Legal Services Bill [Lords]
Acceptance or rejection of determination
Simon Hughes: I beg to move amendment No. 235, in clause 140, page 74, line 19, after complaint, insert
either while the ombudsman is considering the complaint or.
The clause states at its end:
Neither the complainant nor the respondent, in relation to a complaint, may institute or continue legal proceedings in respect of a matter which was the subject of a complaint, after the time when a determination by an ombudsman of the complaint becomes binding and final in accordance with this section.
In other words, you cannot take legal action once you have been to the ombudsman and the ombudsman has decided. The amendment would prevent people from taking legal action while the ombudsman was considering a complaint as well as when it had finished doing so. I hope that the reason for that is obvious: it seems ridiculous to allow a legal process when at no separate court expense or report obligations the ombudsman is considering the matter. Let us keep to one process. The amendment would be a bar on two processes taking place at the same time. I hope that that is sensible and that the Minister will accept it.
Bridget Prentice: When I first looked at the amendment I wondered why a lawyer would bother to sue their client if they did not think that they would be successful. It would be a much more expensive process to pursue hopeless legal proceedings than to endure the ombudsmans determination. I wondered whether it was therefore a situation that would never arise.
Whether it does or not, I cannot accept the amendment because it would have undesirable, although I am sure unintended, consequences. The reason for the provision in clause 140(11) is to achieve finality of determinations under the ombudsman scheme. An additional provision such as the amendment proposes would go considerably further and raise questions about the Bills compliance with the Human Rights Act 1998.
The amendment could prevent a lawyer from taking legal action or require them to put on hold ongoing legal proceedings in the interests of a process that
If a client was to refuse to pay legal fees, then it is clearly only right that the lawyer is able to recover those through the courts. If they could be stopped simply by the client making complaint to the OLC, that could undermine the court process and prevent the lawyer from seeking just restitution, which is obviously not a tenable position in which to put someone. The OLC could end up getting unnecessary complaints from those simply wishing to slow down or stop legal proceedings, which would clearly be a waste of the ombudsmans time. We do not want to go down that road.
Let me explain how the Bill works with an unscrupulous lawyer trying to avoid or delay the complaints scheme by initiating legal proceedings, which is the other side of the same coin. Whether legal proceedings were begun before or after the complaint was made to the ombudsman scheme, the ombudsman would still be able to deal with the complaint. Whether it would be appropriate to do so in a particular case would be at the ombudsmans discretion. However, rest assured that I consider it of vital importance for unscrupulous lawyers not to think that they can avoid a complaint by starting legal proceedings. They must realise that the ombudsman scheme is able to deal with all complaints.
The Bill, as drafted, gives suitable and sufficient protection. It already prevents the respondent from initiating or continuing legal proceedings once the determination has been accepted by the complainant. The intention here is to ensure that the determination is treated as a resolution of the matter in dispute, which I hope will provide respondents and complainants with the all-important certainty without which timely resolution of complaints and the informality of the system would be lost. On that basis, I hope that the hon. Gentleman will withdraw his amendment
Simon Hughes: The very mention that there might be a risk of the amendment not complying with the European convention on human rights is enough to frighten anyone into submission. As somebody who promotes the convention and all its works and has worked for the Council of Europe supporting it, I would not want to embarrass myself or anyone else. The Minister made what may be a good point about compliance, which our advisers and I had not thought about. Clearly we would not do something that was not compliant. For that reason, we ought to go away and look again. If there is a way of making progress without the problems set out by the Minister, then fine, but, if not, we may have to think of other solutions, by other means. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 140 ordered to stand part of the Bill.
Clause s 141 and 142 ordered to stand part of the Bill.
Handling of complaints by approved regulator
Question proposed, That the clause stand part of the Bill.
Bridget Prentice: Here is one of those complicated areas of procedure where we have to have a stand part debate in order to negative the clause. The Government want to remove clause 143, which allows the board to direct that complaints may be
determined by an approved regulator instead of an ombudsman.
In other words, it allows complaints handling to be delegated. The clause was added in the House of Lords in support of the position held by the Bar Council and the Bar Standards Board.
As I said on Second Reading and have said throughout the Bills existence, any form of delegation will undermine the principle of a single independent complaints handling body and will not in any circumstances restore consumer confidence in complaints handling. The clause has no place in a Bill that is about putting the consumer first. It must be removed, along with any amendments that refer back to it.
We all know that the clause comes from the Bar, which made no secret about the fact that it wants to continue to handle complaints about barristers. It will argueI have its briefing for this debatethat it has an excellent record of complaints handling compared to the Law Society, or that complaints about barristers are much more complicated and no one other than the Bar can deal with them effectively. It will argue that complaints about barristers are almost inevitably intertwined with elements of substandard service and misconduct, which should be investigated by the same body, and that having two bodies to investigate a complaint will lead to inconsistent decisions. It will argue those points; we may well hear them argued today. It has argued them before, but the argumentsalthough they are barristerssimply do not stand up to scrutiny.
