Committee stage in the Lords
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Lord WhittyLabour- Quote
- moved Amendment No. 136AA:
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Baroness Butler-SlossCrossbench- Quote
- I support the noble Lords, Lord Whitty and Lord Kingsland. It does not matter much which of their amendments would apply, but quite a lot of people are not accustomed to dealing with courts; they find the whole process of litigation disturbing and upsetting. If they start by having to go through the whole procedure set out in the Bill—it will be an excellent procedure—and are given an award to which they are clearly entitled, and then the recalcitrant solicitor or barrister does not pay, the idea that the complainant would have to go to court, become a litigant and have to brief a separate solicitor in order to do so would be a step too far for many people. It would be enormously helpful if some sort of procedure would enable such people not to have to go through this; they sometimes may not be of good education and have been let down by the legal profession—and such people undoubtedly exist.
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- Our general experience of ombudsman schemes across the board is that compliance tends to be high. That is partly because the vast majority of cases are resolved by agreement without formal determination, but where a decision does reach the stage where an ombudsman needs to make a binding determination, compliance is also very high. The British and Irish Ombudsman Association’s guidance states: “Compliance with an Ombudsman’s recommendations is secured by a variety of means—by law, by contract, by a regulator or by the moral force and the standing of the Ombudsman. Non compliance is rare”. That is the context in which we are considering the amendments. We fully expect that to be the case for the ombudsman scheme established by Part 6; but the Bill also provides for situations in which a respondent still does not comply, by providing, through Clause 138, for any compensation payable or fees owed to be recoverable on application to a court. In rare cases where a respondent refuses to pay, Clause 139 provides for the OLC to be notified and for onward notification of the relevant approved regulator. That will, as with other schemes, be treated seriously and as a disciplinary matter by the relevant approved regulator. So a respondent who refuses to comply will have to have very good reasons for doing so, and that will act as a strong incentive. Where a complainant does have to make an application to court, we hope that that may be done before the county court as well as the High Court, with a straightforward procedure and the ability to recover the costs of having to do so. We have a good procedure. However, I have listened carefully to what has been said and my view is that we should look at this again. I do not wish to require the OLC to take action on behalf of the complainant, but I am happy to think about whether we could provide the flexibility for it to be able to do so, bearing in mind the comments that have been made about the particular circumstances that could arise. Perhaps I may take this matter away and consider it further.
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- Baroness Butler-SlossCrossbench
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- To assist the Minister, can I suggest that some word such as “exceptionally” be put in? I would not have thought that it would be a general power, but there would be rare cases. The knowledge that there was the rare case might be an incentive to those who did not want to obey. They would know that it was not just a poor little old lady who had to try to go to court. The whole panoply of the OLC could be engaged. “Exceptionally”, “in unusual circumstances” or some phrase like that might meet the case and show that it is unlikely to be used very often. It would not be an encouragement to someone who, for instance, was too lazy to go to court. It would only be used by somebody who could not manage going on their own.
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- Baroness Ashton of UphollandLabour
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- I can see noble Lords nodding at what the noble and learned Baroness said. I am happy to consider whether those measures would be appropriate. That is the sort of thing I am thinking of; not making it a requirement but enabling flexibility. It would be precisely in the circumstances that she indicated, where you have somebody who could not take this through. We need to help people enforce what is rightfully theirs—I am a great believer in that. I would like to take this away, discuss it and come back.
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- Baroness Ashton of UphollandLabour
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- I am sorry the noble Lord is suspicious of me. The point about flexibility is that we do not want to be in the position where the complainant does not feel they should do anything because the OLC will deal with it. I was taken by what was said about cases where people would find it very difficult to do something and where justice needs to be seen to be done. We hope, in the main, that this will never happen, and that those who need to provide redress will do so. It is important in those occasional circumstances. To say that the OLC always has to act creates another potential problem; what onus is on those who are perfectly capable of sorting something out to do so? I hear what the noble Lord says, but I ask him please not to be suspicious of me. I will look at the matter, but in the context of trying to say that the OLC does not have to act in all circumstances but that there may be circumstances where it thinks that doing so is important. I will reflect maturely, of course.
