Report stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- moved Amendments Nos. 446A to 467:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 468 to 492A:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 492B:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 492C and 492D:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 493:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 494:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 495 and 496:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 497A:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 500A:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 504A:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 508:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 508A and 509:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 510:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 511:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 512:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 513 to 515:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 516:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 517 to 517A:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 519 to 527:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 528 to 551:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 552A to 561A:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 562 to 563:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 565:
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- Baroness Ashton of UphollandLabour
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- My Lords, I agree that these amendments are important and I am grateful to be his ray of sunshine. On Question, amendment agreed to. Schedule 17 [Licensed conveyancing]:
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Lord Evans of Temple GuitingLabour- Quote
- moved Amendment No. 565A:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 566 to 573A:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 574 to 586:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 587A to 596:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 597 and 598:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 599 to 601:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 602 and 603:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 604 to 611:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 612:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 613:
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Lord Hunt of WirralConservative- Quote
- My Lords, I strongly agree with my noble friend. I was very surprised to find this new clause appearing at such a late stage in our consideration of the Bill without any prior warning. It is fundamentally flawed for the Government to rewrite in this way the rules concerning rights of audience and the right to conduct litigation. As my noble friend has pointed out, the restrictions on those rights serve an important public purpose; namely, that those who carry out the functions are properly trained and are subject to appropriate professional duties. It may well be that there has been some good reason for this new clause appearing at this very late stage without proper consultation. If there is, we look forward to hearing it.
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Lord Campbell of AllowayConservative- Quote
- My Lords, my noble friend has asked the one question I was going to ask: why? What is the justification, and what is wrong with the present system?
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- Baroness Ashton of UphollandLabour
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- My Lords, there has been a change. The issue raised with the amendment is that we now have a new system where we have people and arm’s-length organisations who need to be able to have the rights we have talked about. I accept that concerns have been raised, not least by the Law Society, which, my briefing says, has raised the issue, which rather suggests that there has been some kind of dialogue. I know that the Law Society is looking, quite reasonably, to have certainty about the situation, and I will seek to provide that in my response to the questions noble Lords have asked. The rights of audience and the right to conduct litigation will only be exercisable by employers of housing management bodies that have a formal management agreement with the local housing authority. That is covered, as I indicated, in Section 27 of the Housing Act 1985. The local authority will set the terms of the management agreement, thereby ensuring that there is sufficient accountability of the new housing management body. That agreement sets the respective roles, responsibilities and functions of the local authority and the housing management bodies, and should normally provide that parent local authorities continue to be legally liable for anything that housing management bodies do, or do not do, under the terms of the agreement. As I indicated earlier, those agreements must be approved by the Secretary of State for Communities and Local Government. Each and every agreement is thoroughly scrutinised by officials to ensure that it is robust. The employers will need written authority from the housing management body before exercising their rights. As with local authority housing officers, employees of housing management bodies will handle only routine cases. More complex cases will require the involvement of solicitors or the local authorities’ legal officers. The Department for Communities and Local Government is looking at making Section 27 agreements guidance more up to date, with particular reference—I think this allays the concern of the noble Lord, Lord Hunt of Wirral—to the need for all housing management employees to be supervised by a qualified lawyer. The safeguards are in place. I understand that our discussions with the Law Society have been constructive. I hope that noble Lords will feel able to withdraw their objection to my amendment. On Question, amendment agreed to. Clause 184 [Solicitors to public departments and the City of London]:
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- Lord Hunt of WirralConservative
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- My Lords, noble Lords will already be aware of my strong support for the amendment. This was something that the Joint Committee found difficult to understand, particularly the differentiation between solicitors and barristers and with those practising in Scotland. The Minister has always promised to come forward with a detailed explanation of exactly why the situation should be permitted to continue. As far as I can see, it is an anomaly that began somewhere in the 19th century, and no one can quite understand how it ever arose or why the exemption was originally provided for. Certainly, we have never heard any explanation of why it should continue. We await the response of the noble Baroness.
