Legal Services Bill [Lords]
Public Bill Committee, 14 June 2007.
Frank Cook (Labour, Stockton North)
May I first offer abject but sincere apologies? For some reason, I was under the impression that we were to commence our business of the day at 9.25 am, which is the more usual time of commencement of our sittings.
Clause 4
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 267, in clause 4, page 2, line 36, at beginning insert ‘(1)’.
Frank Cook (Labour, Stockton North)
With this it will be convenient to discuss the following amendments: No. 216, in clause 4, page 2, line 36, leave out ‘assist in the maintenance and development’ and insert ‘ensure the development and maintenance’.
No. 215, in clause 4, page 3, line 1, at end insert—
‘( ) In relation to subsection (1)(b), the Board must satisfy itself that appropriate standards of education and training, including training in client care, are being maintained by approved regulators and, should it not be so satisfied in respect of any particular education and training scheme or schemes, the Board must consider withdrawal of its approval of that scheme or those schemes.’.
Jonathan Djanogly (Conservative, Huntingdon)
Good morning, Mr. Cook. Amendment No. 267 is not the most hard-hitting of amendments. It is consequential, so I shall overlook it and move on to amendment No. 215.
Clause 4 imposes a duty on the Legal Services Board to assist in the maintenance and development of standards of regulation by approved regulators of regulated persons, and in the education and training of those persons. For example, it may issue guidance on or disseminate examples of good education and training practices or principles of professional conduct that have been developed for reserved legal activity by one approved regulator to all approved regulators.
Amendment No. 215 has been tabled on a probing basis. It stresses the importance of the board’s role in education and training. As the overarching regulatory body that oversees the work of all other regulatory bodies, the board must understand the importance of its role as a supervisor and ensure that all regulators meet the necessary standards. Accordingly, it is important that it is instructed to withdraw its approval of any education or training schemes that do not satisfy the relevant criteria.
The approval of the LSB as given to regulatory bodies should be regarded as an endorsement oftheir suitability and mean that consumers will have confidence in them. Therefore, it could be seen as necessary that such approval is given only when it is deserved, not in the case of regulatory bodies that fall short of the necessary standards.
John Mann (Labour, Bassetlaw)
I welcome the thrust of amendment No. 216. It is such a good amendment that I was almost tempted to add my name to it. The words
“assist in the maintenance and development of standards”
seem to be rather weak. The Minister should contemplate using the word “ensure” because it gives a more appropriate and clearer direction to the board and also sends out a message about the role of the board to the professions. The amendment is worthy of the Minister’s thoughtful consideration over the next day or two.
Bridget Prentice (Labour, Lewisham East)
Obviously, I agree that it is part of the board’s remit to work with approved regulators to achieve high standards across the legal sector. That was the view of the Joint Committee on the Draft Legal Services Bill and we accepted its recommendation. The Bill explicitly states that intention in clause 4. However, I have a different view on the nature of that duty. Clause 4 states:
“The Board must assist in the maintenance and development of standards”
in relation to the regulation and the education and training of people authorised by the regulators. I think that that gives the approved regulator the necessary freedom to tailor its standards and training regimesin a way that is appropriate to its own area of legal expertise.
Although I heard what my hon. Friend had to say, I think that it is appropriate to use the word “assist” because it is about proportionate regulation. We have discussed proportionality during the proceedings of the Bill. The same must apply in this area. If we said that the board had a duty to “ensure” the development and maintenance of those standards, it would become a more interventionist approach. I am not surethat that sits comfortably with effective oversight regulation. Therefore, I hope that the hon. Member for Huntingdon will withdraw the amendment in the knowledge that we are attempting to agree that education and training standards are important, but that assistance is the right way forward for the board’s role in relation to the approved regulator.
Jonathan Djanogly (Conservative, Huntingdon)
I take the Minister’s point about the need for proportionate intervention. However, there is a subtle difference here. If the legal services are not performed in accordance with the provisions of the Bill, the Legal Services Board need not act because the regulatory bodies will deal with the matter. If there isa problem in respect of development and training schemes with the regulatory bodies themselves, the Legal Services Board should act in their place because there is no supervisory body above it. Therefore, it could be said that it is the responsibility and obligation of the Legal Services Board. The board should not just assist in the maintenance and development of the education and training schemes, but at some point be able to take control. There may be a case for turning the amendment on its head, so that if the board is not satisfied it should consider withdrawing its approval for schemes.
Bridget Prentice (Labour, Lewisham East)
The hon. Gentleman makes an important point. If the board felt that the arrangements had an adverse impact on the regulatory objectives, it could intervene and have them changed. The Bill as it presently stands responds to the very important point that he is making.
Jonathan Djanogly (Conservative, Huntingdon)
I hear the Minister on that point of clarification. I will go away and look at it. I thank her for saying that. On that basis, I beg to ask leave to withdraw the amendment.
Clause 8
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 221, in clause 8, page 3, line 31, at end insert—
‘( ) The approval of the Lord Chancellor is required for the appointment of a person to be the chairman or to be another member of the Panel.’.
We now move on to the consumer panel, whichwas debated at some length in the other place. On reflection, we think that several items need to be considered again or in a slightly different way. The amendment was proposed to us by the Law Society, and we tabled it as a probing amendment. It would make the Lord Chancellor responsible for approving appointments to the consumer panel, to safeguardthe panel’s independence. We need to ensure that appointments to the consumer panel are made andare seen to be made objectively. That is why we need someone—the amendment suggests the Lord Chancellor —to oversee the appointments process.
John Hemming (Liberal Democrat, Birmingham, Yardley)
The amendment has been tabled under our names, too. The process is similar to the way in which Ofcom operates, and we are going back to that usual word “independence” and the idea of what is independent of what. The amendment would give the consumer panel some independence of the body that it challenged, in theory. Unusually, we see additional powers in the amendment for the Government.
Bridget Prentice (Labour, Lewisham East)
I was a little concerned when the hon. Member for Huntingdon said that this was a probing amendment, because I want to be very positive about it. I accept his arguments and those of the consumer groups. Although I cannot say that I will accept the amendment, I shall take it away and consider it, and I hope to be able to say something more positive about it in the future. I can see the logic of what both hon. Gentlemen have said.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I just love the gradualist way that Ministers give in—they never do so at stage one, for fear that something is wrong, but only after a little careful consideration. It is welcome, none the less.
Bridget Prentice (Labour, Lewisham East)
Just to clarify for some membersof the Committee, there is collective responsibility in Government and we have to ensure that we bring everyone with us in the course of such matters.
Frank Cook (Labour, Stockton North)
Mr. Djanogly, put an end to this banter.
Jonathan Djanogly (Conservative, Huntingdon)
I shall do my best, Mr. Cook. We are happy with the Minister’s response, accept that shewill come back with a suitable amendment and look forward to seeing it. I beg to ask leave to withdraw the amendment.
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 208, in clause 8, page 4, line 3, at end insert—
‘(c) corporate users of such services.’.
Frank Cook (Labour, Stockton North)
With this it will be convenient to discuss the following amendments: No. 219, in clause 8, page 4, line 3, at end insert ‘, and
(c) qualified but non-practising solicitors who, in their professional capacity, use or purchase services provided by persons who are authorised persons in relation to activities which are reserved legal activities.’.
No. 209, in clause 8, page 4, line 11, after ‘(d)’ insert
‘save in respect of a person appointed to represent corporate users of reserved legal activities.’.
No. 220, in clause 8, page 4, line 12, at end insert
‘, except for those authorised persons referred to under subsection 4(c).’.
Jonathan Djanogly (Conservative, Huntingdon)
Amendments Nos. 209 and 220 are complementary to amendments Nos. 208 and 219. Clause 8 will require the Legal Services Board to set up and maintain a consumer panel—a panel of persons whose task will be to represent consumers’ interests, as defined by clause 208. Appointments to the panel will be made by the Legal Services Board and one of the members of the panel will be appointed its chairman by the board.
Clause 8 sets out the categories of person who may not sit on the panel. Subsection (4) will require the board to ensure that the membership of the consumer panel gives a fair degree of representation to:
“those who are using (or are or may be contemplating using), in connection with businesses carried on by them, services provided by persons who are authorised persons in relation to activities which are reserved legal activities, and...those who are using (or are or may be contemplating using) such services otherwise than in connection with businesses carried on by them.”
However, we believe that it is also necessary that the consumer panel should include representatives of the corporate users of legal services and qualified but non-practising solicitors who use or purchase services in their professional capacity, as well as individual and small business representatives. To enable that, it is necessary to remove the prohibition on authorised persons serving as members of the consumer panel, as far as any representative of corporate users of legal services is concerned.
One of the great purposes of the Bill is to increase consumer protection, so the Minister needs to explain why certain consumers are to be disadvantaged and not given the same protection as others. We thought that the idea of the consumer panel was that it should represent all, not just some, consumers of legal services. The Government agreed on the need to ensure that a range of voices should be heard on the consumer panel.
Only by ensuring that the Legal Services Boardgives membership to a fair and proportionate number of corporate users and qualified but non-practising solicitors can the consumer panel truly call itself representative of consumers. The thousands of in-house lawyers are a growing and important part of the consumer body of legal services; they are possibly the largest such consumers outside the Government. It seems unfair that they should be excluded from representation on the so-called consumer panel.
On 12 June, the General Counsel 100 group wrote to the City of London Law Society expressing its concerns. I have been passed a copy of the letter:
“As you know, GCl00 is the representative body for in-house counsel and company secretaries of the top...FTSE companies. Legal services from external law firms are necessary to the efficient running of the organisations for which our members work and it is our members who are responsible for arranging the purchase of these services.
We would welcome an amendment to the Bill in the terms you have suggested allowing for representation of in-house counsel on the Consumer Panel. Without this, we are concerned that the new regulatory regime for legal services will not be suited to our needs and those of the law firms we use. If this is the case regulation may well impact on the global competitiveness of UK City law firms and our companies will look to other jurisdictions for their legal advisers.”
Our concern is that, if those consumers continued to be excluded, the consumer panel could lose its legitimacy and therefore much of its ability to be productive.
John Hemming (Liberal Democrat, Birmingham, Yardley)
We are also inclined to support this group of amendments, because the concept of the consumer panel should be to include those consumers who are not regulated by the process. As it stands, if they are not practising solicitors or whatever, they are not regulated but they are consumers.
Jonathan Djanogly (Conservative, Huntingdon)
I should put the hon. Gentleman right on that point: such people will not necessarily be practising solicitors, but they may well be.
John Hemming (Liberal Democrat, Birmingham, Yardley)
We remember the phrase “qualified but non-practising solicitors” from Conservative amendment No. 219; that is all. The principle that consumers of services should be represented on the consumer panel is important.
John Mann (Labour, Bassetlaw)
Conservative Members cannot help themselves. The profession requires regulation, but they want to water it down to protect vested interests, despite the fact that, under Standing Order 150(2)(c), advice will be required from the Parliamentary Commissioner for Standards on whether the amendments can be moved. I await his correspondence on that. I am sure that hon. Members have read the 2002 speech of the Chairman of the Committee on Standards and Privileges on what it is and is not entitled to do.
Leaving aside the inherent and extraordinary vested interest, to suggest stuffing the consumer panel with lawyers and finding a guise in which to do so shows a lack of understanding of what the real world feels about the problems of the legal profession. I hope that the Minister will outline the sort of people who should serve on the panel. First, there should be someone who has suffered industrial deafness, so that the absurd practices in the legal profession that have taken place for decades can be properly addressed by a decent, sensible consumer voice that says, “Run your profession properly and fairly, and then have the respect that you are due.”
Bridget Prentice (Labour, Lewisham East)
Sadly, I cannot view this amendment with the same positive attitude with which I viewed the previous one. I have listened carefully to the arguments about corporate consumers of legal services and whether lawyers and non-practising solicitors generally should be represented on the consumer panel. Clearly, there is a role for the corporate consumer on the panel, but I cannot agree that the prohibition on authorised persons sitting on it should be waived.
First, the establishment of the consumer panel has a distinct purpose: to ensure that the voice of consumers is clearly heard in the regulation of legal services. We have striven to shift the balance, as my hon. Friend constantly encourages me to do, from the interestsof the profession to the interests of consumers. Thatis the principle behind the Bill. To allow the panel’s independence from the legal profession to be compromised—the amendments would do that by allowing authorised persons to be members—would undermine that aim.
Secondly, I am not persuaded by the suggestion that authorised persons need to be on the panel, so that the representations of large corporations as consumers can be heard. If large corporations cannot find someone other than an authorised person to represent themon the panel, they are in a very bad way. I want to encourage large and small corporations to be represented, but I want them to be represented by people who are not authorised persons. In fact, under clause 8(4)(a), the board will be required to ensure that membership of the panel includes fair representationof business consumers, but they cannot be represented by a practising lawyer. That will not prevent representatives from the Federation of Small Businesses, which has representatives on our own consumer panel, or large industry that uses legal services regularly from being represented.
Kevan Jones (Labour, North Durham)
Does the Minister agree that it is important to have trade union representation on the consumer panel? Trade unions are large users of legal services.
Bridget Prentice (Labour, Lewisham East)
Trade unions will have an equal opportunity to present people to be members of the consumer panel, but they cannot put authorised persons on the panel. Providers of reserved legal services cannot be part of the body that is specifically set up to consider the needs of legal services consumers. Creating a body that voices consumer interests is important for those on the high street who have not had their concerns or opinions adequately heard in the past. I find this group of amendments wholly unpalatable.
On amendment No. 219, there is nothing to prevent “non-practising solicitors” sitting on the panel, as long as they are not authorised persons. “Non-practising solicitors” fall outside the definition of an authorised person, and therefore outside the prohibition inclause 8.
Talk of the principle of the independence of the legal profession has been heard loud and clear, not only in the Committee, but during six months of debate in the other place. We have heard the concerns about the principle very clearly indeed, but it must apply equally to the role of the consumer panel. If we in this House are the first to make that argument, so be it. The consumer panel must be independent of the influence of the legal profession. On that basis, I shall not accept the amendments.
Jonathan Djanogly (Conservative, Huntingdon)
In response to the hon. Member for Bassetlaw, I am not and never have been an in-house lawyer. However, I recognise their rights as consumers, whereas the Bill does not. I shall put the hon. Gentleman right by saying that I did not suggest stuffing—I believe that that was the word he used—the panel with in-house lawyers; I simply said that they should be represented.
It might be that, generally speaking, corporate and qualified non-practising solicitors who are users of legal services are more business-savvy and so do not fall into some of the pitfalls that individuals and small businesses do, but the fact that the former group generally have more resources at their disposal does not mean that they do not have similar problems and issues that need to be resolved. Simply put, there are different types of consumer problems. Granted, corporate and non-practising solicitors might not face the same issues as those faced by individual users and small businesses, but that is exactly why they need fair representation on the consumer panel.
The whole idea of the panel is to give a voice to the users of legal services, whoever they might be. The panel must thus be adequately representative of all users. I fail to see how the Minister can justify the exclusion of corporate and qualified but non-practising solicitors, because they, too, are users of legal services. She is in danger of damaging the credibility and legitimacy of the consumer panel by taking such a negative position on the amendments. That would be a shame. She should think again, which is why we shall not be pressing the amendments to a Division. We will reserve our position for a later stage, and I beg to ask leave to withdraw the amendment.
David Burrowes (Conservative, Enfield, Southgate)
On a point of order, Mr. Cook. Reference has been made in the debate to proper standards and there are concerns about vested interests. Given the contribution on union representation, would it not be appropriate for hon. Members properly to declare their interests as regards union membership?