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- Lord WhittyLabour
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- I by and large agree with the noble Lord, Lord Kingsland. On the grounds that we are not supposed to be suspicious of the Minister and that she will come forward with something that meets both our objectives, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 136B not moved.] Clause 138 agreed to. Clause 139 agreed to. [Amendment No. 137 not moved.] Clause 140 [Reporting possible misconduct to approved regulators]:
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- Lord WhittyLabour
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- moved Amendment No. 137XA:
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- Baroness Ashton of UphollandLabour
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- There are two amendments in this group: Amendments Nos. 137ZZZA and 137XA. Amendment No. 137ZZZA deals with the independent reviewer point and Amendment No. 137XA deals with allowing an ombudsman with a report of potential misconduct issued to an approved regulator to require a report back. I say that only for clarification of the groupings. I shall respond to both amendments because they raise distinct issues—although they are clearly suitably grouped together. I shall start with the independent reviewer question, which my noble friend rightly raised. We do not think that it is necessary that an “independent reviewer” be established to decide whether an ombudsman has made the right decision in not making a report to an approved regulator. The ombudsman does not have the discretion to decide, even though it appears that there may have been professional misconduct, not to report it to the relevant approved regulator: there is a duty on the ombudsman to make such a report whenever the ombudsman is of the opinion that there is, has been or may have been such misconduct. The reviewer would not be able to review a decision not to make such a report but would be reviewing whether the ombudsman could reasonably be of the opinion, on the information available, that there was nothing to suggest misconduct. The purpose would be to secure reconsideration of that opinion, and potentially the making of a report. But there is, by design, nothing in the Bill to prevent an individual complainant who feels that there has been misconduct of which the relevant regulator should be aware from raising the issue with the approved regulator directly or drawing this specifically to the attention of an ombudsman. The problem of an independent reviewer is that we would be adding an expensive and potentially cumbersome way of achieving much the same result.
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Lord Thomas of GresfordLiberal Democrat- Quote
- I hope that the noble Lord, Lord Whitty, will have seen Amendment No. 139E after Clause 155, where we propose that the current Legal Services Ombudsman should be renamed, “the Independent Reviewer of Legal Services Complaints”, which is exactly what he asks for in Amendment No. 137ZZZA. Just as I support him in his amendments, I hope that he will support me in mine. We believe that an internal review, which is thrown around all the time, is a very unsatisfactory way of resolving disputes. It will mean going back to the same people asking them to say that they have made an error, which is always very difficult to do. At the same time, the independent reviewer whom we seek will save the expensive judicial review, fulfil the role currently carried out by the Legal Services Ombudsman and be entirely in accord with the amendments tabled by the noble Lord, Lord Whitty. I notice that our amendment is supported by Which?, an organisation with which I believe the noble Lord has a connection.
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- Lord WhittyLabour
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- I certainly agree with the noble Lord, Lord Thomas, that simple internal quality control does not resolve the issue and that, therefore, some independence in a reviewer is required. His amendment is one possible way of doing that and it is one to which we should return. I take some comfort, from what the Minister says, that the issue is recognised. I apologise for focusing largely on the second amendment in the group, rather than the first. On the second amendment, I believe that there are various ways of doing it. We have the possibility of using the present system of independent review which arises from the existing structure. At this stage, I shall withdraw the amendment, but this reassurance to consumers is important in the total picture and I hope that the Minister will come back with more detail at the next stage. Amendment, by leave, withdrawn. [Amendment No. 137ZZZA not moved.] Clause 140 agreed to. Clause 141 [Duties to share information]:
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Baroness HenigLabour- Quote
- moved Amendment No. 137ZZA:
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- Baroness Ashton of UphollandLabour
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- When I was talking to the officials this morning about the amendment of my noble friend Lady Henig—it is very nice to see her joining us at this late hour—I said that I start dancing on the head of a pin when I try to explain to noble Lords the difficulties of changing the word “desirability” to “need”. I am not sure that my noble friend’s amendment would have a substantive effect. I can see by looking at the clause that she is keen to change the wording because it would fit better, but it is important not to skew what then happens because the “need” to do something overrides any other consideration. Of course, I will consider my noble friend’s amendment and will think about whether the wording is right. There is very little between us on this; it is simply a case of whether I can persuade her that the language would have an effect that she herself would not wish to see. Although it does not say so in my speaking note, I am also perfectly happy to take away and consider the amendment in the name of the noble Lord, Lord Kingsland, because I think that he makes an important point.
