now on the only restriction
on Members’ freedom of action will be that they must not seek to
confer benefit exclusively on a body in which they have a pecuniary
interest.”— [Official Report, 14 May 2002; Vol.
385, c. 732.]
I vary from
Parliament’s view, because I do not believe that any restriction
is sensible. Transparency is the principle, but the issue prompts an
interesting question of Members.
The amendment would confer a
benefit exclusively on a set profession: it would be the only
profession that could benefit from that work, and it would do so
exclusively. Should a practising solicitor who is a Member of the House
wish to vote on the amendment, it could be argued that their company
would benefit and that, either indirectly through the profits of their
company or directly through their own work, they would
benefit.
This is a
good juncture at which to explore the issue of advocacy. I do not wish
to see anyone excluding themselves from any votes here, but this is as
precise an example as it is possible to get. The benefit would be
exclusively to the said profession, as outlined very helpfully in the
Members’ explanatory statement; that is what this provision
would do. It could not be argued that voting against it would confer an
exclusive benefit, but voting for it could.
I merely make the observation
that should Members proceed on that basis, it would set a
precedent—possibly very helpful—for the limits on
advocacy and the Nolan principles. I would regard that as very
sensible. Some of the nonsense in the past, such as TSSA members being
excluded from a Committee because of their membership of that
organisation, was ludicrous, but that is what
happened.
Mr.
Jones:
May I offer my hon. Friend an example from local
government? I was on a planning committee once, and because a number of
people on it were season ticket holders of a well known north-east
football club, they could not take part in the
decision.
John
Mann:
The balance, as Parliament determines it, is skewed
towards preventing people from doing things, rather than towards
transparency. The key principle is transparency, and one’s judge
is one’s voters. As long as there is transparency, the voters
will be the final arbiters of anyone’s behaviour. That is my
view; it is not the view of the House, as determined on its behalf by
the Standards and Privileges Committee.
The situation under discussion
is a good exampleof conferring an exclusive benefit in which
Members might have a pecuniary interest, so it is relevant,
Mr. Cook, to make such observations at this
time.
Several
hon. Members
rose
—
The
Chairman:
Order. The Chair has been very tolerant of the
discussions so far, and I commend hon. Members for the diligent manner
in which they are applying their attention and focus to the quality of
the debate, but we cannot entertain a wide-ranging debate on the
House’s rules on advocacy. If the hon. Member for Bassetlaw
wants to raise that issue, the House has other more appropriate ways in
which that can be done. Although I commend hon. Members for their
diligence and conscientious application to the broader issues, we must
focus our attention on line-by-line scrutiny ofthe
Bill.
Mr.
Jones:
On a point of order, Mr. Cook. I concur
with my hon. Friend the Member for Bassetlaw. For example, at least one
member of the Committee will potentially benefit from this clause. If
we allow this matter to go through without a ruling before we get to
the end of the Bill, questions could be asked about how we have
scrutinised it.
The
Chairman:
I have to remind the Committee once more, as I
did on Tuesday, that this is a matter forthe Standards and
Privileges Committee, not this Committee. If Members have a problem,
they should consult the register, and if they still have a problem they
should refer it to the Standards and Privileges
Committee.
Simon
Hughes:
I shall return to the central purpose of this
clear and important amendment. As the hon. Member for Huntingdon said,
we are on to part 3 of nine as we rush on. We are doing well. It is
another part that starts with a definition and comes to the statement
later, just en passant.
Part 3 is about the regulation
of legal activities and which legal activities are governed by the
Bill. First, we define the reserved legal activity and legal activity
in clause 12, and then the relevance of defining them
appears first in clause 14, which sets out the
proposition with which this part deals. That proposition is that if one
carries out a certain activity, one has to be approved to do so and if
one is not approved, it is an offence to carry it out. Clause 12 lists
those activities, which are
“the exercise of a right of
audience...the conduct of litigation...reserved instrument
activities...probate activities... notarial
activities...the administration of
oaths.”
I shall come back
to that list, but the obvious omission, which has been proposed for a
long time, is the writing of wills. I have thought about the subject a
lot, and I start from the position that we should not seek to regulate
things unless we have to regulate. That is always my position in life.
We have far too many laws and regulations, so I am not in favour of one
more.
There are three
generic ways in which a will can be written. First, people can write
their own, and no one is suggesting that there should be any reduction
in the number of people who do that, or control of them.
Secondly, people go to a solicitor who has wills and probate as part of
their advertised job. Many solicitors do wills as part of their
business, and some have wills and probate as a key part of their
business. Some generalist solicitors see wills, probate and
conveyancing as their main, routine, run-of-the-mill work. Thirdly, other people also do
will writing. This debate is a bit like the one that we had on the
Compensation Bill. We are talking about people about whom one would
probably never have known until one day, a flyer came through the
letterbox, there was an advert in the local paper, a leaflet was handed
out atthe shopping centre or one was told about them.
Alternatively, someone might give staff at an old people’s home
information about local will writers. Bluntly, most people would not
have a clue about who those people were or what competence and
authority they had. That is a real concern. I want to cite some
examples.
Stephen
Hesford (Wirral, West) (Lab): Will the hon. Gentleman give
way?
Simon
Hughes:
Of course I shall, but in a
minute.