Frank Cook (Labour, Stockton North)
I hear what is being said, but it is a matter not for the Chairman but for each individual Member. I suggest that the hon. Gentleman look at the Register of Members’ Interests.
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 218, in clause 8, page 4, line 21, after ‘appointed’ insert—
‘(a) by the Board following public advertisement and selection by the prevailing standards for selection of members of public bodies and’.
The amendment would mean that the chairman and other members of the consumer panel would not be appointed only on terms and conditions determined by the board, but would be appointed by the board
“following public advertisement and selection public advertisement and selection by the prevailing standards for selection of members of public bodies”.
The additional wording is intended to ensure that appointments to the consumer panel are made and seen to be made objectively. It is important that all positions on the consumer panel be advertised publicly, so as to inform a wide and varied group of people about their existence. That will give all applicants a fair opportunity to apply for the panel. As a consumer body, the panel needs to represent the consumer. A public advertisement will therefore be the best means of ensuring that that is the case.
Additionally, it is important that the current criteria for selecting members of a public body be applied, so that all applicants are given, and are seen to be given, an equal opportunity to be selected. That is vital, as the consumer panel is the voice of the public and it ensures that consumers are given adequate representation. Any suggestion of favouritism in selecting members could only damage the panel’s integrity and cause people to lose faith in the efficacy of the Bill.
Finally, it should be noted that the amendment would enable the whole process of selection for the consumer panel to become more transparent. That is important if we wish to improve confidence in lawyers among consumers. The Government support the Nolan principles, so will the Minister confirm that they will apply to appointments to the consumer panel?
John Hemming (Liberal Democrat, Birmingham, Yardley)
As the question of declaring membership of a trade union as an interest has been raised, I declare that I am a member of a trade union and that I have a vote in the Labour party’s deputy leadership elections. However, that is obviously not the question under discussion. The amendment raises an interesting point, which, as somebody with a track record in computer programming, I view as a problem within statute.
Henry Bellingham (Conservative, North West Norfolk)
Whom are you going to vote for, then?
John Hemming (Liberal Democrat, Birmingham, Yardley)
I am not going to comment—[Hon. Members: “Ooh!”] To be fair, I have considered the question at great length, but I do not think that any of the candidates warrant my vote. However, that is not really in order. What is in order is to point out that many things in statute are similar, in terms of how matters are processed. We have a spaghetti systemof statute that has developed piecemeal. There isa substantial argument for simplifying it, so that reference is made to a standard form in the appointing of boards, for instance. We support the principles argued for in the amendment, but over time it would be better for the Government to consider developing statute in a more structured manner.
Bridget Prentice (Labour, Lewisham East)
The hon. Gentleman will have to tick the box, in that he upholds the principles of the Labour party if he decides to use that ballot paper. So I should be careful if I were him.
I have considered the amendment in some detail. In fact, an identical amendment was tabled in another place, so there is little between us on the issue of independence. I like to think that the Committee and consumer groups know that the Bill’s raison d’être is to put consumers at the heart of the legal system. The prevailing standards of appointments to public bodies are well known to members of the Committeeand, to answer the question that the hon. Memberfor Huntingdon asked, will be applicable to the appointment of the panel.
For that reason, there would be little to gain by including a more specific provision in the Bill to the effect that those standards must be followed. However, given that the appointments are to be made by the board and not by Ministers, there would, strictly speaking, be no compulsion to follow the Commissioner for Public Appointments’ code of practice. I can see why setting out those requirements in the Bill would give an assurance that the appropriate appointment practice would be followed, however, and for that reason I should like to take the amendment away for further consideration, because I agree with what the hon. Gentleman has said on the matter.
Jonathan Djanogly (Conservative, Huntingdon)
The Minister said that Nolan would not apply in this case. We thank her for her constructive approach and look forward to hearing from the Government later. On that basis, I beg to ask leave to withdraw the amendment.
John Hemming (Liberal Democrat, Birmingham, Yardley)
I am a bit confused by the complications of statute. Will the consumer panel be a bit like the House of Lords—will people be appointed to it but never removed? What will be the process for removing people from the consumer panel?
Bridget Prentice (Labour, Lewisham East)
When people are appointed to the consumer panel, they can be removed, and of course they can stand down. Clause 10 contains a procedure to deal with, for example, situations where representations of the consumer panel are being considered by the board, but it does not give any specific indication whether members of the panel can be removed. If that is a gap in the legislation, I shall have to consider it again to see whether we need to make the situation absolutely clear. I am grateful to the hon. Gentleman for raising the question.
John Hemming (Liberal Democrat, Birmingham, Yardley)
I thank the Minister for sharing my confusion and I hope that we will achieve some clarity.
Clause 10
Frank Cook (Labour, Stockton North)
With this it will be convenient to discuss new clause 3—Professional representations—
‘Section 10 shall apply mutatis mutandis to representations by approved regulators whether in their regulatory or representive capacity.’.
Jonathan Djanogly (Conservative, Huntingdon)
Clause 10 deals with the proposal that the board should be able to make representations to the consumer panel. My decision not to move new clauses 1, 4, 5 and 6 was tied to our proposal in new clause 3, which will hopefully be clearer now than if we had gone through all the other new clauses as well.
The new clause would cause section 10 to apply mutatis mutandis, or with required changes, to
“representations by approved regulators whether in their regulatory or representive capacity.”
I note that we have received a strong representation relating to the clause from the patent and trade mark institutes. Apparently, they met the Minister on 21 May at her request to discuss the changes made in the Lords and to bring any concerns before Committee. They discussed with her their disappointment at Baroness Ashton’s refusal, as they see it, to honour a commitment to accept this amendment in the other place.
On Report in the Lords, Baroness Ashton stated that she accepted the principle but not the wording of the amendment in Committee, and that on discussion with ministerial colleagues, she had been advised that the Bill provided a variety of means for consultation, and that no amendment was therefore necessary. The institutes felt that the Minister had simply reneged on her commitment. Apparently, they ran through the arguments again with her, explaining why they felt that professional representation was so vital. They argued that if the Government accepted the amendment in principle, they should table a Government amendment to make that explicit in the Bill.
My understanding is that the Minister refused their request, saying that the Bill already contained a number of obligations on the board to consult approved regulators. As something of a compromise, she committed to writing to the patent and trade mark institutes with a list of all the instances in the Bill requiring the Legal Services Board to consult approved regulators, in order to demonstrate that significant consultation was already explicit. My understanding, although I have to say that it is a few days old, is that the patent and trade mark institutes have as yet received no correspondence. Does the Minister intend to provide that information, and will she agree to present it to the Committee if she does?
The institutes welcome new clause 3, on professional representations. Lord Kingsland pursued the issue on their behalf at length in the Lords. The institutes have concerns about the lack of a requirement on the board to receive representations from approved regulators. The Minister has argued that all the regulators are free to make representations to the board, and that it would be expected to work in close partnership with them, consulting them and listening to their views.
The institutes believe that their position as regulators of a niche part of the legal services market, and their limited resources and membership, differentiates them from the likes of the Law Society or the Bar Council, which have larger resources. They also have grave concerns that their voice will be lost and their considerations overlooked by the board unless the Bill contains a direction or other positive statement that the board should have regard to representations made by legal services providers.
We have listened to the Government’s previous arguments against the establishment of a practitioner panel and understand their concerns that such a panel might jeopardise the role of the consumer panel, that it would be bound to be appointed by the board and that it is difficult to understand what provision could be made to ensure that any panel that the board appointed was representative of the regulated sector, rather than comprising people whom the board was happy to consult.
That position is supported by the Law Society and other regulators, so, accordingly, we did not move new clauses 1, 4, 5 and 6. Instead, we proposed a simple addition to the Bill to ensure that the Legal Services Board has a duty to consider any representationsmade by the regulatory or representative bodies of the professions. That approach mirrors the provisions in clause 10.
We were disappointed by Baroness Ashton’s response when the issue was raised on Report and on Third Reading in the other place and by the subsequent feedback that the institutes received in their later discussions with the Minister and her team in the Ministry of Justice. The institutes feel that Baroness Ashton backed out of a commitment that she made in Committee in the other place when she acceptedthe amendment in principle. On the back of that acceptance, she persuaded other peers to drop their later amendments, because the Government had accepted amendment No. 38.
We agree on that point and therefore propose that the Bill should explicitly state that representations to the board by the professions must be considered. The Government appear to have made a U-turn. We urge them to accept the amendment or, at least, to agree to return with another amendment to meet this important point.
John Hemming (Liberal Democrat, Birmingham, Yardley)
We are inclined to support new clause 3, the argument being that we are asking that the board consider any point made to it and to respond with reasons why it disagrees. That is entirely reasonable. There is an interesting legal question about whether it would have to do that anyway, but it is far better explicitly to include such a provision in the Bill. It is only reasonable that the board should respond in writing to representations made to it, giving reasons for disagreeing with them.
Henry Bellingham (Conservative, North West Norfolk)
I should like to add a couple points to the excellent argument put forward by my hon. Friend the Member for Huntingdon. First, the Committee will be aware that the patent and trade mark institutes are small professional bodies and thus will be small niche regulators. I stress that their future could be put at risk, because they are not closed professional bodies in the sense that one could still practise as a patent or trade mark attorney if one were not a member of the relevant institute.
Such people join their institute to give themselves added credibility, clout and professional recognition. However, if they feel that the institutes are being cast to one side, not listened to and perhaps undermined over time, they will have every incentive not to pay their levy or fee to their professional association and to go it alone. Those two important institutes have been to see the Minister and the Department and have lobbied members of the Committee. The institutes feel strongly that if they lose their critical mass—we are only talking about 2,000 members in total—they could wither on the vine. That is why it is important that they are given extra standing and credibility under the new clause. My hon. Friend’s arguments are spot on.
I also agree with what the hon. Member for Birmingham, Yardley has just said. Looking at things in the round, I do not understand how anyone could disagree with the proposed new clause being added. If anything, it would add weight and muscle to the consumer panel. It would not, in any way, dissipatethe consumer panel’s impact; it would complement the work being done by it. I urge the Minister to consider the new clause sympathetically.
Bob Neill (Conservative, Bromley and Chislehurst)
I should like briefly to support the observations that have already been made by my hon. Friend the Member for North-West Norfolk. First, it is important to bear in mind that, if we are going to make the consumer panels system work, there must be a maximum buy-in from the organisations that responsibly seek to represent various elements of the profession. The trade mark and patent attorneys, with whom I have had no professional connection, dealwith a small but important area of work. Even large representative organisations, such as the Bar Council, find it difficult to ensure that people think there is value in joining and belonging to them. In fact, they can, within the structure of the Bill, do a valuable job, at a certain level, in self-policing.
It is much better that people in the trade mark field have an incentive to be members of an associationthat provides a pretty cost-effective, useful means of bringing together representative views. All the professional organisations in the legal sphere carry out a degree of valuable self-policing as well, which is sometimes not recognised. It is much better to give people an incentive to belong to such organisations than their being tempted to freelance. We should remember—others will—that, on the liberalisation of the conveyancing rules some years ago, there was concern that some people were attempting to operate outside any of the professional frameworks, which was for the worst. That has been dealt with. It is right that we should build in the incentive now, for the same reason.
Secondly, it is important and desirable to place an explicit obligation on the panel to state why it disagrees with representations from the professional bodies, as it may, for good reason. That point was fairly made by the hon. Member for Birmingham, Yardley. It struck me that the same principle was involved, albeit in a different context, in dealing with the Greater London Authority Bill. The Government have sought to strengthen the transparency of the relationship between the Mayor and the assembly, by placing a duty on the Mayor and the functional bodies in greater London to state why, having consulted and disagreed with the assembly, they disagree with it. That makes the whole process more robust from the point of view of the consumer, the professional bodies making the representations and the public at large.
The Minister and her colleagues have talked a lot about the importance of transparency, and the new clause would underscore that. I hope that the Government feel that the new clause is not trying to wreck or undermine the thrust of what they are trying to do, but that it is trying to make things better.
Bridget Prentice (Labour, Lewisham East)
The new clause would place approved regulators on an equal footing with consumers in relation to any representations to the board. I do not consider it to be necessary, because, as I have already said, there are many provisions in the Bill under which the board and the Office for Legal Complaints might consult and consider representations made by approved regulators. However, before I come to that, I endorse the comments made about the patent and trade mark institutes—those small but important bodies—and the niche market that they represent. I have met them and discussed their concerns. In relation my writing to them, they wrote to me on 4 June setting our their concerns, and I understand that I shall reply to them this evening.
Let me list some of the provisions in accordancewith which the board or the OLC must consider representations: clauses 31, 35, 46, 47, 50, 58 and 66, schedules 7, 8 and 9, clauses 78 and 81, a raft of provisions in schedule 10, clauses 143 and 145, clauses 127, 132, 133, 136, 141, 139 and 206, clause 179, schedule 4, clause 180, schedule 7, and so on. It is therefore a myth that the OLC and the Legal Services Board will not listen to representations from the legal profession, and I hope that by reading out that list of provisions that are already in the Bill I have squashed the myth.
John Hemming (Liberal Democrat, Birmingham, Yardley)
Is the Minister therefore confirming that, if there were a disagreement, the OLC and the Legal Services Board would have to respond with reasons?
Bridget Prentice (Labour, Lewisham East)
Certainly, if the OLC was making directions, it would have to give reasons. In the general course of things, it would be good practice for the board also to give reasons for rejecting certain representations if representations had been made. I am confident that the position is already covered.
Jonathan Djanogly (Conservative, Huntingdon)
To that extent, does the Minister intend to issue guidance to the panel?
Bridget Prentice (Labour, Lewisham East)
It is not currently my intention to issue guidance. The Bill is not designed to fetter the way in which the Legal Services Board will conduct its operations, and I do not want to impose any fetters, but I might consider whether it is appropriate to issue guidance.
Bob Neill (Conservative, Bromley and Chislehurst)
On that point, the Minister has said that she hopes that reasons will be given as a matter of course if there is a disagreement—I think that thatis the right view—but can she really envisage a circumstance in which it would be appropriate for the board or the panel not to give reasons? Given that it is almost inconceivable that they would not, will she—in the same constructive way that she indicated she would think again on a previous issue—reconsider whether an explicit requirement could be made, in guidance or in a short amendment to the Bill, to give comfort to all the political parties that good practice will be entrenched? Surely no harm would be done to the Bill’s purpose by making it explicit that reasons for disagreement should be given.
Bridget Prentice (Labour, Lewisham East)
In considering whether guidance should be given, I shall certainly look at the issue in the round and consider whether the hon. Gentleman’s suggestion would be an appropriate way to proceed.
John Mann (Labour, Bassetlaw)
Before the Minister goes too far, willshe consider also that there might be extenuating circumstances? Let us take the examples of an inquiry by the Serious Fraud Office into certain practices or investigations that have not yet reached that stage but in which malpractice—perhaps routine malpractice—is suspected. There might well be a wish for pre-emptive action in such cases, but there might be reluctance to give precise reasons for a decision on the basis that providing too much detail of other activities could prejudice other regulatory action—for example, bythe SFO.
Bridget Prentice (Labour, Lewisham East)
My hon. Friend makes a good point, and that is exactly why I cannot commit todayto imposing a requirement on the board that it give reasons or to issuing guidance. As he has rightly pointed out, there are instances in which it might be appropriate for other action to be taken.
