Clause
144
Reporting
misconduct
Mr.
Kidney:
I beg to move amendment No. 276, in
clause 144, page 76, line 17, leave
out ‘may’ and insert
‘must’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 277, in
clause 144, page 76, line 19, at
end insert
‘A copy of
the report made to the ombudsman under this section must be sent to the
complainant by the
ombudsman.’.
No.
298, in
clause 144, page 76, line 30, at
end add—
‘(6) The ombudsman
may, when so requested by a complainant, make a request to the relevant
authorising body to review the decision it has made as set out in a
report made under subsection (2), and may request the relevant
authorising body to notify it of the result of any such
review.’.
Mr.
Kidney:
It is a pleasure to have you in charge of our
proceedings again, Sir. Nicholas. This is about the procedure for a
complainant to find out what happens
after making a complaint. If I may start at the beginning of the
process, a complainant who is dissatisfied with a service from a
provider of legal services will first try to resolve their complaint
with the legal server directly. If that fails, as we have just
established with the last vote, there is only one place to go: the
Office for Legal Complaints. Once there, the office can decide whether
it is a complaint about the standard of service, the conduct of the
professional who delivered the service, or partly one and partly the
other.
To illustrate
the points that I am about to make, let us take a situation where the
ombudsman and Office for Legal Complaints consider that there is a
mixed case of standards and conduct. The ombudsman will say to the
complainant, “I think that there is possibly an element of poor
standard of service here. I will investigate it and let you have my
decision. However, I also think that there is possibly a problem with
the conduct of the person who delivered the service to you and I shall
refer that to an approved regulator”. The complainant might spot
the difference between those two outcomes and say, “Just a
minute. You have told me that I will hear about the result of the
complaint about the standard of service, but I did not hear you say
anything about what I will hear about the conduct”. The
ombudsman will say, “That is quite right. Either I will not
bother to deal with it and will ask for a report myself about how it is
dealt with, or, even if I do take action, I do not have to tell you
anything about it”.
As far as consumerism is
concerned, that is a very unsatisfactory situation. As a matter of good
standards of practice it ought to be the case that the ombudsman says,
“I have decided that part of this matter is about standards. I
will investigate it and let you have my decision. The other part is
possibly about conduct. I am going to get somebody else to investigate
that for you and I will let you know the outcome of that investigation
too”. I do not think that any other outcome is satisfactory.
However, at the moment, the way that clause 144 is drafted means that
that is not the case.
First, the ombudsman does not
even have to ask the approved regulator to let them know the outcome of
an investigation because the Bill states that the ombudsman may request
a report back, which means that they need not if they do not wish to.
The clause is silent on the ombudsman telling the complainant the
result.
Amendment No.
276 changes “may” to “must”, which means
that the ombudsman must always ask for a report from the approved
regulator. I was pleasantly surprised to receive recently from the
legal services ombudsman a special report called, “Legal
Services Reform—a perspective”, dated June 2007, in which
my argument is echoed on page 26. It
reads:
“The OLC
rules must require a report from the Approved Regulators on every case
that has been referred from the OLC for potential misconduct. The OLC
could then use this information to build up a picture of any systemic
problems in
regulation”.
In addition
to my argument that it must be best practice to let a person know the
result of their complaint, the ombudsman has here given another very
good reason—spotting systemic failure in the system and having
that information every time.
My
amendment No. 277 would provide that when the ombudsman has insisted on
receiving the report, he ought to pass it back to the complainant.
That, again, is my argument about best practice. I then push the boat
out a little bit with amendment No. 298. What would happen if a result
from the approved regulator is that no action be taken, but the
complainant, on hearing that from the ombudsman, says, “But that
is outrageous! This is the worst case I have ever heard of. How on
earth could that be the outcome?”? There is no remedy if that is
the attitude of the complainant. There is the possibility, of course,
that the Legal Services Board, a long time down the road, might pick up
a lot of similar complaints and take some decisive action, but nothing
could happen as a result of that one complainant thinking that the
outcome was poor. I suggest that the complainant could say to the
ombudsman, “Will you please go back to the approved regulator
and ask it to reconsider the decision and have a fuller look at
it?” There would be a filter because the ombudsman could say,
“This is a very unreasonable person. I have been dealing with
their complaint for a very long time. I really do not think that there
is anything in this”, or they could say, “Well, actually,
I was a bit surprised by the outcome and on this occasion I will ask
for a report back”. Again, I think that I am supported by the
same report from the legal services ombudsman. Page 25
states:
“There
is no mechanism for the consumer to ask for a review of any of these
decisions, as there is no longer the Legal Services Ombudsman
independent review available to
them”.
A little later on
the same page it
states:
“The
proposed new OLC process will therefore represent to the consumer the
loss of the independent Legal Services Ombudsman review as against the
current
scheme.”
In
other words, if we legislate as the Bill is currently drafted, we will
introduce a system that is actually worse for the consumer in that
specific situation than the current system. I do not think that that is
what the Minister intends or what the consumer groups outside this Room
are expecting to hear and find at the end of our deliberations. If she
does not like my proposal in the amendment, she ought to consider
another way of ensuring that the ombudsman system is replaced by
something at least equally as robust.
Mr.
Bellingham:
We support amendments Nos. 276, 277 and 298. I
congratulate the hon. Member for Stafford on the way in which he
proposed them. In fact, I gather that they have the full support of
Which? and the NCC. I congratulate Which? and the NCC on the
excellent briefing that they gave the Committee and on the practical
stance that they have taken. Obviously, the Opposition have been unable
to support every one of their requests, but certainly we support the
amendments. I had a lot to say on them, but he has made the case
strongly already. All that I would like to do is endorse what he said
and point out that it has the support of everyone in the Official
Opposition.
