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The requirement that the Secretary of State, who is accountable to Parliament, consents to the removal of the chairman does not affect the independence of the OLC in carrying out its duties. Instead, it acts as a check on precipitate or unreasonable removal of the chairman by the Legal Services Board. That is a different proposition from that which the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lyell, are concerned about.

Lord Campbell of Alloway: That in no way grapples with the fundamental point being made by my noble friend and my noble and learned friend. The fact that the OLC is subservient to the board is neither here nor there, other than to advance their argument, and it does not detract from it.

Baroness Ashton of Upholland: I disagree with the noble Lord and I am sorry about that. If you have a non-departmental public body chaired by a lay person with a specific function, and if it is responsible to a board that has been set up and specific criteria are laid out under which people can be removed—they can be removed under those criteria because it is important that there is a check on that—the question is whether that should be the responsibility of the Lord Chief Justice, as the amendment suggests. I do not believe that that would be an appropriate role for him; he has very important functions but I do not think that they should include overseeing whether the Legal Services Board removes a lay chair of a non-departmental public body. I do think that the Secretary of State, who is accountable to Parliament, should have the opportunity to confirm that the Legal Services Board has acted properly within the legislation that has been laid down by Parliament. That is an appropriate way forward.

Lord Lyell of Markyate: Can the noble Baroness clarify this matter? Before the chairman can be removed, some grave default has to be shown against him. In that unhappy situation, which one hopes

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would never arise—and I am not suggesting that it would do so under this Government, but it could in the future—whereby a chairman was being removed because he had not complied with the current wishes of the Government of the day, would the decision that he had gravely defaulted, presumably made by the board, be subject to judicial review?

4.45 pm

Baroness Ashton of Upholland: I do not believe that it is, but I will confirm that with the noble and learned Lord shortly. Oh! I apologise; the information I was getting by nods and shakes of the head was inaccurate. The decision is subject to judicial review. I can confirm that for the purposes of our deliberations. Let us be clear: the Legal Services Board is set up under this legislation. It is a separate body. It determines the work of the Office for Legal Complaints. The legislation determines the only circumstances—which we expect never to arise, as the noble and learned Lord said—under which someone could be removed. Were they to be removed, the Secretary of State would have to confirm that, and be accountable to Parliament for having so done. I understand noble Lords’ concerns about the Legal Services Board, but this feels to me an appropriate role for the Secretary of State.

On the first day of Committee, I agreed to a number of amendments which transfer responsibility for exercise of the regulation functions from the Secretary of State to the Lord Chancellor. Noble Lords will know, by reason of the Lord Chancellor’s oath of office and the Constitutional Reform Act 2005, that there are a range of unique duties and responsibilities not shared by other Ministers. Included in those are,

The Lord Chancellor must be qualified by experience in law or Parliament, and has a duty to respect the rule of law. We have therefore ensured that the proposed arrangements are independent but properly accountable to Parliament. That is where the accountability should lie. That is with the greatest respect to the role of the Lord Chief Justice, I hasten to add.

Lord Campbell of Alloway: If it is not the Lord Chief Justice, it could be the Lord Chancellor. If we had a Minister of Justice, it could be the Minister of Justice. What is wrong is that the matter should be dealt with by the Secretary of State intervening in this affair. That is the fundamental objection. There has not been a very convincing argument why the Bill should stand in its present form.

Baroness Ashton of Upholland: The Lord Chancellor, as it would be, is not intervening in the decision, except if the Legal Services Board considered that the chairman had breached their responsibilities in the precise ways laid out by the legislation. Before the Legal Services Board can remove that individual, it must go back to the

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Secretary of State and have that confirmed. At that point, the accountability comes into Parliament. We are talking about a lay person in a non-departmental public body operating in relation to an independent board. This is based on other models that noble Lords will be more familiar with than I am. The Legal Services Board must follow the legislation and the Secretary of State—or Lord Chancellor, as it will be—confirms that that has happened appropriately. It cannot dismiss the chairman; all it can do is say that they have not behaved properly within the legislation or accept the decision that has been made.

