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The main concern that this gives rise to is the perception that the Government are making less of a change than had been heralded by making such a remarkable provision in primary legislation to ensure that the location of the OLC does not lie in its hands for a number of years to come, and that it will be where it has been determined in the manner that the Minister described. However, she has elucidated the thinking, and it is a matter of judgment whether that perception vitiates the wider purpose of the Bill and the wider purpose of seeking to strengthen not only the appearance of independence, but also the actuality. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 116 and 117 had been withdrawn from the Marshalled List.]

Schedule 15 agreed to.

Clauses 112 to 117 agreed to.

Clause 118 [Performance targets and monitoring]:

Lord Whitty moved Amendment No. 117ZA:

( ) investigate the handling of complaints by the OLC (complaints under this subsection include those handled on behalf of the OLC and those referred to approved regulators by the OLC).”

The noble Lord said: My amendment is fairly straightforward; the other grouped amendments in the names of the noble Lords, Lord Maclennan and Lord Thomas of Gresford, spell out its implications.

My concern is that, as was said in the first debate this afternoon, while the OLC is the creature of the Legal Services Board in one sense, the fact that both are prescribed in statute means that we have to be clear what the relationship between the two is. All my amendment would do is make it clear that, if the Legal Services Board is to be effective, its powers

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must be adequate for the purpose of ensuring the performance of its duties by the OLC. If the OLC fails in its duty to handle complaints, the powers of the Legal Services Board need to be at least as great as the current powers of the Office of the Legal Services Complaints Commissioner. Therefore, at the very least, the power to investigate should be included in the Bill.

That is all that my amendment suggests. The subsequent amendments in the group deal with the process and sanctions available to the LSB. I hope that my noble friend will explain that the amendments are unnecessary, but we ought to be clear at this stage that the powers of the LSB are at least as great as those that exist at present and adequate for the task that we are now placing on it and on the OLC. I beg to move.

Lord Campbell of Alloway: I oppose the amendment for the reason that it has been in effect opposed already. It brings into play the issue that we discussed of whether the board should have an initiative role to investigate on its own when no complaint and no cause for investigation have been submitted to it. Inevitably, for that reason, I oppose the amendment.

Lord Maclennan of Rogart: I am grateful to the noble Lord, Lord Whitty, for trailing the amendments standing in my name and that of my noble friend Lord Thomas of Gresford. He is right in describing their purpose, which is not to empower the Legal Services Board to initiate new investigations but, rather, to give it a power that already exists in the hands of the Legal Services Complaints Commissioner, for which no provision is made in the Bill. It is the power to intervene if the OLC is failing to meet the purposes for which it has been established and to consider strategically what is being done by the OLC. If the OLC is not seen to be handling complaints effectively and efficiently, some such power is required. My amendments spell out how those powers might be exercisable.

It is important, and I understood it to be an underlying purpose of the Bill, that the whole system of legal complaints should be subject to independent scrutiny and review. If the operational decisions by the Office for Legal Complaints are not giving rise to the satisfaction that it is hoped that they will elicit, the system ought to provide a remedy. That is the purpose of the three amendments that I have tabled.

Lord Neill of Bladen: In considering the amendment moved by the noble Lord, Lord Whitty, on its own, my only concern in this area is whether there is any suggestion that there might be intervention in a particular ongoing complaint that is being adjudicated. In other words, could the OLC be told what decision it is to arrive at, or is this all intended to operate ex post? You have a decision, maybe half a dozen decisions, and then there is public concern, or a number of people are concerned, about the way in which the OLC has been doing its job. Intervention in current decisions would be completely undesirable as it would completely destroy the independent stature of the OLC. I cannot believe that that is intended.