The Minister
owned up—as I did and as others have done by
implication—to the fact that there is a fourth category of
people about whom we are concerned: those who have never addressed the
question at all and have done niente about it. We all need to do
better, especially if we are beyond our 20s and 30s and have family
responsibilities, and other people depend on knowing what the score
is.
Of course we
should encourage people to write wills. That does not necessarily mean
encouraging them to go to lawyers to do so. If the wills are simple,
people can make them themselves; they could get the advisory pack from
Woolworths or somewhere else. I am conscious that there is a campaign
to have more will writing. I have owned up to the fact that I supported
such a campaign, prompted by a firm in my constituency that produces
the packs that provide such a service. I am sure that the firm offers
that service,as
well.
Stephen
Hesford:
In the Joint Committee that examined the draft
Bill, I was persuaded by and attracted to an idea not dissimilar from
the one behind the amendment—that wills should fall within this
category. The Committee did not agree. I do not know what the
Minister’s attitude
is—
Bridget
Prentice
indicated
dissent.
Stephen
Hesford:
My hon. Friend shakes her head. I do not know whether in the fullness of time I shall be able to vote for it if the matter is pressed to a Division, but I can certainly see the argument.
Simon
Hughes:
I am trying to be completely open about this
issue, which involves a balance of judgment. In a minute, I shall give
the reason why I think that the hon. Member for Wirral, West is right
and why I hope that the Minister will concede the point.
I pick up where the hon.
Gentleman left off. The Joint Committee examining the draft Bill
said:
“We note
that the Government concluded in its White Paper in respect of will
writing that although there was no ‘compelling argument for
statutory regulation’, that it was the Government's view that
‘improvements must be made in the control of quality and
standards of will writing and related services in order to protect
consumers’. We note the Government's conclusion that this could
most effectively be achieved by voluntary regulation, codes of conduct
and consumer education. We do not
agree.”
The Joint
Committee concluded that it did not agree with the Government’s
view. In passing, I observe that, as I understand it, there is no power
in this Bill for the Government to give guidance to the Legal Services
Board, although I may be corrected. There is no power to add the
desirable, as well as the statutorily
necessary.
The Joint
Committee also
said:
“We
recommend that will-writing for fee, gain or reward should be included
within the new regulatory framework. The draft Bill should be amended
to provide for regulation subject to any exemptions necessary in the
consumer interest. We note that there is currently no existing
regulatory framework for will-writing and no existing professional body
with responsibility for will-writing activities. We note that these
hurdles have been overcome in respect of the claims management sector,
in the context of the Compensation Bill, and urge the Government to
consider whether will-writers might be brought within the scope of the
regulatory framework in a similar
manner.”
The hon. Members
for Bassetlaw and for North-West
Durham—
Simon
Hughes:
I beg the hon. Gentleman’s pardon. Durham
is a nice city in a nice county, although I am not sure about the
constituency boundaries. During the Compensation Bill proceedings, both
hon. Gentlemen argued that we should bring that group of activities
within the law—and we have done so, courtesy of the Government.
My current argument is similar, and I hope that the hon. Gentlemen find
it attractive. I am not arguing at all that we should set up a separate
profession of will writers; that is not my case. We need to debate
whether all those different professions need to exist as such, and I
shall come to that point in the clause stand part debate. I am
concerned about thejob of will writing, rather than the
professional occupation. It could reasonably be done by other people.
One could go through a door marked “A variety of
services”, and will writing could be one of
them.
1.45
pm
I want to give
three examples of why the issue is important. In fact, my first point
is not an example, but comes from my own experience. In the years of
practice following my law degree, I found that interpreting wills was a
fantastic source of work. Often, people’s wills do not reflect
what they want them to reflect. If people get bad advice, they often do
not write down—or it is not written down—what they wanted
to happen.
As we all
know, issues such as wills are greatly sensitive. Once someone dies and
the will is looked at—not in the old-fashioned way when it is
read out in front of all the prospective beneficiaries—the most
terrible rows can ensue, because people think that they should have
been included or that someone should
have been excluded—first wives or first husbands. There are
debates about when the will was written. There are also the issues
connected with old people: have they been pressured into writing their
will and who was there at the time? All those issues make massive
work for lawyers. They make even more work if they are not clear.
Someone might write a will leaving everything to their daughter, which
is clear and unarguable. That might happen without a will anyway if
there is only one daughter. However, somebody may have six daughters.
If they write “I leave everything to my daughter,” that
would not be clear and a debate would be needed. There is a fantastic
amount of debate out there. People often have to go to solicitors or to
the courts. That causes great angst, trauma and family disharmony.
Therefore, there is a real live issue out in the
community.
John
Mann:
The hon. Gentleman makes quite a compelling case.
Does he not accept that there is one caveat? Probate issues cause the
most bitter rifts in mining communities. They are the most divisive of
issues. The problem is usually to do with principle, rather than large
amounts of money. One of the problems is not so much that wills are
unclear, but that there is no will. Will the measure entice more people
to make a will, or
fewer?
Simon
Hughes:
Of course, that is an issue. I believe that we
should encourage people to make a will. If people do not make wills,
the law decides where their property goes. If they are married, their
property goes to their husband or wife. I think that, if they
havea civil partner, it goes to their civil partner.
[
Interruption.