The Bar will say that the legal services ombudsman gives it a clean bill of health, but if we dig a little deeper into the ombudsmans 2005-06 annual report, we can see that the picture is not quite as black and white as the Bar would like us to believe. On page 48, we see that the Bar Council dealt with 560 complaints and that 183 complainants were unhappy with how their complaint had been handled. That is almost a third of all those who took their complaint to the Bar hoping that it would be dealt with in a consumer-focused way, went away disappointed and had to go to the legal services ombudsman to have their case dealt with.
At the same time, the Law Society handled 18,299 complaints, a huge number. However, just under 10 per cent. of all complaints against solicitors went to the legal services ombudsman for review. That does not in any way suggest that the Law Society is doing a magnificent job. It is appalling to have 18,000 complaints. But if we are to argue that the Bar is better and more professional in dealing with complaints than the Law Society, let us ensure that we are arguing about the same issues and that we look at the figures objectively.
From the data, we see that the legal services ombudsman considered 3.9 per cent. of complaints about barristers to have been dealt with unsatisfactorily, compared with 3.1 per cent. of complaints about solicitors. There is next to no difference. There is no indication that the Bar is qualitatively and substantially better at handling complaints than solicitors; in fact, those figures suggest that it is the other way around.
The clause must be removed. It will absolutely and completely undermine not just the Bill but consumers confidence in the Bill and the legal profession. It is the one thing that, above all the other issues, consumers have raised with us throughout: delegation is a no-no, and I agree with them in that.
Mr. Kidney: Does my hon. Friend agree that logic does not support an OLC that handles complaints only about some and not all lawyers?
Bridget Prentice: My hon. Friend is absolutely right, and he reminds me of another part of the Bars detailed briefing. The Bar complains about the fact that a number of Law Society staffthe LCS staffmight well transfer to the OLC, and it says that the OLC will be a rebadged LCS. Quite frankly, if we left the Bars complaints system out of the OLC, it would have a point. If the OLC dealt only with complaints about solicitors, we might as well have simply rebadged the LCS, and that is most certainly not our intention.
All of the consumer bodiesWhich?, the National Consumer Council, and citizens advice bureauxhave made it absolutely clear that they do not accept or support delegation of complaints handling to approved regulators. Anyone who seeks to represent the views of consumers, rather than the self-interest of the Bar Council, would share that view, and for that reason and for the other reasons that I have given on Second Reading and that have been given in the other place, I urge the Committee not to support the proposed clause.
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to be with you again this afternoon, Sir Nicholas. We had quite a degree of consensus this morning, and there was a great deal of good will on both sides, but I am afraid that that good will is now looking a little less solid. However, the Minister has done very well in this Committee, and I am sure that she will be promoted in the reshuffle. I am sure that her existing Parliamentary Private Secretary will be promoted as well, so if she is looking for a new one I can recommend the hon. Member for Grantham and Stamford (Mr. Davies), who might well be looking for early preferment in the new Administration.
The Chairman: Order. I have to say to the hon. Gentleman who leads for the Opposition that I made a pleaindeed, stronger than that, a requestthat no mention be made of extraneous matters that have occurred this day.
Mr. Bellingham: I must apologise; I must have been doodling on my note pad when you issued that stricture at the start of the sitting, Sir Nicholas.
I declare an interest, because although I do not practise, I am a barrister. So far, however, there have been nottouch woodbeen any complaints against me or anyone who has instructed me.
There was a wide-ranging debate in the other place, both at Grand Committee stage and indeed on Report. When the vote took place on delegated complaints handling, there was a substantial majority in favour of the Lords amendment; it had significant all-party support. There are many people in the other place who are not linked to the legal profession and who know a great deal about the subject. For many years, the Bar combined the representative functions of the Bar Council with the regulatory function. Although it did a good job, as indeed the Law Society did with its complaints procedure, everyone realised that both mechanisms could be improved.
That is what Clementi was all about; it made clear that there could be improvement. That is why the Bar Council responded pragmatically and imaginatively by setting up the Bar Standards Board in January 2006. That is an independent, ring-fenced regulator, chaired by Ruth Evans, the former CEO of the National Consumer Council. The Minister mentioned that Which? and the NCC and other organisations were against the Lords amendments, but she did not mention that.
Furthermore, the Bar Standards Board has a consumer panel, chaired by Dr. Diane Hayter, who sits as a board member of the NCC.
The key objective of the Bar Standards Board is to protect consumers, which is why it puts a lot of emphasis on its lay membership. The Bar Standards Board complaints committee has 10 lay members who have a veto. Every complaint to the board has to go to its independent complaints commissioner, Robert Behrens, who is a non-lawyer.
The Minister said that she was concerned about a regulatory system that allowed lawyers to judge their own, but that is simply not the case. It is a ring-fenced organisation in which lay members predominate. The system that the Bar Council put in placethe Bar Standards Boardrelies on lay members and members of the profession, barristers and QCs, who provide their services on a pro bono basis. It is extremely cost-effective and the result is that it costs about £640 to deal with the average complaint, which compares with more than £1,000 under the new unified system. I will come to the costs in a moment.
We should consider what the board has endeavoured to do by putting in place a system of excellence. It is not just about handling complaints; it puts a great deal of focus on issues such as education, training and qualifications and on accountability, transparency and consultation.
