Clause
16
Offence
to carry on reserved legal activity through person not
entitled
Question
proposed, That the clause stand part of the
Bill.
11.45
am
Simon
Hughes:
I have chosen to make the point now, rather than
on the previous clause. Clause 16, like clause 15, is drafted, as has
increasingly frequently been the case in recent years, using letters
for a category, once it has been defined. That is fine; among other
things it makes the text shorter. It reminds me of questions in law
exams that are put in terms such as, “If A does this, then B
does that, describe the relationship between A and B in law.”
Has the Minister’s Department taken the innovative approach to
this Bill that it has taken to some of its draft legislation, including
the draft coroners bill, which it has proof-read for readability by
common women and common men? I am keen—it is a recurrent theme
with me—that we should take that approach, because the more
complex the subject, the more important it is to ensure that the Bill
is readable. I ask the question now, because this is the obvious point
at which to ask it. Has this Bill been subjected to that sort of
process?
Bridget
Prentice:
No, not yet. I will take the matter forward.
Like the hon. Gentleman, I am keen that wording should be as close to
plain English as is humanly possible. The measure has not yet been
subjected to that particular scrutiny.
Simon
Hughes:
I thought that that was probably the answer. Can I
make a plea that, as soon as we can, we make a point of having regular
plain English readability checks? During the passage of the Bill, we
are going to go on to talk about consumer panels. Logically, somebody
other than us should look at draft legislation, because we see measures
like this all the time and might become immune to them. My plea is that
the Ministry of Justice, in its present life and its life after next
Wednesday, view that as a high priority.
Bridget
Prentice:
I will certainly put that forward.
Question put and agreed
to.
Clause 16
ordered to stand part of the Bill.
Clause
17
Offence
to pretend to be
entitled
Simon
Hughes:
I beg to move amendment No. 269, in
clause 17, page 8, line 22, at
end insert—
‘(4) All persons
claiming to be entitled to carry on any activity which is a reserved
legal activity shall have a duty to make clearly known to each client,
at the beginning of their dealings with each
other—
(a) their
professional title and qualifications;
and
(b) the most senior member
of the firm to whom they are
accountable.’.
As
the Minister knows, I have trailed this amendment; it complements the
clause that we are about to debate. It is a good clause in that it
makes it clear that somebody who holds himself out as being entitled to
act as a solicitor, even though he is not, is committing a criminal
offence. If we are to have a reputable set of professions, it is
important that we do not let people get away with pretending to be
something that they are not. Although such cases might not be as
publicly odious as those of the people whom we occasionally discover
practising as doctors, gynaecologists and others when they are not,
this is an important matter. People could be badly misled and lose a
huge amount of money if they took legal advice from somebody who was
incompetent and unqualified to give it.
The amendment is designed to
make it a bit clearer to consumers who they will be dealing with when
they go into the world of dealing with lawyers, who are the people
regulated by the clause. It is therefore self-explanatory, although I
do not pretend that it is perfectly drafted. I am keen that the
Minister should be sympathetic to it and, in her usual considered way,
take it away and think about how we might achieve that objective. I say
that not because I have a theoretical obsession about the issue, but
because I know that it is a matter of practical concern.
I know that some, if not many,
people will have come to you, Mr. Cook, in your surgery or
elsewhere, saying that they have been to see a solicitor or similar,
yet when you have looked at their papers you have discovered that they
have had no dealings or communication with anybody who is legally
qualified. All the people with whom they have dealt have had lesser, or
even no, qualifications; some might have been students or new trainees.
I do not disparage the work that such people do, but I am keen that
people should know with whom they are
dealing.
