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The noble Baroness said: My Lords, noble Lords will recall that there was considerable debate in Committee over licensing authorities duties and whether and how we might reinforce them. There was also concern about the effects on access to justice of ABS firms, and what the licensing authorities should be obliged to do about it. I said then that the Government broadly agreed with noble Lords that improving access to justice was of course important.
It is possible that some noble Lords believe that to impose a duty specifically about access to justice might be a more appropriate way to handle this, but we have sought to look at the interaction between access to justice and the other regulatory objectives in play. I make it clear that we do not wish to sideline access to justice issues. Licensing authorities will have to consider that interaction as part of their obligation, but we want them to do so in terms of and alongside its interaction with the other regulatory objectives; and to consider how they address it when considering applications for licences and special body modifications, the imposition of conditions and all other licensing functions. The fact that the duty does not single out access to justice means that authorities will have to consider the interaction of access to justice with other objectives, as I have indicated. The amendment also places policy statements, approval before their use and oversight of their use under the boards supervision. I beg to move.
Lord Kingsland: My Lords, the amendment runs into my own Amendment No. 252. I shall address my remarks specifically to this amendment, and hold my fire on the more general question for the later debate. However, I very much appreciate the fact that the Minister has tabled an amendment as a result of the discussions in Committee, which she rightly says were most constructive.
The amendment requires licensing authorities to prepare statements of policy as to how they will comply with their obligation to promote the regulatory objectives when exercising their functions. However, this simply does not deal with the issue. It fails to direct licensing authorities attention to the particular risks to access to justice posed by alternative business structures. The Bill provides comprehensive provision in the requirements of Schedule 13 about the ownership of licensed bodies to tackle the risk that persons who are not fit and proper might gain control over law firms. It is quite bizarre that the Bill should contain nothing to deal with the other main risk: that to access to justice posed by ABSs.
The noble Baroness said: My Lords, in moving the amendment, I shall speak to Amendments Nos. 250, 251, 257 and 276. I am extremely grateful to the noble Lord, Lord Kingsland, for raising the point in Committee on 6 February about the role that the LSB would play as a licensing authority. I agreed to look at
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After further consideration, I concluded that the general obligation in Clause 81(1), which provides that the board is required to make licensing rules within 12 months of a date set by the Secretary of Statenow the Lord Chancellorshould be amended, and that the board will have to make licensing rules only when there is evidence and a decision made under Schedule 12 that the board needs to act. That is when there is no other licensing authority with suitable arrangements in place for a particular type of body, or in the case of non-commercial bodies, there is no licensing authority able to offer appropriate terms.
That approach reinforces the role that the Bill sets for the board as a licensing authority of last resort and avoids requiring the board to automatically make licensing rules. This would have required it to formulate different sets of licensing rules for categories of bodies that it may never have needed to license. The amendment provides that the board writes licensing rules only when there is a clear need for it to do so, which allows the board to focus on its primary role of oversight regulator during the crucial time of implementation, while assuring existing regulators that it will not be competing with them to formulate licensing rules.
I am confident that this amendment reinforces our intention that the board should act only as a licensing authority as a last resort and should not compete with other approved regulators. Again, with grateful thanks to the noble Lord, Lord Kingsland, for raising the matter, I beg to move.
Clause 81 , page 47, line 5, leave out from day to end of line 6 and insert on which a licensable body first becomes entitled to make an application to it for a licence by virtue of a decision of the Board (acting otherwise than in its capacity as a licensing authority or as an approved regulator) under Schedule 12;
( ) In subsection (1)(a), suitable licensing rules means licensing rules which constitute suitable regulatory arrangements (within the meaning of Schedule 12) in respect of licensable bodies entitled by virtue of a decision under that Schedule to make an application to the Board for a licence.
The noble Lord said: My Lords, we had a good debate on this amendment in Committee. Since then we have given the matter further thought and tabled
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For all the benefits of the new regime, the Government cannot hide from the fact that there are clear risks that external ownership of law firms by bodies such as supermarkets or insurance companies could harm access to justice. It is evident that some of the less attractive legal services could get left behind and, as the Joint Committee noted, the new rules could well reduce the geographical availability of legal services. It is essential that the potential impact on access to justice, particularly in rural areas, is taken into account before any licensing decisions which could do permanent damage are taken.
That point is worthy of development, but I do not need to do so on this occasion because your Lordships had the benefit of the trenchant and forthright views of the noble Lord, Lord Carlile of Berriew, on these dangers, which were expressed, too, in the debate that flowed from his introduction.
I have already thanked the noble Baroness for tabling her Amendment No. 248, but she will have concluded from what I said that we do not believe that the Governments amendment to require licensing authorities to prepare statements of policy is sufficient. It fails to point authorities explicitly to the particular risks to access to justice posed by alternative business structures.
However, Amendment No. 252 does not intend to create such an overarching objective. It is merely intended to ensure that the licensing authorities consider the possible effect of access to justice and give the issue full weight when determining applications. It would be desirable for licensing rules to contain provisions requiring consideration of the impact of access to justice on a continuing basis; that is to say, in renewal decisions as well.
We on these Benches still prefer our original amendment in Committee, which is now Amendment No. 252, but our new wording in Amendments Nos. 253 and 254 is designed to allay the Governments fears that the change might require access to justice considerations automatically to trump all other regulatory objectives. These amendments also highlight that the particular concern is for comparatively disadvantaged consumers, whose circumstances require particular protection. These amendments are absolutely essential to ensure that Part 5 of the Bill will operate in the public interest. I beg to move.