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- Baroness HenigLabour
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- I hear what the Minister says and I take the point. It is the outcome—how the thing works—that matters in the end and not the words. I absolutely accept that. Obviously, the assurance that I seek is that the outcome is of the sort that I have described. I am sure that she will reflect, as will I, on what combination of words will bring about the particular outcome that I think we all seek, as does the Solicitors Regulation Authority. In the light of that, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 137ZA not moved.] Clause 141 agreed to. Clauses 142 to 145 agreed to. Clause 146 [Enforcement of requirements to provide information or produce documents]:
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- Baroness Ashton of UphollandLabour
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- The purpose of this part of the Bill is to ensure equality between the parties. It is important that an ombudsman’s power to require information can be backed up by enforcement. Without such, the complainant or respondent could simply ignore the ombudsman’s requests. The noble Lord has indicated that he is concerned about disproportionality in this context. The ombudsman is duty bound to determine cases in the public interest—Clause 113—and by reference to what is fair and reasonable—Clause 134. It is possible that the ombudsman receives a genuine complaint—not a frivolous or vexatious complaint—but the complainant withholds information needed to assist the ombudsman to make a determination. For example, the complainant may have a valid complaint and be seeking £10,000 redress. That complainant might be withholding documents that show he is really only entitled to £5,000. The ombudsman cannot make a determination without that information. In the example I have just given, if an ombudsman made an award of £10,000 without having the necessary documentation, he would probably fall foul of Clauses 113 and 134 in any event. When we looked at the matter, we mirrored the powers available under Sections 231 and 232 of the Financial Services and Markets Act. As the Committee would expect, they are used extremely rarely, but they provide a useful deterrent in situations such as I have described, so we consider that they are powers worth keeping. Of course, the power could not be used aggressively by an ombudsman by virtue of Clause 134(3). That states that the ombudsman can only require information if it is, “necessary for the determination of the complaint”. Of course, the complainant can at any time and in any circumstances withdraw the complaint. The information or documents would then be no longer necessary for determination and the ombudsman would no longer have the power to require the information or pursue legal proceedings. I argue that on the grounds of fairness and in the interests of justice, it is appropriate that the ombudsman can require information from both parties and have the necessary powers to ensure that that happens in order to make determinations, bearing in mind what I have said about the complainant always having the right to withdraw if he so wishes. I hope that the noble Lord will feel reassured and able to withdraw his amendment.
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- Lord WhittyLabour
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- moved Amendment No. 137ZC:
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- Lord Thomas of GresfordLiberal Democrat
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- I totally oppose this amendment. On Second Reading, I made the point that an awful lot of complaints are made by dissatisfied litigants who have lost their case; those who win do not complain. Another speaker in our later deliberations, whose name escapes me for the moment, referred to many complaints as “rubbish”. I do not see why it should be possible to publish the name of the solicitor’s firm, or even the barrister conducting the case, for a complaint that has failed. There is absolutely nothing in the amendment of the noble Lord, Lord Whitty, which would prevent the identification of a respondent when the claim had been thrown out. We are almost in that very unsatisfactory situation in criminal law, in rape trials, where the complainant is never mentioned but the defendant is. Now it is to be translated over to this field. I do not see why a successful respondent should be at risk of having his identity revealed, when the complainant, who may have brought a complete rubbish complaint, is entitled to anonymity.
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- Baroness Butler-SlossCrossbench
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- I am not entirely sure that I agree with the noble Lords who have last spoken. It seems to me that what the noble Lord, Lord Whitty, is saying could be rephrased to meet their objections. There is much to be said for identifying, in certain circumstances, habitual offenders. As we were told by the noble Lord, Lord Whitty, only 7 per cent of solicitors out of the whole profession tend to come before the disciplinary bodies and I can see that, “A report under subsection (1)”, might in certain circumstances identify the respondent. But you would have to identify those circumstances, and I have in mind “where a complaint is justified”. That might meet the public interest, because there are members of the public who go to solicitors—or, indeed, to barristers—without knowing whether they can trust them. I think that, in certain circumstances, and at the discretion of the organisers of the OLC, that information should be given, but given only if the complaint has been clearly upheld.
