Legal Services Bill [HL]

My Lords, I appreciate that the noble Lord, Lord Kingsland, has brought this issue back again. I have already indicated that we have talked to the smaller regulators, because I understand their concerns. I said as well that I would look at what else we might be able to do on this issue to give them clarity and comfort about the situation. I said during the debate in Committee that the board must be satisfied that the apportionment of the levy would be in accordance with fair principles before making the rules, and I still firmly believe that that, rather than a list in the Bill of what would inevitably be a prescriptive list of factors, is the appropriate provision. Noble Lords will know that I have a general aversion to lists as they can never be exhaustive, and often they could preclude a factor that we do not think of at the time but could subsequently become important—perhaps more important than other factors. I do not wish to do that because it is important to enable the philosophy of proportionality to be interpreted with the factors at the time, depending on the circumstances. I recognise that the list sets out what the board should consider inter alia, so other matters should be considered too, but any list puts pressure on the board to consider those matters before anything else for fear of being reviewed, and that would restrict the flexibility of the board, something the Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys have said they do not want. They do not want a one-size-fits-all approach. I agree, and we would argue that flexibility is exactly what is needed to prevent that. Reducing that flexibility through a predetermined list could ultimately be to their detriment, and none of wish to see that happen. I do not want to set out the principles. Inour thinking we have followed the approach inSection 2(3) of the Legislative and Regulatory ReformAct, which establishes that regulatory activities should be carried out in a way that is transparent, accountable, proportionate and consistent, and that regulatory activities should be targeted only at cases in which action is needed. We believe that the terminology set out in the Bill in respect of proportionality and fair principles has a natural meaning that is widely accepted and widely understood, but it gives the flexibility to provide for the smaller regulatory bodies, which I know are concerned about this. I hope, as we continue to discuss this with them—we will certainly do so—that they will feel increasingly reassured that there is no question that one-size-fits-all would be highly inappropriate in the context of ensuring the smaller regulatory bodies are well catered for. We are all in agreement on what we are seeking to do; our contention is that we have achieved it within the Bill. On Amendment No. 433, we would generally expect money owed in respect of the levy to be paid from practising fee income, and Clause 50(4)(b) provides that it can be. I do not want to set out in the Bill that that is the only source of funds that could be used to meet a debt to the board, simply because we do not want to restrict the flexibility of the regulators to meet debt in the way best suited to their own financial arrangements. To do so could force an approved regulator to divert practising fee income away from essential regulatory functions in order to pay the board, when it might judge that it was less damaging to use some other asset or source of income. It is unusual for legislation to restrict the way in which money owed may be recovered and to fetter the court’s ability to enforce payment of debts. We consider that the standard procedures that apply to the recovery of debt should apply in this case. It is a question of allowing flexibility for the regulatory bodies for circumstances we cannot foresee, where it might be in their best interests to provide for that money in other ways than simply using the practising fee. I hope that on that basis the noble Lord will feel he has some shreds of comfort, and will withdraw the amendment.