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The Attorney-General (Lord Goldsmith)Labour- Quote
- My Lords, I was not going to respond to this amendment, but I know something about government lawyers because I have responsibility for them; and I thought that, with my noble friend’s agreement, I ought to respond. Having listened to both the noble Lords, Lord Kingsland and Lord Hunt, I noted one absolute omission from anything that they said. They have not at any stage pointed out what the benefit to the public would be or what the need for regulation of government lawyers is that is not presently catered for. There are anomalies, and I can go through them if the House wants, but at the end of the day there is a real, practical issue here. The amendment seeks a substantial sum of money to be paid by taxpayers to the Law Society without demonstrating what the public benefit would be. That is a difficult thing to justify when that would be the effect of the amendment. The Government are the principal consumers in the case of those offices listed under Clause 184, not the public at large. To that end, the existing system adequately provides regulation for government solicitors. I know from my own responsibilities that there is a strong and proportionate system of regulation applying to government solicitors which includes comprehensive training and development programmes, ensuring that high standards are maintained across the Government Legal Service. The head of the Government Legal Service is the Treasury Solicitor, who is responsible for what takes place. Clause 184(5) also ensures that any government solicitor who exercises a right of audience or conducts litigation is under a duty to the court to act with independence in the interests of justice. I come back to the point: I have not heard a single shred of evidence to suggest that there is a problem with how government solicitors carry out their duties under the existing regime, or information which supports the case for the public purse to meet the cost of different regulatory arrangements to those already provided. I am sorry to disappoint noble Lords, but I ultimately find it hard to accept that the taxpayer should make this additional sum of money available for no benefit to the public. I therefore invite the noble Lord to withdraw his amendment.
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- Lord GoldsmithLabour
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- My Lords, does the noble Lord know what the systems within government are if a lawyer is concerned that his advice is not being followed? Does he know what happens in those circumstances? Does he know of any example where anyone has thought that they should turn to the Law Society? I know of no such case.
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The Deputy Speaker (Viscount Ullswater)Conservative- Quote
- My Lords, there is an error in the Marshalled List, as Amendment No. 617 should come next.
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 617:
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- Lord GoldsmithLabour
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- My Lords, I start by thanking the noble Lord for three things: first, for having taken the trouble and time—he is very heavily committed on this Bill so he will have had a great deal else to do—to consider the issue and to discuss it with those whom he has mentioned. I entirely share his view on the work that they have done and I, too, pay tribute to Mr Robin Knowles and others. Secondly, I thank him, as a result, for having withdrawn his previous amendment and tabled one focused on the point that he identified. Thirdly, I thank him for the very generous remarks he made at the end of his speech moving the amendment. I very much appreciate what he said. I declare my interests, as I did responding to the amendments in Committee, both as president—it carries no executive responsibility—of the Bar Pro Bono Unit and as chairman of the Attorney-General’s National Pro Bono Co-Ordinating Committee. I repeat those declarations. I also thank my noble friend for allowing me the opportunity to propose what I regard as this important, if small, amendment to the Bill. I am grateful for the overall support that it has been given by the noble Lord, Lord Kingsland. As he knows and has explained, the structure of the single charity envisaged under the clause was the subject of study by a working party set up under the auspices of the co-ordinating committee to which I referred. The membership of that working party was drawn from across the profession and the working sector. The report of the working party was fully endorsed by the full co-ordinating committee. I know that the noble Lord has seen that report. The report contemplates that among the factors to which the single prescribed charity would have regard—probably through principles rather than as a constitutional fetter—when making decisions about distribution of money received, would be any expression of preference by the legal representatives who have acted pro bono. The report emphasises that such expression of preference could not be determinative, otherwise much of the advantage of strategic perspective that the use of a single prescribed charity offers would be lost. Those who wish to express a preference would be free to do so. I can see that proper regard to such expressions of preference would be helpful in ensuring confidence in the use of the prescribed charity. But, again, as the working party report emphasises, there must be a balance between having regard to preferences expressed and ensuring fair and strategic disbursement.
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- Lord GoldsmithLabour
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- moved Amendment No. 619:
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- Lord Hunt of WirralConservative
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- moved Amendment No. 620:
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Lord Maclennan of RogartLiberal Democrat- Quote
- My Lords, it is, at first blush, rather surprising that it falls to this Parliament to consider the composition of the council of the Law Society of Scotland. In so far as it has the backing of Mr Michael Clancy, the profession itself and the consumer representatives in Scotland, it merits our acceptance in principle. I hope it can be achieved without the consents that the noble Lord mentioned.