There
are examples of good practice and good conduct, and of solicitors who
give good advice. However, we are not considering good solicitors. A
reputable, long-standing south London firm with which I have dealt, as
have my constituents and those who represent them, is Anthony Gold. It
is committed to good legal work and community support. It has taken on
new areas of work such as housing law and the cases of people who want
to take their local authority to court, as well as personal injury and
such things. It has a very good reputation. If one
goes to see it, one is contacted in writing when
one’s engagement with it is confirmed. The person writing
explains his role within the firm, names the principal to whom he is
accountable and says what to do if one has a complaint. That is good
practice and it is done by most firms. It should be done by all
firms. However, I can
think of an immigration case that went badly wrong when one of my
constituents went to a small firm and dealt with somebody whom he
believed to be a qualified lawyer with competence in immigration and
asylum matters. The person was not a qualified lawyer and, as I
discovered when I inherited the case, had no competence. The Government
rightly introduced a new system for regulating people who give
immigration advice, which was welcome. An agency was set up to deal
with it. I am sure the Minister understands my general point—we
are trying to ensure that there is some onus.
It may be that the matter would
be better governed by requiring the professional bodies, to which we
will come in a minute, to place a duty on all the people who work for
them. However, some people slip through the net by not belonging to any
of those professional bodies. To take a ridiculous example, somebody
who works for a very reputable firm—or a less reputable
one—without being legally qualified in any way is the cleaner.
It is ridiculous but it is not impossible that one day, a rush of blood
might go to the head, somebody might come through the door and the
cleaner, the last one left in the office, might decide to try their
hand in giving legal advice. If they are creditable, who knows? The
person might well leave thinking that they have been given good
advice.
I can think
of one example of somebody—I defended him many years
ago—who was wonderful at persuading people that he was who he
said he was. He went around to lots of establishments in London
pretending that he came from the environmental health department. He
was very good at lying. He would go to inspect a kebab shop or a
Chinese takeaway, and on every occasion he would find a dead mouse or
rat. That was not surprising, as he had just it put it there. Then, of
course, he charged rather a large sum not to report it. He lived
comfortably for a long time, commuting regularly every week from his
family in Scotland to his job in London.
[
Interruption.
]
He was English; let me not
malign the Scots. He had a girlfriend and a child in Scotland, so he
would fly up on a Friday, fly down on a Monday and do the
job.
Mr.
Bellingham:
And he was a Liberal
Democrat.
Simon
Hughes:
Not to my knowledge, although one hopes that
everybody is capable of redemption, including in their voting habits.
Eventually he got caught when he went to the same kebab shop twice and
they recognised him coming around for the second time.
I exaggerate. It is a funny
story, but it is a true story; it happened. There are serious concerns.
I am keen that the Minister should tell us how she envisages that they
will be addressed. They must be addressed, because some are still
misled in the world of legal advice by people who they think are
qualified and competent professionals when they are
not.
Mr.
Burrowes:
I welcome the intention behind the amendment. A
couple of weeks ago, a constituent was in my surgery who had been the
victim of a gentleman
who presented himself as offering a legal service, when the advice in
his letter was not worth the paper that it was written on. The
constituent was frustrated in trying to seek some redress for her
undermined claims. When she went to the police, they did not know what
to do. Other clauses and regulations will hopefully deal with the
matter in more detail, and we support
that.
I
welcome the general concern for client care. Client care and the code
of conduct are a natural part of the day for every solicitor who gives
advice. It is a natural part of the first letter to the
client—those who are cynical might say as natural as asking for
money on account. It is always there, without people thinking twice
about it. It is also the case—it is particularly important when
considering the clause’s merits—that such matters are
explicit in the solicitors’ code of conduct. The code of conduct
provides strict regulation in rule 2 about taking on clients. It is
ingrained in the lives of every solicitor and designed to help both
solicitors and clients to understand properly each other’s
expectations and responsibilities, and explicitly to ensure that
clients are given the information necessary to make appropriate
decisions about whether and how they might wish to proceed.
Rule 2.02 of the code of
conduct—it is worth putting it on record to see whether the
situation merits such a clause—says
explicitly:
“You
must, both at the outset and, as necessary, during the course of the
matter:
(a) agree an appropriate
level of service;
(b) explain
your responsibilities;
(c)
explain the client’s
responsibilities;
(d) ensure
that the client is given, in writing, the name and status of the person
dealing with the matter and the name of the person responsible for its
overall supervision; and
(e)
explain any limitations or conditions resulting from your relationship
with a third party (for example a funder, fee sharer or introducer)
which affect the steps you can take on the client’s
behalf.”