In the boards annual report for 2006, its chairman says:
Within a little over twelve months from Sir David Clementis recommendation...the Bar Standards Board was able to hold its first meeting on 26 January 2006. I believe this rapid pace is just one of many examples of the professions willingness to adopt new ideas whilst making sure that the best of what has gone before is retained. This is an ethos that we in the Bar Standards Board share and it underpins all that we do.
The organisation has built critical mass and it is doing an excellent job. It was told to get on and set up an
The Committee should consider not just what Conservative Members say, but also the third party endorsement of the BSB. In her report for 2006-07, Zahida Manzoor, the legal services ombudsman, commended the BSB for its very strong performance. When we consider some of the figures that the Minister bandied around, it is interesting to note that Zahida Manzoor said that she was satisfied that out of the 166 cases referred to her, 84 per cent. had been handled properly. The adverse figure was only 16 per cent., which compares with the Law Society figures that showed a 29 per cent. adverse figure.
We can look at the relative figures until the cows come home, but the bottom line is that the new organisation is delivering. Zahida Manzoor said that
the Bar Standards Board continue to deliver good turnaround times... for closing cases in 4-6 months.
She said that the BSB is to be commended on appointing a non-lawyer, Ruth Evans, to be its chair. Zahida Manzoor has made it clear time and again that she thinks this is an excellent Bill, although she said that the Bill was designed for the OLC to be a single point of entry for all legal complaints, handling all redress complaints consistently regardless, of the type of lawyer complained about. In some ways, that backs up what the Government are trying to do. However, she says on page 22 of her report:
The recent track record of the Bar Council, which is the second largest handler of legal complaints, has shown that it deals with those complaints more effectively than the Law Society. There is therefore empathy for those professional bodies that may feel that the handling of complaints by the proposed OLC in the West Midlands may be poorer than the current system they employ.
That is substantial third-party endorsement, and the Government should listen to it carefully.
Mr. Bellingham: I was trying to be brief. I want to talk about safeguards. The Minister seemed to imply that, as it stands, the Bill will have no safeguards. That is not the case. As presently drafted, the LSB has the power to make a direction allowing an approved regulator, such as the Bar Council, to determine such complaints as may be specified in a direction.
When deciding whether to make a direction, the LSB is bound to act compatibly with the regulatory objectives and other regulatory principles in the Bill. In other words, safeguards are built into it. It is just a matter of one size does not fit all. That point was clearly made by the Law Society. It does not want the LSB to delegate service complaints to it. It wants them to go to the successor to the Law Societys legal complaint service, the OLC. That is manifestly clear.
The Law Society has made it clear that, by definition, many more complaints will be made against solicitors. In fact, the Minister mentioned 17,000 to 18,000 complaints against solicitors and roughly about 600 against barristers, which is obviously a reflection of the respective sizes of the two branches of the profession. We should remember that barristers are at the sharp end of presenting cases in court. They are instructed to perform the advocacy role.
When we debated clause 133 this morning, we discussed cases going badly wrong, particularly family law cases. I quoted from Baroness Butler-Sloss at some length. People lose their cases; they lose their liberty; they lose their children and families, and they end up being extremely angry because they believe that they were in the right. Of course, they will complain against their advocate.
Some branches of the law will, of course, attract a disproportionate number of complaints. Indeed, my hon. Friend the Member for Bromley and Chislehurst made the point clearly and effectively that young barristers will do their best in court, but lose the case and a complaint will be made against them. Over years, the Bar Council has done well. It recognised a need for improvement, as did the Law Society. We now have a wholly improved system. However, if we consider the amount of effort and work that has been put into such matters and how it has resulted a really excellent body, why throw it away at this stage?
I wish to make two further points. There will be an explosion in work for the OLC if the alternative business structures system takes off in the way in which many people consider it will. My hon. Friend the Member for Huntingdon is convinced of that, and he is an expert on such issues. He dealt with this part of the Bill for the official Opposition and believes that there will be a far bigger increase in the number of new operations under the ABS system, which undoubtedly will lead to more complaints being made against the profession.
While the OLC is busy dealing with complaints from the new operators, surely it will make great sense to allow the existing system under the Bar Standards Board to stay in place. It will provide flexibility. As I said, it is a matter of one size not fitting all. I accept the point about value for money, and I have looked carefully at the figures that the Government have come up with. Let us consider what the Under-Secretary of State for Justice, the hon. and learned Member for Redcar (Vera Baird), said on Second Reading. She stated that the professionals were getting a bargain because, when the new regime was brought in,
it will cost less overall than the existing system.[Official Report, 4 June 2007; Vol. 461, c. 98.]
We have heard, however, that PricewaterhouseCoopers forecast for the transition costs of the OLC has been raised from £26.8 million to £32.1 million. We have also heard that the forecast of the annual running costs of the OLC have been raised from £16.8 million to £19.9 million. Let us look at what happened to the Financial Ombudsman Service, which is based on a similar model to the OLC. When the chief ombudsman gave evidence to a Joint Committee, he made it clear that he had experienced a very substantial increase in workload. In the first five years of operation, his workload had quadrupled and staff numbers trebled.
I do not see how Ministers can come to Parliament and say that there is going to be a reduction in the running costs of the new system when we know that there is going to be a big increase in the number of complaints. We know that the number of alternative business structures will increase the amount of legal activity in many areas.