Before I move on, I have one other comment on the issue concerning patent and trade mark institutions that was mentioned by the hon. Member for Bromley and Chislehurst. If people opted out of those institutes, they could not exercise reserved services and they would not have rights of audience to conduct litigation associated with patent and trade mark work. They would be diminishing their own ability to do that work if they chose to opt out of the institute. That is an important point to make.
There is a general statutory right for the approved regulators, of which I have listed some already, to have their representations heard, and there will be an obligation on the board to provide a notice setting out its reasons when it disagrees with the regulators. To go further would be to create a system that is too heavily tilted towards the profession.
I have said in previous sittings that it is well established and clear that authorised persons have well organised and well funded bodies to represent their interest. They have extensive experience of making representations to other regulatory bodies, and we need only to consider the way in which their representations were taken up successfully in the other place to know just how influential they are. Consumers need a general right of representation to balance that situation out, and the Bill creates that balance.
If the LSB fails to account of the authorised persons’ views in reaching a decision, they will be able to go to judicial review. They know how to. I do not have any fear that the authorised persons will not use all the powers that are available to them to ensure that their voices are heard.
David Burrowes (Conservative, Enfield, Southgate)
On the substance of the issue, however, is it not important that the Government continue to reflect on the clear-cut undertaking given in the other place to accept the amendment that has now been moved in this Committee? Not to do so would be ironic, given that we are dealing with regulatory objectives that include upholding the rule of law and the constitutional principle and convention in the other place, whereby such an undertaking should be properly followed through. It has not been followed through, and Lord Kingsland’s words still apply: the Government should be ashamed of themselves.
Bridget Prentice (Labour, Lewisham East)
When I conceded some of the arguments that were made earlier, I said that I could not accept them directly, because I had to take on board the views of others in the form of collective responsibility. The amendments would undermine the consumer’s voice, which is at the heart of the Bill. The legal professions are more experienced than anyone else in making their views heard, as they have done so clearly and successfully in the other place. It is time to redress the balance.
I draw hon. Members’ attention to clause 3, inwhich the board is required to be accountable and transparent. It must publish an annual report under clause 6, and use that opportunity to demonstrate that it has given proper consideration to the representations made by consumers and practitioners. Practitioners already have a strong voice in the system, and if Iwere to accept the amendment, I would undermine consumers’ weak voice and the Bill’s attempt to strengthen it. I therefore reject the amendment.
Jonathan Djanogly (Conservative, Huntingdon)
I thank the Minister for confirming that she will write to the patent and trademark agents later today. It would have been helpful to have had that information for the debate today, but there we are. The hon. Member for Birmingham, Yardley and my hon. Friends the Members for North-West Norfolk and for Bromley and Chislehurst all made excellent cases, saying that the amendment is reasonable and straightforward. My hon. Friend the Member for Bromley and Chislehurst made the important point that it would improve transparency, and I agree with everything that they said. My hon. Friend the Member for Enfield, Southgate was right to make the point about the promise that was made by the Minister in the Lords, which has been broken.
The arguments have been put, and I do not want to go around the houses again. We do not consider that the Minister is right in her arguments, and I simply cannot see how the balance could be tipped in favourof regulators, as she put it, by what we see as a straightforward amendment. I thank her for agreeing to consider whether guidance will be published, but at this stage of the proceedings, I shall seek to press the new clause to a vote.
Frank Cook (Labour, Stockton North)
Any decision on new clause 3 will occur later in our proceedings.
Clause 11
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 222, in clause 11, page 5, line 10, after ‘Board’, insert ‘or on its own initiative’.
Frank Cook (Labour, Stockton North)
With this it will be convenientto discuss amendment No. 223, in clause 11, page 5, line 16, at end add—
‘(4) In acting on its own initiative under subsection (1), the Consumer Panel shall not impose any costs on any of the approved regulators.’.
Jonathan Djanogly (Conservative, Huntingdon)
We propose to insert the words “onits own initiative” on a probing basis. The proposal comes from current consumer bodies. The wording of clause 11 will permit the consumer panel to carry out research for the Legal Services Board and provide it with advice when it so requests. The amendment would enable the consumer panel also to carry out research and give advice to the board on its own initiative.
The amendment aims to ensure that the consumer panel has an active and real purpose. It suggests that the panel should be given some independence and the opportunity to investigate matters and pass on relevant findings and associated advice without having to wait to be asked by the Legal Services Board. That would enable the system to become far more dynamic and less static.
We are, of course, aware that such increased freedom on the part of the consumer panel will lead to further costs. As we have indicated in earlier amendments, the Conservatives are keen to ensure that such additional costs are not passed on to the regulators. It would be unjust to make them pay for research carried out by the consumer panel on its own initiative on consumers’ behalf. Therefore, we suggest that an additional amendment be made—amendment No. 223, which is self-explanatory.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
My hon. Friend the Member for Birmingham, Yardley and I have added our names to the amendment. We are strongly persuaded that it should be introduced. It is consistent with practice in other regulatory bodies with a consumer panel. I gather that Ofcom’s consumer panel has the power to carry out research into any relevant area that it sees fit.
If we are to get good people to serve on the consumer panel, one of the things that they will want to know is that they are free to set their own agenda rather than having it set for them. The hon. Member for Huntingdon and his friends realised that there is a cost implication, and I thought that where that might fall would be left for the discussion. There is a potential cost implication, although the consumer panel will have a support system. It will take additional time if the panel decides that it must assess what it ought to do as well as what it is asked to do and work through the programme, so it is appropriate to debate where the additional cost will fall. Perhaps amendment No. 223 is the right proposal; it may be something else, but my hon. Friend the Member for Birmingham, Yardley and I are clear that the panel ought to have the power to take initiatives. I hope that the Minister is entirely signed up to this pro-consumerist amendment.
Henry Bellingham (Conservative, North West Norfolk)
I also endorse what has been said. As my hon. Friend the Member for Huntingdon pointed out a moment ago, the consumer panel must have direction and focus. It would be wrong for it to be purely a reactive panel. It must be proactive. Let us consider the various disasters that have taken place in respect of how the consumer is affected by a legal action—indeed, the hon. Members for Bassetlaw and for North Durham know well that it would have been useful if the consumer panel had been in place when case of the miners’ compensation scheme was going on, as it could have taken up the cudgels on behalf of the people who were afflicted by that appalling, ghastly saga.
John Mann (Labour, Bassetlaw)
The hon. Gentleman is quite wrong.The last thing that I wanted was a body into which complaints could have been palmed off. I wanted—and want—effective regulation. Is he not in danger of going down the track of beefing up the consumer panel to such an extent that it can handle all the consumer issues and the Legal Services Board can wash its hands of them?
Henry Bellingham (Conservative, North West Norfolk)
I very much disagree with the hon. Gentleman, because they can work in tandem. Of course, we want tougher, better regulation of the solicitors, but that is separate from giving consumers a greater voice. If consumers feel that they have suffered a serious grievance, whatever action the consumer panel might take might well prompt the Legal Services Board to take regulatory action against particular solicitors. The two can work in tandem.
As far as commissioning research is concerned, I, too, considered the case of Ofcom. If one widens the remit of the consumer panel in such way, it will attract a higher calibre of members and will build up a body of research opinion that will build credibility over the years. The Bill is about improving the way in which legal services are run, and they are run for consumers—our constituents. What would happen if outside consumer bodies wanted to help the consumer panel with research programmes? For example, if the National Consumer Council or Which? decided that it would be sensible for the consumer panel to consider research programmes and wanted to work with it and, perhaps, to help sponsor research, would that be in order?
My hon. Friend the Member for Huntingdon andI are concerned about the cost implication. If the consumer panel builds up a huge amount of momentum and wants to take on many new challenges, there will be a cost implication and that is why we have had to qualify matters. We did not want the provision to become an open-ended commitment. We are conscious that the Minister and her colleagues are in a Department that faces financial constraints. We do not want to put too much financial pressure on her Department, but we also want the job to be done. I urge her to consider the possibility of using some outside resources if particular projects have merit and if the panel is proactive in a campaign. I hope that she will consider that and support our amendments.
Kevan Jones (Labour, North Durham)
I find it very strange that on the second day of our consideration, Conservative Front Benchers are talking about the rights of the consumer. Up to now, they have been trying to protect their vested interests, and the amendments are another attemptto do that. Like my hon. Friend the Member for Bassetlaw, I am concerned that if we are not careful the consumer panel will end up in competition or rivalry with the board. That would be a dangerous step, because it would weaken the role of the board. Such an approach is not inconsistent with Conservative policy these days, under which policies are put forward with no attempt to explain how they will be paid for. If we accept amendments Nos. 222 and 223, it is not clear who will pay for the research—as long as it is not the poor solicitors or the legal profession, who, poor as they are, could not be asked to contribute anything to such research. I resist the amendments. They have been portrayed as an attempt to help the consumer, but they are actually part of a cynical guise around an attempt to protect the vested interests of the legal profession.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
The hon. Gentleman has not thought this through at all. The Government propose in the Bill that there should be a consumer panel; the hon. Gentleman seems to be arguing against not only the amendment, but the idea of a consumer panel—[Interruption.] Well, that was the clear implication; if I am wrong, what he said was not very clear.
It is fundamentally important that there shouldbe a consumer panel and that its representatives donot sit—with formal status, as it were—as a non-departmental public body such as the Legal Services Board. Those representatives should be able to make sure that there is an access point and response base for consumer issues. The amendment is consistent with the idea that there should be a consumer panel. If there is to be one, we should let it do its job, not hold it back.
Bob Neill (Conservative, Bromley and Chislehurst)
I often find myself agreeing withthe hon. Member for North Durham—on local government issues, for example. However, I am sorry to say that he is absolutely wrong on this issue. There seems to be an extraordinary illogicality to his position.
I rather resent the suggestion that the Conservatives have ever objected to the notion that the consumer is at the heart of the Bill. Perhaps the hon. Gentleman has spent so many years in the Labour party and trade unions that he has become an inveterate conspiracy theorist. We are talking about not a conspiracy todo down the consumer interest, but a proposal to advance it.
I am sorry to use an analogy from another piece of legislation, but it is apposite. During the passage of the Local Government and Public Involvement in Health Bill, we debated how we would make local involvement networks, or LINks, effective—how we would give them teeth and attract people of the right calibrewho would be an effective voice for patients. The Government seemed to accept that there was a need to empower LINks. That is what we are trying to do for consumers in this context: to empower the consumer panel. That is consistent with the Government’s own philosophy of the Bill. We accept that point, so I find it bizarre that Labour Members should try, by using rich lawyers as a smokescreen, to limit the scope for consumer panels to carry out research on their own initiative.
I know lawyers who do legal aid work, and they have seen not an increase, but a real-terms cut in their fees over the years. They do not necessarily come into the “rich lawyer” category. It would be very sad if, of all people, Labour Members started to stereotype. That would get us away from the real issue of trying to geta balanced regulatory framework, which, I accept, involves enhancing the position of consumers. It also involves respecting the position of the professionals. Enabling the consumer panel to take the initiative is to go in absolutely the right direction, not the wrong one.
Bridget Prentice (Labour, Lewisham East)
I have some sympathy with the arguments that have been advanced in so far as I agree that representations from the consumer panel will be hugely important in informing the board.
To ensure that the panel is equipped to do its job, we have provided that it must be consulted by the board in respect of certain key regulatory activities. The panel may also make representations to the board about any other matter. When it does so, the board must consider them and give the panel notice if it disagrees. Any such notice must state the board’s reasons for disagreeing with the representations. If it wishes, the consumer panel can publish any information relating to the provision of its advice.
I turn to how that might work. If the panel considers that there is evidence of a clear detriment to the consumer interest, it may make a representation to the board that it request that the panel carry out research into the matter. Such a representation could also specify that the board should receive and consider advice from the panel. If the board elected to disagree with such a representation, the panel would have to be provided with a justification for that disagreement, and it could then go ahead and publish that exchange.
Amendment No. 222 would allow the panel to conduct research of its own volition. A number of hon. Members have prayed in aid other consumer panels, but they are labouring under a misunderstanding of the role and powers of some of those other panels. Ofcom’s consumer panel can provide advice of its own volition, but only in very specific circumstances under section 16(3) of the Communications Act 2003. As far as I am aware, neither the Financial Services Authority nor Ofcom consumer panel have the power to undertake research of their own volition. I do not know of any other statutorily provided consumer panel having that ability.
In the Bill, we have given the consumer panel more powers than those available to others. In fact, I would argue that Ofcom’s consumer panel is more restricted in its ability to carry out research than the panel of the Legal Services Board.
Amendment No. 223 states that the cost must not fall on the approved regulators. In that case, on whom must it fall? If the implication is that it would fall on the Government, in effect, that means the consumer. In fact, the Bill states that, after the transitional period in which the Government contribute to the cost, the Government will play no further part. It is for the legal profession, which is to be regulated, to bear the burden of that cost. Therefore, even if the amendments are accepted, it is inevitable that the cost will fall on the legal profession.
Amendment No. 223 is problematic because it does not indicate who should bear the costs. I understand what it seeks to do, but the amendment is flawed in itself and in its principle because the implication is that the cost will fall on the consumer. In fact, once the board is up and running, the costs will fall on those who are being regulated.
When the board identifies an area that needs regulatory scrutiny—or a representation has been made by the panel that identifies such a need—it is important that the panel is available to undertake that research and to advise the board on the potential impact on consumers. There would be a real danger that the panel might be unable to honour that request if it is dedicating time, manpower and other resources to research projects of its own.
Finally, there are no safeguards in the amendments to ensure fairness or to prevent misuse of power. Nothing in the amendments would stop the panel from conducting irrelevant research, incurring exorbitant costs, or providing that the board need not act on the advice. The amendments contain no clear lines of accountability. They are flawed in themselves and in the principle that they are trying to express. On that basis, I ask the Committee to reject them.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
The hon. Member for Huntingdon will make his own decision but, unless I am mistaken, I detect a bit of resistance from the Minister. Some of her arguments are good, although some facts need checking. I am not persuaded by her arguments, but I am happy to consider them further. If the amendments contain flaws, I am sure that that we can improve them.
Jonathan Djanogly (Conservative, Huntingdon)
As the hon. Member for North Southwark and Bermondsey says, we are not convinced by the Minister’s argument. My hon. Friend the Member for Bromley and Chislehurst was right to say that the Conservative party is concerned about the rights of the consumer. I echo that remark. Many amendments tabled by Conservative Members that we have discussed so far have been in the interests of the consumer. Sometimes they have questioned who the consumer is and sometimes they have examined how the existing Bill has been adapted, but they have certainly considered the rights of the consumer from the consumer’s point of view.
Once the hon. Member for North Durham had got over his fixation with vested interests, he suggested that the board and the panel would come into conflict. I thought that my hon. Friend the Member for North-West Norfolk answered—
Frank Cook (Labour, Stockton North)
Order. I make a further plea for forgiveness for my misunderstanding of the starting time of our proceedings this morning.
Frank Cook (Labour, Stockton North)
I remind the Committee that with this we are discussing the following amendment:No. 223, in clause 11, page 5, line 16, at end add—
‘(4) In acting on its own initiative under subsection (1), the Consumer Panel shall not impose any costs on any of the approved regulators.’.
