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The Government should pay attention to this, but I have no idea whether these amendments are the right approach.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords. The noble Lord, Lord Carlile, and the noble Baroness, Lady Carnegy of Lour, are absolutely right to raise the issue of confidence. I seek to ensure in the legislation that the level of confidence among consumers, the public and the legal profession is at the right level.

The noble Lord, Lord Kingsland, who read out my words, is completely right. I agreed that I would take away the principle of mutatis mutandis—which I did not understood until noble Lords explained it to me. I was only making a vague joke when I said that I did not understand it because my Latin was too rusty. I said that we would ensure that we had equality of provision of opportunity for consultation in the legislation. I stand by that. I took the amendment away—

Lord Kingsland: My Lords, if I may respectfully suggest to the Minister, she went further than that. She said in terms, on two occasions, that she accepted the amendment.

Baroness Ashton of Upholland: My Lords, the amendment was about mutatis mutandis. I think that I was very clear to noble Lords that I sought to ensure that whatever I brought forward in the Bill—

Lord Kingsland: No.

Baroness Ashton of Upholland: My Lords, if the noble Lord disagrees, he can divide the House; that is fine. It is up to him. I want to be clear about what I understood that I did, and the noble Lord can perfectly legitimately challenge that. I accepted the principle of the amendment; I did not accept the wording, or I would have accepted it on the Floor of the House.

I said that there was an issue about enabling the professions to talk to and be consulted by the Legal Services Board on a level with that of the Consumer

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Panel. My noble friend Lord Whitty indicated, and noble Lords are in broad agreement, that there is an understanding that we need to set up the Consumer Panel to enable it to be formally consulted because it exists in a different way and will come into being only by being brought together by the Legal Services Board with the current regulators.

I absolutely agree that I took the amendment away. I talked with my ministerial colleagues and took advice on it; we talked to a variety of people, and my honourable friend Bridget Prentice, the Minister responsible for the policy, looked at the issue very carefully. The advice that I got back was that the Bill provides a variety of means whereby consultation is available, both specifically as the noble Lord, Lord Kingsland indicated—

Lord Campbell of Alloway: My Lords, I have only one quick question: what is the objection to this amendment? What goes on with colleagues is one thing, but what is the objection to this amendment in the way in which it is put before the House today?

Baroness Ashton of Upholland: My Lords, one of the disadvantages of the noble Lord interrupting is that I cannot complete my speech. If he will wait until I have finished he may well need to ask me that question if he feels that I have not explained the matter properly. I was trying to explain the process that I had gone through and to give reasons. The noble Lord may disagree with them and feel that I have not explained them properly; that is completely reasonable, but at this stage in our proceedings I cannot always necessarily answer questions with the speed and brevity that he would like because other noble Lords need to hear the rationale.

I accept the principle that there should be equality of representation on behalf of consumers and professionals, but I do not accept that the amendments before us achieve that. We need to have a Consumer Panel for the reasons that I have given, but giving general rights to approved regulators to have their representations heard in addition to their rights to make representations on the large number of provisions in the Bill and their ability to set out regulatory arrangements that are in the interests of authorised persons would unbalance the system again. As I say, noble Lords can disagree with my conclusions. I accept the principle of making sure that we have equality and consultation. When I looked at how to produce an amendment that might achieve that, I was strongly advised that we had already achieved it. Therefore, I did not table any further amendments. Noble Lords may agree or disagree with that but I did it in good faith.

We have well established, well organised and possibly well funded bodies that represent the interests of authorised persons. They will be unshackled from their regulatory responsibilities so that their representative arms can lobby the board more effectively and freely than they do at present. The board will want to ensure that it takes on board all sides of the argument before coming to a decision or taking action; indeed, it is in its interests to do so as it can be judicially reviewed if it comes to an unreasonable conclusion.



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If the board fails to consult a body that could be directly affected by its action, that would be inconsistent with the principles of best regulatory practice which Clause 3 requires the board to have regard to. The board must listen to and consult the bodies under good regulatory practice. It also knows that it can be judicially reviewed if its decisions are arrived at unreasonably.

In addition, throughout the Bill there are specific ways in which the board must consult. Added together and weighed against the formation of a Consumer Panel, it is our view that we have achieved what your Lordships desired and the principle, which I completely accept, of equality of representation. Although the noble Lord, Lord Kingsland, may feel that I have not fulfilled my obligations, I took away the principle in good faith and believe that we have achieved it. Noble Lords will reach their own decisions on that accordingly.

Lord Kingsland: My Lords, as always, I am most grateful to the noble Baroness for her response. However, she will have heard from my noble friend Lord Hunt that he decided not to retable his amendment establishing a practitioner panel precisely because of the clear statements that he believed she made on Amendment No. 38 and its effect on Clause 10.