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5.15 pm

Lord Kingsland: The noble Lord, Lord Neill of Bladen, has made a very good point on this line of amendments. My understanding is that the amendment of the noble Lord, Lord Whitty, and indeed the Liberal amendments, which are in the same line, are intended to be directed not at an individual complaint, but at the system that is being operated by the Office for Legal Complaints. If there is a systematic failure by the Office for Legal Complaints to fulfil its role in the way the Legal Services Board thinks it ought to be fulfilled, that would give the Legal Services Board the opportunity to issue directions ex post, which would correct the conduct of the OLC. That is what I understood by this line of amendments. We have not tabled any amendments; but if their approach is the one that ought to be adopted by your Lordships, then they would be, in my submission, the proper way of achieving it.

These amendments have made me look in a little more detail at Clauses 111 to 118. I must confess to your Lordships—particularly in the context of the Minister’s earlier remarks about the accountability of the OLC to the Legal Services Board—that these provisions give rise to considerable cause for concern, at least to me. This is because Clause 115 requires the Office for Legal Complaints to prepare an annual report, which will go to the Secretary of State—soon to be substituted by the Lord Chancellor—and then be laid before Parliament. That suggests an entirely different line of accountability for the OLC from the one suggested by the noble Baroness, which is accountability to the Legal Services Board.

Would it not be more appropriate for the Legal Services Board’s annual report to contain everything that it is necessary to say about the Office for Legal Complaints, making Clause 115 surplus to requirements? Indeed, if Parliament discussed an annual report under Clause 115, prepared by the Office for Legal Complaints, there might be a danger that it would come to an entirely different view about how the Office for Legal Complaints ought to operate from the one taken by the Legal Services Board. Surely parliamentary accountability ought exclusively to lie in the relationship between the Legal Services Board and Parliament. If both these institutions independently account to Parliament, the potential for confusion is considerable.

The noble Baroness might be saying to the Committee in response to these amendments that Clause 118 requires the OLC to meet performance targets and, if it does not, the Legal Services Board has certain powers in relation to the OLC. Performance targets, however, are quite different from those matters raised by the noble Lords, Lord Whitty and Lord Maclennan of Rogart.

I can summarise my observations by saying that if the noble Baroness wishes to sustain her earlier argument that the Office for Legal Complaints is accountable to the Legal Services Board, Clauses 111 to 118 do not properly reflect that.



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Baroness Ashton of Upholland: We have had an interesting debate and I shall reflect on the specific points made by the noble Lord, Lord Kingsland, on Clauses 111 to 118. I start by responding to the wonderfully numbered Amendment No. 117ZA—the numbering of these amendments becomes more extraordinary by the day—tabled by my noble friend. We think that the LSB already has the tools to assess whether the OLC is performing effectively and I agree with the noble Lords, Lord Neill and Lord Kingsland, that the issue is about systemic processes rather than individual complaints.

The amendment is very widely drawn. Clause 153 provides that the LSB is able to direct the OLC to modify its rules. We have already talked about removing the chairman or members, but if the OLC should fail in its duties, under Clause 153 the board is able to direct it to make changes. For the reasons already outlined, we do not want the board to reopen or intervene in the determination of individual cases. The ombudsmen are independent and we do not want to see any interference in their decisions, which would be the unfortunate result of this amendment. We think that we have captured what noble Lords are seeking in Clause 153. Systemic issues will be dealt with by the LSB, but we would not want to see individual cases being reopened. I hope that my noble friend will feel able happily to withdraw his amendment if I am right in assuming that he agrees with the noble Lord, Lord Campbell of Alloway, and others that this is an issue where the systemic approach is fine, but it is not for individual cases.

I turn to the group of amendments spoken to by the noble Lord, Lord Maclennan of Rogart. We are setting up a very different kind of relationship between the OLC and the LSB from that which exists currently for the LSO or the LSCC in terms of their relationships with the approved regulators. We have already talked about the role of the LSB in terms of appointing the members of the OLC and, of course, removing them if they fail to perform adequately. Simply to transfer across what we have currently got in the system would be to fail to acknowledge that we are creating a new system. We will not be in the position of having legal professional bodies involved in the handling of complaints in the same way. This will be a completely separate organisation led by ombudsmen who, as I have indicated, will be independent. So we do not accept that there is a need to replicate what we had before, because this is different. For that reason, we would not accept these amendments.