If the Government have their way, they will wipe out a system that has worked extremely well. The system has been given third party endorsement by many different organisations.
I will conclude by quoting from Lord Borrie, who speaks from the Government Benches. He said that the Bar Standards Board has done an excellent job. He particularly focused on the pro bono work that was done by both the lay members and the QCs who gave their time on a pro bono basis. He pointed out that that was one of the key advantages that the Bar Standards Board had. He congratulated the board on its complaints handling mechanisms. He said that it would be a great pity if such mechanisms were lost to the Bill.
I ask the Minister to reflect again on the matter. I know that she feels very strongly about this. The Law Society is neutral. An organisation that is made up of decent honourable peoplepeople who have listened to what the Government have said and heeded their strictures and listened to what Clementi had to sayhas gone away and done exactly what the Government have asked them to do. The Government cannot then turn around and effectively say, What you have done is not enough. We are going to emasculate you and bring in amendments that will result in your organisation losing critical mass. All the good work that has been done, all the investment, effort and training the Government have put money into is basically going to be wiped out. Therefore, I will ask the Minister to think again. That is why the Opposition cannot accept the amendments and we will be voting against them.
John Mann: I want to talk about climate change. That is not off the point because I mean a change of climate. That is the key point behind the Government amendment. It is why I wholeheartedly endorse it and wish to speak in favour of it. What is needed is a change of climate in how barristers see and perform their role. There is a certain irony in this strongest of closed shops, with the mentality of a closed shopa mentality that I fully understandattempting to defend its privilege against outsiders. There are other professions that have done that temporarily over recent years. They have attempted to fight for their privileged position and exclude all outsiders.
The hon. Member for North-West Norfolk, who has thrown even further back the principles of debate within the House, has eloquently advocated on behalf of his own closed shop. I congratulate him on the way he puts his case. However, the climate must change, and let me illustrate why. There is an idea that this particular closed shop can look after itself and the rest of the world need not bother. I recall they used to say that on Fleet street, and in other professions as well, with equal eloquence, vehemence of argument and self-belief. It was not an idea that stacked up when one
I raised that point in the Committee either last week or the week before and wrote to the Bar Standards Board, which of course said, Not our business. We dont accept complaints about that. Thats one for the solicitors. In todays strange climate, let me be the one to vehemently defend the Law Society and its systems against the unprincipled and inaccurate attacks on it.
The whole point about why the Law Society is getting so many more cases is not that there has been an enormous change in the performance of solicitors. There is a particular problem that has led to a particular kind of case coming in larger volumes than one would normally expect. The Law Society has made itself more outward-looking, open and accessible to complainants.
We now have an incredible situation whereby I wish duly to hold to account some of the barristers who have been complicit in doing over my constituents, but the Bar Standards Board says that I can do that only through the Law Societyby attacking and seeking remedy from the solicitor. The solicitor who has allowed the legal executive to take the case when they are not competent to do so is clearly complicit. The solicitor has then got the barrister to give an opinion so that the case can go forward and has fed that opinion back without consulting my constituents. There is clearly a fault in the system but there is equally a fault with the barrister who has been complicit in hoodwinking my constituents.
One way or another, I shall take that case forward. It is absolutely not the case that it is merely the solicitor who should be held at fault; the barrister should as well. Indeed, consider legal executive versus barristerthere is a certain hierarchy there. If anything, the balance should be the other way. The whole point is ensuring that there is equivalence in the system. If there is bias either way it should not be against the poor, downtrodden solicitors, whom I have been happy to attack when they have deserved attacking but whom we should not over-attack.
Simon Hughes: The hon. Gentleman is right that if a member of the Bar is at fault they should be subject to a complaint. If that complaint is justified, it should be upheld. From all the cases that he has dealt with as an MP, has he been party to complaints against members of the Bar? If so, how many of them have been upheld and how many not, and how does that compare with what we have heard from him about solicitors?
John Mann: At the moment one has to make a tactical decision on where to take a complaint. The Law Society is more accessible, but the financial penalties are greater. If I want financial compensation for my constituent at an appropriate amount, there is clearly a bias in the system meaning that one has to make a complaint against the solicitor. The case will be won only if the solicitor is at fault, so it is not as though one were trying to bring an undue case.
In a number of the cases, which tend to be the more complex ones and those in which the potential compensation is higher if the arguments of my constituent and myself are upheld, the amounts of money and the scandal are much bigger. I allege that my constituents have been ripped off. There have been many cases with the Law Society, and some have been won, so that is not a vague allegation. The Law Society has upheld some complaints, but the barrister complicit gets off scot-free.
My second example is the case of Hobson and others v. AMS and others, in which 65 miners were wrongly advised on a number of issues but fundamentally on how to take forward a group litigation order. The key advice in the documents presented to me was the barristers opinion. The barrister said, This can be done, this is the way to do it. The judge disagreed and said that that was not the way to do it, throwing the case out of court, from which all sorts of problems emanated. The detailed case against the solicitor was won through the Law Society; compensation was paid out, so that none of those people lost out financially, which was right and proper. However, it was left to the solicitor found negligent in the case then to take action against the barrister.