Jonathan Djanogly (Conservative, Huntingdon)
My hon. Friend the Member for North-West Norfolk made the valid point that the commitment set out in the amendment should not become open-ended. I totally agree with that, and it is a point that we tried to address in the second of our amendments in the group. The Minister also picked up on that point, in a rather dismissive way, I thought. She dismissed our efforts to reduce the exposure, by saying, “Well, even if you put that in place it still wouldn’t work”. To be frank, it is true that the amendment might not be enough, but we were trying to make the point that just because the original amendment would need to be limited, that does not mean that the thought behind it was wrong. We simply need to look at the issue in a more constructive way.
The hon. Member for North Southwark and Bermondsey said the measure was standard practice in other bodies, and the Minister disputed that. I think that she gave the example of Ofcom. Having the advantage of the break, I thought that I would have a quick look at the provisions for Ofcom, which are quite interesting. Section 16(6) of the CommunicationsAct 2003 states:
“The arrangements made by OFCOM under this section must also secure that the Consumer Panel are able, in addition to giving advice on the matters mentioned in subsection (3), to do each of the following—
(a) at the request of OFCOM, to carry out research for OFCOM in relation to any of the matters in relation to which OFCOM have functions under section 14”.
That obviously is similar to what is in the Bill. However, section 16(6)(b) says
“to make arrangements for the carrying out of research into such other matters appearing to the Panel to be relevant to the carrying out of the Panel’s functions as they think fit”.
Bridget Prentice (Labour, Lewisham East)
I absolutely agree with the hon. Gentleman. I, too, have had some research done during the break, and he is quite right. I inadvertently misled the Committee by quoting section 16(3) of the 2003 Act, when in fact, as he rightly points out, section 16(6)(b) allows the Ofcom consumer panel to carry out research into matters that it perceives as relevant to its work. Of course, the consumer panel also has a memorandum of understanding with Ofcom regarding the scope of the panel’s research, which it set out at the beginning of its year. On that basis, I am happy to put the record straight on that aspect of the debate.
Jonathan Djanogly (Conservative, Huntingdon)
I thank the Minister for that clarification, but it means that we have established that there is precedence in other regulatory systems for the amendment that we are suggesting. The hon. Member for North Southwark and Bermondsey was rightto bring the matter up. What is suggested by the amendment is not unusual and it exists elsewhere. The amendment is rational and makes sense, but we have concerns about cost and the other issues that the Minister mentioned.
John Hemming (Liberal Democrat, Birmingham, Yardley)
On cost, the same briefing from the National Consumer Council makes the point that Ofcom has a budget for the consumer panel to handle matters, so its costs are to that extent controlled. That makes amendmentNo. 223 potentially otiose.
Jonathan Djanogly (Conservative, Huntingdon)
That is not necessarily the case, because the money would otherwise come from practitioners in such circumstances. However, I appreciate the hon. Gentleman’s point, in so far as the issue would need to be looked at again, and there is existing precedence for the process working in other scenarios. As a way of going forward, therefore, the measure should be looked at instead of simply being dismissed, as the Minister did earlier.
On that basis, we would like the Minister to look at the issue again. She has come back to it once, and perhaps she will return to it again when she has more time. Therefore, in order to allow it to be looked at again, I beg to ask leave to withdraw the amendment.
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 224, in clause 11, page 5, line 16, at end add—
‘(4) It shall be the duty of the Board (subject to subsection (5))—
(a) to provide the Consumer Panel with all such information as, having regard, in particular to the need to preserve commercial confidentiality, the Board considers appropriate to disclose to the Panel for the purpose of enabling the Panel to carry out their functions; and
(b) to provide the Panel with all such further information as the Panel may require.
(5) The Board is not required to provide information by virtue of subsection (4)(b) if, having regard to—
(a) the need to preserve commercial confidentiality, and
(b) any other matters that appear to the Board to be relevant,
it is reasonable for the Board to refuse to disclose it to the Panel.’
This amendment again comes from the National Consumer Council, and we have tabled it on a probing basis. It would work alongside amendment No. 222 by ensuring that the consumer panel has access to the information that it needs to carry out its functions—information held by the board, subject to appropriate restrictions. Just as an individual needs the appropriate resources in order to do their work, so the consumer panel requires access to certain information in orderto carry out its work to the highest possible level. However, the amendment also recognises that there may be some instances in which it may not be appropriate for the consumer panel to receive such information. Therefore, the amendment would give the Legal Services Board the discretion to decide on such cases.
John Mann (Labour, Bassetlaw)
“Commercial confidentiality” is a term that I have heard quoted a lot in the context of this Bill, and it has been quoted to me in numerous cases. One of the big issues is that individual members of the public, who, for example, wonder whether to make complaints against solicitors, often struggle to get hold of their files from the solicitors. Another example could be that of a coal miner—someone who knows nothing about the law, has never had to deal with the law and is not an expert on compensation schemes, but who nevertheless wants to know whether their case has been handled properly. He might like his Member of Parliament to take a look at his file to see whether the services aspect of the claim has been put in.
The services aspect of the claim can be three, four or five times the amount of the rest of the claim, so this is not a small issue. However, only someone with the relevant knowledge would be able to identify whether or not the case contained a potential services claim that had not been applied for. That information can only be found by looking at the file. However, certain solicitors refuse to hand over those files, and at the moment, self-regulation appears powerless to do much about that. Where is access to justice in relation to that?
Some paperwork has been refused on the basis of client confidentiality. Let us take the example of a contractual arrangement between a claims handling company and a solicitor that the individual concerned does not know about it. How can that individual make a rational decision about whether they have a justified complaint, if “commercial confidentiality” is cited as a reason not to give copies of the information?
Let us take a more generic case, because this is exactly the kind of issue that the panel should look at. Let us say that an industrial injury claim is given to a legal executive who has no great experience and no precise knowledge of the law, and who routinely gives that work to a barrister, who examines it in the same way that a member of the Committee might and writes a short report in 10 minutes, spelling out what is a straightforward case. The barrister sends it back and charges the solicitor’s company, which passes it on to the individual. The individual can do nothing about that, but how does he know what transactions took place, to enable him to make a complaint and say that he had been hoodwinked because the issue did not require a barrister? A barrister was used only because, unbeknown to the individual, the solicitor had passed the papers to an executive, not a solicitor. The paper trail required can therefore be deemed to be commercially confidential.
For the consumer panel or the Legal Services Board to know whether the transaction had been done routinely, it would need access to what clearly could be described as commercially confidential documents, such as those relating to the financial relationship between the solicitor and the barrister or, say, a solicitor and a medical handling company. The solicitor might have just happened to set up such a company, passed the medical case through it and taken a cut of the money. Moreover, as we have seen inmany cases, such a relationship might be with a loans company that is giving out large loans for legal expenses and receiving good commission. The case might be shared around. Many such issues might be deemed worthy of examination by the consumer panel or the board.
The restriction of confidentiality in such matters is absurd. It means that the very issues that need exploring will not be explored. While it is a slight point, given some of the amendment’s aims, it masks a greater sin, which is the ability of the consumer or the individual to receive redress. More important is the consistent ability to look at the overall system and advise the board—and perhaps Ministers—of the law and weaknesses within the system that have been legally but, in some eyes, immorally exploited by those in the legal profession. Hiding behind commercial confidentiality has been the precise tactic used by particularly wealthy solicitors who have benefited from their interpretation of the rules in such claims.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
My hon. Friend the Member for Birmingham, Yardley and I both support the amendment because it has merit. I had not intended to say much more than that, but I have now been prompted to do so because the hon. Member for Bassetlaw has made a good point. I completely understand the concern that, if the conventional phrase is put into legislation that states that it shall be the duty of the board
“to provide the Consumer Panel with all such information as, having regard, in particular to the need to preserve commercial confidentiality”,
it will bring about an undefined and potentially broad exemption.
I spend much of my time wondering why so much local government information is secret. The most common reason given is that something is commercially confidential. We could be talking about the largest piece of publicly owned land in our constituencies and the generally held view that members of the public, their councillors and their Member of Parliament should know what is going on, but then be told that it was not something for whichwe could see the paperwork. I agree with the hon. Gentleman in that, if we were to have such a good proposal and if there were to be limits, there would have to be a clear definition of the limits.
The Minister might be able to answer, either now or later, a question asked in that regard. I am not sure whether this is dealt with later in the Bill, because I have not checked. Does the Bill addresses the question of commercial confidentiality? The convention exists that when you, Mr. Cook, the Minister or I employor engage a solicitor’s firm, the relationship is confidential, unless it comes out into the open because we take action against another party or because the matter goes to court. That is right and proper.
The proposal is a good one. I understand the point about not wanting to make it effectively useless by making the exemptions so big. Perhaps the Minister could help us by deliberating on that. The hon. Member for Huntingdon and his colleagues, and my colleagues and I, could deal with any issues that need addressing.
John Hemming (Liberal Democrat, Birmingham, Yardley)
I rise to support what the hon. Member for Bassetlaw has said. There is an issue about the transparency of payments, but, in practice, the amendment would start by giving a duty to provide some information to the consumer panel. Without such a provision, there would be no duty to provide it with any information. The transparency of payments is clearly an important point, but it is not necessarily part of this.
Henry Bellingham (Conservative, North West Norfolk)
The amendment would place a duty on the Legal Services Board to provide information. Surely that would be a great deal better than the clause, as drafted. As the hon. Member for Birmingham, Yardley pointed out, there is no obligation or duty on the board to provide any information. That is why clause 11 is deficient. It states:
“The Consumer Panel may, at the request of the Board”.
It continues:
“The Board must consider any advice given... The Consumer Panel may publish such information as it thinks fit about advice it gives”.
There is no duty on the board to provide information.
I take on board the point made by the hon. Member for Bassetlaw. In our enthusiasm to widen the scope of the clause and to ensure that provision was made for such a duty, we decided that we would be cautious, which is why we included the qualification about preserving commercial confidentiality. Surely he would agree that amendment No. 224 would improve the clause, despite his concerns about the commercial confidentiality qualification. I notice that he did not table an amendment to improve the clause further, in a way that he would find more powerful and effective than our proposal.
We are trying to sing from the same hymn sheet, because we are trying to give the consumer panel much more power, influence, focus and direction. We hope that it will therefore attract large numbers of high-calibre people to serve on it. In the light of the Committee’s debate, I hope that the Minister will look sympathetically at our proposal.
Bridget Prentice (Labour, Lewisham East)
Being the magnanimous person that I am, I agree that the consumer panel should have all the information that it needs to carry out its functions. The amendment clearly seeks to allow it to make requests in that regard. It is important to recognise that clause 10 already enables it to do so, simply by making representations to the board, which would be obliged to consider them. It is likely thatthe board and the consumer panel could agree a framework, not unlike the memorandum of understanding between Ofcom and its panel. I have made reference to that arrangement.
John Hemming (Liberal Democrat, Birmingham, Yardley)
Looking particularly at clause 10, it seems that the Legal Services Board will be more likely to know what information may be necessary for the consumer panel. If the consumer panel does not know that some information is necessary, it cannot ask forit. That is why the duty to provide information is stronger than a situation where the panel can ask for information and be told that it cannot have it.
Bridget Prentice (Labour, Lewisham East)
I understand the hon. Gentleman and take that point, which is why I shall be quite positive in my response to the amendment. I wish to put on record that it should be clear from the very fact that we are establishing a consumer panel that we want it to be furnished with the information that it needs.It is fundamental that the organisation that makes representations to, and consults with, the board conducts research, gives advice as requested and receives the information that it requires. How else could it achieve the aims that we have set out? However,I have a couple of niggling concerns about the amendment; I am not entirely convinced that it will achieve what hon. Members want. I ask the hon. Member for Huntingdon to withdraw the amendment on the basis that I will positively consider the matter to find out whether we can come to some arrangement.
My hon. Friend the Member for Bassetlaw rightly highlights at every opportunity some of the scandalous practices that have taken place as regards some of our constituents. On access to information, a client should be entitled to the file that relates to their case. Under the Bill, if they are not satisfied with the service provided by a lawyer, they can go to the Office for Legal Complaints. The ombudsman will have the power to require a party to a complaint to provide all the documents and information necessary to consider it, which is a wide-ranging power. I shall discuss the amendment further with consumer groups and other stakeholders to ensure that we achieve exactly the hon. Members’ aims.
Jonathan Djanogly (Conservative, Huntingdon)
The Minister’s response has been heartening, and we understand her wish to consult further on the final product, not least in light of the valid comments made by the hon. Members for Bassetlaw and for North Southwark and Bermondsey on the definitions and breadth of the exceptions, the transparency of payments and the need to define clear limitations. I hope that those points will be teased out in the days to come. On that basis, I beg to ask leave to withdraw the amendment.
Henry Bellingham (Conservative, North West Norfolk)
I remind the Minister that, during the discussion on amendment No. 222, I suggested that various outside organisations and consumer bodies, such as Which? and the NCC, might possibly provide research material to the consumer panel. The panel will carry out a number of major projects, and we want it to have a wide range. A consumer group might be involved already in a major campaign that involves informing its membership, with articles in a publication or surveys and questionnaires.
Such campaigns might be on all fours with a consumer panel initiative, and it would be sensible if the two initiatives could be brought together. Will the Minister tell the Committee whether she sees any merit in such an approach and whether she is attracted to my suggestions? The clause stand part debate is the time to look into the matter in more detail. I should be most grateful to the Minister if she gave me some indication of her views.
Bridget Prentice (Labour, Lewisham East)
I am very sympathetic with the hon. Gentleman’s suggestion. The clause will enable the consumer panel to carry out research and give advice to the board, following a board request, and any opportunity for the panel to pick up on good research should be welcomed. I am not in favour of reinventing the wheel. If certain consumer organisations were doing research, therefore, it would be foolish for the consumer panel not to be able to access it. I shall consider whether there are ways in which we can provide encouragement for the hon. Gentleman’s suggestion.
Clause 12
Jonathan Djanogly (Conservative, Huntingdon)
I beg to move amendment No. 210,in clause 12, page 5, line 26, at end insert—‘(ea) preparation of wills’.
We have now moved on to part 3 of the Bill, which deals with reserved legal activities, as defined by the clause. The Opposition propose that the writing of wills should be included in the list of reserved legal activities that may only be carried on by authorised persons. The clause identifies six forms of legal activity that will be regulated as reserved legal activities: the exercise of a right of audience in the courts, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths.
This probing amendment is intended to prompt the consideration of whether will preparation should be added to that list, as recommended by the Joint Committee on the Draft Legal Services Bill, which said:
“We note that the offences in clause...12 will apply to a range of situations where consumers may need protection... We recommend that will-writing for fee, gain or reward should be included within the new regulatory framework. The draft Bill should be amended to provide for regulation subject to any exemptions necessary in the consumer interest.”
The Joint Committee noted that there is no existing regulatory framework for will writing or existing professional body with responsibility for will writing. Accordingly, there is a significant risk of consumer detriment from the activities of unregulated will writers. The Government identified a similar risk in relation to the claims management sector in the context of the Compensation Act 2006. In that case, they wanted
“A major change in quality and behaviour by claims management companies so that the service provided to consumers is significantly improved and consumers’ expectations are not falsely raised through potentially misleading advertising and other sales practices”.
Some bodies, including the Law Society, consider that the same changes and developments should occur in relation to will writing. In fairness, it is arguable that there are differences between writing wills, which relate to only one person, and complex litigation. For most people, an off-the-shelf, do-it-yourself will, purchased from a high street shop, would probably be perfectly adequate.
I should like the Minister to tell us whether the Government have conducted any research on the issue. In particular, would extra regulation be likely to reduce the number of people making wills? That is a key issue, because too many people currently do not make a will, and we should encourage, rather than discourage, will making. The Government have already made clear that they wish to increase consumer protection by bringing will writers into the scope of the regulatory framework.
