Legal Services Bill [HL]

My Lords, I am grateful for this further discussion. I have met with the smaller regulators, and we had what I thought was a useful and helpful discussion—not least, perhaps, in exploding a few myths which they held about this legislation. The critical aspect of proportionality is inClause 3(3), which says that the board, "““must have regard to … the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed””." Proportionality is a critical theme of this legislation. It is essential to ensure that proportionality is a key factor in everything that the board does. We have made it perfectly clear to the smaller regulators, trademark attorneys, patent attorneys and so on that this is essential. We would absolutely expect the board to behave appropriately and take into account the size of the body, the nature of its work and so on. That factor is captured within Clause 3(3). The difficulty with trying to define proportionality is that you come upon that magic word ““list””. Noble Lords will know that I have a particular aversion to lists, which I acquired early in my ministerial life. The minute you put a list down, you lose out because you forget to put something in, or you define or constrain issues far too closely for the purposes of legislation. So I do not want to try to define ““proportionality””. I spoke to legal advisers, parliamentary counsel and so on. It is clear that behaving in a proportionate manner is very well defined. It can be challenged in law. It is very clear what people are expected to do. It is essential for sworn regulators to feel confident about that. It is absolutely appropriate that if the Legal Services Board wishes, it can issue guidance. Having read our debates—I am sure that those involved will do so—and having heard from Ministers and officials about the issues of concern, it will be very keen to make sure that it is demonstrating it is behaving in a proportionate way. The Government can issue guidance but they do not in any way prevent the board from ignoring it. I would rather the board looked at this issue in the context of Clause 3 and said: ““We have to be proportionate. What does that mean? How does that affect the decision?””. Noble Lords will know that although it is a very obvious concept, it is different depending on the decision made, the circumstances and what was happening at the particular time. But it is challengeable, and that is the critical and important part of it. Therefore, I resist the amendment because I think that we have the provision within the legislation. The body can indeed issue policy statements on it if it so wishes. I cannot define that for it. It would be wrong to try to do so because I am sure that any definition, however good it is, will fail to address the circumstances that may arise for the Legal Services Board. On that basis, I resist the amendment, but not because I disagree with the spirit behind it.