] If a Back Bencher says that that
is not the case, I stand corrected. Certainly, if someone is married,
their property goes to their husband or wife. If someone is single but
has children, the property goes to the first generation. A statute
deals with the administration of estates. It is not always terribly
clear, but there is a law.
The hon. Gentleman was right
when he said that it is hugely problematic if someone has not
specified, or not specified clearly, what should happen to their
property. We ought to be encouraging people to make wills and to make
them as simple as possible.
Robert
Neill (Bromley and Chislehurst) (Con): The only connection
I have ever had with a will—apart from making one—was
when I prosecuted someone for trying to forge one, which is not the
issue now. I agree with the hon. Gentleman’s point. Does he
agree that his point was reinforced by a debate in the other place?
When difficult and intractable disputes occur over a badly drafted
will, one of the problems is that, in a sense, it is too late. The
person whose intention is in question is dead. Expensive litigation is
the only means of rectification, which hits the person’s nearest
and dearest. That is a compelling argument for
regulation.
Simon
Hughes:
The legal case might be fine if one is dealing
with the estate of rich Texan millionaires or billionaires and
well-proportioned women 60 years their junior, and even their children.
Bluntly, there is plenty of money floating around, so going to court to
dispute who is to inherit the estate will not take a significant amount
of it. However, that is not the case for lots of people. The smaller
the income, the bigger the issue. A legal dispute can use up
everything; everything can disappear.
The Law Society made a good
general point in its briefing that gives me an introduction to my
examples. We live in a society of changing family structures, and there
are more categories of family. Families are more complex. There are
single people, straightforwardly married people, cohabiting people,
civil partners, people who are separated but still married, divorced
people—sometimes living together, sometimes
not—legitimate and illegitimate children and many step-families.
I shall use that fact as a peg on which to hang my three
examples.
I alluded to
the first during the debate on Tuesday. The estimable nephew of mine
whose birthday I said fell on the same day as that of the hon. Member
for Enfield, Southgate was very excited when I rang him up to tell him
that his happy birthday would be featured in Hansard. Well,
relatively excited; “very excited” is overstating things.
He was intrigued and relatively excited. He married just over two years
ago, and he and his wife have brought into the family a child of their
own, as well as his child and her children from previous relationships.
If his will said, “I leave these to my children” and did
not specify, that self-evidently would not answer the question, because
it would not say whether it meant his natural children or his
wife’s children whom he took on.
I do not know what will happen.
My nephew might never formally adopt or take legal responsibility for
his wife’s children, who live with them in their joint home, but
that is exactly the sort of issue about which bad advice, bluntly,
could have exactly the wrong result. If, having written a will, he died
and the will was not clear, a dispute could immediately arise between
his natural children and those who became the children of the family,
who by then might be married adults with children of their
own.
The second
example concerns a constituency case with which I am dealing at the
moment. I am trying to sort out for a constituent, for the purposes of
probate, some money from the sale of her elderly mother’s flat,
which was sold when she became ill and incapable of running her own
affairs and had to move into residential care. It is a common
circumstance. Her daughter, one of two, was given power of attorney
while the mother was still compos mentis enough to do so. She sold the
flat and her mother moved into residential and other care, and
subsequently died.
At
the beginning, the daughter simply used the funds to pay for
residential care and so on as necessary—topping up the care
given, paying for an assessment—and she did not think to put
that money into a separate account. She put it into her account, and
eventually her bank said to her, “You ought to put it into a
separate account to make it clear that it is the residuary amount from
the sale of the flat.” She put it into a separate account, but
an account in her name. Nobody had said to her that she ought to put it
into an account for her mother, so she just opened an additional bank
account in her name.
Then her mother died and she
was very busy dealing with the funeral, paying for it out of the
account and
paying disbursements. When she next had the opportunity, she passed
affairs to a solicitor to deal with probate. When she gave the bank
account books to the solicitor—we are not talking about big
money; it was about £15,000—and said, “Please sort
this out and get probate,” she did not immediately think about
the residual account in her name. She went back to the solicitor later
to say, “I beg your pardon; I should have added this, because
although it is in my name, I have never touched it other than in
connection with my mother’s affairs, and I am clear that it
should be dealt with as part of probate.” If the daughter had
died before that was resolved and had left a will, would it have
included the money in that account? That is exactly the sort of
question that we must ask. There is probably more money in that account
than is coming to her in another
way. I come to my last
example. Often, people want to give particular things to particular
organisations—charities, for example. People sometimes give
extraordinary amounts to extraordinary charities, but that is their
choice and they are entitled to do
so.
Mr.
Bellingham:
And to the Liberal
Democrats.
Simon
Hughes:
Indeed, but I do not think that the Liberal
Democrats are a charity, technically, although that may be the view of
Committee members. However, the party has good, radical roots as an
organisation, like the Labour party, and it is different from the
Conservative party. But it is not a charity. Our political parties have
special status.
People
give to charities, but if an organisation ceases to exist—the
cats’ home might be closed, or whatever—what happens? Was
it intended that the sum should go to something similar or something
else, or to another charity that was mentioned? I have just given three
examples, but they are real-life practical ones. If people decide to do
it themselves—we all agree that, ideally, one should write a
will—they need someone to give them competent advice. There is a
strong case for such people to come under the regulatory umbrella. I
hope that the Minister is
sympathetic.