Kevan Jones (Labour, North Durham)
The hon. Gentleman referred to claims handling companies—a type of organisation that, frankly, I would outlaw altogether. Those organisations are now covered by the Compensation Act 2006. If they were offering will services, would not those activities be covered by their regulator?
Jonathan Djanogly (Conservative, Huntingdon)
I am not sure what the hon. Gentleman is trying to say. Is he saying that, if claims handling companies offered will making services, they would be regulated?
Kevan Jones (Labour, North Durham)
I am suggesting that those activities are already covered by the Compensation Act 2006, which regulates claims handling companies.
Jonathan Djanogly (Conservative, Huntingdon)
I do not think that that is the case; I do not think that will drafting is regulated in any way whatever.
To conclude, my concern is that, if there were regulation, far fewer people might make a will. Most wills are pretty straightforward documents; it is when complexity comes into will making that the possibility of mistakes increases. That is the potential problem area, and I shall certainly be interested to hear the Minister’s views.
John Mann (Labour, Bassetlaw)
I am a little confused by the hon. Gentleman’s speech, because he appeared to argue against his amendment at the end. To quote the helpful explanation under the new Bill system, of which I thoroughly approve, the Members’ explanatory statement for the amendment says:
“To add will-writing to the list of reserved legal activities which can only be carried out by authorised persons.”
When members of the Transport Salaried Staffs Association wish to participate in debates on transport, they must exclude themselves from the deliberations, because they are deemed to have a vested advocacy interest. There are other such examples.
The Chairman of the Select Committee on Standards and Privileges clarified the issue precisely on 14 May 2002, Official Report,columns 731-750. I shall quote only the relevant line, which says that
“from now on the only restriction on Members’ freedom of action will be that they must not seek to confer benefit exclusively on a body in which they have a pecuniary interest.”— [Official Report, 14 May 2002; Vol. 385, c. 732.]
I vary from Parliament’s view, because I do not believe that any restriction is sensible. Transparency is the principle, but the issue prompts an interesting question of Members.
The amendment would confer a benefit exclusively on a set profession: it would be the only profession that could benefit from that work, and it would do so exclusively. Should a practising solicitor who is a Member of the House wish to vote on the amendment, it could be argued that their company would benefit and that, either indirectly through the profits of their company or directly through their own work, they would benefit.
This is a good juncture at which to explore the issue of advocacy. I do not wish to see anyone excluding themselves from any votes here, but this is as precise an example as it is possible to get. The benefit would be exclusively to the said profession, as outlined very helpfully in the Members’ explanatory statement; that is what this provision would do. It could not be argued that voting against it would confer an exclusive benefit, but voting for it could.
I merely make the observation that should Members proceed on that basis, it would set a precedent—possibly very helpful—for the limits on advocacy and the Nolan principles. I would regard that as very sensible. Some of the nonsense in the past, such as TSSA members being excluded from a Committee because of their membership of that organisation, was ludicrous, but that is what happened.
Kevan Jones (Labour, North Durham)
May I offer my hon. Friend an example from local government? I was on a planning committee once, and because a number of people on it were season ticket holders of a well known north-east football club, they could not take part in the decision.
John Mann (Labour, Bassetlaw)
The balance, as Parliament determines it, is skewed towards preventing people from doing things, rather than towards transparency. The key principle is transparency, and one’s judge is one’s voters. As long as there is transparency, the voters will be the final arbiters of anyone’s behaviour. That is my view; it is not the view of the House, as determined on its behalf by the Standards and Privileges Committee.
The situation under discussion is a good exampleof conferring an exclusive benefit in which Members might have a pecuniary interest, so it is relevant, Mr. Cook, to make such observations at this time.
Several hon. Members rose—
Frank Cook (Labour, Stockton North)
Order. The Chair has been very tolerant of the discussions so far, and I commend hon. Members for the diligent manner in which they are applying their attention and focus to the quality of the debate, but we cannot entertain a wide-ranging debate on the House’s rules on advocacy. If the hon. Member for Bassetlaw wants to raise that issue, the House has other more appropriate ways in which that can be done. Although I commend hon. Members for their diligence and conscientious application to the broader issues, we must focus our attention on line-by-line scrutiny ofthe Bill.
Kevan Jones (Labour, North Durham)
On a point of order, Mr. Cook. I concur with my hon. Friend the Member for Bassetlaw. For example, at least one member of the Committee will potentially benefit from this clause. If we allow this matter to go through without a ruling before we get to the end of the Bill, questions could be asked about how we have scrutinised it.
Frank Cook (Labour, Stockton North)
I have to remind the Committee once more, as I did on Tuesday, that this is a matter forthe Standards and Privileges Committee, not this Committee. If Members have a problem, they should consult the register, and if they still have a problem they should refer it to the Standards and Privileges Committee.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I shall return to the central purpose of this clear and important amendment. As the hon. Member for Huntingdon said, we are on to part 3 of nine as we rush on. We are doing well. It is another part that starts with a definition and comes to the statement later, just en passant.
Part 3 is about the regulation of legal activities and which legal activities are governed by the Bill. First, we define the reserved legal activity and legal activity in clause 12, and then the relevance of defining them appears first in clause 14, which sets out the proposition with which this part deals. That proposition is that if one carries out a certain activity, one has to be approved to do so and if one is not approved, it is an offence to carry it out. Clause 12 lists those activities, which are
“the exercise of a right of audience...the conduct of litigation...reserved instrument activities...probate activities... notarial activities...the administration of oaths.”
I shall come back to that list, but the obvious omission, which has been proposed for a long time, is the writing of wills. I have thought about the subject a lot, and I start from the position that we should not seek to regulate things unless we have to regulate. That is always my position in life. We have far too many laws and regulations, so I am not in favour of one more.
There are three generic ways in which a will can be written. First, people can write their own, and no one is suggesting that there should be any reduction in the number of people who do that, or control of them. Secondly, people go to a solicitor who has wills and probate as part of their advertised job. Many solicitors do wills as part of their business, and some have wills and probate as a key part of their business. Some generalist solicitors see wills, probate and conveyancing as their main, routine, run-of-the-mill work.
Thirdly, other people also do will writing. This debate is a bit like the one that we had on the Compensation Bill. We are talking about people about whom one would probably never have known until one day, a flyer came through the letterbox, there was an advert in the local paper, a leaflet was handed out atthe shopping centre or one was told about them. Alternatively, someone might give staff at an old people’s home information about local will writers. Bluntly, most people would not have a clue about who those people were or what competence and authority they had. That is a real concern. I want to cite some examples.
Stephen Hesford (Labour, Wirral West)
Will the hon. Gentleman give way?
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
Of course I shall, but in a minute.
The Minister owned up—as I did and as others have done by implication—to the fact that there is a fourth category of people about whom we are concerned: those who have never addressed the question at all and have done niente about it. We all need to do better, especially if we are beyond our 20s and 30s and have family responsibilities, and other people depend on knowing what the score is.
Of course we should encourage people to write wills. That does not necessarily mean encouraging them to go to lawyers to do so. If the wills are simple, people can make them themselves; they could get the advisory pack from Woolworths or somewhere else. I am conscious that there is a campaign to have more will writing. I have owned up to the fact that I supported such a campaign, prompted by a firm in my constituency that produces the packs that provide such a service. I am sure that the firm offers that service,as well.
Stephen Hesford (Labour, Wirral West)
In the Joint Committee that examined the draft Bill, I was persuaded by and attracted to an idea not dissimilar from the one behind the amendment—that wills should fall within this category. The Committee did not agree. I do not know what the Minister’s attitude is—
Bridget Prentice indicated dissent.
Stephen Hesford (Labour, Wirral West)
My hon. Friend shakes her head. However, I can see the argument; perhaps in the fullness of time I shall be able to vote for it, if the matter is pressed to a Division.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I am trying to be completely open about this issue, which involves a balance of judgment. In a minute, I shall give the reason why I think that the hon. Member for Wirral, West is right and why I hope that the Minister will concede the point.
I pick up where the hon. Gentleman left off. The Joint Committee examining the draft Bill said:
“We note that the Government concluded in its White Paper in respect of will writing that although there was no ‘compelling argument for statutory regulation’, that it was the Government's view that ‘improvements must be made in the control of quality and standards of will writing and related services in order to protect consumers’. We note the Government's conclusion that this could most effectively be achieved by voluntary regulation, codes of conduct and consumer education. We do not agree.”
The Joint Committee concluded that it did not agree with the Government’s view. In passing, I observe that, as I understand it, there is no power in this Bill for the Government to give guidance to the Legal Services Board, although I may be corrected. There is no power to add the desirable, as well as the statutorily necessary.
The Joint Committee also said:
“We recommend that will-writing for fee, gain or reward should be included within the new regulatory framework. The draft Bill should be amended to provide for regulation subject to any exemptions necessary in the consumer interest. We note that there is currently no existing regulatory framework for will-writing and no existing professional body with responsibility for will-writing activities. We note that these hurdles have been overcome in respect of the claims management sector, in the context of the Compensation Bill, and urge the Government to consider whether will-writers might be brought within the scope of the regulatory framework in a similar manner.”
The hon. Members for Bassetlaw and for North-West Durham—
Kevan Jones (Labour, North Durham)
North Durham.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I beg the hon. Gentleman’s pardon. Durham is a nice city in a nice county, although I am not sure about the constituency boundaries. During the Compensation Bill proceedings, both hon. Gentlemen argued that we should bring that group of activities within the law—and we have done so, courtesy of the Government. My current argument is similar, and I hope that the hon. Gentlemen find it attractive. I am not arguing at all that we should set up a separate profession of will writers; that is not my case. We need to debate whether all those different professions need to exist as such, and I shall come to that point in the clause stand part debate. I am concerned about thejob of will writing, rather than the professional occupation. It could reasonably be done by other people. One could go through a door marked “A variety of services”, and will writing could be one of them.
I want to give three examples of why the issue is important. In fact, my first point is not an example, but comes from my own experience. In the years of practice following my law degree, I found that interpreting wills was a fantastic source of work. Often, people’s wills do not reflect what they want them to reflect. If people get bad advice, they often do not write down—or it is not written down—what they wanted to happen.
As we all know, issues such as wills are greatly sensitive. Once someone dies and the will is looked at—not in the old-fashioned way when it is read out in front of all the prospective beneficiaries—the most terrible rows can ensue, because people think that they should have been included or that someone should have been excluded—first wives or first husbands. There are debates about when the will was written. There are also the issues connected with old people: have they been pressured into writing their will and who was there at the time?
All those issues make massive work for lawyers. They make even more work if they are not clear. Someone might write a will leaving everything to their daughter, which is clear and unarguable. That might happen without a will anyway if there is only one daughter. However, somebody may have six daughters. If they write “I leave everything to my daughter,” that would not be clear and a debate would be needed. There is a fantastic amount of debate out there. People often have to go to solicitors or to the courts. That causes great angst, trauma and family disharmony. Therefore, there is a real live issue out in the community.
John Mann (Labour, Bassetlaw)
The hon. Gentleman makes quite a compelling case. Does he not accept that there is one caveat? Probate issues cause the most bitter rifts in mining communities. They are the most divisive of issues. The problem is usually to do with principle, rather than large amounts of money. One of the problems is not so much that wills are unclear, but that there is no will. Will the measure entice more people to make a will, or fewer?
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
Of course, that is an issue. I believe that we should encourage people to make a will. If people do not make wills, the law decides where their property goes. If they are married, their property goes to their husband or wife. I think that, if they havea civil partner, it goes to their civil partner. [ Interruption. ] If a Back Bencher says that that is not the case, I stand corrected. Certainly, if someone is married, their property goes to their husband or wife. If someone is single but has children, the property goes to the first generation. A statute deals with the administration of estates. It is not always terribly clear, but there is a law.
The hon. Gentleman was right when he said that it is hugely problematic if someone has not specified, or not specified clearly, what should happen to their property. We ought to be encouraging people to make wills and to make them as simple as possible.
Bob Neill (Conservative, Bromley and Chislehurst)
The only connection I have ever had with a will—apart from making one—was when I prosecuted someone for trying to forge one, which is not the issue now. I agree with the hon. Gentleman’s point. Does he agree that his point was reinforced by a debate in the other place? When difficult and intractable disputes occur over a badly drafted will, one of the problems is that, in a sense, it is too late. The person whose intention is in question is dead. Expensive litigation is the only means of rectification, which hits the person’s nearest and dearest. That is a compelling argument for regulation.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
The legal case might be fine if one is dealing with the estate of rich Texan millionaires or billionaires and well-proportioned women 60 years their junior, and even their children. Bluntly, there is plenty of money floating around, so going to court to dispute who is to inherit the estate will not take a significant amount of it. However, that is not the case for lots of people. The smaller the income, the bigger the issue. A legal dispute can use up everything; everything can disappear.
The Law Society made a good general point in its briefing that gives me an introduction to my examples. We live in a society of changing family structures, and there are more categories of family. Families are more complex. There are single people, straightforwardly married people, cohabiting people, civil partners, people who are separated but still married, divorced people—sometimes living together, sometimes not—legitimate and illegitimate children and many step-families. I shall use that fact as a peg on which to hang my three examples.
I alluded to the first during the debate on Tuesday. The estimable nephew of mine whose birthday I said fell on the same day as that of the hon. Member for Enfield, Southgate was very excited when I rang him up to tell him that his happy birthday would be featured in Hansard. Well, relatively excited; “very excited” is overstating things. He was intrigued and relatively excited. He married just over two years ago, and he and his wife have brought into the family a child of their own, as well as his child and her children from previous relationships. If his will said, “I leave these to my children” and did not specify, that self-evidently would not answer the question, because it would not say whether it meant his natural children or his wife’s children whom he took on.
I do not know what will happen. My nephew might never formally adopt or take legal responsibility for his wife’s children, who live with them in their joint home, but that is exactly the sort of issue about which bad advice, bluntly, could have exactly the wrong result. If, having written a will, he died and the will was not clear, a dispute could immediately arise between his natural children and those who became the children of the family, who by then might be married adults with children of their own.
The second example concerns a constituency case with which I am dealing at the moment. I am trying to sort out for a constituent, for the purposes of probate, some money from the sale of her elderly mother’s flat, which was sold when she became ill and incapable of running her own affairs and had to move into residential care. It is a common circumstance. Her daughter, one of two, was given power of attorney while the mother was still compos mentis enough to do so. She sold the flat and her mother moved into residential and other care, and subsequently died.
At the beginning, the daughter simply used the funds to pay for residential care and so on as necessary—topping up the care given, paying for an assessment—and she did not think to put that money into a separate account. She put it into her account, and eventually her bank said to her, “You ought to put it into a separate account to make it clear that it is the residuary amount from the sale of the flat.” She put it into a separate account, but an account in her name. Nobody had said to her that she ought to put it into an account for her mother, so she just opened an additional bank account in her name.
Then her mother died and she was very busy dealing with the funeral, paying for it out of the account and paying disbursements. When she next had the opportunity, she passed affairs to a solicitor to deal with probate. When she gave the bank account books to the solicitor—we are not talking about big money; it was about £15,000—and said, “Please sort this out and get probate,” she did not immediately think about the residual account in her name. She went back to the solicitor later to say, “I beg your pardon; I should have added this, because although it is in my name, I have never touched it other than in connection with my mother’s affairs, and I am clear that it should be dealt with as part of probate.” If the daughter had died before that was resolved and had left a will, would it have included the money in that account? That is exactly the sort of question that we must ask. There is probably more money in that account than is coming to her in another way.
