Clause
140
Acceptance
or rejection of
determination
4.30
pm
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
ombudsman’s 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 Bill’s 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
might not produce a binding determination, as the complainant might not
accept the outcome. That barring of access to a determination of civil
rights and obligations does not seem appropriate to the end that is
sought in the amendments, particularly given the unlikeliness of a
lawyer pursuing unfounded claims through the courts, with all the
attendant costs, simply to avoid an ombudsman’s
determination.
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 ombudsman’s 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
ombudsman’s 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.
Clause
143
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 Bill’s 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
argue—I have its briefing for this debate—that 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 arguments—although they are
barristers—simply 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 ombudsman’s
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 Bar’s detailed briefing. The
Bar complains about the fact that a number of Law Society
staff—the LCS staff—might well transfer to the OLC, and
it says that the OLC will be a rebadged LCS. Quite frankly, if we left
the Bar’s 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 bodies—Which?, the National Consumer Council, and
citizens advice bureaux—have 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 plea—indeed, stronger
than that, a request—that 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 not—touch wood—been 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 place—the Bar Standards Board—relies 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
board’s annual report for 2006, its chairman
says:
“Within a
little over twelve months from Sir David Clementi’s
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 profession’s 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
independent regulator, which is exactly what it did, and now it is
threatened with having the rug pulled from under it and being wiped
out. That is why many of their lordships found that the Bill needed
improving and proposed their amendments; they are very concerned and
angry that the Government are going to remove them. 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.
John
Mann:
Will the hon. Gentleman give way on that
point?
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 Society’s 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.
5
pm
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 people—people who have listened to what the
Government have said and heeded their strictures and listened to what
Clementi had to say—has 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 shop—a mentality that I fully
understand—attempting 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
looked from the outside. I will give two reasons why. They are unusual
ones, but they are real cases. The first relates to the way in which
barristers are complicit, including with solicitors, in providing
opinions to legal executives carrying out the work of solicitors and
giving a professional veneer to a case being put forward to a
solicitor. 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 don’t accept complaints about that. That’s
one for the solicitors.” In today’s 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 Society—by 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 barrister—there 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 barrister’s
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 be—my advice to her in some of those
cases—that it is both. Therefore, a joint case ought to be
possible. Frankly, that would lead to complications—if 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 and—given my
inside knowledge of some of the solicitors and barristers employed by
some of those who were attempting to get justice—with
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
case—let us imagine—of 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
not a case in that example? What if the regulator thinks that it is
appropriate for a body dealing with Bar complaints to be passed that
case, having gone through the process that assesses whether it is all
one department’s fault, as it were, or another
department’s?
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 complaint—they have lots if they
lost their case—the 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
we—certainly as politicians—can 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.
5.15
pm
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 complaints—if someone has a
complaint, they go there—is 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 so—it 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 consideration—in
this instance, the Bar complaints process—followed 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
organisation—including the patent agents and trademark
attorneys, about whom we have seen no figures relating to
complaints—seems 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 about—patents and so
on—there 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, “I’m sorry, we’re
going to have to shove it all into one big
organisation—trademarks, 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 amendment—union 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
complaints about trade unions cannot be handled by the trades union
complaint process. It must be handled with a one-size-fits-all
approach. Everything goes—patents, trade unions, trademarks,
barristers and
solicitors.” 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
occasions—the 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 case—no children or dependants were
involved. She had gone to a local firm of solicitors who for some
reason—I could not quite work out why—employed two
barristers to deal with the case. Even with my layman’s
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
occasions—on 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.
5.30
pm
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 Bar—although 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
client. He also complained that the prosecuting counsel had not gone
hard enough. That shows why we should be careful about the nature of
complaints against members of the Bar. Although it was manifestly
obvious to me, as a young barrister in those days, that what was being
said was nonsense, my head of chambers and I none the less thought it
right and proper to make everything available to the Bar Council. We
got all the papers back from the Crown Prosecution Service, which had
instructed me; we got the notes from the court clerk; I liaised with
the defence barrister; and he got out all his notes and his
instructions from his solicitors. We made all that documentation
available, which took a certain amount of time and concern, and
presented it, and in due course it was dealt with and the complaint was
dismissed. Even though I knew in my heart of hearts that I had done no
wrong, and my colleague on the other side knew in his heart of hearts
that he had done no wrong, for a young member of the profession, it was
a pretty unpleasant experience. 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
wrong, as the judge found them to be, because people believe
passionately, if sometimes misguidedly, in the rightness of their
situation.
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. Gentleman’s 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 Queen’s 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
cases—I am paraphrasing—that 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. Gentleman’s case here. I am making my point in
response to the Minister’s 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 Government’s 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
themselves had a distinguished career in consumer protection; appointed
as its independent reviewer, who looks at every complaint, someone who
was previously the secretary to the Committee on Standards in Public
Life; and given its lay panel a veto. The Bar has taken all those steps
to establish that separation of the Bar Standards Board. That is the
big difference.
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 public’s 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
Government’s current unduly rigid proposals they would be swept
up disproportionately—to use one of the Minister’s
favourite words—into an overly rigid regime, and that is
wrong.
John
Hemming:
I think that the hon. Gentleman makes the
point—if it ain’t broke, don’t fix
it.
Bridget
Prentice:
If it ain’t broke, don’t 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 all—particularly the latter two—doing
an awful lot better at the moment than
they did in the past, that is not a reason for saying that we should
have anything other than an independent office for legal complaints to
which the consumer can go to have their complaint and claim for redress
dealt with.
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 barrister—as 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
Bar that one size does not fit all. The Law Society supports the
establishment of the OLC as a new body that is completely independent
of all the professional bodies and that is responsible for dealing with
all consumer complaints. The Solicitors Regulation Authority is firmly
and absolutely against delegation and has argued strongly that the
co-operation of the Bar and its inclusion in the new system are
essential to the success of the new arrangements. 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.”
5.45
pm
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 complaints—clause 143—is
its
“top priority in the
Bill.”
It
says:
“The Bill
was amended in the Lords—following repeated lobbying by the
barristers profession—to 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 consumer—apart, of
course, from Baroness Ashton, who was leading for the Government on the
Bill—was 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
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly negatived.
| 