In my submission the noble Baroness gave an undertaking in Committee that she accepted, in terms, Amendment No. 38 and went on to explain exactly what impact it had on Clause 10. I shall not press the matter further today except to say that, in the light of this debate, I am sure she will now look again at what she said. I submit to the noble Baroness that if she were not to come back at Third Reading with an amendment that accepted what was Amendment No. 38 in Committee, that would be an extremely serious matter for your Lordships’ House. I do not want her to be in any doubt about that.

4.30 pm

The noble Baroness raised one other matter in responding, which was almost a lament and which we have heard from her before—that policy decisions are not taken in this House but by a Minister in another place. I could understand that as being an explanation for many of the dilemmas in which she has found herself had this Bill started in another place. But the Bill started in your Lordships’ House; and although the Minister to whom the noble Baroness referred is a Minister in the Department for Constitutional Affairs, she is a Parliamentary Under-Secretary. The person in charge of the Bill is the noble and learned Lord the Lord Chancellor, who is a Member of this House. So, with great respect, it cannot be true to say that the policy with respect to this Bill is made in another place. The policy is in your Lordships’ House; and the person who is ultimately responsible for it is the noble and learned Lord the Lord Chancellor. I understand the dilemma of the noble Baroness; but I do not accept the consequences of her argument.

Baroness Ashton of Upholland: My Lords, let me be clear. I accept full responsibility for my role in relation to this Bill. When this Bill is in your Lordships’

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House—whether it begins here or comes here after another place—and while I am responsible for it, I take responsibility for the policy. My references to my honourable friend are to make sure that noble Lords know that I consulted the person who is responsible for developing the policy; otherwise noble Lords might feel that I had made an arbitrary decision without consulting my colleagues. I refer noble Lords to the Tribunals, Courts and Enforcement Bill, for which I hold policy responsibility. Members of another place may refer to that fact during the passage of the Bill through that House. In a sense, it is a sign of respect and recognition of that role. That is what I seek to do. Of course, my noble and learned friend, whom I have consulted on all these issues, takes absolute and overall responsibility for the Bill, but I take responsibility for my commitments, my words and the work that I do.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness, and by saying what she said about the noble and learned Lord the Lord Chancellor she teased the point out for me. While I am grateful to the noble Baroness, at the same time I would not like her to be in any doubt about the seriousness with which we regard this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 and 45 not moved.]

Clause 12 [Meaning of “reserved legal activity” and “legal activity” ]:

Lord Hunt of Wirral moved Amendment No. 46:

“( ) will-writing for fee, gain or reward;”

The noble Lord said: My Lords, I do not want to rehearse the arguments that we heard in Committee, or the recommendation of the Joint Committee in its report at paragraph 216 on page 65, but I want to raise an issue again in moving Amendment No. 46, in the light of the submission that I have just received from the Institute of Professional Willwriters. Apparently, the institute was formed in 1991 to set voluntary standards in the unregulated will writing market. On page 79 of the White Paper, the noble and learned Lord the Lord Chancellor made a very specific pledge:

I was therefore very surprised indeed to hear from the Institute of Professional Willwriters that it had submitted a detailed report to the Department for Constitutional Affairs in September 2005 outlining in detail its belief that,

Despite the words of the noble and learned Lord, that organisation has advised me that there has been no consultation at all with the DCA since September 2005. In fact, the institute has received no contact from the noble and learned Lord’s department since a meeting in July in 2005 that ended with a commitment on the part of the department that a further meeting would be scheduled for later in 2005. The institute has

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asked me how that is “working closely” with the people who represent professional will writers. In the light of that, although I know that the noble Baroness gave me a convincing response on the issue, I am sure that she cannot have been aware that that commitment by the noble and learned Lord in the White Paper to work closely with this body had been disregarded by the department in the way that I have described. I felt that I had to raise the issue again. I beg to move.

Viscount Bledisloe: My Lords, I confess that I am amazed by the provision that seeks to exclude wills from the provisions of the Bill. Schedule 2(5), part of which the noble Lord’s Amendment No. 48 seeks to leave out, states that:

Sub-paragraph (3) states that “instrument” includes any contract for the disposition of land,

So, reserved activities are covered if I want to let a house or some land other than on a short lease, or if I want to give away a bit of my real estate to someone during my lifetime. However, for some extraordinary reason, on my death, when I dispose of all I own and set up some trusts, or something for that purpose, that is not covered. I do not understand how a small transaction inter vivos is caught, but this total disposal of my property on my death is excluded, can be done by anyone and is not an activity governed by the Bill. I look forward to some enlightenment.

Lord Evans of Temple Guiting: My Lords, there has been full discussion on this matter at previous stages of the Bill and the question as to whether will writing should become a reserved legal activity has, as my noble friend has said before, been under consideration for some time—most recently since the announcement in March 2005 by my noble and learned friend the Lord Chancellor and Secretary of State that his department would consider the case for the regulation of will-writing and estate administration services.