The question is
whether that needs to be explicit in the Bill. Given that the Bill
seeks to extend the provision of legal services and to widen ownership,
there is merit in careful consideration. My view, and that of my hon.
Friends, is that we should avoid over-legislating and that such matters
should be left to the regulators. However, if one were to include that
in the Bill, one would have to question whether it should be limited to
the two aspects contained within the clause and not incorporate all the
elements within rule 2.02 on client care, which has served many
solicitors
well.
12
noon
John
Mann:
I am not sure whether the amendment does what it
intends to do. It is a probing amendment. If someone claims to be
entitled to carry on a reserved legal activity, they could be claiming
something which, in some of the examples, they should not be able to
claim at all. There are two angles on which I would be interested to
hear the Minister’s comments. The first concerns a solicitor who
pretends to be the authorised solicitor of a trade union but is not. In
the case of AMS Law and the miners compensation scheme, AMS Law added a
UDM claims handling unit logo to the solicitor’s headed paper.
In other words, it falsely gave the impression that it was a trade
union’s in-house claims handling unit. Is such an example
covered by the
clause? If so, who should regulate against that kind
of pretence, which misleads the consumer? AMS Law misled a lot of
people in my area and
elsewhere.
My second
angle uses another example of the miners compensation scheme. My
constituents believed that a number of people were solicitors when they
were not. I cite the example of Mr. Stuart Bell of Stuart
Bell Associates of Worksop. Mr. Bell was not a solicitor and
never had been a solicitor. He was allowed to represent individual
miners and present cases to the Department of Trade and Industry,
because he was acting under a High Court ruling which stated that
everyone had the legal right to the equivalent of their day in court.
Who should be responsible for dealing with that abuse? People could not
seek a remedy from the Law Society because Mr. Bell is not a
solicitor—they had to go to the civil courts. I suggest that
Mr. Stuart Bell of Worksop is not the only example of
someone who has taken on a claim as if they were a solicitor. Certainly
all my constituents assumed that Mr. Bell was a solicitor.
Should the responsibility of investigating, both under present measures
and under the Bill, go to the legal profession and its regulatory
bodies? I think that that would be a good opportunity for the legal
profession to defend itself against those who purport, by illusion if
not explicitly, to be part of that profession and leave the consumer
with the invidious proposition of having to go to a solicitor in order
to take legal action against a non-solicitor whom they presumed was a
solicitor.
John
Hemming:
The hon. Member for Bassetlaw raises another
interesting point. If someone is not conducting litigation but merely
advising somebody and acting in their own person, that is not a
reserved legal activity, so it would not fall under the Bill. Although
this is a probing amendment, it is important because the client needs
to know at the start of the process whom they are dealing with and
under what circumstances. I urge the Minister to consider whether we
should confirm more precisely that somebody is regulated by the Legal
Services Board, whether they are part of an alternative business
structure or of a different organisation, and that they fall inside a
particular regulated
line.
Another relevant
issue is the factors that need to be considered on engagement. I accept
that a client engagement letter refers to the rates, how much things
might cost and so on. That is important, but should not certain things
be included in the Bill? Obviously, I concur with my hon. Friend the
Member for North Southwark and Bermondsey on such matters. In public
family law, in particular, it is common practice for a firm of
solicitors to work for both the local authority and the parents. It is
not working on the same case, but one day, it works for the parents;
the next day, it works for the local authority, and, the day after
that, it works for the parents. I am not sure whether that is proper
practice, although the Law Society says that it
is.
Let
us suppose, however, that the clients go to a firm of solicitors
expecting it to fight their corner. Having lost their new-born baby,
they find out in retrospect that the firm also works for the local
authority. The clients should have been told before they started using
the firm that it had two masters: themselves and the local authority.
Whether that provision should be put into statute is an
interesting question. We have referred to conflicts of interest. We
cannot ignore them, however inconvenient they are. The Law
Society’s argument is that it would be difficult to find people
without conflicts of interest to undertake such work. That is probably
not the way in which we should approach matters, so I urge the Minister
to consider the
problem.