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- Baroness Ashton of UphollandLabour
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- My Lords, as noble Lords will know, and as the noble Lord, Lord Hunt of Wirral, alluded to, the regulation of the legal profession in Scotland is a devolved matter and therefore more appropriately dealt with by the Scottish Parliament. I recognise that this amendment is important. It attempts to promote greater non-solicitor involvement in the functions of the Law Society of Scotland. It is, of course, consistent with the agenda that seeks to put consumers at the heart of regulatory arrangements in the legal profession. As the noble Lord will know—and the noble Lord, Lord Maclennan of Rogart, will certainly know—the Scottish Parliament legislated on matters concerning the Scottish legal profession last year. The Legal Profession and Legal Aid (Scotland) Act 2007 came into force earlier this year. While it is technically possible for us to amend the relevant legislation to allow non-solicitors to sit on the council of the Law Society of Scotland, noble Lords will be familiar with the convention, set out in the Statement by the noble Lord, Lord Sewel, to this House in 1998: “Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament”.—[Official Report, 21/7/98; col. 791.] The change sought by the Law Society of Scotland was not put forward when the Legal Profession and Legal Aid (Scotland) Act was before the Scottish Parliament. It is unlikely—bearing in mind where we are with the Scottish elections—to be possible to obtain a legislative consent Motion in that Parliament at this time, following the very recent elections. I must ask the noble Lord to withdraw the amendment. We will seek to get the Law Society to raise this with the Scottish Executive and the Scottish Parliament first, and then return to it if need be. At this stage there is nothing I can do.
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- Lord Hunt of WirralConservative
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- My Lords, I listed a series of the present enactments which surely fall within the same bracket. Is the Minister confident that the repeals that I set out do not require a legislative consent Motion? The amendment that I am moving seems very much on a par with what is already provided for within this schedule.
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- Baroness Ashton of UphollandLabour
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- My Lords, we took advice from the Scotland Office lawyers and lawyers within the Scottish Executive. The advice I was given was very clear and direct: I need to pursue the process I have set out. I need to get the required Motion in order to make that possible. This is a good and important amendment; I have no objection to it. I am simply rather trapped in the process at present. That does not mean that I have given up on it. We will have to see if there is anything that we can do, but it will not be by way of amending other than getting a Sewel Motion in the Scottish Parliament. We wait to see what happens. This legislation has further to go; it has another House to go through. There may be time within that. I merely ask the noble Lord to withdraw the amendment at this stage because I am rather tied.
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- Lord Hunt of WirralConservative
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- My Lords, I understand that the Minister will now seek a way within the timescale of this legislation to ensure that a legislative consent Motion is required. I would have thought that it should meet with the approval of the Parliament in the way that the noble Lord has already indicated. It seems a sensible move forward for the Minister to initiate the processes necessary to see if that is possible in good time before the Bill completes its parliamentary passage.
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- Baroness Ashton of UphollandLabour
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- My Lords, I will certainly seek to discuss this. I cannot say that I can initiate because initiation comes from within the Scottish Parliament. The noble Lord will understand that my hands are tied. This is absolutely within the jurisdiction of a devolved matter. I must wait to see the Ministers appointed. I have no doubt that the Law Society of Scotland will make representations. We shall see where the Parliament and the Executive wish to go with it. We will not stand in its way, but I do not want to pretend that I am hopeful that we will be able to do it during the passage of the Bill. If we can, we will, but I cannot pretend that I am certain of that.
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- Lord Hunt of WirralConservative
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- My Lords, I wish to make it absolutely clear that I was not looking for certainty. I was merely looking for commitment. In the light of the Minister’s commitment in the terms she has just expressed, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Hunt of WirralConservative
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- My Lords, I agree.