Lord Lyell of Markyate: Could the noble Baroness clarify something? She refers in one sentence to the Secretary of State and in the next to the Lord Chancellor. Is it going to be the Lord Chancellor or the Secretary of State? I would prefer the Lord Chancellor.

Baroness Ashton of Upholland: I can do nothing other than agree with the noble and learned Lord: it should be the Lord Chancellor.

Lord Kingsland: I am grateful to the noble Baroness for her full reply. Indeed, she is right that the substitution of the Lord Chancellor for the Secretary of State is reassuring in the context of these two amendments. However, with great respect, it does not satisfy our concerns. The noble Baroness said that the scheme of the Bill was that the Office for Legal Complaints was subject to the Legal Services Board—that it was in a sense its creature—and that because the Legal Services Board is independent of the state, we should have no worries about the independence of the OLC. That, I think, is the fundamental proposition that the noble Baroness has been making; I see that she is nodding.

In relation to that proposition, we have two concerns. The first is about the independence of the Legal Services Board. In our debate on Clause 1, several noble Lords—I see, for example, the noble Lord, Lord Neill of Bladen, in his place—expressed serious concerns about the independence of the Legal Services Board. To the extent that the board is not independent, we should be concerned about the independence of the Office for Legal Complaints.

Secondly, even if the noble Baroness is right about the independence of the Legal Services Board, why is it necessary to interpose a figure who is as authoritative and above the legal battle as the Lord Chancellor to second-guess, in some circumstances, the independent judgment of the Legal Services Board, to which the Office for Legal Complaints is supposed to be responsible? In our submission, the Bill does not reflect the proposition that the noble Baroness has put before the Chamber—that the independence of the Legal Services Board should allay any concerns we have about the independence of the Office for Legal Complaints.

Perhaps I could put the point this way. I agree entirely with what the noble Baroness is trying to achieve; I simply do not think that the Bill reflects her objective.



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Baroness Ashton of Upholland: I am sorry that the noble Lord does not agree with me. I want to make one point about a matter that puzzles me. One of the threads of our deliberations in Committee over the past few days—it feels longer—has been to ensure that there is the right level of accountability. Noble Lords, particularly those with professional experience within the legal world, have been concerned about issues such as public interest and making sure that no funny business can go on. One issue that I have been interested in in this Bill—as the noble Lord knows, it is not my policy area, so in a sense I look at it in a slightly fresh way—involves providing the opportunity for Parliament to hold to account independent bodies. The traditional way, which has worked through generations of different Governments, has been that the Secretary of State and the Lord Chancellor—I agree that it should involve the Lord Chancellor—are able to be held to account. If there was a feeling that the Legal Services Board had acted inappropriately for whatever reason—we do not expect that and I know that noble Lords do not do so—the Secretary of State would have to have agreed that and would be accountable to Parliament, a Select Committee or whatever for that decision. To remove that is in a sense to move away from what I understood to be one of the threads underlying the Bill.

Lord Lyell of Markyate: The noble Baroness makes a good point about accountability to Parliament; I am always banging on about it myself. It is very important. Might not the answer here be to add the consent of the Lord Chief Justice to that of the Lord Chancellor? That way, the Lord Chancellor would be accounting on a very strong wicket.

Baroness Ashton of Upholland: Not surprisingly, I disagree with that; I do so because the Lord Chief Justice has many functions and plays an incredibly important role. He has a particularly important role in relation to the judiciary. This involves a layperson being appointed on a non-departmental public body, and accountability should be through the Government to Parliament.

Lord Kingsland: Of course the Lord Chancellor is accountable to Parliament, but, in basing her arguments on the political accountability of the Lord Chancellor’s department the noble Baroness makes the point that I was trying to make for me. What I thought the noble Baroness was trying to achieve, as a matter of principle here, was independence of the political process. To fall back on the accountability of the Lord Chancellor to Parliament is to rely on the political process to justify the way in which the Government have drafted these provisions.