I come to my last example. Often, people want to give particular things to particular organisations—charities, for example. People sometimes give extraordinary amounts to extraordinary charities, but that is their choice and they are entitled to do so.
Henry Bellingham (Conservative, North West Norfolk)
And to the Liberal Democrats.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
Indeed, but I do not think that the Liberal Democrats are a charity, technically, although that may be the view of Committee members. However, the party has good, radical roots as an organisation, like the Labour party, and it is different from the Conservative party. But it is not a charity. Our political parties have special status.
People give to charities, but if an organisation ceases to exist—the cats’ home might be closed, or whatever—what happens? Was it intended that the sum should go to something similar or something else, or to another charity that was mentioned? I have just given three examples, but they are real-life practical ones. If people decide to do it themselves—we all agree that, ideally, one should write a will—they need someone to give them competent advice. There is a strong case for such people to come under the regulatory umbrella. I hope that the Minister is sympathetic.
Of all the amendments on the amendment paper, this is probably the least complicated, so the one defence of all good Ministers, which is that they will have to take advice on the drafting, is not available—at least, I should be surprised if it were. The Minister might say that she must talk to all the people in government who are concerned with the end of time or the end of things—there might be a lot of those at the moment—but I hope that she will be sympathetic. This is an important issue and, on balance, I think that we ought to follow the Joint Committee’s advice. I hope that we can do so, subject to a later debate about not necessarily creating a separate profession, because that is not a necessary outcome.
Henry Bellingham (Conservative, North West Norfolk)
There is a famous saying that people can live without lawyers, but cannot die without one. That is pertinent to what the Member for North Southwark and Bermondsey has said. We have all encountered constituency cases where total nightmares have been created by wills being fought over by relations, often on the basis of easily avoidable mistakes, which could have been circumvented if the right legal advice had been taken.
I have two current constituency cases, where a number of family members are now in serious legal dispute about the estate. In one, various members of two branches of the family are all taking different legal advice. The estate will be completely dissipated by legal fees and nothing will be left for the family members, who have been fighting over the will, to divide among themselves. As the hon. Gentleman said, the larger estates can probably withstand legal fees and the legal advice that is needed to try to sort out the mess when serious errors have occurred. However, in respect of smaller estates—often, involving families who do not have a huge amount of money—everything can be wiped out as a result of such complications.
The report of the Joint Committee on the Draft Legal Services Bill is quite compelling. We have heard exactly what it said. May I ask the Minister why the Government did not take the advice of that Committee, on which my hon. Friend the Memberfor Enfield, Southgate served? Furthermore, am I not right in saying that, among the Joint Committee’s recommendations, is the one at paragraph 216:
“there is currently no existing regulatory framework for will-writing and no existing professional body with responsibility for will-writing activities.”
Perhaps the Minister can tell me whether I am right in saying that two bodies now represent the interests of the independent will writers and that those will-writing organisations cater for and self-regulate those will writers who have set up outwith the legal profession. Those organisations are, in many ways, doing agood job.
Like my hon. Friend the Member for Huntingdon, I am not a natural regulator, so I tabled this probing amendment to hear what the Minister has to say. I should be grateful for an answer; I hope that her officials will know the answer. I have it on good authority that the two organisations that I mention were set up.
Paragraph 5 of schedule 2, in volume II of the Bill, describes “Reserved instrument activities”, whichrefer to
“preparing any other instrument relating to real or personal estate for the purposes of the law...or instrument relating to court proceedings”.
I am slightly confused, because a disposition of landor property by me during my lifetime is a reserved instrument activity and therefore has to be done by a qualified person, but a disposition of land by me in my will can be done without having my hand held. I should like the Minister to comment on that.
With my request for clarification on those two points, I should like the Minister to consider our probing amendment, because we feel strongly aboutit. As the hon. Member for North Southwark and Bermondsey pointed out, it is a simple amendment. The Minister is rejecting the Joint Committee’s recommendations. We need to know why she is doing that and what her current view is on how this small but flourishing industry is managing its affairs.
I am speaking slightly against our probing amendment now, but if it were accepted—the Minister will tell us her views on that in a moment—and will writing became a reserved activity, the problem would be that the two organisations that have been set up, as well as the numerous will writers out there, could presumably carry on as alternative business structures, but would have to wait until the ABS regime had been introduced. As far as I am aware, we have not received representations from will writers, but I know that they are doing a good job.
Finally, I would reject strongly any suggestion that Opposition members of the Committee do not have either a right or locus to speak on the issue. We have had a discussion about interests, and we have all declared our interests. We have been completely honourable and above board about that, so the idea that my hon. Friend the Member for Enfield, Southgate could benefit if the amendment were accepted is ridiculous and fatuous. I hope that the Minister will explain the situation and look on our probing amendment in a positive light.
David Burrowes (Conservative, Enfield, Southgate)
I do not want to repeat unduly what has been said in support of the amendment, but I should like to respond to the hon. Member for Bassetlaw. I take note of your concerns about not straying into uncharted territory, Mr. Cook, but it is important always to listen carefully to the hon. Gentleman’s interpretation of the Committee on Standards and Privileges, so I await with interest to see how much he participates on clause 15 when we reach it and whether he wishes to be consistent with his remarks elsewhere.
I particularly take issue with the hon. Gentleman’s main basis for concern about the amendment and the Members’ explanatory statement, which says that the
“reserved legal activities...can only be carried out by authorised persons”.
Plainly, those authorised persons do not necessarily mean solicitors, those authorised by the Law Society or, indeed, particular firms. “Authorised persons” does not refer exclusively to a particular body; indeed, the whole rationale behind the Bill is to extend legal service activities to a range of groups. The Willwriters’ Association or any other group may well want to get involved, but the amendment is not exclusive, as the whole point of the Bill is to avoid a closed shop.
The amendment is not about saying that we should increase services and activities for solicitors firms and thereby ensure that they have a closed shop on will writing—far from it. One has genuine admiration for the hon. Gentleman’s fight on miners’ compensation and for the passion with which he follows through his constituents’ concerns, but as I understand it, he is not necessarily on a personal campaign against individual lawyers; rather, his concern is about the need for robust regulation, as he said on Second Reading. He may make that argument, but on the other hand he doesnot support an amendment that would introduce regulation in a currently unregulated field, as this amendment would.
I wonder whether other hon. Members have mentioned constituents who come to their surgeries to complain about the great grievance and injustice that is caused when their relative’s clear intention to provide a proper inheritance for a family member is frustrated. One cannot equate that injustice with others, and nor does one want to create a hierarchy of industrial injuries, pecuniary loss and injustice from a probate dispute.
The question is whether we should allow a field of increasing complexity to be so unregulated. Family relationships are increasingly complicated, and inheritance tax is an issue as well. With property prices rising, the Chancellor is taking more and more from the estates of many of my constituents, and they need proper advice on how to deal with that. There is no doubt that the regulation proposed by the amendment would be in the interests of consumers. Hon. Members should rest assured that the amendment applies a light touch.
Henry Bellingham (Conservative, North West Norfolk)
A light touch?
David Burrowes (Conservative, Enfield, Southgate)
Absolutely. However, there should also be consistency. If there are protestations to the effect that there should be robust regulation, and if there are cases showing the area to be one that should be regulated, rather than one in which a voluntary code can be relied on, there should be a consensus of support for change.
Finally, will the Minister say whether, since the response to the White Paper and since the Government’s own comments on such activities, which included concerns about quality control and standards, the Government have been satisfied that voluntary regulation and codes of conduct are satisfactory? What steps have been put in place to improve consumer education, and, in the substantial intervening period, has there been improvement such that regulation is not warranted?
Bridget Prentice (Labour, Lewisham East)
The debate has been interesting and I have a great deal of sympathy with some of the examples that hon. Members have given. We have all had constituents at our advice surgeries who have had problems with probate and other such issues. However, it was interesting that among all the anecdotal examples cited, there was no evidence that bad advice had been given by people who were not solicitors, for example, or that bad advice was necessarily being given by non-professionals. That is why ultimately, I shall resist the amendment.
At the beginning of his remarks, the hon. Member for Huntingdon asked me what, if any, research the Government have done on the matter. We have indeed done research and we have been reviewing the matter for some time, because, in essence, will writing sounds like something that could or should be considered a reserved legal activity. In March 2005, the Lord Chancellor said that we would consider the issue of will writing and of estate administration services. Since then, we have worked with consumer bodies and we have asked the Office of Fair Trading to review the matter. The OFT, consumer bodies and the current providers of will-writing services were asked to provide us with robust evidence that might be suggestive of systematic failure in the current system that could put consumers at risk.
A comparison was made by my hon. Friend the Member for Bassetlaw with claims management, which I think was a fair comparison. We have had shedloads of evidence of claims management services being badly run and badly handled, and giving bad advice that was hugely detrimental to consumers. Lots of opinions were expressed about will writing, but no evidence has been supplied to support the idea that regulation is the way forward at present.
Bob Neill (Conservative, Bromley and Chislehurst)
The Minister said that there was shedloads of evidence in respect of claims handling. We all accept that, but surely she would agree that the injustice potentially done to people is measured not by the quantity of such incidences, but by the damage done to those individuals. As the hon. Member for North Southwark and Bermondsey said, such problems are experienced by ordinary people with small estates; they do not receive the attention of Members of Parliament, and they are not the subject of the able campaigns that arose in respect of claims handling. Just because there is not shedloads of numerical evidence, that does not mean that there is not a real risk below the radar screen. It would therefore be sensible to regulate all those who write wills, whether or not they are members of the profession.
Bridget Prentice (Labour, Lewisham East)
I accept that numbers are not necessarily the only form of evidence. However, Iplace confidence in the work of many consumer organisations, which often begin with anecdotal evidence and then build up further evidence on whether there is a failure in the system. In a sense, that was how claims management began to show itself to be a problem.
We have not had that problem with will writing. The National Consumer Council was explicit regarding why will writing should not be a reserved service. It said that it should not be so, unless
“there is robust evidence of consumer detriment”.
It is concerned that
“Excessive regulation increases costs for consumers and constrains competition”,
and that it would
“fly in the face of the Hampton good regulation principles.”
The Conservative party makes me smile. It is asking for more regulation, but I thought that it wanted less. However, perhaps that is the new conservatism, further examples of which we look forward to seeing.
None of the evidence that has been forthcoming—limited as it is—suggests that non-regulated will writers are making more mistakes than those who are regulated. Solicitors, regulated by the Law Society, do not have formal training in will writing and are just as capable of making mistakes as those in the non-regulated sector.
Kevan Jones (Labour, North Durham)
I have dealt with numerous miners’ compensation cases. The Minister’s point is true of many of the legacy cases in which families were involved. The problem is not only with the writing of the will, but with dealing with the probate afterwards and the mistakes made by the solicitors.
Bridget Prentice (Labour, Lewisham East)
My hon. Friend is right. Additional evidence from Which? says that no one type of will-writing professional gave a consistently good service in its test or was significantly better than others. Which? has a pretty robust system of analysingsuch matters. I do not accept that those subject to regulation, such as solicitors, will automatically provide a better quality of service than those whoare not.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I share that view, but whatever we think about the present complaints system—clearly, we do not think it good enough, which is why we are here—at least such a system exists. If a solicitor gives a person’s family bad advice about a will or probate, there are steps that can be taken. I assume that someone could tell us how many complaints related to wills and probate have been received. However, there would be nowhere to go if we could not go to a solicitor. There is no other organisation that we could check in the same way.
Bridget Prentice (Labour, Lewisham East)
I shall come to that point in a moment because it relates to the issue raised by the hon. Members for Enfield, Southgate and for North-West Norfolk about the organisations that represent will writers. The important thing is that any regulation must be proportionate. I chide the hon. Member for Enfield, Southgate for using that horrible phrase, which I am trying to ban hon. Members from using in relation to this Bill. However, regulation must be proportionate and based on an assessment of risk. The Government do not at the moment see any serious evidence of systemic failure.
The hon. Member for North-West Norfolk asked about reserved instruments and why wills are not included. One reason is that a will is a set of instructions rather than a disposition. Even if real property is left in a will, some other formal transfer would almost certainly have to take place. The Government’s approach in the Bill is exactly the same as that set out by the Solicitors Act 1974.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I think that I understand the point that the Minister is trying to make. Of course, if one writes a will saying “I give my field to Auntie Mabel”, when one dies, there has to be a probate that acts as the transfer. We have got cover for probate, which is dealt with elsewhere. The issue arises when a will is not clear. The fact that the one matter is covered does not mean that the other should not be covered, because if the will is wrong, the probate will by definition also be wrong.
Bridget Prentice (Labour, Lewisham East)
The hon. Gentleman makes a fair point.
The hon. Member for North-West Norfolk mentioned will writers’ organisations. The amendment would mean that, as a reserved activity, will writing could be done only with the proper authorisation and approval of regulators such as the Law Society. If it wanted to authorise and regulate the supply of such services, the organisations that represent will writers—the Society of Will Writers and Estate Planning Practitioners and the Institute of Professional Willwriters—would need the approval of a regulator. That is technically possible, but it would mean that the representative bodies would be brought under, for example, the Law Society’s regulatory activities.
The hon. Member for Huntingdon asked what discussions I have had with the professions. Last year, there was an event involving the Law Society, the Institute of Professional Willwriters, the Society of Will Writers and Estate Planning Practitioners and some of the consumer organisations. It was accepted that, although there is currently no statutory regulation of will writing, the Legal Services Board will be able to recommend that the Secretary of State bring it under such regulation.
That event was followed in May last year by another that was hosted by the Office of Fair Trading and the DCA, which was attended by the same organisations. The possibility of enabling people to apply to the OFT under its voluntary code scheme was suggested. For the sake of the hon. Member for Enfield, Southgate, I shall outline what the scheme does. Obviously, it is not as strict as statutory regulation, which reflects the fact that different types of work need different types of regulation. The scheme aims to safeguard consumer interests by helping them to identify businesses that have a higher standard of customer care. By signing up to the approved code, a trader has agreed to provide the consumer with the benefits outlined in the code, which include clear pre-sale information—I know that, like me, the hon. Member for North Southwark and Bermondsey has advocated that at length—fair contracts and access to independent redress mechanisms. Those are the key issues that were identified in improving will-writing services. The code offers higher levels of consumer service than are required at present. The organisations are considering whether to take it on board, although I understand that many are waiting for the Bill to achieve Royal Assent before they go any further.
It is for those reasons that, much as I appreciate the examples that have been given, I cannot ask the Committee to accept the amendments. This would be an ideal issue for the consumer panel to consider and, if it felt that there was some systematic failure, to make recommendations to the Legal Services Board. I cannot in all honesty recommend that we accept it today, because we have no concrete evidence of sucha failure, so I ask the Committee to reject the amendments.
Jonathan Djanogly (Conservative, Huntingdon)
This has been an interesting debate. I have an open mind on the subject. The hon. Member for Bassetlaw said that he was not sure where I was coming from, but we needed to have the debate and so tabling a probing amendment was worth while. The debate has proven that to be the case. I have some sympathy with the Minister’s point of view, and she eloquently explained how evidence is needed, ultimately, in order to regulate. I think that it is, and I was supported in that by the comment made by my hon. Friend the Member for North-West Norfolk that one should not regulate unless it is required and that there should be evidence for it.
