Legal Services Bill [HL]

My Lords, I declare an interest, in that I was at one time a barrister, then a judge and am now a deputy coroner and assistant deputy coroner. I support the Bill in general, and I am reminded of what Shakespeare put into the mouth of one of the characters in Henry VI, Part II: "““First thing we do is kill all the lawyers””." Clearly, the public have not changed today. I am concerned about several matters in this Bill but I shall confine my comments to four. I hope that I shall not be accused either of exaggeration or of hysteria in making these points. What I am about to say has already been said by several noble Lords, but, since there is disagreement on some of them, they bear repetition, even from me. First, there is Clause 1(1)(c), which refers to the objective of, "““protecting and promoting the interests of consumers””." The joint report of the two Houses pointed out that there had been a shift from public interest to consumer interest. The government consultation paper issued in 2002 was entitled In the Public Interest? and placed an emphasis on the wider public interest. The terms of reference set by the Government for the Clementi report included consideration of ““the public and consumer interest””. The protection and promotion of the interests of those who use legal services is enormously important, but it is not always identical with the public interest. It is possible for narrow consumer interests to be contrary to the wider public interest. At present,there is no provision for promotion or protection of the public interest and there appears to be no explanation for its omission from the Bill. I support the recommendation of the Joint Committee at paragraph 78 that subsection (1)(c) should be redrafted to read ““protecting and promoting the public interest and the interests of consumers””. My second concern arises from a possible threat to the independence of the legal profession—although that has, to some extent, been politely rubbished in this House. I should also like to comment on the perception of a threat to that independence by the impression that the Government have been seeking to exert day-to-day control over the Bar and solicitors. I am, of course, referring to the level of involvement of the Lord Chancellor in the regulation of the legal profession, particularly in his appointment of the chairman and members of the board. A clear and open commitment to the Nolan principles in appointments would go a long way to dispelling that concern—together, despite the view of the noble and learned Lord the Lord Chancellor, with a requirement for full consultation with the Lord Chief Justice in the appointment or removal of the chairman. I share the view of the noble Lord, Lord Neill of Bladen, that the public do not see the Lord Chief Justice as just another lawyer—certainly not ordinary members of the public whom I meet from time to time, who see him as the head of our profession and as a great man. That was below what might have been said about the Lord Chief Justice. I am told that at least one European Union country has already expressed concern about the perceived control by the Government over the legal profession. If that were to be the view of countries across the world, it would have a seriously adverse effect upon the high reputation of the English and Welsh legal system held overseas. That is not just a matter for lawyers; it would be to the public detriment. I entirely agree with the recommendations of the Joint Committee on appointments. My third point is the proposed control by the Legal Services Board (LSB) of the regulators who have been put in place by the Bar and by the solicitors. I support the noble and learned Lord, Lord Lyell of Markyate, on this point. As the other noble Lords have said, the Clementi report recommended a light touch, which is not reflected in the powers of the board contained in the Bill. There is a low threshold for intervention by the board, particularly in Clause 31(1)(a), which entitles the board to intervene if, "““an act or omission … has had, or is likely to have, an adverse impact on one or more of the regulatory objectives””." The regulatory objectives are, of course, expressed very broadly. There is a lack of guidance on when it would be appropriate to intervene in the work of approved regulators. This is rightly a cause of concern both for the Bar Council and for the Bar-approved regulator, the Bar Standards Board (BSB). The approved regulator may have to exercise discretion in balancing the objectives and to decide that one objective takes precedence over another, in which case there is likely to be an adverse effect on one of the objectives. Consumer protection or the rule of law may, for example, need to take precedence over competition. Under the Bill, that would entitle the board to intervene unnecessarily and in a way that is over-regulatory and might penalise a regulator who had exercised legitimate discretion in a balancing exercise. I urge the Government to amend Clause 31(1)(a) to include the word ““substantial”” so that it refers to a ““substantial adverse impact””. My last point relates to the relationship between the proposed Office for Legal Complaints (OLC) and the Bar Standards Board, which, as noble Lords have already heard, is the regulator of the Bar and has a lay chairman. I strongly support what my noble friends Lord Neill and Lord Borrie said about this. My concern arises from a one-size-fits-all scheme for dealing with legal complaints separately from issues of discipline. Clause 154(1) specifically states: "““The regulatory arrangements of an approved regulator must not include any provision relating to redress””." This prohibits complaints and discipline issues being heard and decided by the same tribunal. Under the scheme, the Bar Standards Board, for instance, will have the responsibility of dealing with issues of discipline arising from the behaviour of a barrister, whereas there is an entirely separate complaints procedure through the OLC, which can provide redress but may not take any disciplinary action against the respondent to the claim. In some cases, complaints may have nothing whatever to do with discipline, but life is seldom kept in neat compartments. In many cases—one noble Lord has said that the figure is about 70 per cent—the complaint by a dissatisfied litigant against a barrister includes an issue of discipline. Under the scheme, the discipline part of the complaint will go to the Bar Standards Board. On the same facts, the BSB will adjudicate on the part of the complaint that relates to discipline, and the OLC will adjudicate on the part that does not affect discipline. What happens if one body accepts the complaint and the other does not? It is rather like two referees, one of whom gives the player a red card while the other says that the player was not to blame. I think I am right in saying that, in Adelaide, Strauss was out according to the umpire but the television image showed that he was not out. In that case, the umpire was in control, and Strauss was out, but if there are inconsistent results in which one board accepts a complaint and the other does not, what are the complainant or the public to think? I am not talking of a matter which was sufficient to warrant redress as a complaint but not sufficient for it to be a disciplinary matter. I have in mind a much more basic point: that the facts of an incident involving the complainant and the barrister—I repeat, the facts—are accepted by one board and rejected by another. Apart from anything else, there will be unnecessary duplication and considerable extra expense, but access to the ombudsman would not address this problem. I urge the Government to look again at the interrelationship between the Bar Standards Board and the OLC. In my view, a power is required in the OLC to delegate in suitable cases a dual complaint to the BSB. There should be an amendment to that effect and Clause 154(1) should be deleted.