Lord Carlile of Berriew: My Lords, given my comments on Amendment No. 202, it will be no surprise to the House to know that I support these amendments. We regard specificity about access to justice as essential as we fear that otherwise there will be a real diminution of access to quality justice in Wales, the West Country and parts of the north-east
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Baroness Butler-Sloss: My Lords, I support what the noble Lord, Lord Carlile, said, particularly with regard to the west of England, where I live for part of the year. It is important that one recognises that the noble Lord, Lord Whitty, who undoubtedly supports a large proportion of consumers, does not support all consumers. There are small consumers who have real needs. Whether it is to be seen under Amendment No. 252, 253 or 254, there are small people who need help from local firms of solicitors and those local firms may not survive this grand new scheme that the Government have produced. I am speaking on behalf of some rural communities, but it is equally appropriate to speak on behalf of small areas on the outskirts of big cities. One has to say that what is suggested in Amendments Nos. 252 to 254 has real merit. They should be seriously considered by the Government. I support the amendment moved by the noble Lord, Lord Kingsland.
Baroness Ashton of Upholland: My Lords, I start by saying that I could not agree more on the importance of access to justice; it is vital. I have approached it by seeking to recognise that when licensing authorities are operating they must balance access to justice correctly against other objectives and ensure that it is achieved. In that respect there is nothing between us.
I have sought to put access to justice in the context of enabling it to be balanced so that it can be achieved taking into account the other regulatory objectives. The interaction of those objectives is important. I appreciate what the noble Lord, Lord Kingsland, said about Amendment No. 248, but I want that to be seen as reinforcing that as effectively as possible. We must make sure that we not only get a balance but also that the other objectives are not lost or forgotten, or, indeed, that the holistic approach of the regulatory objectives, working together, means access to justice is suitably protected.
What I am trying to demonstrate is that we have taken all the regulatory objectives and said, These are critical; access to justice certainly is. But all of them need to be considered effectively and properly. That is my difficulty with Amendment No. 252. I do not in any way differ from the requirement about access to justice issuesthe noble and learned Baroness indicated that in the examples she gave; the noble Lord, Lord Carlile, gave examples in the context of the Part 5. We must make certain that access to justice is protected. But I want it to be done with the other objectives. All I am saying is that they are all important; they all have to be dealt with properly; and they all have to be, within the context of the amendments I am moving, seen to be importantan issue we will come on to in terms of reporting and so on. It does not mean that I am in any way suggesting that access to justice is less than very important; I am simply saying that actually all the objectives are and that it needs to be considered as critical alongside the other objectives.
I have problems with two of the amendments within the group. Amendment No. 253 in a sense seeks to give priority to access to justice by imposing a requirement that it is not quite the same as a regulatory objective. There is a risk in that. A similar obligation that is not quite the same could cast doubt on what we mean by access to justice, and I do not want anything in the legislation that could create confusion about how you interpret the objectives and over what the licensing authorities duties are.
Amendment No. 254 has the list of groups of consumers. Noble Lords will knowI indicated this in Committeefrom my previous existence in education and all the way through my existence as a DCA Minister that I really do not like lists in legislation. The use of different phrases can cause confusion. If we single out four groups of consumers we fail to recognise other consumer interests as well. We have had much debate, as I have already indicated, about the effect of alternative business structures on rural communities and those who are poor and their use of legal services. I absolutely agree that they must not be disadvantaged. Equally, I do not want other consumers to be disadvantaged. Everyone's access to justice is important. The general duty to consider the interests of all consumers avoids trying to put some consumer interests behind the interests of other people. I think that that can be achieved without Amendment No. 254.
As I tried to indicate in debate on Amendment No. 248, we need to make sure that the regulatory objectives are protected. Access to justice is very important. I do not think that the amendments before us make the position any better and they risk creating problems I would rather see avoided. But I support the contention of making sure that access to justice is very important and hope that the noble Lord will withdraw the amendment.
Lord Kingsland: My Lords, I am most grateful, as always, for the intervention of the noble Baroness, but I am in some difficulty about it. The noble Baroness seems extremely keen to protect the integrity of the eight objectives and not to favour any one in the Bill but at the same time supports the intention that lies behind our amendments. It is plain that the intention behind our amendments is to pick out one of the eight objectives and invite the Government to give it significant weight in the Bill.
Let me draw a parallel from an unlikely source. In the law of town and country planning, it is traditional for legislation not to interfere with the discretion of the inspector in applying weight to all the relevant factors that he must consider. However, recently, in the context of wind farm proposals, the Government have broken with that tradition. Government policy on wind farm development means that the inspector now must give significant weight to the environmental advantages of the building of wind farms. One consequence of that is that an awful lot of wind farms are being built. So there is a clear precedent for the Government breaking ranks with what I accept as having been a tradition of public authorities exercising discretionary powers. I simply do not understand how,
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I shall not press the noble Baroness on this tonight, but I hope that she will think about the issue again. She must be in no doubt that, on Third Reading, we will come back to the issue in the hope that she will come back to us, too, so that there is a pleasing meeting of minds. If not, I find it difficult to see what we can do other than seek the opinion of the House. I shall be sad to do that, because I felt that this was one of the few areas in the Bill where we had been building consensus, but the crucial component of the consensus is that, in some way or other, access to justice must have an enhanced value in this part.
Schedule 12 , page 181, line 9, at end insert , having regard to the matters in section 104(5)(a) to (c) and any other matter specified in rules made by the Board for the purposes of this sub-paragraph.
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