Of all
the amendments on the amendment paper, this is probably the least
complicated, so the one defence of all good Ministers, which is that
they will have to take advice on the drafting, is not
available—at least, I should be surprised if it were. The
Minister might say that she must talk to all the people in government
who are concerned with the end of time or the end of
things—there might be a lot of those at the moment—but I
hope that she will be sympathetic. This is an important issue and, on
balance, I think that we ought to follow the Joint Committee’s
advice. I hope that we can do so, subject to a later debate about not
necessarily creating a separate profession, because that is not a
necessary
outcome.
Mr.
Bellingham:
There is a famous saying that people can live
without lawyers, but cannot die without one. That is pertinent to what
the Member for North Southwark and Bermondsey has said. We have all
encountered constituency cases where total nightmares have been created
by wills being fought over by relations, often on the basis of easily
avoidable
mistakes, which could have been circumvented if the right legal advice
had been taken.
I
have two current constituency cases, where a number of family members
are now in serious legal dispute about the estate. In one, various
members of two branches of the family are all taking different legal
advice. The estate will be completely dissipated by legal fees and
nothing will be left for the family members, who have been fighting
over the will, to divide among themselves. As the hon. Gentleman said,
the larger estates can probably withstand legal fees and the legal
advice that is needed to try to sort out the mess when serious errors
have occurred. However, in respect of smaller estates—often,
involving families who do not have a huge amount of
money—everything can be wiped out as a result of such
complications.
The
report of the Joint Committee on the Draft Legal Services Bill is quite
compelling. We have heard exactly what it said. May I ask the Minister
why the Government did not take the advice of that Committee, on which
my hon. Friend the Memberfor Enfield, Southgate served?
Furthermore, am I not right in saying that, among the Joint
Committee’s recommendations, is the one at paragraph
216:
“there is currently
no existing regulatory framework for will-writing and no existing
professional body with responsibility for will-writing
activities.”
Perhaps
the Minister can tell me whether I am right in saying that two bodies
now represent the interests of the independent will writers and that
those will-writing organisations cater for and self-regulate those will
writers who have set up outwith the legal profession. Those
organisations are, in many ways, doing agood job.
Like my hon. Friend the Member
for Huntingdon, I am not a natural regulator, so I tabled this probing
amendment to hear what the Minister has to say. I should be grateful
for an answer; I hope that her officials will know the answer. I have
it on good authority that the two organisations that I mention were set
up.
Paragraph 5 of
schedule 2, in volume II of the Bill, describes “Reserved
instrument activities”, whichrefer to
“preparing any other instrument
relating to real or personal estate for the purposes of the
law...or instrument relating to court
proceedings”.
I am
slightly confused, because a disposition of landor property by
me during my lifetime is a reserved instrument activity and therefore
has to be done by a qualified person, but a disposition of land by me
in my will can be done without having my hand held. I should like the
Minister to comment on
that.
2
pm
With my request
for clarification on those two points, I should like the Minister to
consider our probing amendment, because we feel strongly
aboutit. As the hon. Member for North Southwark and Bermondsey
pointed out, it is a simple amendment. The Minister is rejecting the
Joint Committee’s recommendations. We need to know why she is
doing that and what her current view is on how this small but
flourishing industry is managing its affairs.
I am speaking slightly against
our probing amendment now, but if it were accepted—the Minister
will tell us her views on that in a moment—and will writing
became a reserved activity, the problem would be that the two
organisations that have been set up, as well as the numerous will
writers out there, could presumably carry on as alternative business
structures, but would have to wait until the ABS regime had been
introduced. As far as I am aware, we have not received representations
from will writers, but I know that they are doing a good
job.
Finally, I would
reject strongly any suggestion that Opposition members of the Committee
do not have either a right or locus to speak on the issue. We have had
a discussion about interests, and we have all declared our interests.
We have been completely honourable and above board about that, so the
idea that my hon. Friend the Member for Enfield, Southgate could
benefit if the amendment were accepted is ridiculous and fatuous. I
hope that the Minister will explain the situation and look on our
probing amendment in a positive
light.
Mr.
David Burrowes (Enfield, Southgate) (Con): I do not want
to repeat unduly what has been said in support of the amendment, but I
should like to respond to the hon. Member for Bassetlaw. I take note of
your concerns about not straying into uncharted territory,
Mr. Cook, but it is important always to listen carefully to
the hon. Gentleman’s interpretation of the Committee on
Standards and Privileges, so I await with interest to see how much he
participates on clause 15 when we reach it and whether he wishes to be
consistent with his remarks
elsewhere.
I
particularly take issue with the hon. Gentleman’s main basis for
concern about the amendment and the Members’ explanatory
statement, which says that
the
“reserved legal
activities...can only be carried out by authorised
persons”.
Plainly, those
authorised persons do not necessarily mean solicitors, those authorised
by the Law Society or, indeed, particular firms. “Authorised
persons” does not refer exclusively to a particular body;
indeed, the whole rationale behind the Bill is to extend legal service
activities to a range of groups. The Willwriters’ Association or
any other group may well want to get involved, but the amendment is not
exclusive, as the whole point of the Bill is to avoid a closed
shop.