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- Baroness Ashton of UphollandLabour
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- My Lords, as the noble Lord says, the amendment seeks to entrench in the Bill the functions of the Lord Chancellor so that those functions could be transferred only by primary legislation. The amendment is deficient in that it does not provide for all of the Lord Chancellor’s functions in the regulation of the legal professions to be entrenched. The Government have decided that all these functions should be entrenched, and if the noble Lord will bear with us, a government amendment follows this group which I think will satisfy him completely.
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 622 and 623:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 623A:
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- moved Amendments Nos. 624 and 625:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 626 and 627:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 628:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 629:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 631:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 632:
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- Lord Hunt of WirralConservative
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- moved Amendment No. 632ZA:
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- Baroness Ashton of UphollandLabour
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- My Lords, I was sad to see these amendments retabled because I thought in Committee that we had considered and agreed that non-lawyer managers would still be in positions to influence a business even if only assisting in the development of legal services or indeed delivering ancillary services. It is important that we are confident that legal services are properly protected. Exempting certain types of non-lawyer manager is in my view a step too far. We are not confident that the board or for that matter other approved regulators will be able to effectively regulate them under this approach. The noble Lord is right that we need to be careful and in a sense cautious about Part 5. Being a partner or a director in a firm brings with it influence and responsibility. Where legal services are concerned it is right that anyone in such an influential position can be under effective regulation, but applied flexibly. Under Part 5, that is the case in practice. In my view, the provisions for low-risk bodies that we have put in Clause 106 strike the right balance. I hope that on that basis the noble Lord will withdraw his amendment.
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- Lord Hunt of WirralConservative
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- My Lords, I know what the Minister said, but I am referring to the report by Sir David Clementi which emphasised that the approach must be on a risk-based analysis. I am not sure that the Government have fully accepted that. Although I note what the Minister says, I want to reflect on the matter and consider it further. In return perhaps the Minister might also see if there is a further way through other than the one she explained, but in the mean time I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 632A not moved.]
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 633:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 634 and 635:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 636:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 637:
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Lord Neill of BladenCrossbench- Quote
- moved Amendment No. 637A:
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- Lord Maclennan of RogartLiberal Democrat
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- My Lords, I, too, express great appreciation and support of the amendment and the speech by the noble Lord, Lord Neill, who has, even at this late stage, brought new and forceful arguments to a debate that we have had before. As we have had it before, I have nothing new to add, so I will be brief. The amendment, to which my name is added, may appeal to the Government more than my earlier attempt to suggest that Part 5 should not be made operative prior to the conduct of a pilot scheme to test whether the fears about access to justice are real. For the reason just given by the noble Lord, Lord Kingsland, the circumstances will vary from one part to another. The proposal of the noble Lord, Lord Neill—that careful studies should be made available before the implementation of Part 5—is probably the better route. Furthermore, it is clear that it need not hold up the Government’s desire to give effect to Part 5, since the studies could be put in hand virtually immediately and would no doubt greatly enhance our understanding of what is at risk and how best to avoid any adverse consequences for licensing alternative business structures.
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- Baroness Ashton of UphollandLabour
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- My Lords, I am grateful. I am only sorry for the noble Lord, Lord Neill of Bladen, that the late hour means that his words fall on few ears. I am sure that noble Lords will none the less read our debate with interest. I agree with the sentiments expressed by noble Lords: this is an important debate on Part 5. I agree that we should proceed cautiously with the development of alternative business structures. My principal concern is with doing more research, as the amendment requires, and the value that that would bring to our deliberations. Building on the excellent work of Sir David Clementi and working with stakeholders, we have obviously thought about and carefully reviewed the ABS proposals. That work was of course informed by the work of the Joint Committee on the draft Bill, chaired—“so ably” it says in my notes, but I agree—as noble Lords will know, by the noble Lord, Lord Hunt of Wirral. The debates on this matter have been both informed and occasionally lengthy, but none the less important. The difficulty with further research is that, in a sense, it takes us into a slight Catch-22. I have provided the noble Lord, Lord Neill of Bladen, with information about the