In the context of access to justice and of regulation, it should be equally easy to take a case against a barrister. More importantly, it ought to be easy to take a joint case. Why should my constituent, Mrs. X the textile worker, who I allege has been badly advised and treated, have to determine whether it is solicitor or barrister? It may well bemy advice to her in some of those casesthat it is both. Therefore, a joint case ought to be possible. Frankly, that would lead to complicationsif there is an adjudication in her favour, who should pay out? However, the principles of the system are self-evident to me. Therefore, this classic closed-shop response needs knocking back. It is absolutely fundamental to access to justice that it is knocked back.
I studied the discussions in the House of Lords with interest andgiven my inside knowledge of some of the solicitors and barristers employed by some of those who were attempting to get justicewith incredulity; absolute incredulity at the way in which the case was put, because the case is so weak, so poor, that it can barely be put. The case is one that I used to put to certain employers many years ago. Look, we have got these jobs, we are the skilled workers, and we think that just us should have these jobs and everyone else can get lost, because we are looking after ourselves. In essence, that is the case. There is an honour in that, but it is an outdated honour, an honour of past generations and traditions, and one that no closed shop should be allowed to maintain today.
Simon Hughes: The hon. Gentleman has not yet dealt with the caselet us imagineof somebody making a complaint about the service, which included solicitors and barristers, through the one door of entry. It is checked originally by the overarching regulatory authority, the view of which is that the fault is entirely that of the Bar; the solicitors were not at fault. Is there
John Mann: I will have to consider what the hon. Gentleman had to say. However, I have another example, where it is possible to attempt some remedy. That is with the Crown Prosecution Service. I find that if my constituents have a complaintthey have lots if they lost their casethe easiest target in the legal profession is the Crown Prosecution Service. People want to have a go at the police, the judge, the decisions made, the advocacy and the rest, but there is that one isolated example, which stands out and which wecertainly as politicianscan hold to account with relative ease.
In conclusion, I restate my first point. The critical reason why this Government proposal will be so important is that it will change the climate. If the barrister giving the opinion has to think through the consequences if his opinion is not good, far more thought will be given to the case than is given at present. I base that on the many cases that I have reviewed. In some instances, the answer will be, Actually, I have nothing additional to contribute. I have no knowledge about the matter. My opinion is valueless, and therefore I will not cover up what you are doing to strengthen your case purely because you are trying to do it on the cheap as a solicitors firm. That would be a good thing for the legal profession as well as for the consumer. Therefore, I strongly support the amendment.
John Hemming: One of the difficulties with the issue rests in the complication of determining where something has gone wrong. As hon. Members may be aware, I am concerned about miscarriages of justice in the criminal courts relating to medical evidence and medical expert witness evidence. In cases such as those of Sally Clark and Angela Cannings, the defendants were initially convicted but at a later stage were proven innocent. The proof rested in the medical evidence; the cases involved arguments about it.
A question then arises if a complaint is made about the solicitor or the barrister. Were they at fault in the initial stage? A recent case in Mold of shaken baby syndrome looks on the surface to be a miscarriage of justice. The solicitors may have taken the view that it was in the best interests of their client to try to negotiate the best deal that they could get as they would not be able to beat the medical evidence from the doctors, the difficulty being that medical evidence from doctors is conflicted. They make a lot of money out of it and it ends up being wrong much of the time, and a complicated situation develops.
The question that we have to ask about all of this, and I include the patent agents and trade mark attorneys, is that much as there is great merit in having a single point of entry for complaintsif someone has a complaint, they go thereis there not merit in giving a permissive power to the Legal Services Board?
Mr. Jones: Does the hon. Gentleman agree that it is also important that the body that deals with the complaint is seen to be totally independent of the profession? Referring a complaint to the Bar Council would give the impression, possibly quite rightly, that the barristers were looking after the barristers.
John Hemming: The hon. Gentleman makes a valid point. Whatever system the Legal Services Board uses for managing complaints, it must be seen to be adequate to manage complaints. The point about clause 143 is that it gives a permissive power to the Legal Services Board to delegate cases; for example, if someone has a complaint about patents, which are a complicated area. It may be that over time decisions will be made to do things differently. Without legislation empowering the Legal Services Board to devolve decision-making, it will have no power to do soit will have to operate in accordance with statute.
There is a reasonable case for the Legal Services Board to be allowed to operate things in the way that it sees fit. There is not inherently injustice in having a process whereby there is an initial considerationin this instance, the Bar complaints processfollowed by a subsequent response at some other point. Without that power, the board cannot say, You have a look at this and see if you can resolve it. Failing that, we will move to another process. It does not have the permissive power.
When the Bill becomes an Act and starts being implemented, there will be a process whereby it will come into operation. To say that on day one, we have to move immediately to everything being in one big organisationincluding the patent agents and trademark attorneys, about whom we have seen no figures relating to complaintsseems overly inflexible. A more flexible approach allowing some discretion to rest with the Legal Services Board
Mr. Jones: Does the hon. Gentleman have any evidence or any figures about how many cases we are dealing with? As I understand it, for the types of case that he is talking aboutpatents and so onthere are a very small number of complaints a year.
John Hemming: I accept the point. A very small number of complaints may be made about patent agents every year, and they may be handled very cost-effectively by the patent agents. It may seem that allowing the current complaints process to continue for a certain period rests with a body that is not necessarily seen to be inherently independent and would therefore have to involve a process of appeal to the legal services ombudsman, for instance, for a determination.