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- Baroness Ashton of UphollandLabour
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- I hope to steer a course between the different views here, and to support what the noble and learned Baroness has said. It is not appropriate for the OLC to assume a naming and shaming role. There are issues, of course, about human rights and data protection, but it is not the overall purpose of the complaints scheme, and would ultimately undermine the objectives of the scheme. My noble friend Lord Whitty was looking, specifically I think, for what the noble and learned Baroness suggested, which is that where it might be considered appropriate, that would be available. This is not, actually, about the acceptance of the amendment, because the powers in the Bill enable what my noble friend is looking for; the OLC has that power. It is explicitly precluded in the legislation, under Clause 147(1), from publishing the identity of a complainant, but not the identity of a respondent. The effect of legislative drafting, with which my noble friend is very familiar, is that the OLC has the power to identify respondents in its reports. We do not need to add anything to the Bill therefore because Clause 147(2) states that except for the complainant, anyone can be mentioned. That is a much better way of dealing with this than trying to set out the alternative, which is to provide that in certain circumstances they could be named. As I have indicated, in specific circumstances that will be appropriate. As the noble and learned Baroness and my noble friend have said, that is right and proper, but it is not about naming and shaming or putting forward anyone in circumstances where it would be inappropriate to do so. That point was made clearly by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. That is not what this is about. However, I agree that there will be circumstances in the public interest where in that context the ability to be able to name someone is important and the Bill allows for that, which is precisely what my noble friend seeks. On that basis, I hope that he will withdraw his amendment.
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- Lord WhittyLabour
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- I am happy to withdraw the amendment in its present form. However, the formulation proposed by the noble and learned Baroness, Lady Butler-Sloss, would be an appropriate power for the OLC in these circumstances and one which I think the Government will seek following the Macrory report in many other areas of regulation. It is a discretionary power and it is to be left to the OLC itself to decide whether it would be appropriate. If it is to be restricted to where the balance of opinion suggests, to those complaints which have been upheld—the area I am mainly concerned about—I could envisage a situation where it was in the interests of lawyers to have on the public record the fact that they had been cleared of a mischievous complaint, but let us exclude that if we want to. I am concerned with the situation where the OLC is able to publish the names of those against whom a complaint has been upheld. If my noble friend says that it is already possible, that is fine in one sense except that in this new era of reputational sanctions being available to regulators, it might be helpful to include it in the Bill. However, I accept what she has said and we will take it from there. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 147 agreed to. Clause 148 agreed to. Clause 149 [Disclosure of restricted information]:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 137A:
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- Lord Thomas of GresfordLiberal Democrat
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- I am grateful that the Government have accepted Amendments Nos. 152 and 153, which we tabled. The Government’s attitude indicates the considerable good work done by the Delegated Powers Committee. I congratulate that committee and its clerks on their constant observance of legislation as it comes through and on drawing to our attention matters as important as this. On Question, amendment agreed to. Clause 149, as amended, agreed to. Clauses 150 and 151 agreed to. Clause 152 [Consent requirement for rules]: [Amendment No. 137B not moved.] Clause 152 agreed to. Clause 153 agreed to. Clause 154 [Approved regulators not to make provision for redress]: [Amendments Nos. 138 and 139 not moved.]
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- Baroness HenigLabour
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- moved Amendment No. 139ZA:
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- Lord WhittyLabour
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- My intervention on this amendment provides an opportunity for me to give notice that I will not object to Clause 154 standing part of the Bill. I tabled my intention to oppose the clause—the general provisions of which I approve—in order to probe whether it also covers the potential for redress in relation to malpractice issues. For the consumer—the client—it can be obscure on occasion whether they are complaining about an issue of professional malpractice or a failure of service, which is appropriate for the OLC. They may take one course or the other, or both. It is therefore important that issues of professional malpractice, which are dealt with by the front-line regulators, are also subject to the same possibilities of redress. As to the tragic miners’ case to which my noble friend Lady Henig referred, and which was eloquently spoken to by my noble friend Lord Lofthouse at Second Reading, if we look at it through the punters’ eyes, it is not absolutely clear whether that is an issue of malpractice or one of failure of service and incompetence. I support the objectives of my noble friend’s amendment. I hope that the Minister will clarify whether the Government consider that the Bill as it stands adequately provides for redress in cases of professional malpractice.