Bridget
Prentice:
I agree absolutely that transparency is the key
to maintaining consumer confidence. When consumers engage a firm of
solicitors, they should expect the best advice that the firm can
provide for the price that it charges. If they then find that the
advice comes from someone else—hopefully, not the
cleaner—that might undermine their confidence in it, and not
surprisingly so. That does not necessarily mean that the advice is
wrong; some firms of solicitors are staffed by a variety of qualified
lawyers, some of whom will be “authorised persons”, using
the Bill’s language, while some will not be solicitors, but will
be authorised for other reasons, and will include legal executives,
barristers and conveyancers. I do not want anyone to be under the
impression that a particular authorised person is somehow second best;
it is just who is appropriate in the
circumstances.
It
is possible, too, that non-authorised persons may provide reserved
legal services direct to clients, but only under the supervision of
authorised persons who still remain responsible for the provision of
the service. Having said that, there is a lot of merit in the amendment
tabled by the hon. Member for North Southwark and Bermondsey. I take on
board what was said by the hon. Member for Enfield, Southgate and I
want to explain why I shall take the amendment away and consider it. It
is clearly in the consumer’s interest to be informed of the way
in which their case is handled. Not only is that helpful to them, but
it lets them know where they stand and what their rights are, all of
which the Bill is supposed to be about. It is important, too, that the
Bill makes it clear to the consumer what that particular solicitor or
legal adviser can or cannot do so that there is less scope for
misunderstanding.
However,
there are a couple of small gaps in the amendment, the first of which
concerns enforcement. It would be best to provide for that subject as
part of the duty in the regulatory arrangements. As the hon. Member for
Enfield, Southgate said, the codes of conduct already include something
along those lines. We may want to consider redrafting the amendment so
that the primary duty lies with the regulator rather than the
individual adviser. In that way, the regulated people would have to
comply with the duty and action could be taken if they did not do so.
Secondly—although a minor point—the duty might not arise
in full in all circumstances. Barristers in independent practice, for
example, all have the same level of qualification. They are also
practitioners, and not accountable to anyone in that sense, so we would
have to consider how their code of conduct would apply in that
situation.
Finally,
an important feature is missing. Although the consumer could know the
body to whom the adviser is accountable, the amendment does not go far
enough because it does not say to whom the consumer can complain or
what the complaints process is. Many codes of conduct contain a
complaints procedure, so we need to take that into account, too. I am
happy to
consider the amendment, but I urge the hon. Member for North Southwark
and Bermondsey to withdraw it so that we can consider how we will
incorporate it, taking into account all the points that have been
raised.
Simon
Hughes:
I am grateful for the contributions of my hon.
Friend the Member for Birmingham, Yardley and of the hon. Members for
Enfield, Southgate and for Bassetlaw, and for the Minister’s
response. There is a problem, and the amendment was a first stab at
trying to address it. I do not want to be over-prescriptive or
over-regulatory—that was never my intention—but I am
happy to seek to withdraw the amendment and work with the Minister and
her officials to get it to fit comfortably in the Bill, the codes and
other things. Some people never get beyond the first encounter, and the
amendment is intended to deal with circumstances in which the outcome
of someone’s relationship with a firm is decided by the person
with whom they deal. The position of that person, their authority and
their confidence entirely determine that relationship.
If people do not know whom they
are dealing with and do not understand their background or skill, or if
they understand it wrongly or are misled, that will entirely influence
how they decide to proceed. For example, let us take the case cited by
my hon. Friend the Member for Birmingham, Yardley. In family law cases
that deal with difficult issues, a person might eventually summon the
courage to take legal advice on how to take action to protect the
interests of their child in a disputed case in which there are
allegations of abuse or something similar. They see someone and come
away thinking that they have received authoritative advice, when in
fact the advice was provided by someone who had been there a week. That
is the sort of thing that we need to ensure that people are clear
about, and that is the nature of my concern. I am grateful for the
Minister’s response, and I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause
17
ordered to stand part of the Bill.
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