I am not saying that the hon. Member for North Southwark and Bermondsey and my hon. Friends did not make many valid points—many were made, but many were anecdotal. I have not received any complaints about will writers, and I have received many objections to and complaints about various parts of the Bill. I am not saying that such complaints do not exist, but I have received none and I have not heard anyone else mention a particular complaint.
I note that clause 12(6) allows further legal activities to be added in due course—I think that the Minister said this—so if complaints were to arise and the matter were to become a problem, the Bill has provision to allow us to cater for that in due course. On that basis, I will ask—
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I am conscious that the hon. Gentleman’s name comes first on the list, and that he might be about to withdraw the amendment. I am willing to go along with the approach that I expect him to take, although there is still a strong case and I want to ensure that we can return to the subject. There are ways in which we can check some of the things that the Minister said. If the hon. Gentleman intends to withdraw the amendment, I will not resist that today, but I hope that he will not exclude the possibility that we could table the amendment again, either in this form or a revised one, on Report. There is clearly interest and support across the Committee, and I would not want us to fail to recognise that.
Jonathan Djanogly (Conservative, Huntingdon)
If evidence comes up and there is interest in re-debating the matter on Report, I would have no objection to that. We can consider that when we consider today’s debate and any further evidence that emerges before Report. I beg to ask leave to withdraw the amendment.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I would like to raise a question that comes up only in this clause. Is it logical in 2007 and beyond in England and Wales to separate into profession or activity some of the issues that are in the list in clause 12(1)? There are currently six issues inthe list:
“(a) the exercise of a right of audience;
(b) the conduct of litigation;
(c) reserved instrument activities;
(d) probate activities;
(e) notarial activities;
(f) the administration of oaths”.
I want to ask two questions. First, is it clear in clause 12 and onwards—and the minister can take advice on this—that we are not seeking to alter the fact that under the current system lay people can act for themselves? Obviously, one should be allowed to do as much as possible. There are rules about which court a person can appear in as a litigant and so on. I want it to be made clear in the Bill that we are not in any way saying that people should not be able to do their own thing where they can. Courts police that and judges ensure that people do not abuse the process. Although litigants in person are often difficult, I hope that we all understand that that system should continue. Will the Minister make it absolutely clear that individuals will still be allowed to represent themselves in all those areas?
The more technical point is this. I understand why, historically, there were people who carried out the administration of oaths and why there were notaries public. I exclude the Minister’s advisers who, I assume, are wise on these things, but I bet that, if I asked the Committee, colleagues in the House and people on the street what a notary does, or is entitled to do and what the difference is between a notary and a solicitor, the chance of getting the right answer would be about 1 per cent. Likewise, if “administrator of oaths” is on a plate outside a door, would that person be a solicitor? Often, the plate will say “solicitors”. It may say “solicitors”, “notaries public” or “solicitors, notaries public and administrators of oaths”. I may be about to offend some great and august organisations that represent the notaries and administrators of oaths, but, if we are trying to act in the interest of the consumer, it seems to me that we ought to put them all in one place professionally. If someone wants an oath or an affidavit sworn—I am not talking here about being a witness to somebody—logically, they should not have to think, “Do I need to go to this place? Is this authorised or regulated?”. There should be one group of people who offer a broad range of legal services similar to that of a traditional solicitor. It is time to have administrators of oaths, notaries public and solicitors all doing one job so that all the people who offer those services, although they are separate jobs, will be in the same professional organisations.
I would be grateful if the Minister would put onthe record, probably as much for my education and elucidation as other people’s, what notarial activities are. I know that we will hear definitions of such terms later on, but I do not think that we have a separate definition of notarial activities. I will probably be shown later that we do. We all understand what administrators of oaths do: they are people before whom we can swear an oath. But do they do anything else? We all understand what it means to exercise the right of audience. I presume that we all understand the conduct of litigation and probate activities. This is a plea, first, for the Minister to reflect, possibly out loud, on advice, on whether it is time to roll those things together in the consumer interest and secondly for her to think about whether we need to provide different arrangements, definitions and so on. In the interests of simplicity, we are regulating the legal profession and sorting out legal services. Let us seize the moment and get rid of a bit of history that, although it may have been relevant in the past, is no longer justified or logical, as far as I know, in the present.
Bridget Prentice (Labour, Lewisham East)
As the hon. Member for North Southwark and Bermondsey says, six activities are reserved under the Bill. They are all currently regulated and will be overseen by the Legal Services Board, once established. Anyone who carries on or pretends to be entitled to carry on any of the relevant activities will be guilty of an offence under clauses 14, 16, and 17.
I direct the hon. Gentleman to schedule 2, as he suggested I might, which defines the scope of the reserved activities. Paragraph 7 of schedule 2 contains a definition of activities relating to legal systemsin other jurisdictions, which are therefore different activities from many others carried out by solicitors. However, I have some sympathy with what the hon. Gentleman said about there being a one-stop shop, and all the rest of it, if that were possible. I am reminded of the classic question for law students about whether there should be a unified profession. I thought that he was going down that road, but this Committee is not the place to develop that debate.
The Lord Chancellor can extend the list of reserved activities under clause 24 and, under clause 26, the board can ask the Lord Chancellor to remove an activity from the list. For example, if probate appeared never to cause anybody any problems whatsoever, it would be possible for the board to recommend to the Lord Chancellor that it be outwith the designated list. I call the Committee’s attention to subsection (3), which is important and sets the scope for the activities that would be regulated by the board in future.
I hope that I have dealt with the hon. Gentleman’s questions. On that basis, I move that the clause stand part of the Bill.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I was aware of the relevant parts of schedule 2. Perhaps I can take the Minister back to the provisions she rightly directed us to. Paragraph 6 is clear, because it says:
“‘Probate activities’ means preparing any probate papers for the purposes of the law of England and Wales or in relation to any proceedings in England and Wales...on which to found or oppose...a grant of probate, or...a grant of letters”.
The Minister knows what I am going to say next—
Bridget Prentice indicated assent.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
It does not say what the job is. It states:
“‘Notarial activities’ means”—
wait for it—
“activities which, immediately before the appointed day, were customarily carried on by virtue of enrolment as a notary in accordance with section 1 of the Public Notaries Act 1801”.
It says that notarial activities are what notaries do. I am tempted to use a phrase that has come to mind; it is rather mischievous to mention it, but I will do so anyway. My dear friend the Bishop of Southwark was in some difficulty last year and, when asked what he did, he replied from inside his car, “I am the Bishop of Southwark and this is what I do.” It is a rather circumlocutory definition.
Paragraph 7(2) says:
“Sub-paragraph (1) does not include...reserved instrument activities and probate activities...or...administration of oaths.”
We know that those are covered elsewhere,
First, we are entering the territory of, “Let’s say what we are doing here, good people.” Secondly, although the Minister might not yet be ready to deal with the bigger question, if the job is a specific, technical one, then surely it is something that a solicitor could be trained to do. The reality is that we live in a globalised world—we have had that argument—in which papers from around the world come across jurisdictional frontiers, including from Scotland and Northern Ireland to England and Wales or to Ireland. Bluntly, to have a separate group of people who are qualified to do that particular bit of work seems to me wrong.
Similarly, the Bill does not define administration of oaths by reference to the swearing of documents for a certain purpose. It says:
“The ‘administration of oaths’ means the exercise of the powers conferred on a commissioner of oaths by—”
and then refers back to three older pieces of legislation that are each just over a hundred years old.
If we want to retain separate definitions, then please by Report, could we have definitions by reference to what is done, rather than by reference to the creating legislation? Could we also reflect on whether, when the Bill is enacted, we need separate commissioners for oaths, notaries public and solicitors? We should clarify one bit of the wood, so that we can see it for the trees.
Bridget Prentice (Labour, Lewisham East)
I am going to make a kind of intervention on the hon. Gentleman, but he will not like it very much, because there is in fact no statutory definition of notarial activities. The requirement is not one that derives from English law, but from foreign jurisdictions—not from England and Wales or Scotland, but mostly from Latin countries such as Spain or Italy. They are the jurisdictions in which notarial activities are needed.
To make things even more exciting, I shall give the hon. Gentleman an example of those activities. They include matters such as the certification of a ship’s manifest. It is therefore not surprising that my friend Mrs. McGlumshie does not call on a notary very often.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
That might be the most revealing part of the afternoon. The fact that notarial activities are ultimately not defined is wonderful. Only by looking back, as a student, at the three Acts of Parliament that are referred to, or at the Act dating from 1801 that is referred to in schedule 2 paragraph 7(1), does one discover the answer to one’s question.
On the so-called continent—I should really say the rest of the continent or the mainland——where the non-common law traditions apply, people are called notaries or advocates, rather than solicitors. I can understand that one needs people to carry out the equivalent function. I shall reflect, and I ask the Minister to do the same, because there might be a chance to sort out some unreconstructed historical legal complication.
Jonathan Djanogly (Conservative, Huntingdon)
The role of notaries is an ancient one and I think that there is an old statute somewhere that regulates that role.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
From 1801.
Jonathan Djanogly (Conservative, Huntingdon)
Indeed. In practical, everyday terms, however, I think that the hon. Gentleman is slightly doing down the role of notaries. By the way, they are heavily used in Germany too, not only in Latin countries. Although their purpose on the continent is to document agreements, if people in this country want to enter into contracts with a party on the continent, they often have to go to notaries. The result is that they are used frequently in this country by people doing business in Europe. There are not that many notaries, but those that exist tend to fulfil a useful role.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I have absolutely no doubt that they fulfil a useful role and I am sure that I shall personally discover all the notaries in England and Wales as they will now make themselves known to me and justify their fantastic work. I absolutely understand that people who practise law in one country and dealwith another need a cross-referencing professional qualification. My understanding is that the entire range of non-common law jurisdictions has the notarial facility—Italy and Spain, France and Germany, the low countries and so on, as well as Scandinavia and all the rest; in fact, all European Union countries except probably the common law countries: the UK, Cyprus and Malta.
I have opened a Pandora’s box, and I shall probably regret it, but we shall see. If we are modernising and reforming legal services, this might represent a teeny bit of progress. If we do not change the law on it today, the law might be changed sooner as a result of today’s little poke at the system.
Schedule 2
Henry Bellingham (Conservative, North West Norfolk)
I have one point to make on schedule 2. Paragraph 5(1) mentions “Reserved instrument activities”, about which I made a point when we discussed clause 12 and will writing. Will the Minister elaborate on paragraph 5(1)(c), which states that “reserved instrument activities” means, among other things,
“any other instrument relating to real or personal estate for the purposes of the law of England”?
To what does “other instrument” refer? We were discussing making over property, transfers, contracts and dispositions of property, but will the Minister tell us more about paragraph 5(1)(c)?
Bridget Prentice (Labour, Lewisham East)
I do not know whether the hon. Gentleman was out of the room when I responded to his questions on the matter—it is possible that he missed what said. I explained that a will is a set of instructions as opposed to a disposition. In that sense, it contrasts with gifts or conveyances when dealing with the transfer of property. Real property left in a will would require further formal transfer. We are dealing with similar matters in paragraph 5(1)(c), but I shall write to him with some specific examples so that we can move the debate on.
Henry Bellingham (Conservative, North West Norfolk)
I am grateful to the Minister and mortified at my insubordination. I left the room to track down the Conservative Whip.
Clause 13
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I have one question apart from the observation that, if we lived in a world in which we had the responsibility of tracking down the party Whips, we might be much happier.
Will the Minister address my earlier question andsay whether she is satisfied that the Bill makes it clear when and where people can represent themselves, and therefore the circumstances in which they would not need to operate under a regulatory regime?
Henry Bellingham (Conservative, North West Norfolk)
I have a question on clause 13(4), which states:
“Nothing in this section or section 23 affects section 84 ofthe Immigration and Asylum Act 1999...which prohibits the provision of immigration advice and immigration services except by certain persons.”
Section 23 will concern
“transitional protection for non-commercial bodies”.
Why does that mention the Immigration and Asylum Act 1999 and not, for example, the relevant housing, employment or agricultural holdings legislation, which also give certain persons the power and authority to provide advice in certain circumstances? I am bemused why the measure applies to only one piece of legislation.
Bridget Prentice (Labour, Lewisham East)
First, I apologise to the hon. Member for North Southwark and Bermondsey. He is right that an individual acting on his own behalf would not have to be regulated when conducting legal activities.
The reasoning behind clause 13(4) is that, as thehon. Member for North-West Norfolk might remember, there were some horrific examples of dubious characters giving appallingly bad advice to people regarding immigration and asylum. The Government considered those examples and are now trying to ensure that people who give advice are properly qualified to do so. That is why such matters have been specified.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I am grateful to the Minister. Does the Bill actually say that, if people want to represent themselves in such activities, they do not have tohave authority? I want to ensure that the Bill is clear. Clause 13 states:
“The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.”
There should be a sentence after that saying that nothing in the Bill will prevent an individual from acting for himself in any of the reserved activities, when the law permits.
Bridget Prentice (Labour, Lewisham East)
Paragraph 1(6) of schedule 3 covers such matters. It sets out a list of people who are exempt and will deal with the hon. Gentleman’s worry about whether the individual can conduct activity on his own behalf. Paragraph 1(10) might give more details.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I am happy to look more carefully at the schedule and to come back to the Minister, if necessary, but whether going to schedule 3 to discover the answer to my question rather than finding it up front under clause 13 is right, I do not know.
Bridget Prentice (Labour, Lewisham East)
The provision “E is an individual” under paragraph 3(3)(a) of schedule 3 might provide the information that the hon. Gentleman needs.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
I am grateful to the Minister. It seems fine. However, it might have been better to have said up front rather than under the schedule that individuals who do their own thing are exempt from the regulations. It would make matters clear for those who wonder whether they have to go through regulatory control. However, I leave it to the hon. Lady to reflect on the matter.
Clause 14
John Mann (Labour, Bassetlaw)
I have two observations to make about the clause. The impersonating of a solicitor can lead to an individual being locked up and further increase the pressures on the prison community. Clearly, that is in order but, as for solicitors being disciplined, last year there were 743 matters against 1,094 individuals that had a disciplinary issue recorded against a solicitor and a further 495 matters involved 529 individuals that referred to other bodies, including the Solicitors Disciplinary Tribunal and the Association of Chief Police Officers.
Often, such matters do not need to be put in the public domain. For example, disapprovals, warnings, reprimands and severe reprimands can be kept private and confidential. The public—even the initial complainant who has provided information— need not be, and often is not, informed of that. Does the Minister consider that the issue needs to be looked at further even though the law is more than protecting the solicitor or other legal professional as it rightly does under the clause with appropriate strict measures? I commend her on that. We must also ensure that in a large number of cases—much more than has been suggested in Committee—such matters should be made public.
My second point concerns when the Government have acted as an employer through the Department of Trade and Industry in coal mining cases. There have been several examples when people have gone to those whom they believe to be solicitors and the Government have entertained cases being brought forward as ifon a common law basis, including more than 10,000 industrial deafness cases brought by a private company called Vendside Ltd. People often think that theyhave a solicitor representing them when they do not. Should not the Government look at their own practises that may be encouraging people whom some of my constituents, and many others, believe to be impersonating solicitors? That is apparent both in the hearing loss claims and in respect of claims handlers, who people are still coming to me about, believing them to be solicitors when they are not, who have been allowed to take cases to the Government under the coal mining claims handling agreement.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
Once the Bill becomes law, does the Minister envisage that she or I, or anybody, would be able to go to a website and check the name of somebody who said that they were John Mann or Simon Hughes, for example, and were competent as a probate solicitor, or whatever? Will there be one place where people can check on an up-to-date, guaranteed-to-be-correct database whether people are approved and regulated? Again, if we are trying to make life easy, we need a list, giving details of who is legitimately carrying out the activities, which can always be relied on, then people would be much less likely to carry on activities illegally and end up in the courts as a result.
