Legal Services Bill [HL]

I am grateful to the noble Lord, Lord Kingsland, for raising this issue. There is nothing difficult with the proposition; it is simply a question of whether we set it out in the Bill. Within the ombudsman scheme, we have tried to make sure that the Bill operates in a way that gives us the flexibility that we need. That means that much of the detail about how a determination is made should be left, as we have indicated, to the scheme rules rather than being provided for in the Bill. Rules made by the OLC are subject to the consent of the LSB before they can take effect—that is in Clause 152. We believe that we have safeguards in place to ensure that schemes work and, importantly, operate fairly. So our preference is to leave the matter to be dealt with in rules rather than tying the ombudsman to a list of factors that are either not long enough or too long. The noble Lord, Lord Kingsland, rightly said that the suggested wording is similar to that used in the Legal Profession and Legal Aid (Scotland) Act 2007. But of course there may be factors that the OLC might wish to add or take away from those proposed by the noble Lord. It is probably worth bearing in mind the differences between the ombudsman scheme envisaged by the Bill and the Legal Services Complaints Commission under the Scottish legislation. For example, Ministers do not appoint the ombudsmen who will deal with day-to-day complaints handling, and there is a clear distinction between the OLC and the ombudsmen. We think that it is better to get the OLC and the LSB to decide what factors an ombudsman should take into account when deciding what is fair and reasonable. This is the model of the Financial Services and Markets Act 2000, as the noble Lord, Lord Neill of Bladen, said, which set up the Financial Ombudsman Service. Section 228 of that Act provides for the ombudsman’s determination to be made according to what the ombudsman considers, "““fair and reasonable in all the circumstances””," but it leaves any further guidance to the rules, which is what we have sought to do here. The rules provide for the ombudsman to have regard to a list of matters rather similar to those in the noble Lord’s amendment. The model has worked well for the Financial Ombudsman Service and I believe that it will work well for the ombudsman service that we are providing for here. I am convinced that we should not entrench them in the Bill but follow the suggested model in order to achieve in a slightly different way what the noble Lord wants.