Clause 36
Legal Services Bill [Lords]
5:15 pm

Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)

I beg to move amendment No. 247, in clause 36, page 18, line 15, at end add—

‘(4A) As soon as practicable after deciding to publish a statement, the Board must give notice to the approved regulator stating that it has reached that decision and setting out the terms in which the statement is to be published; and the Board must not publish the statement until after the expiry of 7 days beginning with the day on which notice is given under this subsection.’.

Nicholas Winterton (Macclesfield, Conservative)

With this it will be convenient to discuss the following:

Clause stand part.

New clause 13—Appeal against public censure

‘(1) An approved regulator in respect of whom the Board decides to publish a statement under section 35 may appeal to the court on one or more of the appeal grounds.

(2) The appeal grounds are —

(a) that the decision was not within the power of the Board under section 35;

(b) that any of the requirements of section 36 have not been complied with in relation to the imposition of the penalty and the interests of the approved regulator have been substantially prejudiced by the non-compliance;

(c) that in all circumstances, the publication of a statement under section 35 is, or the terms of the statement published or to be published are (or would be), manifestly unreasonable or inappropriate;

(d) that the decision is unlawful on any ground that would give rise to a claim for judicial review.

(e) that the decsion is unlawful on any ground that would give rise to a claim for judicial review.

(3) An appeal under subsection (1) must be made within the period of 42 days beginning with the day on which the notice was given to the approved regulator.

(4) Where an appeal is made before the expiry of the 7-day period the Board must not (unless the court otherwise orders) publish the statement until the appeal has been withdrawn or dismissed.

(5) On an appeal under subsection (1), where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the appeal grounds, the court may—

(a) quash the decision to publish a statement, or

(b) vary the terms of the statement (and, where the statement has been published, direct the Board to publish to the same extent the statement as varied).

(6) In this section “the court” means the High Court.’.

Amendment No. 248, in clause 39, page 20, line 3, at end insert—

‘(da) that the imposition of the penalty on any ground that would give rise to a claim for judicial review.’.

Amendment No. 249, in clause 39, page 20, line 27, leave out subsection (7).

Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)

I have papers that could allow me to prolong the debate for as much as an hour and a half, but the Labour Whip keeps making rude faces at me, so I shall do my level best to curtail the debate; I shall try to be succinct and to get the point across cogently yet effectively.

Amendment No. 247 makes it clear that the board should give notice to the approved regulator, saying that it has reached a decision and setting out how the statement should be published. Again, that is perhaps stating the obvious, but the amendment would also allow the approved regulator time to consider its response. In the interests of fairness, the amendment says that the Legal Services Board should not

“publish the statement until after the expiry of 7 days”.

That is what amendment No. 247 says and I very much hope that the Minister will see the logic and good sense of the amendment.

New clause 13 would give the right of appeal against public censure; very simply, the new clause makes it quite clear that there should be that right of appeal. It is plain to the Opposition that the Government intended that there should be measures in the Bill to provide for such an appeal. On the other hand, we have examined the Bill carefully and we have not seen that it offers that necessary level of protection to the public, or to anyone who might be censured, including any approved regulator. Therefore, having this new clause makes a great deal of sense.

I shall briefly address amendments Nos. 248 and 249. Very simply, amendment No. 248 inserts onpage 20, line 3:

“that the imposition of the penalty”

is unlawful

“on any ground that would give rise to a claim for judicial review.’.

Amendment No. 249 is consequential on that amendment. It would take out clause 39(7), which is basically an ouster clause. Subsection (7) says:

“Except as provided by this section, the validity of a penalty is not to be questioned by any legal proceedings whatever.”

To my mind, that is a straightforward ouster clause. There is a strong argument for judicial review. I will not repeat all the arguments that were made in the other place, but it seems to me that the amendment makes sense, is logical and is very much in line with what the Government are trying to do, which is to ensure that there is fair treatment for all concerned. I do not see how one could have that fair treatment unless we accept this amendment, which would allow the claim for judicial review.

Therefore I hope that the Minister will look carefully at what we have proposed. I have gone through these amendments as succinctly and as quickly as I can. On that basis, I beg to move the amendments.

Nicholas Winterton (Macclesfield, Conservative)

May I say to the hon. Member for North-West Norfolk that he need not be intimidatedby the Government Whip, the hon. Member for Worcester? However, if he is determined to remain very much in order and succinct, I know that members of the Committee will be very grateful indeed.

Simon Hughes (Party President, Cross-Portfolio and Non-Portfolio Responsibilities; North Southwark and Bermondsey, Liberal Democrat)

I would first like to welcome you, Sir Nicholas, to the Chair; it is very good to serve under your chairmanship again.

I shall be extremely brief, to say that this amendment, those selected with it and the new clause appear to have much to commend them. They appear  to clarify matters and to make everything much more transparent, and therefore they would add to the justice of the procedures. We are minded to support these measures. I will obviously wait to hear what the Minister says in reply, but I hope that she will be sympathetic to them.

Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)

All these amendments seek to create additional provisions for enabling decisions to be challenged. I would argue that they are all unnecessary, because the Bill already achieves essentially the same outcome and these amendments would just create duplication and add to bureaucracy.

New clause 13 and amendment No. 247 would insert a new right of appeal from decisions on public censure and therefore they duplicate the judicial review grounds that already exist. Amendments Nos. 248 and 249 would allow challenges to be brought in judicial reviews for decisions to impose financial penalties. Again, that duplicates the grounds that already exist as part of the appeal process.

I am minded to consider amendment No. 247, which states that seven days’ notice must be given. I may want to look at that further. I should say though that I am not convinced that it is entirely necessary. Clause 36 already provides that the board publishes a statement, and it must allow a period of 28 days or more to allow the regulator to make representations. I understand the idea of the seven days, but I think that it is probably covered already. However, I will look at the matter again.

I will speak briefly about financial penalties and the circumstances in which they are involved. There is a qualitative difference in financial penalties. We need to guarantee the applicant’s right to challenge not only the imposition of that penalty, but also the amount of it. That is not to say that it would not be possible to challenge the amount of the penalty, or the timescale for payment, via judicial review, but it is not necessarily automatic. It is more likely that the amount would have to be manifestly unreasonable.

It is for those reasons, therefore, that I feel thereis a lot of duplication in the amendments. The amendments are not necessary because we have covered in an appropriate fashion the way in which approved regulators can challenge decisions of the board. The hon. Member for Bassetlaw would say that nobody knows how to go to judicial review better than the lawyers. I am quite confident that the proposed system will establish a fairness without further duplication.

Henry Bellingham (Shadow Minister, Constitutional Affairs; North West Norfolk, Conservative)

I am grateful to the Minister for that explanation. I take on board her last point. It was more of a probing amendment on judicial review. I was encouraged by what she said on the matter of the seven days. On reflection, she may agree more with what I was saying. The seven days gives the organisation that is being censured time to respond. That is important in the interests of fairness all round. Perhaps the Minister could come back to me on that on Report. I am grateful to her for her remarks. On that basis, I beg leave to withdraw the amendments.