different approaches overseas. He rightly talks about New South Wales, where they have been looking at alternative business structures. We are interested in developments in other jurisdictions. He talked about the firm floated on the stock exchange there. There was recent publicity about the Australian firm Slater & Gordon, saying that it plans to be one of the world’s first law firms to float on the stock exchange; the first was actually in 2004. Monitoring the effect of this sort of change on the Australian market and consumers is important, but I stress that what happens in one country is unlikely to exactly map across to another. The different safeguards make comparisons difficult, and services offered by firms in one jurisdiction may differ from other jurisdictions and ABS firms here. Although it is important to be aware of developments in other countries, that is not how to drive the development of alternative business structures in England and Wales. That does not mean that the noble Lord’s concern should not be addressed. Indeed, the amendments accepted by your Lordships’ House on the second day of Report, 18 April, are important: the requirement for licensing authorities to publish policy statements, setting out how they would satisfy their Clause 24 objectives—including, importantly, access to justice when granting ABS licences. Government amendments introduced a duty for the board’s annual report to deal with how the activities of a licensing authority and licensed bodies have affected the regulatory objectives, again including access to justice. That is the right approach to monitoring. Placing the duty on the Legal Services Board avoids fragmentation and maintains a central oversight of the regime’s impact by the LSB. There is no disagreement between us over the need to recognise and minimise risks. However, I remain concerned that requiring more research at this stage adds little. It seems attractive to look at other jurisdictions where ABS has been allowed but, as I have indicated, the potential for learning from them is limited. Noble Lords talked about the German BRAK. On a recent overseas visit, I heard that the German Parliament is looking to legislate in this direction. The relationship between the reaction of the German BRAK and what is happening in Germany may be relevant to our deliberations, but it looks as if Germany may be heading in the same direction. We will have to find more information because that was new to me, but it appears to be the case. To draw conclusions about the factors covered in the amendment would be difficult because there is not an ABS in operation. Parliament would find it difficult to draw any conclusion or take a decision to commence Part 5, because there would not be any evidence. It is a Catch-22; unless we work on alternative business structures we cannot ascertain how successful they have been, and without that how can Parliament make a decision on research that cannot possibly exist? The difficulty that I have is that we have given the noble Lord, Lord Neill of Bladen, all the information that we have. We will proceed with caution; that is absolutely right and proper. We intend to monitor effectively; we have tabled amendments to that effect based on what the noble Lord, Lord Kingsland, said in Committee on the importance of thinking about monitoring. I accept all the concerns about rural communities. ABS licences can have conditions within them that could make sure that those seeking advice on childcare proceedings or those in rural communities can be well protected. I endorse that approach. That is why I endorse the need for information on how all the regulatory objectives have been met including, importantly, access to justice. The safeguards that we have in the Bill recognise the risks and concerns. We are confident that we can get ABS development at the right pace and in the right direction. I know that the licensing authority will take into account the concerns raised, and will have to have regard to policy statements. As I have already said, your Lordships’ House has agreed that the LSB should be under a duty to report annually on how ABS licensing affects regulatory objectives. With respect to the noble Lord, Lord Neill of Bladen, that will be more effective than the amendment. It will be based on what is happening on the ground rather than a theoretical set of assumptions on alternative business structures which do not exist. We will achieve what he wants, which is to make sure to do this in a measured and constructive way, but we need to begin the process in order to ascertain that. The safeguards that we have accepted within the Bill will make sure that noble Lords’ concerns will be met. On that basis, I hope that he will withdraw his amendment.
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- Lord Neill of BladenCrossbench
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- My Lords, I thank the Minister for the courteous welcome that she gave to what I said and for showing that she agreed with a high percentage of my observations, although not the final conclusion as to what should happen. I tend to be an optimist. I believe that she is going to find it hard in the days that follow to resist the combined oratory of myself and my noble friends as it works on her mind very persuasively. She has reinforced my argument by citing the proposed German legislation. I knew nothing about that; I am most grateful to her for informing us. It is precisely the sort of information that we ought to have and it makes my point. In the mean time, leaving these forces working on the noble Baroness’s mind, I beg leave to withdraw my amendment. Amendment, by leave, withdrawn. Schedule 21 [Minor and consequential amendments]:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 638 to 647:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 648 to 659:
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- Baroness Ashton of UphollandLabour
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- moved Amendments Nos. 660 to 719:
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- Baroness Ashton of UphollandLabour
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- moved Amendment No. 720:
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