The amendment
is not about saying that we should increase services and activities for
solicitors firms and thereby ensure that they have a closed shop on
will writing—far from it. One has genuine admiration for the
hon. Gentleman’s fight on miners’ compensation and for
the passion with which he follows through his constituents’
concerns, but as I understand it, he is not necessarily on a personal
campaign against individual lawyers; rather, his concern is about the
need for robust regulation, as he said on Second Reading. He may make
that argument, but on the other hand he doesnot support an
amendment that would introduce regulation in a currently unregulated
field, as this amendment
would.
I wonder
whether other hon. Members have mentioned constituents who come to
their surgeries to complain about the great grievance and injustice
that is
caused when their relative’s clear intention to provide a proper
inheritance for a family member is frustrated. One cannot equate that
injustice with others, and nor does one want to create a hierarchy of
industrial injuries, pecuniary loss and injustice from a probate
dispute. The question
is whether we should allow a field of increasing complexity to be so
unregulated. Family relationships are increasingly complicated, and
inheritance tax is an issue as well. With property prices rising, the
Chancellor is taking more and more from the estates of many of my
constituents, and they need proper advice on how to deal with that.
There is no doubt that the regulation proposed by the amendment would
be in the interests of consumers. Hon. Members should rest assured that
the amendment applies a light
touch.
Mr.
Bellingham:
A light
touch?
Mr.
Burrowes:
Absolutely. However, there should also be
consistency. If there are protestations to the effect that there should
be robust regulation, and if there are cases showing the area to be one
that should be regulated, rather than one in which a voluntary code can
be relied on, there should be a consensus of support for
change.
Finally, will
the Minister say whether, since the response to the White Paper and
since the Government’s own comments on such activities, which
included concerns about quality control and standards, the Government
have been satisfied that voluntary regulation and codes of conduct are
satisfactory? What steps have been put in place to improve consumer
education, and, in the substantial intervening period, has there been
improvement such that regulation is not
warranted?
Bridget
Prentice:
The debate has been interesting and I have a
great deal of sympathy with some of the examples that hon. Members have
given. We have all had constituents at our advice surgeries who have
had problems with probate and other such issues. However, it was
interesting that among all the anecdotal examples cited, there was no
evidence that bad advice had been given by people who were not
solicitors, for example, or that bad advice was necessarily being given
by non-professionals. That is why ultimately, I shall resist the
amendment.
At the
beginning of his remarks, the hon. Member for Huntingdon asked me what,
if any, research the Government have done on the matter. We have indeed
done research and we have been reviewing the matter for some time,
because, in essence, will writing sounds like something that could or
should be considered a reserved legal activity. In March 2005, the Lord
Chancellor said that we would consider the issue of will writing and of
estate administration services. Since then, we have worked with
consumer bodies and we have asked the Office of Fair Trading to review
the matter. The OFT, consumer bodies and the current providers of
will-writing services were asked to provide us with robust evidence
that might be suggestive of systematic failure in the current system
that could put consumers at risk.
A comparison was made by my hon.
Friend the Member for Bassetlaw with claims management, which I think
was a fair comparison. We have had shedloads of evidence of claims
management services being badly run and badly handled, and giving bad
advice that was hugely detrimental to consumers. Lots of opinions were
expressed about will writing, but no evidence has been supplied to
support the idea that regulation is the way forward at
present.
Robert
Neill:
The Minister said that there was shedloads of
evidence in respect of claims handling. We all accept that, but surely
she would agree that the injustice potentially done to people is
measured not by the quantity of such incidences, but by the damage done
to those individuals. As the hon. Member for North Southwark and
Bermondsey said, such problems are experienced by ordinary people with
small estates; they do not receive the attention of Members of
Parliament, and they are not the subject of the able campaigns that
arose in respect of claims handling. Just because there is not
shedloads of numerical evidence, that does not mean that there is not a
real risk below the radar screen. It would therefore be sensible to
regulate all those who write wills, whether or not they are members of
the
profession.
Bridget
Prentice:
I accept that numbers are not necessarily the
only form of evidence. However, Iplace confidence in the work
of many consumer organisations, which often begin with anecdotal
evidence and then build up further evidence on whether there is a
failure in the system. In a sense, that was how claims management began
to show itself to be a
problem.
We have not
had that problem with will writing. The National Consumer Council was
explicit regarding why will writing should not be a reserved service.
It said that it should not be so,
unless
“there is robust
evidence of consumer
detriment”.
It is
concerned
that
“Excessive
regulation increases costs for consumers and constrains
competition”,
and that it
would
“fly in the face
of the Hampton good regulation
principles.”
The
Conservative party makes me smile. It is asking for more regulation,
but I thought that it wanted less. However, perhaps that is the new
conservatism, further examples of which we look forward to
seeing.
None of the
evidence that has been forthcoming—limited as it
is—suggests that non-regulated will writers are making more
mistakes than those who are regulated. Solicitors, regulated by the Law
Society, do not have formal training in will writing and are just as
capable of making mistakes as those in the non-regulated
sector.
Mr.
Jones:
I have dealt with numerous miners’
compensation cases. The Minister’s point is true of many of the
legacy cases in which families were involved. The problem is not only
with the writing of the will, but with dealing with the probate
afterwards and the mistakes made by the
solicitors.