Baroness Ashton of Upholland: No, I disagree with that. We are relying on legislation that sets out how independent bodies will operate in conjunction with each other. Noble Lords would wish us to set that out as firmly as we can, recognising the advantages in primary and secondary legislation of the flexibility

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that we need. We sought to do that by clarifying the circumstances in which it operates. However, we want to add that if something as critical as the removal of the chairman were to occur, it is important that there should be an accountability process and that the Secretary of State or the Lord Chancellor should play that role. I do not think that there is anything contradictory in this. This is about independence but it is also about accountability on an area of policy that is, as noble Lords have made very clear over the past few days in Committee, of critical importance in our recognising the roles played by the professional legal services. That is what we have sought to do.

Lord Kingsland: I am most grateful to the noble Baroness. I think we have taken this as far as we need to in Committee. On Report, I shall suggest to the noble Baroness that if the Lord Chancellor disagrees with a decision made by the Legal Services Board in respect of either the chairmanship of the Office for Legal Complaints or the number of members on the Office for Legal Complaints’ board, the appropriate remedy for him would not be to intervene directly at the Office for Legal Complaints level, but to intervene at the Legal Services Board level, because he would have disagreed with a decision of the Legal Services Board. Between now and Report, I shall reflect on these matters and return with a further amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 113 not moved.]

[Amendment No. 114 had been withdrawn from the Marshalled List.]

Lord Whitty had given notice of his intention to move Amendment No. 114A:

The noble Lord said: I shall not move the amendment, but I want to record my appreciation of the noble Lord, Lord Thomas of Gresford, for moving amendments the other night on my behalf. He and I have not always agreed in these debates but he moved them most eloquently—certainly far more eloquently than I could have done. I also thank the Minister for making it clear that the clause as it stands does not allow a redelegation back to the professional bodies by the back door. I abuse the procedure by making it clear that I shall oppose any amendments that allow redelegation to professional bodies by the front door.

[Amendment No. 114A not moved.]

[Amendment No. 115 had been withdrawn from the Marshalled List.]

Lord Maclennan of Rogart moved Amendment No. 115A:

The noble Lord said: The paragraphs that I seek to remove from the Bill raise questions that flow naturally from the debate we have just had about the

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independence of the Office for Legal Complaints. The treatment of the authority of the Office for Legal Complaints in paragraphs 21 and 22 is rather different, for example, from that in the previous paragraph dealing with the Office for Legal Complaints budget. I am moved to inquire why there is the requirement that powers over the acquisition or disposal of land should be subject to the approval of the Secretary of State.

That has the appearance of interfering with what seems to be a purely operational matter. It is not suggested that a move in those directions in respect of land should be subject to the Legal Services Board, but it has to go all the way to the top, which seems rather odd. These matters appear to be suitable for a determination by the board itself and such a provision may inhibit the freedom of the Office for Legal Complaints to act decisively and quickly and to react to changing circumstances.

There is some suspicion in certain consumer quarters, which no doubt has passed the ears of the noble Lord, Lord Whitty, that this is actually about—the clue may be in the limitation of this power in sub-paragraph (2) to the initial five-year period—the present office being located in the West Midlands. There is only one new element, which may be dissipated, and that is the building, as it is thought likely that the incumbent staff will move across from the Law Society’s consumer complaints service en masse. We had some discussion about that earlier but the concern remains.

The Bill also appears to include a provision in Schedule 15 that could make the preferred West Midlands location binding for at least five years. I admit that curiosity, at least as much as a firm intention to push this matter, lies behind the tabling of the amendment. I beg to move.