But we should not say at the start, Im sorry, were going to have to shove it all into one big organisationtrademarks, patents, barristers, solicitors and trade unions. Obviously, complaints about trade unions must be handled in exactly the same way, because there might be complaints about advice offered by regulated persons within the trade unions. We accept the point about the amendmentunion conveners will not be regulated by the measures, and rightly so, because industrial relations should not be regulated by the Legal Services Board. But we are saying that any
Clause 143 does not say that for forever and a day, the Bar Council should handle complaints about the Bar, but it gives the Legal Services Board a permissive power to say if it sees fit, Complaints about trade unions will go through the trade unions process, and complaints about barristers will go through the barristers process. The clause gives the Legal Services Board that option if it sees fit. It is not a requirement; it is permissive. To that extent, it is a good clause.
Mr. Jones: I rise to support the Government, returning to something that the Minister has stressed on numerous occasionsthe rights of the consumer. I am sorry, but I do not accept the idea, which was supported by a rather confused argument from the hon. Member for Birmingham, Yardley, that people who want to make complaints are quite clear about whom to complain to and how to deal with their complaints. A one-stop shop for all complaints is certainly the right approach.
John Hemming: I agree that the one-stop shop is a good mechanism for handling the initial complaint, but would the hon. Gentleman say that that should preclude delegating the handling of the complaint process, so that the complaint might be received at a certain place but the handling occurs in different ways?
Mr. Jones: Yes, I would. The system must be seen to be independent from the organisations about which people are complaining. That is fundamental as well. Anything that smacks of people addressing complaints themselves will take us back to when, for example, the police investigated the police. It is the same principle here.
I shall give an example of a case of mine that, strangely enough, did not involve miners compensation. It was a divorce case in which I heard a complaint about a solicitor, and it demonstrates why it is important to have a one-stop shop. Mrs. D came to see me with quite a simple divorce caseno children or dependants were involved. She had gone to a local firm of solicitors who for some reasonI could not quite work out whyemployed two barristers to deal with the case. Even with my laymans knowledge, I would not have thought that it was a complex case. The first question that should have been asked was whether barristers needed to be instructed in that case, and I would have contended that they did not.
Not only did it take about five months to settle the case, she then had a problem with the solicitors about the release of monies in the divorce settlement. The problem was that the solicitors were complaining that they could not finalise the case because the barristers had not submitted their fees. Again, I asked the legal services complaints service to intervene, and it did a sterling job of putting pressure on the solicitor and raising questions. The poor woman was happy to have the case moved on to its final point, as she had no other means of support.
I wanted the case to be taken right through, but the solicitor offered Mrs. D compensation for the poor service that she had received and she was happy with that. I then wanted to go after the barristers, but she was reluctant to go any further. In that case, solicitors and barristers were clearly acting in cahoots. I do not know what the circumstances were or why the barristers were instructed in the case, but if there had been a one-stop shop that dealt with the problem as a whole, that would have given the case strength and made it easier to deal with.
My hon. Friend the Member for Bassetlaw made his point eloquently. Having also been a trade union official, I remember the arguments that I used to make on occasionson why, for example, boilermakers in the shipyard should only do certain jobs and why shipwrights should only do others. Yes, it was an archaic age; perhaps there were reasons why such practices should have been supported in that dim and distant past, but we cannot support them any longer. The idea of making the complaints system simple and easy for people to take things forward is an important part of the Bill.
The complaints system should have credibility. Since the Law Society separated from it, people have had more confidence in its complaints system, which is seen to be independent of the legal profession. I would oppose totally anything that smacked of complaints being put back to the profession, as that would undermine the credibility of what the Bill proposes.
The hon. Member for Birmingham, Yardley seems to think that there should be a transition phase. I am sorry, but that is a clear attempt to keep control over the regulation of the Bar. If the amendment were not agreed to, I do not think that, given time, the Bar Council would wake up one morning, see a blinding flash of light and say, We should now give things up. No trade organisation, trade union or self-interested body ever gives up anything willingly, so that would not happen.
Arguments have been made that there will be a big bang that will swamp the system early on. There has been an argument about patent agents. I do not think that there are more than five complaints about patent agents in any one year, so I do not think that the system will be swamped. For those reasons, it is important that the amendments are agreed to. I say to the Minister that when the Bill goes back to the other place, we need to resist strongly any attempts to reintroduce this restrictive practice.
Robert Neill: It is good to see you back, Sir Nicholas. Had you been here this morning, you would have heard me remind Committee members of my interest as a member of the Baralthough not currently practising, which is important to what we are discussing.
I was once the subject of a complaint to the Bar Council. It arose when I was defending someone in Chelmsford Crown court who was acquitted because the jury concluded that the prosecution witness was not credible. That witness complained about me to the Bar Council because I had obtained an acquittal for my
I have no doubt become rather tougher as time has gone on, but over the years many young colleagues have come to me and said, I have had this complaint made against me, and they have not dismissed it, treated it lightly or thought that it was something to be laughed off. It causes them concern, even when in the vast majority of cases, I am glad to say, nothing comes of it. The idea that the Bar wants to keep a closed shop because it wants to protect its own and it does not take the issue seriously is just not justified on the evidence.
