Legal Services Bill [HL]

moved Amendment No. 134C: 134C: Clause 137 , page 71, line 40, at end insert— ““(10A) Where a determination has become final and binding in accordance with this section, the respondent may appeal to the High Court against the determination or any direction made under section 134(2).”” The noble Lord said: In moving Amendment No. 134C I shall speak also to Amendments Nos. 135A and 135B. These amendments provide for a right of appeal against a determination of a complaint under the ombudsman scheme in order to ensure compatibility with rights under Article 6.1 of the European Convention on Human Rights. They should also have the effect of promoting a higher standard of decision-making. Under Clause 137, a determination becomes final and binding on acceptance by the complainant. These amendments, by contrast, propose that either side would then have a right of appeal. Amendment No. 134C would give the respondent a right of appeal against the determination, the award of particular redress, or both. Conversely, the complainant would obtain from Amendment No. 135A a right of appeal against the determination, the refusal to award particular redress, or both. The appeal would generally be a review of the original decision, not a complete rehearing. Part 52 of the Civil Procedure Rules would enable the court to allow the appeal if the original decision was wrong or disclosed a serious procedural irregularity. Mere disagreement is not enough. It is doubtful whether the ombudsman scheme, as envisaged by the Bill, complies with the right to a fair hearing under Article 6.1 of the European convention. The determination by the ombudsman would engage civil rights and obligations, especially as the available forms of redress include financial compensation; but the process will fall well short of the procedural guarantees of Article 6.1. Generally speaking, it is true that the availability of judicial review to correct legal errors by a decision-maker may be enough to make the system as a whole compliant with Article 6, but subsection (11) leaves it uncertain whether judicial review will be available. Moreover, it is unlikely that judicial review would be enough to achieve Article 6 compliance because the Government’s intention, as we understand it, is that the ombudsman’s conclusions should also be binding in subsequent disciplinary proceedings against the practitioner where questions of professional reputation and perhaps the very right to practise are at stake. Quite apart from the human rights issue, these amendments will be beneficial in another respect. Rights of appeal create much-needed accountability and should therefore improve the standards of decision-making. Inevitably the OLC will have a very large number of complaints to settle, and it is therefore desirable to ensure that its procedures and reasoning are adequate to withstand independent scrutiny. I beg to move.