Clause
109
Foreign
bodies
Question
proposed, That the clause stand part of the
Bill.
Simon
Hughes:
Does the Minister anticipate that, under the
clause, it is inevitable and obvious that the Government are likely to
advance some provisions in
relation to links between England and Wales,
Scotland and Northern Ireland and Ireland? Clearly, the clause will
deal with any foreign jurisdiction. However, although we have separate
legal systems within the United Kingdom, there are common interests and
practices in the three different legal jurisdictions in terms of
professional background, and so on—and in relation to Ireland as
well. Perhaps the Minister could shed some light on the implications of
the clause, which is reasonable and proper but hints at more than it
tells
us.
Bridget
Prentice:
In so far as Scotland and Northern Ireland are
foreign areas, they would fall under this part of the Bill and the
relevant provisions would apply, if necessary, to the different
jurisdictions—let us not call them foreign areas—in terms
of the legal
profession.
Simon
Hughes:
I should like to probe a little bit further. I do
not know whether there is current provision along the lines of part 5
in Scottish law or the law relating to Northern Ireland, so I do not
know whether there is any arrangement in either of those two places
that would make it obvious whether, for example, a company carrying on
such business north of the border in the Six Counties would be likely
to want to act
here.
The other side
of the coin is that, presumably, organisations that are mixed in terms
of professional background and expertise might be up and running in
other countries. Again, I do not know. Can the Minister share anything
with us about whether, as of today, ABS-type organisation is possible
in the Republic of Ireland, for example? Is that already legitimate and
something that happens? Across the water, on the mainland of Europe,
the whole system is different, with the exception of the two common-law
countries of Cyprus and Malta, so we are not talking as easily and
readily about other European Union countries. Are we expecting
companies or business structures to practise and offer services in
England and Wales and Northern Ireland or Scotland, or the whole of the
British Isles? Lots of the companies that have been mentioned do so.
The services offered by Tesco and the AA do not stop at Offa’s
dyke, Hadrian’s wall or the Irish sea. Will other organisations
act across the jurisdictional
boundaries?
Bridget
Prentice:
I cannot speak for mainland Europe. There is a
different system there, and I am not aware, as yet, of any country that
will have something similar to this measure, although a number are keen
to see how it works and are looking to us to lead the
way.
I mentioned on
Second Reading that there were aspects of the provision that would
allow changes to be made in the Scottish system, as the Scottish
Executive had asked us to provide. I am not aware that the Republic of
Ireland has such a system, although it is also interested in seeing how
it works. However, there are facilities across the English-Scottish
border for organisations to work in both
places.
Question
put and agree
d
to.
Clause 109
ordered to stand part of the Bill.
Clause
110
Reporting
requirements relating to Part
5
Question
proposed, That the clause stand part of the
Bill.
Simon
Hughes:
Elsewhere, there will be registers that people can
look at to see who is disqualified and who has a licence. It is implied
but not yet expressed that the annual report, which is an important
part of the accountability process, would be listed and could be found
immediately on publication, first, in the place where one looks for the
other information that has been referred to in part 5, and secondly,
automatically on a website on the day of publication, so that as soon
as an ASB published its annual report, it would go up on the site,
people would have up-to-date information and its production would
ensure maximum transparency.
Bridget
Prentice:
I think that I can guarantee that.
Question put and agreed
to.
Clause 110
ordered to stand part of the Bill.
Clause
111
Interpretation
of part
5
Amendments
made: No. 124, in clause 111, page 60, line 21, leave out
‘in
shares’.
No.
125, in
clause 111, page 60, line 24, leave
out sub-paragraph (ii) and
insert—
‘(ii) are bodies in
which persons within paragraphs (a) to (c) are entitled to exercise, or
control the exercise of, more than 90% of the voting
rights.’.—[Bridget
Prentice.]
Clause
111, as amended, ordered to stand part of the Bill.
Clause 112 ordered to stand
part of the Bill.
Clause
113
Overview
of the
scheme
John
Mann (Bassetlaw) (Lab): I beg to move amendment No. 283,
in
clause 113, page 61, line 35, at
end add—
‘(6) Nothing in
this Part is intended to prevent an application to the
Solicitors’ Compensation Fund for redress in respect of a
determination by an ombudsman with which a solicitor respondent is
unable or unwilling to
comply.’.
As
the lawyer’s friend, may I immediately correct the official
record of the statements that the Opposition made? I have nothing but
the highest regard for the profession, and all my intentions are
deliberate ones to ensure that business goes to those of the highest
regard and repute, rather than the minority who bring the profession
into such great disrepute. It has been my pleasure in the past 12
months to work with some of the finest people. Mishcon de Reya, Bindman
and Partners, Russell, Jones and Walker and Clifford Chance are all
excellent proponents of the profession.
It is important that the record
is put straight, following those previous comments, because again the
vested interests are trying to categorise their attempts to hold down
the regulation of their profession and somehow to counterpose those
people outwith the
profession as opposed to those within it. Quite the opposite: the whole
point of self-regulation is that it is made to work effectively, so I
propose this modest little amendment to allow the Minister the
opportunity to strengthen further the Bill. She may or may not say that
it is required, or she may say that it could be covered in other ways,
and I wait with eager anticipation. However, there are situations
in which the course of regulation goes in one direction, but there are
circumstances in which such power would be important in making the
consumer, who has been done over financially, certain of redress, if
redress were felt appropriate. I could cite cases to which the
amendment would be relevant, but I do not want to detail them, not
because of time, but because the cases are ongoing and I should not
want to prejudice them. So I offer this modest little improvement to
the Minister for her
delectation.