The noble Lord, Lord Kingsland, considered the role of Clauses 111 to 118. As I understand it, the annual report provides an opportunity for Parliament to look at what the OLC is doing. I presume noble Lords would like that to be the case. However, the noble Lord said that we could have a situation in which the Secretary of State and the Legal Services Board were in different places, which might in itself be quite interesting. I understand that both will receive copies of the report and that the Secretary of State would lay it before Parliament. That is a normal route for putting things before noble Lords and the other place. In the policy areas in which I have been involved, that is ordinary practice. I do not think that

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there is any potential for conflict. It is important that we are given the opportunity to see these reports and to consider how things are working, not only in the light of what noble Lords have said but also because we want to secure, along with professional confidence, public and consumer confidence in the system.

I am not sure that I accept fully the proposal that we do not need these clauses. While I hasten to add that I am always keen to make Bills shorter, it is important to set out in the Bill precisely what we are asking the Office for Legal Complaints to do. There is a tension between wanting to be as clear as possible in the Bill and allowing for the flexibility that is always desirable beyond it. So while I am happy to look at these again, I think that they give a general sense of what the OLC is being required to do in work that it undertakes. I am also pleased that noble Lords will be able to look at an annual report from it.

Lord Kingsland: Before the noble Lord, Lord Whitty, replies—and I think that the noble Lord, Lord Maclennan, also wishes to intervene—I may have unintentionally confused the noble Baroness. I am suggesting not that we should expunge Clauses 111 to 118 from the Bill, but that some of those clauses might need amending to conform with the principle that the noble Baroness has laid down—that the Office for Legal Complaints is, in effect, a creature of the Legal Services Board.

On Clause 115 in particular, I am not suggesting that we do not need the information that the annual report would contain laid before Parliament, as set out in that clause. I am, however, suggesting that that information ought to be contained in a report made not by the OLC but by the Legal Services Board. That is because Parliament may well take views on the annual reports of the Legal Services Board and of the OLC that are not consistent, which would create much confusion. I therefore suggest to the noble Baroness that we would be better to have a single report presented by the Legal Services Board incorporating what the OLC report would have said.

Baroness Ashton of Upholland: I am perfectly happy to say that I am easily confused, as the noble Lord, Lord Kingsland, knows well, and I apologise for not quite understanding what he meant. I am happy to look at that, as one issue has been to make sure that the OLC—I would probably not go as far as saying that is a creature of the other body, but it certainly has responsibilities to it—is aware of its responsibilities as an NDPB and is functioning properly. These clauses are, in part, designed to achieve that and we therefore felt that it was important to look at the OLC as an entity. However, the noble Lord makes a good point and, if I might, I will talk to my colleagues about it.

Lord Maclennan of Rogart: I am grateful to the Minister for her reply, but I confess that I am not wholly satisfied that she has addressed the point with sufficient force to convince me that this series of amendments is misdirected. She seems to recognise that, in the relationship between the OLC and the

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board, there ought to be some capability to intervene if the OLC is systemically not delivering what it is expected to do. Yet, in order to ensure that that is possible, the Minister is relying on a quite limited power in Clause 153, which allows the board to,

or to,

However, the fault that gives rise to concern may have nothing to do with the scheme rules. It may be an operational matter not directly related to them, so an amendment to the framework within which the OLC operates might actually be futile.

Under Clauses 111 to 118, it is clear that the Office for Legal Complaints has wide powers that are not necessarily contained within the scheme rules. These powers are set out most widely in Clause 116, which allows the OLC to,

it does not state whether it is a subjective or objective calculation—

If I were satisfied that the Bill provided for interventions of the kind that I have suggested could be necessary to rectify the continuing dissatisfaction felt and perceived by the board with the performance of the OLC, I would be greatly reassured and would consider again whether these amendments are apposite. But the Minister relied simply on one clause, which by no means covers the situation.

