Clause
56
Enforcement
of notices under section
55
John
Mann:
I beg to move amendment No. 281, in
clause 56, page 31, line 31, at
end add—
‘(4) Without
prejudice to subsection (2) the Board may, in exceptional circumstances
and as a temporary measure, issue an order requiring the approved
regulator to comply with the notice or with such directions as would
have been contained in the order had a successful application been
made.’.
This
is a small amendment to assist the Minister in her objectives, and an
important one for her to consider. Such circumstances do arise. If we
rolled back the clock five or six years and introduced the Bill at a
more timely point at the start of the new millennium, the power may
well have been of use.
The explanatory statement points
out that the amendment
“provides for occasions on which
the Board’s power of enforcement proves inadequate, including
when it is clear that the failure by an approved regulator to comply
with a notice of direction will result in continued adverse impacts on
consumers.”
Situations do
occur in which action is required and it is being argued whether such
action should be taken. Allowing the ability to challenge and
re-challenge any direction given might allow those who have done
wrong the opportunity to lose files, or delay cases until people who are
severely ill become more ill or indeed die. Such cases might occur, as with
industrial diseases. We have seen changes in the law on mesothelioma,
an industrial disease. That is perhaps the best example, as it has a
remarkably short life expectancy. All that the amendment seeks to do is
to give the ability in such exceptional situations to ensure that
things move on while they are being debated and finalised, so that
justice does not disappear due either to the complainant’s
health or to the vanishing of key files while things drag on in the
High
Court.
John
Hemming:
This is not an amendment that the Liberal
Democrats can support. It shows a certain amount of confusion about how
to enforce the legislation. I do not think that the hon. Gentleman was
necessarily talking about the idea that it might become a criminal
offence to disobey the legal services, but the difficulty then becomes
how to enforce the proposed measures. One would have to apply to the
High Court for an order. Failure to comply with that order would be
contempt of court and enforced accordingly, so if the Committee passed
the amendment, we would not be getting anywhere, as it will be possible
in practice to go to the High Court quickly if that is required. The
files to which the hon. Gentleman referred would probably be held by an
individual firm, not a regulator.
I agree that there
have been situations in which self-regulation has failed, and that
there needs to be pressure on regulators such as the General Medical
Council to do their job properly. Judicial review has been used to
enforce that on the GMC—a court order is obtained, and the GMC
obeys—but that is not the sort of thing that happens within the
time scales that the hon. Gentleman is thinking of. To that extent, the
amendment is
misguided.
7
pm
Bridget
Prentice:
I understand entirely why my hon. Friend has
tabled the amendment. It is to ensure that the board is able to
regulate effectively. However, I agree with the hon. Member for
Birmingham, Yardley. The amendment is disproportionate and, more
importantly, not compliant with the European convention on human
rights. I obviously cannot accept an amendment that is not ECHR
compliant. On that basis alone, I will have to ask my hon. Friend to
withdraw his amendment. It is right that the magnitude of power that he
seeks here is the subject of judicial scrutiny. It would be entirely
inappropriate to leave the exercise of a High Court power to the
discretion of the board. The power here pre-empts the courts in a way
that would allow that.
On that basis, I am afraid that
I cannot accept my hon. Friend’s amendment. Also, I would
suggest to him gently that the term “exceptional
circumstances” is not clear enough for statute. It leaves too
much open to interpretation. I do not think that it is clear enough to
guarantee that the rights of the approved regulator would be protected,
either under articles 6 or 8 of the European convention. On that basis,
I would ask my hon. Friend to withdraw his
amendments.
John
Mann:
I hear what the Minister says andfeel the
level of incredulity from the Liberal Democrats—or Whigs, as
they are known these days. I must have missed something. Some of my
constituents have been waiting 18 months—and nearly two years in
one case—for the Solicitors Disciplinary Tribunal to meet to
consider their cases. Clearly, the regulator, if instructed to get on
with that, would be unable to comply. There are some wider issues
involved. Perhaps the Minister might write to the Committee about when
the Solicitors Disciplinary Tribunal will meet and where the power then
lies. That is precisely what my constituents and others who are waiting
in the Rayleys case want to know. One of my constituents, Mrs Beckett,
is sadly no longer with us and it is 18 months since I attended her
funeral. She is one of those who did not see justice. Others, who are
extremely unwell, are still waiting to have their say in court.