2.45
pm
Bridget
Prentice:
My hon. Friend always looks to the centre of the
issue. One of our main objectives is to ensure that the consumer gets
the proper redress and gets it quickly. I commend my hon.
Friend’s assiduous way of going about this—he will sense
that there is a “but” coming—but the amendments
are not necessarily the right approach. They are ineffective in the
sense that there is nothing in the Bill to prevent application for
payment under the compensation
fund.
Clause
141 is designed to deal with instances where the solicitor, the
barrister, or whoever the authorised person might be fails to pay
redress awarded against him to a complainant. Under that clause either
the complainant or the ombudsman can go to court to have that
determination enforced. It is right that the determination should be
enforced by court. A lawyer who has done something wrong should pay
redress. If the complainant has to make an application to the
compensation fund, that might send the wrong message that it is all
right for a solicitor to refuse to comply with an ombudsman’s
determination because everyone else will have to cough up on his
behalf. That cannot be
right.
The
compensation fund is a discretionary fund. Only the Law Society and the
CLC have compensation funds. It is a fund of last resort, operated by
the SRA, where no other avenues are available. If a complainant were
awarded £5,000 by the ombudsman as redress and the solicitor
refused to pay, clause 141 would allow either the complainant
themselves, or the OLC if necessary, to have that enforced through the
courts.
If a situation
arose where the solicitor genuinely could not pay, it might be possible
to make the application for payment from the compensation fund. There
is no absolute guarantee of success, but nothing in the Bill prevents
that from happening. To that extent the amendment is unnecessary. My
other concern is that it applies only if the solicitor is unwilling or
unable to pay. What happens if a barrister, legal executive, notary or
someone else who is an authorised person does not pay under the Bill? I
gently suggest to my hon. Friend that singling out one
group—solicitors or complaints about solicitors—goes
against this part of the Bill. I do not want to see different systems
for different complainants.
The idea is
that the OLC is the single portal for complaints and I think it should
also be the single portal for ensuring that those complaints are dealt
with and treated consistently and transparently right across the board.
That is why I prefer what we have said in clause 141 to these
amendments. My hon. Friend is right to say that complainants do not
like having to go to court. It can be a daunting and frightening
prospect. That is why we tabled amendments in the other place that
allow the OLC to bring those court proceedings on behalf of the
complainant. If the lawyer does not comply with that determination and
the complainant is intimidated, the ombudsman is there as a form of
protection and can go to court on the complainant’s
behalf.
I hope that my
hon. Friend will know that there are no circumstances in which I would
want to see any type of lawyer thinking that they might get away with
refusing to pay or to comply with an ombudsman’s determination.
If redress is awarded against them, they will have to pay it; either
immediately or because they will be taken to court to ensure that they
pay.
I hope that I
have given a sufficiently strong response on behalf of the consumers
whom I know my hon. Friend wants to see getting the best out of the
Bill, and that he will feel able to withdraw the
amendment.
John
Mann:
I thank the Minister for her response and I note her
suggestion that this amendment is not strong enough; I certainly would
not wish to have barristers excluded from any provisions in the Bill
that they should not be excluded from.
So, I hear
what the Minister is saying in relation to the amendment. However, I
shall leave it to her to contemplate that there is potentially a
loophole here. Although the Minister says that there is nothing that
prevents this situation from happening, there is nothing that would
make it automatic. A solicitor may go bankrupt—possibly by
choice—or do a runner, perhaps because the volume of potential
new complaints, which are comparable to the first one heard, can be
added up and counted. That is certainly a possibility, and not just a
theoretical one but a real one. If the rest of the country were to
follow the example of my constituents, large numbers of people might
choose to come forward—for example, miners and textile workers.
That would create an interesting paradox. This question of positive
powers needs some further
reflection.
I hear
what the Minister says, that the wording of the amendment may not be
strong enough to deal with that situation. On that basis, I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
113 ordered to stand part of the
Bill.
Clause
114
The
Office for Legal
Complaints
Question
proposed, That the clause stand part of the
Bill.
Simon
Hughes:
We have slipped, without any but the most
observant of us realising, into part 6 of the Bill, which I hope even
the Whips will think is relatively good progress.
[ Interruption.] I said, “Relatively good
progress”; the Whips are never entirely happy, but they may be
relatively happy at such progress.
We are now
dealing with the first clause that establishes the Office for Legal
Complaints. I would just like to make the point here, because it is
obviously the right place to do so, that this is a welcome initiative.
It is a proposal to ensure that there is, as it were, a one-stop shop
for legal complaints, so that the public can be pointed in one
direction and go through one door, and that any legal problems that may
have arisen—a problem with a solicitor’s firm, or with a
member of the Bar, or with both, or a problem anywhere else along the
legal representation route—can all be examined together. That is
a step in the right direction.
Historically, there are
different professions, but the boundaries of their activities have been
reduced over the years. Rights of audience, for example, in the courts
have been widened; in many ways, that has clearly been a good and
successful thing. Again, taking the starting point of the Minister in
this respect, for the user of the services it seems to me that when
there is a complaints system—such a system is necessary in a
professional organisation, particularly those paid for with public
money—it is better that we have a system that brings together
professions that have so far been apart. Some professions have been
much better than others in the past; some have been really quite good
at dealing with their own discipline and the complaints that they have
faced, and some have been far less good. It seems to me that we need to
adopt the standard of the best, to ensure that the system is neither
overly bureaucratic nor overly delaying but instead is good, efficient
and accountable. The clause opens the door to that and puts forward a
proposition that I am sure members of the Committee will support, and
that members of the public will welcome.
Question put and agreed
to.
Clause 114
ordered to stand part of the
Bill.
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