Mr. Jones: The hon. Gentleman just said that in most cases, nothing comes of the issue. Is that not because barristers investigate barristers?
Robert Neill: No, and I shall come on to that point now, which unfortunately represents the certain measure of cynicism that creeps in, and demonstrates that the hon. Gentleman did not perhaps listen properly to my point this morning. The nature of the complaint arises because of the nature of the jobs that the Bar does, as opposed to the nature of the job that the solicitor does. I am not setting the Law Society against the Bar Council; the simple fact is that the Bar is a smaller, reference profession, which does not handle clients money, for example. As I said this morning and as is well documented, the vast bulk of the complaints made against barristers relate not to the advice given in such claims as miners compensation, when things clearly went badly wrong, but to family work, which was referred to, and to criminal work.
John Mann: That is surely no surprise to the hon. Gentleman, because the Bar Council refuses to accept such complaints.
Robert Neill: No, with respect the hon. Gentleman is wrong and misses the point. My point, which the Minister accepted, was that the particular vulnerability to complaint of criminal and family work is due to the pressure that the client is very often under. I found that family work was the most stressful element of any legal practice that I ever undertook. It was stressful for the lawyers and for the clients, even when they were in the
Against that background of profound disappointment, when people lose something that is precious to them, a complaint will be made that is not necessarily susceptible to reason or conciliation. For the same reason, the professional criminal who has got his or her 15 years or more is more than capable of turning on those who advised him and making complaints against them, as he will against the police, the judge and the prison officers who deal with his welfare. The professional criminals are not shrinking violets, and that is a very different situation from the one that is posited.
John Mann: How many family complaints were there against the hon. Gentlemans good self in that context?
Robert Neill: In my 25 years, there were two, and the result was the same. Most criminal practitioners find that that sort of thing can happen to them. It is interesting that the most famous negligence case against a barrister, Rondel v. Worsley, was brought against one of the most eminent and impeccably correct Queens counsel that one has ever come across. If anyone thinks that there was anything improper about Michael Worsley, they know nothing of him or the Bar. Even the most eminent and successful people can be the subject of unfair complaint in the world in which we have to operate.
John Mann: So there are all these greatly emotional family casesI am paraphrasingthat have lost out and these various criminals who either went to jail when they should not have done or did not go to jail when they should have done. Yet, in those 25 years there were only two complaints against Michael Worsley. Is the hon. Gentleman not defeating his own argument?
Robert Neill: Precisely not. I find it very difficult to see the logic of the hon. Gentlemans case here. I am making my point in response to the Ministers point. She said that about a third of complaints against the Bar were made where people were unhappy. In response, I would say that that is the nature of the people who tend to complain about the Bar. They are invariably less likely to be happy, because of those types of cases, and also because the type of complaints that they make are less likely to be subject to conciliation or to be dealt with by any other means. It is also worth bearing in mind that about 70 per cent. of complaints involving members of the Bar are hybrid cases, dealing with questions of both conduct and service, which the Governments system is rather rigid in dealing with.
I would accept the point that was made about climate change, save for this: the Bar itself has recognised that the climate needs to change and the Bar has moved. If the Bar had stuck where it was, in the position that it was in at the beginning of my career, the point about climate change would be much stronger, but the Bar has not stuck there. It has separated out the Bar Standards Board; ring-fenced it; made it independent; put in its chair someone who
Mr. Jones: Is it not the case that, a little bit like the Law Society, the Bar knew that this Bill was coming its way and what the hon. Gentleman is describing is the Bar trying to duck under the wire and protect its interests? I would also like to ask the hon. Gentleman how he would address the point that the publics perception of barristers investigating barristers is not something that the Bar can get away from.
Robert Neill: That perception, it seems to me, was sensibly dealt with by the hon. Member for Birmingham, Yardley, when he said that there is the Legal Services Board, which is the one-stop shop. The Lords propose to give a permissive power whereby if, and only if, the board is satisfied that a particular regulatory structure meets its required standard for protecting the consumer, then it can delegate; it does not have to delegate, but it can do so. That seems to me to be the key thing here.
Reference was briefly made to the patents and trade mark situation. There is some evidence regarding that situation. My understanding is that the Chartered Institute of Patent Attorneys has had 16 complaints in five years. That is 0.00128 complaints per member, which is a tiny amount. The trade mark body, the Institute of Trade Mark Attorneys, has had three consumer complaints in the last six years, all settled by conciliation. These are small bodies. The legal services ombudsman said of CIPA:
I am satisfied that CIPA has in place sufficient systems for handling complaints that are fit for that purpose and appropriate for the size of its operations.
They are small, specialist bodies that already have robust systems in place, approved by the legal services ombudsman, but under the Governments current unduly rigid proposals they would be swept up disproportionatelyto use one of the Ministers favourite wordsinto an overly rigid regime, and that is wrong.
Bridget Prentice: If it aint broke, dont fix it, but the problem is, of course, that the system is broke and it needs to be fixed.
John Hemming: Can the Minister say why these bodies dealing with patents and trade marks are broken?