5.30 pm

Baroness Ashton of Upholland: The noble Lord is right: I should have referred also to Clauses 117 and 118. When he reflects on what I have said, will he be kind enough to put together Clauses 117, 118 and 153? These clauses provide that the board may require the OLC to prepare reports in respect of any specified matter; that the board may set and monitor performance targets; that directions can impose conditions with which the performance targets must conform; that the board must publish any target set or direction given by it under the clause so that the OLC knows what it has to do; and that the board may take such steps as it regards as appropriate to monitor the extent to which targets are being met. The noble Lord is right to say that I relied far too much on one clause, but I hope that he will feel that we have captured what he is after in the context of all of these clauses.

Lord Maclennan of Rogart: I am reassured to the extent that the Minister is anxious to ensure that the powers that I suggest the board should have ought to be in the Bill. However, I am by no means certain that the performance target requirements deal with the issue either. Performance targets are very often concerned with percentages, costs and many other things that are not necessarily directly to do with a pattern of consumer dissatisfaction. It is those concerns that I am seeking to address.

I am not unresponsive to what the Minister said—I have no doubt that she has this in mind—but the

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question of who deals with a failing OLC needs to be answered comprehensively. There are certain instrumentalities for dealing with certain shortcomings, but they are not sufficiently comprehensive. I hope that the Minister will look again at this matter and consider whether it is possible to meet these concerns by importing something into the Bill.

Baroness Ashton of Upholland: Of course. I hope that the noble Lord will discuss with me our interpretation of what we believe we have captured within the Bill to see whether that addresses his concerns. I believe that there is very little between us in what we are seeking to achieve.

Lord Whitty: I shall not pursue the amendment because, if it is capable of the interpretations of the noble Lords, Lord Neill of Bladen and Lord Campbell of Alloway, it is drafted far too widely. I am certainly not suggesting that the board should interfere in ongoing investigations by the OLC. However, like the noble Lord, Lord Maclennan, I am still slightly uneasy and I would be grateful if the Minister would either pursue the matter further or write to us.

We are dealing here with the history of the previous system of complaints handling under the Law Society. I do not want to reopen old controversies, but that system has not been widely regarded as being up to scratch for the task. In a relatively recent change, we gave certain powers to the Office of the Legal Services Complaints Commissioner. The Minister has referred us to several clauses, but I am slightly anxious that they do not add up to the same powers that the commissioner had under the previous system, particularly on initiating investigation; rather, they largely relate to sanctions, or to requirements for the OLC to report upwards to the board. They do not actually give the LSB the powers to initiate investigations of systemic failings or individual cases. They do not seem to meet that. I would be grateful, in withdrawing this amendment, if my noble friend could indicate that she would be prepared to give this a little further thought and, if necessary, write to me and other noble Lords.

Baroness Ashton of Upholland: I will give anything further thought, as my noble friend would expect. The only comment I would make is that the powers may not look the same because this is a different system, and the role that my noble friend describes would not be the same. We think that we have captured what my noble friend is seeking, which is the opportunity for the Legal Services Board to be sure, in a systemic way, that clear areas of concern can be dealt with. We think that the combination of monitoring, targets, requiring reports and, at the end of the day, being able to remove people is a good one, and will tackle that issue. Of course I will look further at it, though, to ensure that we have captured that. I think that there is nothing between the two of us on this matter, except to say that the Government are not recreating the system as it stands because the position of this body is not equivalent to that of the current body.



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Lord Whitty: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 117A to 118C had been withdrawn from the Marshalled List.]

Clause 118 agreed to.

[Amendments Nos. 118D to 118F not moved.]

Clauses 119 to 121 agreed to.

Clause 122 [Jurisdiction of the ombudsman scheme]:

Lord Kingsland moved Amendment No. 119:

(d) the activity is a legal activity.”

The noble Lord said: I shall also speak to Amendment No. 120A. These amendments have been grouped together as they relate to the extent of the jurisdiction of the ombudsman scheme.

In Clause 125 the jurisdiction of the ombudsman scheme is stated to cover an authorised person, regardless of whether the complaint relates to the performance of legal services. That appears to be unnecessarily broad. The amendment therefore provides that there should be jurisdiction only for complaints about the respondent’s legal activities.


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