Therefore, this is not a minor issue.
Simon
Hughes:
Again, I am very sympathetic tothe
problem that the hon. Gentleman describes. We understand the issue; the
question is whether it is the right amendment. Has the hon. Gentleman
taken advice from people whom he can trust to do a good job to find out
whether there is any scope in serving a court order, such as the order
of mandamus, on the disciplinary tribunal to speed things up? Long
delays in investigations is a regular
problem.
John
Mann:
The fact that all sorts of tactics have been applied
unsuccessfully shows that justice will not be done or be seen to be
done for my
constituents.
Mr.
Jones:
Does my hon. Friend agree that the comments made by
the hon. Member for North Southwark and Bermondsey demonstrate just
what Committee members have not grasped. People such as my hon.
Friend’s constituents have not got either the legal know-how or
the resources to go through this very expensive legal
system.
John
Mann:
As my hon. Friend well knows, a
disproportionate number of people give up because they feel intimidated
by the process. As I am not a lawyer, I will bow to the
Minister’s advice that the amendment might not do exactly what I
intend. However, I will leave her to consider the following question
along with the subject of the Rayleys cases and the Solicitors
Disciplinary Tribunal: how will the Bill create justice for that group
of individuals? With that, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
The
Chairman:
It appears to me that we could dispose of the
business up to clause 62 as there are no amendments. Would the
Committee be happy if at that stage I suspended the Committee for an
hour? I feel a need for some refreshment and I am sure that the
Committee has a similar feeling after more than three hours of
debate.
Clauses 56
to 62 ordered to stand part of the
Bill.
7.7
pm
Sitting
suspended.
8.10
pm
On
resuming—
The
Chairman:
I congratulate members of the Committee on
getting back by zero hour. I just managed it. I took the stairs, and my
heart is showing the result of that
endeavour.
Clause
63
The
Board’s designation under section
62(1)(a)
Simon
Hughes:
I beg to move amendment No. 226, in clause 63,
page 35, line 4, at end insert
‘and, in either case, no other
approved regulator is suitable and willing to regulate the activity in
question.’.
The
amendment deals with whether the Legal Services Board should regulate
legal services and, if so, in what circumstances. The proposal is that
it should do that only as a last resort and if there is no other
regulator that could do the job. This is all to do with the back-up
provision in the Bill that says, in effect, that there should be
regulators for the different legal activities but that, in exceptional
circumstances, the big regulator—the LSB—can do the
regulating.
When the
Minister and I were serving on the Compensation Bill, we discussed what
sort of regulator there would be. In that context, the decision was
taken that a civil servant would be the regulator on behalf of the
Department, so that the Department became the regulator for the time
being. I stand to be corrected, but I believe that that is what was
agreed.
As an interim
arrangement, knowing that coming down the track was the Legal Services
Bill, the Government gave an express undertaking that, after that Bill
became an Act and the regulatory systems were set up, a further
transfer of regulatory responsibilities to the authorities would occur
under this Bill. In essence, that was a provision for the Big Brother
regulator of last resort to do the job for the time being, and the
amendment relates to
it.
The amendment is to
subsection (4) on page 35, which is about the designation order and
states:
“The
order must ensure that the Board, acting as an approved regulator, may
make regulatory arrangements or modify its regulatory arrangements only
with the approval of the
Board”.
To it would be
added the words:
‘and, in
either case, no other approved regulator is suitable and willing to
regulate the activity in
question.’.
In effect, the
amendment states that, if somebody is there, give them the job; if not,
the provision would come into force. I shall say just a few words about
the logic of that
position.
Throughout
the discussion of the Bill, the Government have made it clear that they
intend the lead role in regulation to rest with the existing
professional bodies. There will be an interim handover phase, and the
LSB will therefore be the supervisory body—the safety net. The
logic behind the Bill is that the board would intervene only when
necessary. That is the view being subscribed to, and there is a
discussion about the theology of the words. The board will be the
regulator of last resort.
The Government have provided,
however, that they may occasionally move the board from being a
back-row regulator to being a front-line regulator of temporary resort.
That is fine. I can completely understand and subscribe to that idea.