If I may, I will read out the next paragraph of my speaking note and then return to the point made by the noble Lord, Lord Hunt. Since that time we have worked closely with consumer bodies, the legal profession, those outside that profession who currently provide will-writing services, and the Office of Fair Trading, and have asked them to provide us with any evidence that might suggest that there is a systemic failure in the current will-writing market and that consumers are being put at risk as a result. The DCA has met the Institute of Professional Willwriters, the Office of Fair Trading and others to discuss voluntary jurisdiction. The DCA has asked the institute to provide the OFT with a draft set of rules for consideration under the code. Our view is that if there is any evidence of systemic failure, the LSB may make a recommendation to the Lord Chancellor under Clause 23 for will-writing services to be added to the list of reserved legal services.



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We acknowledge that there may be a problem. We want evidence, which has not been forthcoming, although one or two points have been made at earlier stages of this Bill. But we are not set against this; we just wish it to be discussed. As I have said, we need evidence that there is a problem that needs to be solved.

Lord Hunt of Wirral: My Lords, I am grateful to the noble Viscount, Lord Bledisloe, for his compelling and persuasive intervention. I am slightly confused by the Minister’s reply because the chairman of the Institute of Professional Willwriters, Mr Paul Sharpe, contacted me on Monday to say that the institute had submitted a report—and he has sent me a copy of the report—demonstrating that voluntary regulation is not working and containing some of the points that I raised at the Committee stage. He said that there has been no further contact with the DCA since July 2005, following which it submitted the report in September 2005. As I understand it from the Minister, he is under the impression that there has been continuing contact. The only way forward here is to get an assurance from the Minister that a further meeting will take place so that we can at least regularise this position. I see that the noble Lord and the noble Baroness are nodding and, as far as I am concerned, if there is to be a further—

Lord Evans of Temple Guiting: My Lords, the institute has been in regular e-mail correspondence with the department. The department has not seen the report that the noble Lord, Lord Hunt, has in his hand. I think that the way through this is for there to be meetings between now and the next stage of the Bill so that we can sort this out. I do not think that there is any real disagreement here; there is obviously a procedural problem that needs to be sorted.

Lord Hunt of Wirral: My Lords, in response to the noble Lord’s points, I beg leave to withdrawn the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [The reserved legal activities]:

Baroness Ashton of Upholland moved Amendment No. 47:

On Question, amendment agreed to.

[Amendment No. 48 not moved.]

Clause 13 [Entitlement to carry on a reserved legal activity]:

Baroness Ashton of Upholland moved Amendment No. 49:

On Question, amendment agreed to.

Clause 15 [Carrying on of a reserved legal activity: employers and employees etc]:



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Lord Evans of Temple Guiting moved Amendment No. 50:

The noble Lord said: My Lords, this set of amendments contains various technical changes designed to ensure that the authorisation and other requirements in the Bill for different types of bodies and individuals apply effectively and consistently. This includes changes in relation to employees, employers and foreign lawyers; changes to ensure that the threshold provisions of the Part 5 licensing regime take account of current practice structures; and further provision for bodies formed under foreign law.

Amendments Nos. 50, 51, 52, 54, 55, 57, 59, 61, 62, 622 and 623 do two things. First, they ensure that where an employer who is entitled to carry out reserved activities carries out a reserved legal activity through an individual who is not entitled, the employer will commit an offence. This would apply, for example, where the employer allows non-lawyers to conduct reserved activities without being supervised by lawyers. The employer would have a defence of reasonable precautions and due diligence, and the penalty for the offence and other related provisions, such as contempt of court, will be the same as presently set out in the Bill for the offence of carrying out reserved activities if not entitled.

4.45 pm

The amendments are being made to take account of the fact that that there could be instances where a company or firm could be active or complicit in the carrying on of reserved legal activities by an employee who is not individually entitled. The change therefore closes a potential loophole, which could be exacerbated with the increasing regulation of companies or firms as well as individuals, and ensures that sanctions in the Bill are targeted according to regulatory default. Secondly, these amendments ensure that both this offence and the other offence circumstances set out in Clauses 14 and 15 apply to employers whether they are bodies such as companies and partnerships or sole practitioners.

Amendments Nos. 53, 56 and 68 are technical, ensuring that the Bill’s treatment of employed lawyers is consistent and does not disrupt the status quo. To clarify, Amendments Nos. 53 and 56 amend Clause 15 to ensure that a body or individual whose business includes the provision of certain reserved activities to the public will still be able to use its own employed lawyers to carry out other reserved activities on its own behalf. It makes clear that a separate authorisation for further reserved activities will be necessary only where it is intended to provide reserved legal services to the public. Amendment No. 68 amends Schedule 3 to ensure that, where certain individuals are exempt from the requirement to be authorised to conduct reserved activities, employers on whose behalf the activities are conducted may also benefit from the exemption in appropriate circumstances.


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