Legal Services Bill [HL]

My Lords, if the noble Lord will let me continue, I will deal with that point. As I was saying, the OLC can also be required to appear before a parliamentary Select Committee to give evidence on the operation of the scheme. Ultimately, the decision of both bodies which set out the rules is judicially reviewable on the usual grounds. So my first proposition is that the constraints ensuring that the system of case fees operates fairly are in place. We come to the proposition, which I have seen in briefing material for today’s debate, that Clause 133 is manifestly unfair. I could not disagree more. Nowhere does Clause 133 say that a flat fee will apply for every complaint the OLC receives. Nowhere does it say that every lawyer will have to pay the same rate of charge. Nowhere does it say that the lawyers will pay the charge even if the complainant is vexatious or frivolous. It says that the scheme rules will set out how charges against lawyers are to operate. I have been through this in great detail because I was much taken with our debate in Committee. The implication of many speeches in your Lordships’ House has been that we were setting out a system under whichevery lawyer has to pay regardless. Nowhere does Clause 133 say that. It says that the scheme rules will have to set this out. As to whether it is human-rights compliant, I am the human rights Minister: it is my job to ensure, certainly within my own department, that it is compliant. It is. The critical point is that the clause does not say what has been implied, and there is therefore an unfounded concern in your Lordships’ House. It is possible that the OLC, having considered representations made—and having read the deliberations of your Lordships’ House—will decide that it would be unfair to charge a fee for complaints that are not upheld. There are other circumstances—as noble Lords have indicated at Second Reading and in Committee, and repeated today—where it might also be deemed unfair to charge a fee. My argument is simple: the Office for Legal Complaints should take a view on the circumstances in which fees should and should not apply, based on appropriate oversight and the consultation required under the clauses I have indicated. We cannot argue that the rules are unfair, because they have not been made. Nothing in the Bill suggests that there must be a blanket charge for any lawyer, whether or not they have fulfilled their obligations under an in-house complaints system, or have been taken to the Office for Legal Complaints in a vexatious way. Quite the opposite: the Office for Legal Complaints must draw up rules and, in doing so, consult the professions and the Legal Services Board, and consult and deal with the noble and learned Lord the Lord Chancellor. There are currently no rules, and it is important that we let the Office for Legal Complaints design the rules within the process and constraints I have identified. On the case-handling fee being disproportionately high, nowhere in Parts 6 or 7 does the Bill say what the split will be between the levy and charges. Nowhere does it give any indication of how that will be calculated. Parts 6 and 7 say that the Legal Services Board and the Office for Legal Complaints should decide what the split should be between the levy and the charges under Clause 133. In the absence of their having made that decision, we cannot speculate on what the case handling fee would be. The truth is that until they have decided we will not know what the split will be. Until the OLC has had its rules approved we will not know what the case handling fee is. In conclusion, I am arguing for flexibility; let the Office for Legal Complaints make the decisions within its constraints. It will take into account not only your Lordships’ words, but also its consultation with the professions. On that basis and with my assurances, noble Lords will see that there is nothing in Clause 133 that says that any lawyer has to pay regardless. It says that there should be rules that set out the circumstances in which lawyers should pay or not pay.