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Clause 130, page 67, line 16, leave out from opinion to end of line 19 and insert that person acted so unreasonably in relation to the complaint that it is appropriate in all the circumstances of the case to make such an award;
(1B) The rules must also provide for the refund of the whole or part of a charge where circumstances coming to the OLCs attention since the charge was paid are such that it appears to the OLC that the amount of the charge, unless wholly or partly refunded
( ) Scheme rules must provide that any charge in relation to a complaint shall not become payable by a respondent unless the complaint is determined or otherwise resolved substantially in favour of the complainant.
( ) If the court makes an order under subsection (2) on the application of an ombudsman, the ombudsman may in such circumstances as may be specified in scheme rules and with the complainants consent recover the amount mentioned in that subsection on behalf of the complainant.
(1) The Board may direct that complaints within the jurisdiction of the ombudsman scheme and of such description as are specified in the direction shall be determined by an approved regulator instead of an ombudsman.
The noble Lord said: My Lords, Amendments Nos. 383, 392 and 393 provide for the delegation of complaints handling to an approved regulator by a direction of the Legal Services Board. Where such a direction is given, the approved regulator would be empowered to award redress to the complainant, which Clause 154 currently prohibits. The Legal Services Board would have power subsequently to vary or withdraw a direction. In deciding whether to give, vary or withdraw a direction, the Legal Services Board would be bound by Clause 3 to act compatibly with the regulatory objectives and the other regulatory principles of the Bill.
Part 6 establishes the OLC, the resolution body, for those who consider that their complaints have not satisfactorily been dealt with by the in-house arrangements of the relevant legal service provider. Under the Bill, the OLC will investigate service complaints itself but will refer complaints about misconduct to an approved regulator for resolution. However, approved regulators will no longer have the power to award redress to complainants.
The Law Society, representing 116,000 solicitors, received more than 17,000 new complaints against it in 2004-05, accounting for about 86 per cent of the total costs of legal complaints handling. By contrast, the Bar Standards Board, the regulatory arm of the
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As we saw in Committee, about 70 per cent of complaints against barristers involve allegations that, if true, would require both compensation for inadequate professional service and proceedings for misconduct. The approved regulator, where appropriate, should be in a position to deal with both aspects. It is both inconvenient and confusing for consumers to have to deal with two different bodies about different aspects of their complaints, especially if one body accepts the facts to which the complaint relates but the other does not. There is also likely to be duplication of work and therefore unnecessary expense. Moreover, the approved regulator has a range of powers, including powers to award redress, which are far wider than those proposed for the OLC. This enables it to ensure that the most appropriate remedy or sanction is provided through a single procedure.
By contrast, the proposed new complaints-handling system will involve decision making by salaried non-lawyers who are unlikely to be able to supply the analysis and expertise currently provided free of charge. It is one of the,
As we saw in Committee, the Bar Council has established a body of expertise and maintained a complaints-handling service that is widely acknowledged to be of an extremely high standard. As we saw in Committee, the Legal Services Ombudsman has consistently given high marks to the Bar Standards Board for the speed and quality of its complaints service. Robert Behrens, the Bar Standards Boards independent complaints commissioner, has said that there is a strong case for the Bar Standards Board to have delegated jurisdiction over complaints about poor service.
Clause 154 creates inflexibility in complaints handling and adds massively to its costs. We have concluded that the Bill as drafted is certain to offer a poorer service to consumers at vastly greater costat least as far as the Bar is concerned. The Bar Standards Board, the approved regulator for the Bar, is an independent, ring-fenced, regulatory authority. It already deals with both service and conduct complaints. It already has a significant lay element, and its decisions are subject to a lay veto. This is emphatically not a case of lawyers deciding on complaints against lawyers. The independent Legal Services Ombudsman has repeatedly said that the Bar Standards Board does outstanding work.
We had hoped that the experience and expertise that barristers and lay members bring to providing a professional, cost-effective approach to complaints handling would, in the interests of consumers, be recognised in the Bill. Instead, the Government are
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The Governments proposals for amending complaints handling, and in particular the new clause inserted after Clause 154 by Amendment No. 395 and the new clauses after Clause 159 by Amendments Nos. 403 to 405, involve a voluntary scheme as an add-on to the main statutory one. However, the amendments do not address the problems that we have identified in the legislation. Nor do they answer our objections to the complete exclusion of approved regulators, with all their expertise from the ombudsman process. I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendments, but I could not do so in only a few words unless I had listened to my noble friend Lord Kingsland, who put the whole scene to the House so much better than I could ever have done. Therefore, accepting everything that my noble friend said, and his argument, I shall make a short point. This is a matter of principle. These are enabling amendments, which in no way break the structure of the Bill or the boards control under it. If the amendments were accepted, there could be no requirement on the board to direct any approved regulator in any complaint that lies within the jurisdiction of the ombudsman, and, indeed, after consultation with the OLC, the approved regulator and any other person. This essence of consultation is highly commendable, as is the essence of partnership, to which my noble friend Lord Kingsland referred in another context. The ombudsman has approved the complaints procedure, as it stands, in relation to the Bar, but that does not mean that the procedure cannot be amended in consultation from time to time or that the directions in proposed new subsection (1) of the amendment would not be wholly justified. We are not in a static situation, and the amendment takes due account of that. It would comply wholly with the Clementi soft-touch approach. I cannot speak for any branch of the legal professionprobably not even for my own nowbut surely it is right in principle that the amendment should be supported.
Lord Borrie: My Lords, for many years now, there have been independent reviews of the complaints system run in respect of solicitors and the complaints system run in respect of the Bar. Up to now, independent reviews, especially those conducted by the ombudsman, have, year in and year out, unanimously condemned the Law Societys complaints schemes as defective, deficient and inadequate, whereas the system run by the Bar up to now has been praised as modest in charges and in pricetaking advantage of the barristers willingness to do this kind of work free of chargeand has received a tremendous amount of praise. In the Bill as it stands, complaints about both solicitors and barristers are wrapped up together and given to a new statutory body, which will of course be quite expensive. The new system does not take into account the difference between the complaints systems of the two branches of the profession, which I have just mentioned.
The Bar Standards Board, to which the noble Lord, Lord Kingsland, referred, has a lay chairman and other lay members, as well as lawyers and barristers. Both kinds of people are helpful to one another, as I understand it. The Bar Standards Board can hardly be regarded as simply a lawyers charade. The only case the Government have for wrapping up together the complaints systems for both solicitors and barristers is that it is tidy and, as it were, fair to both branches of the profession.
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