Bridget Prentice: I will go through the debate and I will say to the hon. Gentleman that, although the trade mark attorneys, the patent attorneys, the Bar Standards Board and the Legal Complaints Service for the Law Society are allparticularly the latter twodoing an awful lot better at the moment than
I have listened carefully to what hon. Members have said, and although I have heard all the arguments in the other place, it was good to hear them reiterated here. It was even better, however, finally to hear in the debate the voice of the consumer, and to hear it in this House, because quite clearly the other House was not listening. As I have said, the consumer organisations have told us in no uncertain terms that clause 143 must not stand part of the Bill. Allowing delegation would fly in the face of the reforms that we have sought since Sir David Clementi published his report in December 2004. Neither he nor the consumer organisations, nor the Government, have ever believed that it is acceptable to allow the present system to continue in any of its forms.
On the issues raised by the Liberal Democrat Members, it is entirely possible, for example, for an assistant ombudsman to be a barristeras long as he or she does not hold a practising certificate. My hon. Friends the Members for Bassetlaw and for North Durham were not too happy about that idea in earlier debates, but that will be the position. The Office for Legal Complaints can request advice or assistance under schedule 15, paragraph 15, from any body or person, and they can get expertise if that is what they need. Providing that such advice or assistance is given in that way will ensure that the OLC remains visibly independent and that complaints handling will restore the consumer confidence that has been absolutely shattered during the past few years.
Before setting out some of the comments of consumer bodies, I shall pick up on the point that was made by the hon. Member for Bromley and Chislehurst. As a barrister, he made a very compelling case for barristers to carry on looking after themselves, but he seemed to have forgotten that more than 2,000 solicitors have rights of audience in the Crown court, yet have not asked for delegation. In fact, the Law Society has said that, if we offered them delegation, they would not accept it. He made a compelling case too about family law and about the difficulties and stresses of dealing with it. Do not solicitors deal with it too, however, as well as with immigration cases, and other hugely emotive issues? Are those issues not likely also to result in similar feelings? Again, however, the Law Society is not asking for delegation.
The hon. Member for North-West Norfolk talked about the legal services complaints commissioner and the legal services ombudsman, who performs a very important function under the current system, and whose work I very much value. I am in regular discussion with her, and I welcome her support of the reforms. I am aware of the issues that she has raised in her report, but as I said in my opening remarks, consumers, the Government and I all think that delegating complaints handling would undermine the purpose of the Bill.
The hon. Gentleman also said that the Law Society was neutral. That is not strictly true, and it is misleading to suggest that the society agrees with the
What have the consumers said? The CAB says:
We consider it is essential that complaint handling and adjudication on issues of service quality should not be delegated in this way
that refers to the amendment in the other place
as this would undermine the role of the OLC as a comprehensive ombudsman service.
The hon. Member for North-West Norfolk prayed in aid the fact that Ruth Evans was once the head of the NCC. She was excellent in that role, as she is in dealing with complaints for the Bar Council. Another Evans, Deborah Evans, is the chief executive of the complaints service for the Law Society. I do not know whether the name Evans automatically qualifies someone to deal with complaints about lawyers, but clearly there is something there. Both women are doing excellent jobs in dealing with complaints received about the legal profession. However, they take different views about delegation.
The NCC says that delegation of complaintsclause 143is its
top priority in the Bill.
The Bill was amended in the Lordsfollowing repeated lobbying by the barristers professionto allow the LSB to direct that an approved regulator may deal with complaints...Consumers will not trust a regulatory system that allows lawyers to judge their own. Independence is the single most critical principle in any redress system.
Which? has also said:
Consumers will not trust a regulatory system that allows lawyers to judge their own.
It says that it takes a very similar view.
The three organisations together wrote to Baroness Ashton about this aspect of the Bill, saying the same thing:
Separating the regulatory and representative functions of the professional bodies will be insufficient to command consumer confidence in this respect, especially given the relevant governance and complaint committees will continue to have professional majorities.
I am sorry that Opposition Members have fallen hook, line and sinker for the vested interest of the closed shop of the Bar. The lone voice in the House of Lords speaking up for the consumerapart, of course, from Baroness Ashton, who was leading for the Government on the Billwas Lord Whitty. They were the only Members speaking on behalf of consumers.
Mr. Jones: With great humility, may I correct my hon. Friend? Lord Bach also spoke in favour of consumers.
Bridget Prentice: I was getting carried with the comments made by Lord Whitty in the other place. His description of what would happen if we allowed delegation to go ahead sent shivers through the barristers who were there. My hon. Friend is right to say that Lord Bach also backed the consumer view.
As the hon. Member for North-West Norfolk said, the legal services ombudsman rightly said that the arguments made by the Bar should not be dismissed without serious consideration. Sir David Clementi gave them serious consideration, and then he dismissed them. The Government gave them serious consideration, and then we dismissed them. We heard what was said to the Joint Committee and we gave that serious consideration, but we have dismissed it. The LSO should be in no doubt that we have given serious consideration to the arguments made by the Bar Council, but I agree with my hon. Friend the Member for North Durham. If the clause does not stand part of the Bill today and there is any attempt in the other place to reinstate it, we must and will resist it.
Question put, That the clause stand part of the Bill:
The Committee divided: Ayes 7, Noes 10.
Division No. 24 ]
Question accordingly negatived.
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