Bridget
Prentice:
My hon. Friend is right. Additional evidence
from Which? says that no one type of will-writing professional gave a
consistently good service in its test or was significantly better than
others. Which? has a pretty robust system of analysingsuch
matters. I do not accept that those subject to regulation, such as
solicitors, will automatically provide a better quality of service than
those whoare
not.
Simon
Hughes:
I share that view, but whatever we think about the
present complaints system—clearly, we do not think it good
enough, which is why we are here—at least such a system exists.
If a solicitor gives a person’s family bad advice about a will
or probate, there are steps that can be taken. I assume that someone
could tell us how many complaints related to wills and probate have
been received. However, there would be nowhere to go if we could not go
to a solicitor. There is no other organisation that we could check in
the same way.
Bridget
Prentice:
I shall come to that point in a moment because
it relates to the issue raised by the hon. Members for Enfield,
Southgate and for North-West Norfolk about the organisations that
represent will writers. The important thing is that any regulation must
be proportionate. I chide the hon. Member for Enfield, Southgate for
using that horrible phrase, which I am trying to ban hon. Members from
using in relation to this Bill. However, regulation must be
proportionate and based on an assessment of risk. The Government do not
at the moment see any serious evidence of systemic
failure.
2.15
pm
The hon. Member
for North-West Norfolk asked about reserved instruments and why wills
are not included. One reason is that a will is a set of instructions
rather than a disposition. Even if real property is left in a will,
some other formal transfer would almost certainly have to take place.
The Government’s approach in the Bill is exactly the same as
that set out by the Solicitors Act
1974.
Simon
Hughes:
I think that I understand the point that the
Minister is trying to make. Of course, if one writes a will saying
“I give my field to Auntie Mabel”, when one dies, there
has to be a probate that acts as the transfer. We have got cover for
probate, which is dealt with elsewhere. The issue arises when a will is
not clear. The fact that the one matter is covered does not mean that
the other should not be covered, because if the will is wrong, the
probate will by definition also be
wrong.
Bridget
Prentice:
The hon. Gentleman makes a fair
point.
The hon. Member
for North-West Norfolk mentioned will writers’ organisations.
The amendment would mean that, as a reserved activity, will writing
could be done only with the proper authorisation and approval of
regulators such as the Law Society. If it wanted to authorise and
regulate the supply of such services, the organisations that represent
will writers—the Society of Will Writers and Estate Planning
Practitioners and the Institute of Professional Willwriters—would
need the approval of a regulator. That is technically possible, but it
would mean that the representative bodies would be brought under, for
example, the Law Society’s regulatory
activities. The hon.
Member for Huntingdon asked what discussions I have had with the
professions. Last year, there was an event involving the Law Society,
the Institute of Professional Willwriters, the Society of Will Writers
and Estate Planning Practitioners and some of the consumer
organisations. It was accepted that, although there is currently no
statutory regulation of will writing, the Legal Services Board will be
able to recommend that the Secretary of State bring it under such
regulation.
That event
was followed in May last year by another that was hosted by the Office
of Fair Trading and the DCA, which was attended by the same
organisations. The possibility of enabling people to apply to the OFT
under its voluntary code scheme was suggested. For the sake of the hon.
Member for Enfield, Southgate, I shall outline what the scheme does.
Obviously, it is not as strict as statutory regulation, which reflects
the fact that different types of work need different types of
regulation. The scheme aims to safeguard consumer interests by helping
them to identify businesses that have a higher standard of customer
care. By signing up to the approved code, a trader has agreed to
provide the consumer with the benefits outlined in the code, which
include clear pre-sale information—I know that, like me, the
hon. Member for North Southwark and Bermondsey has advocated that at
length—fair contracts and access to independent redress
mechanisms. Those are the key issues that were identified in improving
will-writing services. The code offers higher levels of consumer
service than are required at present. The organisations are considering
whether to take it on board, although I understand that many are
waiting for the Bill to achieve Royal Assent before they go any
further.
It is for
those reasons that, much as I appreciate the examples that have been
given, I cannot ask the Committee to accept the amendments. This would
be an ideal issue for the consumer panel to consider and, if it felt
that there was some systematic failure, to make recommendations to the
Legal Services Board. I cannot in all honesty recommend that we accept
it today, because we have no concrete evidence of sucha
failure, so I ask the Committee to reject the
amendments.
Mr.
Djanogly:
This has been an interesting debate. I have an
open mind on the subject. The hon. Member for Bassetlaw said that he
was not sure where I was coming from, but we needed to have the debate
and so tabling a probing amendment was worth while. The debate has
proven that to be the case. I have some sympathy with the
Minister’s point of view, and she eloquently explained how
evidence is needed, ultimately, in order to regulate. I think that it
is, and I was supported in that by the comment made by my hon. Friend
the Member for North-West Norfolk that one should not regulate unless
it is required and that there should be evidence for it.
I am not saying that the hon.
Member for North Southwark and Bermondsey and my hon. Friends did not
make many valid points—many were made, but many were anecdotal.
I have not received any complaints about will writers, and I have
received many objections to and complaints about various parts of the
Bill. I am not saying that such complaints do not exist, but I have
received none and I have not heard anyone else mention a particular
complaint.
