Clause 10
Legal Services Bill [Lords]
9:30 am
Jonathan Djanogly (Shadow Solicitor General (Also Shadow Minister for Trade and Industry), Law Officers (Assist the Home Affairs Team); Huntingdon, Conservative)
Clause 10 deals with the proposal that the board should be able to make representations to the consumer panel. My decision not to move new clauses 1, 4, 5 and 6 was tied to our proposal in new clause 3, which will hopefully be clearer now than if we had gone through all the other new clauses as well.
The new clause would cause section 10 to apply mutatis mutandis, or with required changes, to
“representations by approved regulators whether in their regulatory or representive capacity.”
I note that we have received a strong representation relating to the clause from the patent and trade mark institutes. Apparently, they met the Minister on 21 May at her request to discuss the changes made in the Lords and to bring any concerns before Committee. They discussed with her their disappointment at Baroness Ashton’s refusal, as they see it, to honour a commitment to accept this amendment in the other place.
On Report in the Lords, Baroness Ashton stated that she accepted the principle but not the wording of the amendment in Committee, and that on discussion with ministerial colleagues, she had been advised that the Bill provided a variety of means for consultation, and that no amendment was therefore necessary. The institutes felt that the Minister had simply reneged on her commitment. Apparently, they ran through the arguments again with her, explaining why they felt that professional representation was so vital. They argued that if the Government accepted the amendment in principle, they should table a Government amendment to make that explicit in the Bill.
My understanding is that the Minister refused their request, saying that the Bill already contained a number of obligations on the board to consult approved regulators. As something of a compromise, she committed to writing to the patent and trade mark institutes with a list of all the instances in the Bill requiring the Legal Services Board to consult approved regulators, in order to demonstrate that significant consultation was already explicit. My understanding, although I have to say that it is a few days old, is that the patent and trade mark institutes have as yet received no correspondence. Does the Minister intend to provide that information, and will she agree to present it to the Committee if she does?
The institutes welcome new clause 3, on professional representations. Lord Kingsland pursued the issue on their behalf at length in the Lords. The institutes have concerns about the lack of a requirement on the board to receive representations from approved regulators. The Minister has argued that all the regulators are free to make representations to the board, and that it would be expected to work in close partnership with them, consulting them and listening to their views.
The institutes believe that their position as regulators of a niche part of the legal services market, and their limited resources and membership, differentiates them from the likes of the Law Society or the Bar Council, which have larger resources. They also have grave concerns that their voice will be lost and their considerations overlooked by the board unless the Bill contains a direction or other positive statement that the board should have regard to representations made by legal services providers.
We have listened to the Government’s previous arguments against the establishment of a practitioner panel and understand their concerns that such a panel might jeopardise the role of the consumer panel, that it would be bound to be appointed by the board and that it is difficult to understand what provision could be made to ensure that any panel that the board appointed was representative of the regulated sector, rather than comprising people whom the board was happy to consult.
That position is supported by the Law Society and other regulators, so, accordingly, we did not move new clauses 1, 4, 5 and 6. Instead, we proposed a simple addition to the Bill to ensure that the Legal Services Board has a duty to consider any representationsmade by the regulatory or representative bodies of the professions. That approach mirrors the provisions in clause 10.
We were disappointed by Baroness Ashton’s response when the issue was raised on Report and on Third Reading in the other place and by the subsequent feedback that the institutes received in their later discussions with the Minister and her team in the Ministry of Justice. The institutes feel that Baroness Ashton backed out of a commitment that she made in Committee in the other place when she acceptedthe amendment in principle. On the back of that acceptance, she persuaded other peers to drop their later amendments, because the Government had accepted amendment No. 38.
We agree on that point and therefore propose that the Bill should explicitly state that representations to the board by the professions must be considered. The Government appear to have made a U-turn. We urge them to accept the amendment or, at least, to agree to return with another amendment to meet this important point.