John
Hemming:
The hon. Member for Stafford made an excellent
point: for the measure to work properly, it must be driven by the
consumer. Obviously, if the consumer does not know what is going on,
they cannot drive anything and, therefore, we support wholeheartedly
the three amendments.
Bridget
Prentice:
I was at first going to be very resistant to the
amendments, but my hon. Friend has made a couple of very important
points about the consumer knowing the end results and about how, having
made the complaint, it is important in good practice for them to know
the end result. I would therefore like to look at them again. I was
initially resistant because my main concern is that the system should
not be overly bureaucratic and costly. On that basis, I ask my hon.
Friend not to press amendments Nos. 276 and
277.
6
pm
Mr.
Kidney:
Given that I have the advantage of everyone
supporting me on this, I am obviously concerned that we should keep
progress going forward. On the possible objection regarding costs, does
my hon. Friend agree that if it is ingrained in the practices of
everyone concerned, and they are already under duties to exchange
information with each other, it need not be an additional
cost?
Bridget
Prentice:
My hon. Friend makes a very good point. As
everyone on the Committee knows, the parliamentary ombudsman always
writes back to the relevant Member of Parliament and complainant when a
complaint is made. I am sure that there is an efficient way in which
these matters can be dealt with that is not too costly.
I cannot
accept Amendment No. 298, however. It is not the OLC’s role to
ask an approved regulator to review disciplinary decisions. We have to
make sure that the Bill sets out a clear distinction between redress,
which is for the OLC to consider, and discipline, which is a matter for
approved regulators. I accept that the Bill does not allow the board or
complainants to challenge a regulator’s decision in an
individual disciplinary case, but it does allow the OLC to build up a
picture of how well regulators are dealing with disciplinary matters so
that they can report any concerns to the board. I do not want to accept
the amendment because it could blur some of those issues. Allowing the
board to build up a picture of how well the disciplinary arrangements
of each regulator is working is an acceptable way forward and the Bill
provides the necessary safeguards to ensure that discipline is dealt
with properly. I therefore ask my hon. Friend not to press the
amendment for reasons quite different to those for the previous
two.
Mr.
Kidney:
As it is very much scratch drafting in amendment
No. 298, I shall not want to press it to a vote until the wording has
been improved. However, on the principle that there should be some
ability to query why no action has been taken in a conduct case, for
example, I should like the Minister to consider that we are losing the
ombudsman’s role and that nothing is replacing
it.
Bridget
Prentice:
I should have said in my closing remarks that
although I can see that the legal services ombudsman makes a very good
job application on page 25 of the special report, I believe that what
we are putting in place is far more robust and far stronger, more
independent and better for the consumer than the current system. That
is the very reason why we are making the
changes.
Mr.
Kidney:
I am grateful to my hon. Friend for giving me that
opinion. Perhaps I can pursue her between now and Report to examine it
and satisfy myself that it is the case.
I am willing to withdraw
amendment No. 276, because the Minister seems to have fully accepted
the principle of what I have said, and there is more than one way to
achieve the result that I want to achieve, so I await with relish the
Minister’s amendment on Report. I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Clause
144 ordered to stand part of the
Bill.
Clauses
145 to 149 ordered to stand part of the
Bill.
Clause
150
Enforcement
of requirements to provide information or produce
documentation
John
Hemming:
I beg to move amendment No. 236, in
clause 150, page 80, line 4, leave
out ‘a person (“the defaulter”)’ and insert
‘an authorised
person’.
I rise
merely to provide clarification, to ensure that the right person is
dealt
with.
Bridget
Prentice:
I am afraid that I cannot accept the amendment,
as it would mean that the ombudsman would not be able to enforce
requests for information or documents from complainants. That would be
unacceptable because it could result in unequal treatment of the two
parties in a case under the scheme. As it would mean that the ombudsman
would be unable to follow up requirements for information from
complainants, it could result in people wasting the ombudsman’s
time. It might be of some reassurance to the hon. Gentleman that I
expect the power to be used rarely, if at all. It is nevertheless
important for it to be included in the Bill, to act as a deterrent and
so that, in the interests of fairness, both parties are treated
equally.
Simon
Hughes:
I am half-surprised that the Minister did not buy
the amendment. She understands the argument. That she says that the
measure will be rarely used is a consolation, but not a complete
protection, which she also understands.
There is a difference between
requiring disclosure and revelation of documents from organisations and
requiring the same from the individual citizen. There is a general wish
to protect the privacy of citizens’ information, which is why
the amendment was tabled. That is the right starting point. We will
consider the Minister’s concerns, but this is the sort of issue
of principle on which we would want to be absolutely certain that we
have guaranteed enough protection for the individual. We will return to
it later if necessary. On that basis, I beg to ask leave to withdraw
the amendment.
The
Chairman:
I must say to the hon. Gentleman that the hon.
Member for Birmingham, Yardley, having moved the amendment, has to rise
to withdraw it if he wishes to do so.
John
Hemming:
I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause
150 ordered to stand part of the
Bill.
Clauses
151 to 157 ordered to stand part of the
Bill.
Clause
158
Approved
regulators not to make provision for
redress
Amendment
proposed: No. 14, in clause 158, page 83, line 11, leave out from
‘redress’ to end of line 13.—[Bridget
Prentice.]
The
Committee divided: Ayes 8, Noes
7.
Division
No.
25
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly agreed to.
Amendment agreed
to.
Amendment
made: No. 15, in clause 158, page 83, line 17, leave out
‘and except as permitted by subsection
(1)’.—[Bridget
Prentice.]
Clause
158, as amended, ordered to stand part of the
Bill.
Clauses 159
to
172 ordered to stand part of the
Bill.
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