I note
that clause 12(6) allows further legal activities to be added in due
course—I think that the Minister said this—so if
complaints were to arise and the matter were to become a problem, the
Bill has provision to allow us to cater for that in due course. On that
basis, I will
ask—
Simon
Hughes:
I am conscious that the hon. Gentleman’s
name comes first on the list, and that he might be about to withdraw
the amendment. I am willing to go along with the approach that I expect
him to take, although there is still a strong case and I want to ensure
that we can return to the subject. There are ways in which we can check
some of the things that the Minister said. If the hon. Gentleman
intends to withdraw the amendment, I will not resist that today, but I
hope that he will not exclude the possibility that we could table the
amendment again, either in this form or a revised one, on Report. There
is clearly interest and support across the Committee, and I would not
want us to fail to recognise that.
Mr.
Djanogly:
If evidence comes up and there is interest in
re-debating the matter on Report, I would have no objection to that. We
can consider that when we consider today’s debate and any
further evidence that emerges before Report. I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
the clause stand part of the Bill.
Simon
Hughes:
I would like to raise a question that comes
up only in this clause. Is it logical in 2007 and beyond in England and
Wales to separate into profession or activity some of the issues that
are in the list in clause 12(1)? There are currently six issues
inthe
list:
“(a) the
exercise of a right of
audience;
(b) the
conduct of
litigation;
(c)
reserved instrument
activities;
(d)
probate
activities;
(e)
notarial activities;
(f) the administration of
oaths”.
I want to ask two
questions. First, is it clear in clause 12 and onwards—and the
minister can take advice on this—that we are not seeking to
alter the fact that under the current system lay people can act for
themselves? Obviously, one should be allowed to do as much as possible.
There are rules about which court a person can appear in as a litigant
and so on. I want it to be made clear in the Bill that we are not in
any way saying that people should not be able to do their own thing
where they can. Courts police that and judges ensure that people do not
abuse the process. Although
litigants in person are often difficult, I hope that we all understand
that that system should continue. Will the Minister make it absolutely
clear that individuals will still be allowed to represent themselves in
all those areas? The
more technical point is this. I understand why, historically, there
were people who carried out the administration of oaths and why there
were notaries public. I exclude the Minister’s advisers who, I
assume, are wise on these things, but I bet that, if I asked the
Committee, colleagues in the House and people on the street what a
notary does, or is entitled to do and what the difference is between a
notary and a solicitor, the chance of getting the right answer would be
about 1 per cent. Likewise, if “administrator of oaths”
is on a plate outside a door, would that person be a solicitor? Often,
the plate will say “solicitors”. It may say
“solicitors”, “notaries public” or
“solicitors, notaries public and administrators of
oaths”. I may be about to offend some great and august
organisations that represent the notaries and administrators of oaths,
but, if we are trying to act in the interest of the consumer, it seems
to me that we ought to put them all in one place professionally. If
someone wants an oath or an affidavit sworn—I am not talking
here about being a witness to somebody—logically, they should
not have to think, “Do I need to go to this place? Is this
authorised or regulated?”. There should be one group of people
who offer a broad range of legal services similar to that of a
traditional solicitor. It is time to have administrators of oaths,
notaries public and solicitors all doing one job so that all the people
who offer those services, although they are separate jobs, will be in
the same professional organisations.
I would be grateful if the
Minister would put onthe record, probably as much for my
education and elucidation as other people’s, what notarial
activities are. I know that we will hear definitions of such terms
later on, but I do not think that we have a separate definition of
notarial activities. I will probably be shown later that we do. We all
understand what administrators of oaths do: they are people before whom
we can swear an oath. But do they do anything else? We all understand
what it means to exercise the right of audience. I presume that we all
understand the conduct of litigation and probate activities. This is a
plea, first, for the Minister to reflect, possibly out loud, on advice,
on whether it is time to roll those things together in the consumer
interest and secondly for her to think about whether we need to provide
different arrangements, definitions and so on. In the interests of
simplicity, we are regulating the legal profession and sorting out
legal services. Let us seize the moment and get rid of a bit of history
that, although it may have been relevant in the past, is no longer
justified or logical, as far as I know, in the
present.
2.30
pm
Bridget
Prentice:
As the hon. Member for North Southwark and
Bermondsey says, six activities are reserved under the Bill. They are
all currently regulated and will be overseen by the Legal Services
Board, once established. Anyone who carries on or pretends to be
entitled to carry on any of the relevant activities will be guilty of
an offence under clauses 14, 16, and 17.
I direct the hon. Gentleman to
schedule 2, as he suggested I might, which defines the scope of the
reserved activities. Paragraph 7 of schedule 2 contains a definition of
activities relating to legal systemsin other jurisdictions,
which are therefore different activities from many others carried out
by solicitors. However, I have some sympathy with what the hon.
Gentleman said about there being a one-stop shop, and all the rest of
it, if that were possible. I am reminded of the classic question for
law students about whether there should be a unified profession. I
thought that he was going down that road, but this Committee is not the
place to develop that
debate.
The Lord
Chancellor can extend the list of reserved activities under clause 24
and, under clause 26, the board can ask the Lord Chancellor to remove
an activity from the list. For example, if probate appeared never to
cause anybody any problems whatsoever, it would be possible for the
board to recommend to the Lord Chancellor that it be outwith the
designated list. I call the Committee’s attention to subsection
(3), which is important and sets the scope for the activities that
would be regulated by the board in
future.