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- Baroness Ashton of UphollandLabour
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- I know that my noble friend is not planning to introduce a stand part debate on Clause 154, but the clause is critical to the entire scheme in Part 6. It underlines the distinction in the new system between the role of the approved regulators and the role of the Office for Legal Complaints and its ombudsman scheme. Under the new system, the imposition of disciplinary sanctions remains with the approved regulators; the awarding of redress is for the OLC. Without the clause, that distinction could not be maintained. We cannot create exceptions to Clause 154 lightly. We do not want to undermine the role of the Office for Legal Complaints and we have to consider very carefully whether any exception that might be made would do so. I know that Amendment No. 149ZA was tabled on behalf of the Law Society, which feels that it needs a broad rule-making power to provide in its conduct rules that in certain circumstances solicitors will have to review their files and, where appropriate, provide proactive restitution or even compensation to consumers. The intention is that in situations of widespread wrongdoing the clients affected, as my noble friend said, can be identified as early as possible and restitution made by the solicitor in question. The Government appreciate the intention behind the proposals to give the Law Society, in particular, the tools to respond quickly and effectively to situations where wrongdoing has been discovered that may have impacted on a large number of clients. We want to do what we can to enable the Law Society and other approved regulators to take a more proactive approach where appropriate when consumers are being adversely affected. In our view, however, Amendment No. 149ZF is drafted very widely, and we would not be able to accept such a wide rule-making power. The amendment as drafted would allow an approved regulator—the Law Society, in this case—to award redress, despite the provisions in the Bill preventing approved regulators from doing so. That would not be acceptable; it would undermine the role of the new OLC. That said, we are willing to consider what powers less than awarding redress might be acceptable—for example, the power to order authorised persons to go through solicitors’ files, identify the names of clients who have been treated wrongly and pay back any money improperly being held if appropriate. Before the detail of any exception to Clause 154 could be agreed, it is necessary to agree exactly what sort of exception is being sought and considered. We are looking at this issue and I am hopeful that we can bring something back on it. We will obviously need to talk to the Law Society, to my noble friend and to others who are interested, but I believe that, short of redress, and therefore short of interfering with the role of the OLC, we will be able to achieve something that will deal with the issue. I agree with my noble friend that that is very important, and I agree with what my noble friend Lord Lofthouse said at Second Reading. I hope that we can do that to everyone’s satisfaction, and that on that basis my noble friend feels able to withdraw her amendment.
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- Baroness HenigLabour
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- I hear what my noble friend has said. I am grateful for her reassurance that the Government will look at this carefully and do what they can to meet the objectives here, which we are clearly all agreed on. In those circumstances, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 154 agreed to. Clause 155 [Legal Services Complaints Commissioner and Legal Services Ombudsman]:
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- Lord Thomas of GresfordLiberal Democrat
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- moved Amendment No. 139A:
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- Baroness Ashton of UphollandLabour
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- There is no doubt that in the present circumstances the office of Legal Services Ombudsman plays a useful and necessary function. Consumers can be confident that should a complaint against a lawyer not be handled well by the lawyer’s professional body, there is an appeal mechanism open to them. But we are not talking about the current situation. The point about Part 6 is that we are establishing a completely different system for the handling of complaints against lawyers than the one currently in use. The noble Lord was not able to be with us when we talked about what he refers to as building on the corpse of the previous system. We see it more as building a new system. We take the expertise that may be available from the current system; I hope that he will have the chance to read my comments about the way in which we propose to do that and the importance of making sure that the system continues for the next three years while we develop the new system. The current system must not be unable to deal with complaints because for various reasons staff have not been able to participate and do not want to continue because they do not consider they have a future. We are creating a new organisation, but taking expertise where that is available. Although the organisation does not, as the noble Lord said, have the greatest of reputations, that does not mean that everyone in it is unable to perform some of the functions we expect to see in the new