It would be unacceptable for professionals out there in the field to be
unable to do their jobs because no regulator was in place, and the
measure is intended to fill that gap. It is conceivable that a
regulator might regulate badly and must therefore be prevented or
suspended from regulating, and it would then be entirely reasonable for
the Government to step in. So, yes, it is acceptable, reasonable and
inevitable that they should have that power.
However—I hope that the
Minister will come with me down my next line of argument—the
logic ofthe amendment is that it is important to keep clear
the distinction between the approved regulators andthe LSB,
which is the regulator of last resort, so that the board should adopt
that intervening regulatory role only when there is no alternative.
When a regulator loses its approval or when a new service becomes
regulated, theoretically—for example, will writing, which we
discussed the other day, might become regulated—it is important
that the board should first consider whether an existing regulator
should dothe job.
We discussed this issue in our
debates on the Compensation Bill, and I remember, almost verbatim, the
Minister saying then that it was right to consider whether an existing
regulator should do the job. By and large, we have far too many
regulators in society, and there is far too much regulation, so we do
not want to create more unnecessarily. If we are to have regulation, it
is far better that a body that already exists and has a structure,
support staff, an office and systems in place should take on the job.
That is what the amendmentis
about.
My final point
is that the board should intervene only when it has looked around the
field, seen who is there and concluded that nobody else can do it. Only
then should it say, “We are going to look after this for the
time being.” That is right in principle, and I hope that it will
happen either never or extremely rarely. The idea is that another
regulator should always be used. Of course, Ministers will not want a
super-regulator,or obergruppen regulator, to force regulation
on regulators that do not want those responsibilities. It is no good
simply saying, “You will do it.” We also discussed this
issue in our Compensation Bill debates, and I remember that the
Financial Services Authority was thought to be one option, but it was
not keen to do it and said no.
Clearly, it would be
inappropriate to make a regulator take on responsibilities if, after
discussion and negotiation, a regulator said, “We’re
really sorry, but we don’t think that this is up our street; we
don’t think that we should do it.” Of course, in theory,
someone would have the power to make it, but that would not be a very
happy arrangement.
We
propose that it should be made absolutely clear that the LSB must look
around to see which regulatory bodies in the field could do the job.
Only if there is none should it seek designation from the Lord
Chancellor to do the job. I hope that that is clear,and that
the Minister will be sympathetic to our
amendment.
Mr.
Bellingham:
I rise to support the amendment, which my hon.
Friends and I have signed. The hon. Member for North Southwark and
Bermondsey has explained it extremely effectively, and I shall not
addto his comments, except to say that we support
it100 per
cent.
Bridget
Prentice:
I assure the hon. Gentlemen that I fully endorse
the objectives behind the amendment, but the Bill already takes account
of those principles; they are already included. We certainly do not
intend that the board should compete with approved
regulators.
The
procedures and criteria in clauses 62 and 63 will enable and encourage
the board and the Lord Chancellor to evaluate viable alternatives,
offeredby existing approved regulators, when considering
whether an order under clause 62 is appropriate. The hon. Member for
North Southwark and Bermondsey rightly raised the possibility of a new
reserved activity—will writing is an obvious example of one that
might be considered. Clause 63(2) makes clear the limited circumstances
in which the order can be made: where a body has been de-authorised or
there is a new reserved legal activity. I think that that makes it
clear that the board can regulate directly only to prevent a regulatory
vacuum. He is right to make a comparison with what we did in the
Compensation
Act.
Finally, I am
confident that clauses 62 and 63, when taken with all of the other
provisions in the Bill, will ensure that the board’s ability to
act effectively as an approved regulator is constrained sufficiently,
none of which can happen unless an order has been approved by both
Houses. That militates against the board thinking that it can jump in
and regulate new activities willy-nilly; it must look at what is
available already. That makes good economic sense, as well, as the hon.
Gentleman said. We have already a regulator up and running that has all
of the attributes needed to carry out the regulation, so it is
unnecessary to do anything other than that. On that basis, I ask him to
consider withdrawing his
amendment.
Simon
Hughes:
I am grateful to colleagues for their support and
to the Minister for her courteous reply. She reminded us of the
backdrop provision, which is that any such change would require the
authority, by order, of both Houses. That is an important backdrop and
might give the protection and the cover needed.I am happy to
think about that and perhaps be persuaded. On that basis, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
63 ordered to stand part of the
Bill.
Clauses 64
to 70 ordered to stand part of the
Bill.
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