I hope that I
have dealt with the hon. Gentleman’s questions. On that basis, I
move that the clause stand part of the
Bill.
Simon
Hughes:
I was aware of the relevant parts of schedule 2.
Perhaps I can take the Minister back to the provisions she rightly
directed us to. Paragraph 6 is clear, because it
says:
“‘Probate
activities’ means preparing any probate papers for the purposes
of the law of England and Wales or in relation to any proceedings in
England and Wales...on which to found or oppose...a grant of
probate, or...a grant of
letters”.
The Minister
knows what I am going to say
next—
Bridget
Prentice
indicated
assent.
Simon
Hughes:
It does not say what the job is. It
states:
“‘Notarial
activities’
means”—
wait for
it—
“activities
which, immediately before the appointed day, were customarily carried
on by virtue of enrolment as a notary in accordance with section 1 of
the Public Notaries Act
1801”.
It says that
notarial activities are what notaries do. I am tempted to use a phrase
that has come to mind; it is rather mischievous to mention it, but I
will do so anyway. My dear friend the Bishop of Southwark was in some
difficulty last year and, when asked what he did, he replied from
inside his car, “I am the Bishop of Southwark and this is what I
do.” It is a rather circumlocutory
definition.
Paragraph
7(2)
says:
“Sub-paragraph
(1) does not include...reserved instrument activities and probate
activities...or...administration of
oaths.”
We know that
those are covered elsewhere, but I am making a more important point.
First, we are entering the
territory of, “Let’s say what we are doing here, good
people.” Secondly, although the Minister might not yet be ready
to deal with the bigger question, if the job is a specific, technical
one, then surely it is something that a solicitor could be trained to
do. The reality is that we live in a globalised
world—we have had that argument—in which papers from
around the world come across jurisdictional frontiers, including from
Scotland and Northern Ireland to England and Wales or to Ireland.
Bluntly, to have a separate group of people who are qualified to do
that particular bit of work seems to me
wrong. Similarly, the
Bill does not define administration of oaths by reference to the
swearing of documents for a certain purpose. It says:
“The
‘administration of oaths’ means the exercise of the
powers conferred on a commissioner of oaths
by—”
and then
refers back to three older pieces of legislation that are each just
over a hundred years old.
If we want to retain separate
definitions, then please by Report, could we have definitions by
reference to what is done, rather than by reference to the creating
legislation? Could we also reflect on whether, when the Bill is
enacted, we need separate commissioners for oaths, notaries public and
solicitors? We should clarify one bit of the wood, so that we can see
it for the trees.
Bridget
Prentice:
I am going to make a kind of intervention on the
hon. Gentleman, but he will not like it very much, because there is in
fact no statutory definition of notarial activities. The requirement is
not one that derives from English law, but from foreign
jurisdictions—not from England and Wales or Scotland, but mostly
from Latin countries such as Spain or Italy. They are the jurisdictions
in which notarial activities are
needed.
To make things
even more exciting, I shall give the hon. Gentleman an example of those
activities. They include matters such as the certification of a
ship’s manifest. It is therefore not surprising that my friend
Mrs. McGlumshie does not call on a notary very often.
Simon
Hughes:
That might be the most revealing part of the
afternoon. The fact that notarial activities are ultimately not defined
is wonderful. Only by looking back, as a student, at the three Acts of
Parliament that are referred to, or at the Act dating from 1801 that is
referred to in schedule 2 paragraph 7(1), does one discover the answer
to one’s question.
On the so-called
continent—I should really say the rest of the continent or the
mainland——where the non-common law traditions apply,
people are called notaries or advocates, rather than solicitors. I can
understand that one needs people to carry out the equivalent function.
I shall reflect, and I ask the Minister to do the same, because there
might be a chance to sort out some unreconstructed historical legal
complication.
Mr.
Djanogly:
The role of notaries is an ancient one and I
think that there is an old statute somewhere that regulates that
role.
Mr.
Djanogly:
Indeed. In practical, everyday terms, however, I
think that the hon. Gentleman is slightly doing down the role of
notaries. By the way, they are
heavily used in Germany too, not only in Latin countries. Although their
purpose on the continent is to document agreements, if people in this
country want to enter into contracts with a party on the continent,
they often have to go to notaries. The result is that they are used
frequently in this country by people doing business in Europe. There
are not that many notaries, but those that exist tend to fulfil a
useful role.
Simon
Hughes:
I have absolutely no doubt that they fulfil a
useful role and I am sure that I shall personally discover all the
notaries in England and Wales as they will now make themselves known to
me and justify their fantastic work. I absolutely understand that
people who practise law in one country and dealwith another
need a cross-referencing professional qualification. My understanding
is that the entire range of non-common law jurisdictions has the
notarial facility—Italy and Spain, France and Germany, the low
countries and so on, as well as Scandinavia and all the rest; in fact,
all European Union countries except probably the common law countries:
the UK, Cyprus and Malta.
I have opened a
Pandora’s box, and I shall probably regret it, but we shall see.
If we are modernising and reforming legal services, this might
represent a teeny bit of progress. If we do not change the law on it
today, the law might be changed sooner as a result of today’s
little poke at the system.
Question put and agreed
to.
Clause 12
ordered to stand part of the Bill.
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