organisation. When looking at how to achieve a new organisation, it is important to use the experience and expertise available while recognising that the cultural change and the way the organisation operates is critical. No longer will complaints against lawyers be sent to their professional body to be considered or determined. All complaints will be dealt with by an independent complaints handling body, which will be administered by an independent board. So immediately the system looks very different from that which we have today. In drawing up the new system, we have had regard to the Financial Ombudsman Scheme, which is regarded as good practice, and to the guidance of the British and Irish Ombudsman Association. A key feature of our ombudsman scheme, and that of the Financial Ombudsman Scheme, is that the decisions of the ombudsmen are final; if accepted by the complainant, they bind both parties. Ombudsman schemes, such as the one that we are creating, are meant to provide a free, quick and simple service to complainants so that they can resolve a dispute without the need to go to court. My noble friend Lord Whitty has talked about the importance of that. A complainant will have a choice as to whether he or she accepts the decision. If the choice is to reject the decision, the complainant can pursue the complaint through the courts. But if a complainant chooses to accept the ombudsman’s decision, it is binding on both the respondent and the complainant. The choice rests with the complainant, which is why we do not consider it appropriate or desirable to see a formal review of this sort against an ombudsman’s decision. Our view is supported by the British and Irish Ombudsman Association. It would be inappropriate for the OLC to be considered akin to approved regulators in handling complaints. It will have a very different relationship with the LSB from the approved regulators. The LSB will appoint members of the OLC and will approve all its rules. In certain circumstances, as we have already discussed, it could remove members. It would be wrong to say that the OLC should be treated like an approved regulator, but it would be equally wrong to say that the OLC will operate like the Law Society’s Legal Complaints Service. As I have already indicated, this is not a rebadging exercise. The OLC will not work like the LCS or indeed any other approved complaints-handling procedure. It will be a new and independent system working in the interests of consumers set up under the ombudsman guidance. That does not mean that mistakes do not happen from time to time. How these mistakes are dealt with is a matter for the OLC, and I expect that, like any other responsible organisation, the OLC will have internal management arrangements to deal with this. If it is looking for a model to develop an internal complaints-handling service, it might look to the Financial Ombudsman Service, which has an independent assessor who considers complaints about the service provided by FOS staff. But he does not consider the merits of a decision made by the ombudsman. The terms of reference for the assessor do not allow him to consider the merits of an investigation. The FOS system, like the one that we are creating in Part 6, makes it clear that the decision of the ombudsman is final and, if accepted by the complainant, binding. I am not persuaded that management decisions of the OLC should be set out in the Bill. We believe that with the best practice—for example, with the Financial Ombudsman Service—the OLC should establish internal arrangements for handling complaints, but these are management decisions not to be set out in the Bill. An internal arrangement to deal with complaints about the service should not extend in any way to a review of determinations made by an ombudsman. This is already clearly a view supported by the British and Irish Ombudsman Association and consumer organisations. On that basis, I hope that the noble Lord withdraws his amendment.
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- Lord Thomas of GresfordLiberal Democrat
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- I am not surprised that the British and Irish Ombudsman Association supports what the Minister is putting forward because, in essence, that is the end of it. The decision of the ombudsman, which may be against the consumer, is the final say. There may be some internal review process and I do not think that the Minister entirely shut out judicial review. But the strength of the present system is the position of the independence of the Legal Services Commissioner and the Legal Services Ombudsman. As the Minister knows, many complaints have gone to the ombudsman which have been successfully resolved. If the Office for Legal Complaints fails or is not a success there is no redress. I have not seen the whole of the noble Baroness's reply to the earlier amendment. I should not make any further comment until I have read what she said then and considered what she has said now. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 139B and 139C not moved.] [Amendment No. 139D had been withdrawn from the Marshalled List.] Clause 155 agreed to. [Amendment No. 139E not moved.] Clauses 156 and 157 agreed to. [Amendment No. 139F not moved.]
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Lord Evans of Temple GuitingLabour- Quote
- I beg to move that the House do now resume. Moved accordingly, and on Question, Motion agreed to. House resumed. House adjourned at 9.55 pm.
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