Bridget Prentice (Labour, Lewisham East)
I just want to make the Committee aware that the penalties are consistent with those in the Compensation Act 2006 in respect of regulated claims management. Criminal convictions are a matter of public record and in that sense would be available to all. I cannot go as far as the hon. Gentleman has asked me to and guarantee that the relevant information would be available or that people could see on a website whether a person has the right to carry out a reserved legal activity. However, that matter runs parallel with another that he raised earlier, about people being able to know when they walk through the solicitor’s door what individuals do. People can check their solicitor’s credentials by going to the Law Society’s website. It maintains a list of all solicitors that are properly qualified. This part of the Bill extends that provision to cover everyone involved in the new framework.
Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)
If I want somebody to do some plumbing, I know that the person who comes to do the central heating boiler, or whatever, will need to conform with the CORGI registration scheme, under which plumbers are CORGI-registered. Again, I should like the Minister to reflect on whether the objective should be for people to be able to check at any time whether anybody in the legal services field is, on that date, registered to do the job on the official list. Data systems are never perfect. However, given that the purpose of the Bill is to establish an umbrella in relation to reserved legal activities, with the Legal Services Board regulating all the people involved, the consumer interest must be that people should be able to go to one place and should not have to duck and dive. We are talking about people who are not familiar with the places the professionals inhabit and do not necessarily understand the distinction. Perhaps the Minister could reflect on that, because if we could achieve that it would benefit the whole system.
Bridget Prentice (Labour, Lewisham East)
I am happy to consider a simpler way in which that could be achieved.
Clause 15
Bridget Prentice (Labour, Lewisham East)
I beg to move amendment No. 108, in clause 15, page 7, line 15, at end insert—
‘( ) Where P is an independent trade union, persons provided with relevant services by virtue of—
(a) their membership or former membership of P, or
(b) another person’s membership or former membership of P,
do not constitute the public or a section of the public.’.
Frank Cook (Labour, Stockton North)
With this it will be convenient to discuss Government amendments Nos. 109, 110, 138, 115 to 117, 126 to 128, 202 and 205.
Bridget Prentice (Labour, Lewisham East)
The amendments are designed to give effect to the policy that my noble and learned friend Lord Falconer set out on Second Reading in the other place. He said:
“We do not intend the Bill to regulate in any way lay trade union representation, whether whole or part-time in the workplace, nor to place additional burdens on those unions that provide legal advice or representation to their members.”—[Official Report, House of Lords, 6 December 2006; Vol. 687,c. 1167.]
We are doing that because unions are in a different position from most legal services providers. They carry out a great deal of work through officials in the workplace, who are usually elected by colleagues rather than professional union staff and are working at some distance from the union’s head office, and they do it in a specific context.
I need to say this not so much for my colleagueson the Government side of the Committee but for Members of the Opposition who may not be as aware of trade unions and their remit as the rest of us are. Although a union official may give advice, the purpose is not just to help the member. It is part of the wider role of fostering good labour relations. The officialin that situation can advise only members, retired members and family members and no one else. The union does not offer that service to the general public. I want to say that up front because that might be an area in which some of the argument will be fought out. The union is giving advice only to its own members.
One other feature that the Opposition need to remember is that unions are already regulated by the certification process. The work of officials is governed by the union’s rule book, and that is enforced through the certification officer. Therefore, unions that provide legal services do not need the same degree of regulation as bodies that are offering services more widely or commercially.
Jonathan Djanogly (Conservative, Huntingdon)
For those of us who clearly have so little knowledge of unions, will the Minister explain what a member is in the context of union membership?
Bridget Prentice (Labour, Lewisham East)
A member of a union is someone who pays the union levy, abides by the union rulebook, and works collectively with other members of that union and, sometimes, inter-collectively with colleagues in other unions. It also applies to relations of a particular member and people who have been members of a union but are now retired.
David Burrowes (Conservative, Enfield, Southgate)
The Minister is using the principle of not regulating a legal service that applies in a limited way. Is that a definition that she would like to apply to other legal services as well?
Bridget Prentice (Labour, Lewisham East)
I do not think that that applies in other legal services. I am looking specifically at the role of trade unions here and why we are exempting them in this part of the Bill.
David Burrowes (Conservative, Enfield, Southgate)
Just to make it clear, the Minister’s description of this type of legal service was on the basis that it was limited and non-commercial. Surely if there was a competing legal service or a new service, the regulation would be applied in a very limited way to its members on a non-commercial basis. Would they also be exempt from regulation in the same way as unions?
Bridget Prentice (Labour, Lewisham East)
It would certainly be the case that if other organisations were providing legal services that were not reserved activities, they would be exempt. If the hon. Gentleman goes back to schedule 3, he will see all the opportunities for exemption there.
Also, regulating a union in such a dispersed set-up would be both impractical and inappropriate. The amendment would remove the requirement for the independent trade unions to be regulated as entities.
Henry Bellingham (Conservative, North West Norfolk)
The Minister mentioned the speech made by the noble Lord Falconer of Thoroton on Second Reading in the other place. I am trying to find the part in the debate where he apparently made those comments about trade unions and about his desire, at that stage, for those Government amendments, but I cannot find it—perhaps he spoke on Third Reading. Can the Minister say why those amendments were not moved in another place? Did they require so much work and effort that the Government had to wait until the Bill appeared here?
Bridget Prentice (Labour, Lewisham East)
I do not know which part of the Lords debate the hon. Gentleman is referring to. It was during the debate on Second Reading that the Lord Chancellor signalled that we would exempt trade unions. We have had continued discussions with the TUC and the Law Society, which has raised concerns about the issue. That is why the amendments have come forward at this stage—in part, because the TUC was concerned that the way in which the Bill was originally set up did not achieve what the Lord Chancellor said that it would achieve. In fact, if the hon. Gentleman refers to column 1167 of the Official Report of the Second Reading debate in the other place, he will find what the Lord Chancellor said. We have had important discussions with the TUC and the Law Society about the position of trade unions. That is why it has taken some time to come to the present position.
The provision will allow employed lawyers to work, for example, for bodies linked to their employers, such as subsidiary companies, for colleagues, or on a pro bono basis, without their employers needing to be treated as providers of legal services. The Bill will enable the work of those employed lawyers to continue as now. However, there are tight restrictions on that exception, which applies only if the provision of legal services to the public is not part of the employer’s business.
To return to the point about other bodies thatmight be non-commercial, the problem would be in identifying that the work that such bodies were doing was absolutely confined to members only. However, if such bodies were working for a section of the public, they would not secure an exemption under the Bill.
Bob Neill (Conservative, Bromley and Chislehurst)
The Minister makes the point about such bodies being limited to advice given to members, but can she help us on how “members” will be defined in that context? I ask that because, in a debate referring to miners’ compensation claims, the hon. Member for North Durham properly highlighted the extraordinary situation of the National Union of Mineworkersin Durham, which had a large number of associate members. It seemed that they were members of the union, but they paid only an access fee, simply for some legal services, and had no voting rights within the union, as far as was ascertainable. How will she ensure that what appears to have been, in effect, a bogus membership arrangement is dealt with? Could unions provide legal services to associate members, such as those in the Durham NUM, without being caught by the provision?
Bridget Prentice (Labour, Lewisham East)
The hon. Gentleman makes a fair point on the issue that my hon. Friend the Member for North Durham has rightly raised in the past. As I have described, members are people who pay the full union levy, their families and retired members. Associate members are not covered by the clause.
Bob Neill (Conservative, Bromley and Chislehurst)
I am sorry to press the Minister, but will she point out the specific wording that gives that important definition? If that will be the case, it is important that it be spelled out unequivocally.
Bridget Prentice (Labour, Lewisham East)
I hope that, during my remarks, I shall be able to spell it out unequivocally for the hon. Gentleman.
Kevan Jones (Labour, North Durham)
This is an important point, and I raise it although I support the amendments. The definition of membership is an issue to consider. I accept that the certification officer regulates trade unions, but I say to my hon. Friend the Minister that I got a letter today from the certification officer telling me that the fully paid-up membership of Durham NUM is seven members, even though in its return to the certification officer, it claimed to have 15,000 members.
Bridget Prentice (Labour, Lewisham East)
My hon. Friend makes a good case for the robust way in which the certification officer deals with the matter. That is a good example of why we do not need further regulation of trade unions on the issue.
Kevan Jones (Labour, North Durham)
I do not want to labour the point, as I accept the amendments, but it needs pinning down. Unfortunately, the certification officer’s letter to me did not answer my question about what rights the individuals concerned have. I do not think that they are covered by the definition of a member of a trade union, which, as I understand it, means someone who voluntarily joins a union to get its benefits. They joined on associate membership with no rights whatever, so the matter needs clearing up.
Bridget Prentice (Labour, Lewisham East)
I have no doubt that my hon. Friend will pursue this further with the certification officer, because my understanding—I hope that this will answer the question asked by the hon. Member for Bromley and Chislehurst—is that members are defined in the rulebook of the independent trade unions concerned.
John Mann (Labour, Bassetlaw)
I refer Members to the Register of Members’ Interests and the occasional use of an office provided for me, not least for this kind of work, by the GMB union for meetings of large numbers of my constituents and others.
Will the Minister give a written note of guidance on the role that the certification officer will need to play in the context of the clause, so that there is no ambiguity for the union member, the certification officer or the general public about how the officer will be expected to ensure consumer rights in respect of reserved legal activities? I accept the Minister’s point that a dualityof systems would constitute over-regulation, so the certification officer needs to be very clear about his remit.
Bridget Prentice (Labour, Lewisham East)
That is a very good suggestion. I am happy to provide that guidance, and I hope that I will do so during the Committee stage, but if not—
Bridget Prentice (Labour, Lewisham East)
I want now to move on to the concerns that certain hon. Members raised on Second Reading and to reassure the Committee that the Government have no intention of leaving union members unprotected or less well protected than others. The important point is that reserved activities will still need to be carried out by authorised persons—in other words, by qualified lawyers. They will still be subject to full regulation by the Law Society or by whichever other approved regulator is appropriate, and they will still be subject to all the rules of the relevant regulator.
John Hemming (Liberal Democrat, Birmingham, Yardley)
As a union member, I am not totally unaware of what unions do. However, it might be interesting for us to hear some examples of the reserved legal activities that unions undertake.
Bridget Prentice (Labour, Lewisham East)
That is a very good point. As far as individual members are concerned, unions do not deal very often with reserved activities. Reserved activities tend most often to be dealt with by the union head office, and most unions use outside law firms, which are clearly regulated already, to deal with them.
John Hemming (Liberal Democrat, Birmingham, Yardley)
What sort of reserved activities is the Minister talking about when she refers to reserved activities that are dealt with through a union head office?
Bridget Prentice (Labour, Lewisham East)
A union could be involved in litigation, or it might have to appear in court. Rightsof audience are a reserved legal activity, and those involved in court appearances must therefore be properly regulated.
John Hemming (Liberal Democrat, Birmingham, Yardley)
I am sorry to labour the point, but to what extent do unions currently employ barristers to go into court?
Kevan Jones (Labour, North Durham)
Every day.
John Hemming (Liberal Democrat, Birmingham, Yardley)
Is that quite common? I am trying to get an understanding.
Bridget Prentice (Labour, Lewisham East)
My hon. Friend the Member for North Durham said, from a sedentary position, that it happens every day. I do not know whether that is the case, but I know that it happens fairly regularly. The most obvious example is that of personal injury cases, which involve trade union attendance in court on behalf of members. I am told that the unions use outside firms to conduct that litigation most of the time.
The use of qualified lawyers is already subject to all the rules of the regulators, and any rule change made by those regulators would apply equally to the union lawyers as to everyone else. It would always be open to a trade union to seek to be licensed under the low-risk provisions in part 5 of the Bill, and they mightchoose to do so if they wished to provide services commercially or to a wider section of the public. I suspect that they would not, because it would probably not be in their financial interests to do so. However, a further situation in which they might seek a licence would be if they were not content with the rulesunder which the approved regulators regulated their employed lawyers.
It might also reassure the Committee to know that the Office for Legal Complaints will be able to handle complaints about union services. Many unions provide only a very basic legal service to their members and use outside firms for other work—often one with which the union has a special arrangement.
Kevan Jones (Labour, North Durham)
Will the Minister give way?
Bridget Prentice (Labour, Lewisham East)
I knew that I would interest my hon. Friend as soon as I made that comment.
Kevan Jones (Labour, North Durham)
I should like to my hon. Friend to clarify what she just said about recourse to the Legal Complaints Service. The position that she outlined would apply only if the union employed an outside lawyer, or, as is the case for some unions, if the union employed an in-house lawyer to act for it. Is that not the case?
Bridget Prentice (Labour, Lewisham East)
Yes, but such an in-house lawyer would be regulated by the Law Society, so that the relevant member would have the same redress as anyone else. In any event, union members are not obliged to use the union lawyer and can use other providers.
Kevan Jones (Labour, North Durham)
I am sorry for being a bit of a pain this afternoon, but will the Minister explain something—if not now, then later in writing? I understand how the lawyers employed from an outside firm will be regulated, but what about the individuals? Some unions still employ in-house lawyers. Would they be regulated by the Law Society, or would they be exempted by the bar proposed in the amendment?
Bridget Prentice (Labour, Lewisham East)
No, any lawyer employed who was conducting reserved activities would be regulated by the regulator. I imagine that even an individual lawyer would almost always be regulated by the Law Society, although they could be regulated by one of the other regulators.
Jonathan Djanogly (Conservative, Huntingdon)
Is the Minister saying that, in such circumstances, the lawyer would in effect be disbarred or whatever, and that the union would get off scot-free?
Bridget Prentice (Labour, Lewisham East)
I am not sure whether I fully understood the hon. Gentleman’s question. Will he expand on it?
Jonathan Djanogly (Conservative, Huntingdon)
If a union used an in-house lawyer to give legal advice, would it be untouchable in such a situation, because only the lawyer would be subject to regulation?
Bridget Prentice (Labour, Lewisham East)
Only the lawyer would be subject to regulation because the union would not be an entity as defined in the Bill.
John Hemming (Liberal Democrat, Birmingham, Yardley)
I am confused. As I understand it, offering advice is not a regulated legal activity. It is a legal activity, but not regulated. Although there are issues of negligence, about which I shall talk later, I have difficulty in understanding how a union could not have an in-house lawyer who could offer legal advice, whether or not they were an authorised person.
Bridget Prentice (Labour, Lewisham East)
The in-house lawyer could certainly offer legal advice, but in terms of regulated activities they would have to be regulated. That is the point that I have been trying to make.
I move on to the final part of the reason for the amendments—
John Mann (Labour, Bassetlaw)
I am not absolutely clear. Let me give two examples, on which the Minister may not like to comment, but I am sure will be prepared to. What about the case of the canteen women, when the NUM and Scargill disgracefully lost—
Frank Cook (Labour, Stockton North)
Order. Can I be certain that this is an intervention and not a speech?
John Mann (Labour, Bassetlaw)
Absolutely; I am asking a question of the Minister.
Frank Cook (Labour, Stockton North)
Be brief, please.