Legal Services Bill [Lords]

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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.
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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.
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—
Mr. Jones: North 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.
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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.
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.
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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.
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.
Simon Hughes: From 1801.
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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