5 pm

Lord Kingsland: I echo the words of the noble Lord, Lord Maclennan of Rogart. So far as I can tell, there is no equivalent provision for the Legal Services Board and, in those circumstances, we cannot underestimate the significance of the public perception that might conclude that what we have here is simply a rebranding of the old solicitors’ complaints system. As the noble Lord, Lord Maclennan, said, the restrictions on the OLC are quite startling and could inhibit its operational independence. I refer not only to matters concerning the acquisition and disposal of land but also to the power to borrow money. So I, like the noble Lord, am looking forward to hearing the noble Baroness’s response.

Baroness Ashton of Upholland: As the noble Lord, Lord Maclennan, said, we have touched previously on location, and I shall try to tackle that first. When we were considering the location, there were a number of factors to take into account. Criticisms have been levied at the current organisation—I shall not reiterate them—but that does not mean, as I know noble Lords accept, that everyone in the organisation is not able to do a good and viable job responsibly.



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It will be three years before the OLC comes into being, during which complaints will still need to be dealt with. We have to think about ensuring that we retain staff whom we wish to see transferred across under existing TUPE rules and also that we think through appropriately value for money, the skills and experience that we will need, the commitment to TUPE, and the presumption against London as a location, following the Lyons review.

If you put all those factors into the mix, in our view you end up saying that it is appropriate that the new organisation should be able to build on the skills of some, if not all, of the people currently involved. It will be a different structure, and we believe that it will certainly be a different culture due to the way in which it is being set up. None the less, there will be people who are fully able to do a good job, and we have therefore indicated that it would be appropriate to enable them to move across to the new organisation. We do not want difficulties for the Law Society, which there would be if over the three years people bled away and got new jobs because they were not prepared to relocate perhaps hundreds of miles away. That would create a very difficult set of circumstances over the next three years.

That does not mean that we are recreating an organisation which, in general, people feel has not been able to do the job as well as it might, but it does recognise that lots of people within that organisation probably do a very good job and that they need to have the opportunity to work within the new structure. That is the business case that we have evolved. So we said that the new office would not be in Leamington Spa, where the current arrangements are but that it would be in the West Midlands. Thus the staff who currently work there know that there are potential jobs for them.

The new structure will be different. We do not know how many people will be able to transfer across in the way that TUPE allows but we certainly do not want to rule out any opportunities for people. I think that that is absolutely the right approach. However, as noble Lords made clear to me in Committee, it will be very important that it feels like a new organisation, not least for the good people who are going to work in it, and that it will be able to carry the confidence of the professions, the public and consumers. That is what we seek to achieve, and why it will be set up in this way.

On the specific issues the noble Lord raised, he will know that, particularly as regards his first amendment about locations, we have put in a sunset clause after five years. We think that that is right and proper because the circumstances will change. We have therefore enabled the provision to disappear after five years. So it is not for ever and that appropriately tackles the problems I have identified as important.

Paragraph 22 of Schedule 15 provides that any borrowing the OLC might do would need to have authorisation from the Legal Services Board and, through it, the consent of the Lord Chancellor. It enables a provision to exist in legislation that if the circumstances arise—currently unforeseen—the OLC would not be able to borrow any money without the agreement of the Legal Services Board and the Lord

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Chancellor. We have done that for reasons similar to those I have already given; not least because if it were to do that, there would be concerns in the context of how it is funded—a matter which I know we will discuss, no doubt at great length, later. But it is important to have those safeguards in place. So there is one safeguard with the sunset clause; there is another with the safeguards built into it which would enable that action to happen, should that be necessary.

I hope that the noble Lord, Lord Maclennan, will understand our rationale in thinking that there is a very good business case for the location of the OLC so that the current work can continue, there will be the opportunity for skilled people to move across to it, and it is recognised that this needs to be a new organisation.

Lord Maclennan of Rogart: I am grateful to the noble Baroness for explaining what lies behind this slightly, on the face of it, odd provision. It is a transitional arrangement written into the Bill, but of course there will be a price to be paid. I understand what she says about the rights and interests of those currently employed in the Law Society’s consumer complaints service, but they are taken care of in the law. The noble Baroness referred to TUPE.


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