Clause 56
Legal Services Bill [Lords]
6:45 pm

John Mann (PPS (Rt Hon Richard Caborn, Minister of State), Department for Culture, Media & Sport; Bassetlaw, Labour)

I beg to move amendment No. 281, in clause 56, page 31, line 31, at end add—

‘(4) Without prejudice to subsection (2) the Board may, in exceptional circumstances and as a temporary measure, issue an order requiring the approved regulator to comply with the notice or with such directions as would have been contained in the order had a successful application been made.’.

This is a small amendment to assist the Minister in her objectives, and an important one for her to consider. Such circumstances do arise. If we rolled back the clock five or six years and introduced the Bill at a more timely point at the start of the new millennium, the power may well have been of use.

The explanatory statement points out that the amendment

“provides for occasions on which the Board’s power of enforcement proves inadequate, including when it is clear that the failure by an approved regulator to comply with a notice of direction will result in continued adverse impacts on consumers.”

Situations do occur in which action is required and it is being argued whether such action should be taken. Allowing the ability to challenge and re-challenge any direction given might allow those who have done  wrong the opportunity to lose files, or delay cases until people who are severely ill become more ill or indeed die.

Such cases might occur, as with industrial diseases. We have seen changes in the law on mesothelioma, an industrial disease. That is perhaps the best example, as it has a remarkably short life expectancy. All that the amendment seeks to do is to give the ability in such exceptional situations to ensure that things move on while they are being debated and finalised, so that justice does not disappear due either to the complainant’s health or to the vanishing of key files while things drag on in the High Court.

John Hemming (Birmingham, Yardley, Liberal Democrat)

This is not an amendment that the Liberal Democrats can support. It shows a certain amount of confusion about how to enforce the legislation. I do not think that the hon. Gentleman was necessarily talking about the idea that it might become a criminal offence to disobey the legal services, but the difficulty then becomes how to enforce the proposed measures. One would have to apply to the High Court for an order. Failure to comply with that order would be contempt of court and enforced accordingly, so if the Committee passed the amendment, we would not be getting anywhere, as it will be possible in practice to go to the High Court quickly if that is required. The files to which the hon. Gentleman referred would probably be held by an individual firm, not a regulator.

I agree that there have been situations in which self-regulation has failed, and that there needs to be pressure on regulators such as the General Medical Council to do their job properly. Judicial review has been used to enforce that on the GMC—a court order is obtained, and the GMC obeys—but that is not the sort of thing that happens within the time scales that the hon. Gentleman is thinking of. To that extent, the amendment is misguided.

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

I understand entirely why my hon. Friend has tabled the amendment. It is to ensure that the board is able to regulate effectively. However, I agree with the hon. Member for Birmingham, Yardley. The amendment is disproportionate and, more importantly, not compliant with the European convention on human rights. I obviously cannot accept an amendment that is not ECHR compliant. On that basis alone, I will have to ask my hon. Friend to withdraw his amendment. It is right that the magnitude of power that he seeks here is the subject of judicial scrutiny. It would be entirely inappropriate to leave the exercise of a High Court power to the discretion of the board. The power here pre-empts the courts in a way that would allow that.

On that basis, I am afraid that I cannot accept my hon. Friend’s amendment. Also, I would suggest to him gently that the term “exceptional circumstances” is not clear enough for statute. It leaves too much open to interpretation. I do not think that it is clear enough to guarantee that the rights of the approved regulator would be protected, either under articles 6 or 8 of the European convention. On that basis, I would ask my hon. Friend to withdraw his amendments.

John Mann (PPS (Rt Hon Richard Caborn, Minister of State), Department for Culture, Media & Sport; Bassetlaw, Labour)

I hear what the Minister says andfeel the level of incredulity from the Liberal Democrats—or Whigs, as they are known these days. I must have missed something. Some of my constituents have been waiting 18 months—and nearly two years in one case—for the Solicitors Disciplinary Tribunal to meet to consider their cases. Clearly, the regulator, if instructed to get on with that, would be unable to comply. There are some wider issues involved. Perhaps the Minister might write to the Committee about when the Solicitors Disciplinary Tribunal will meet and where the power then lies. That is precisely what my constituents and others who are waiting in the Rayleys case want to know. One of my constituents, Mrs Beckett, is sadly no longer with us and it is 18 months since I attended her funeral. She is one of those who did not see justice. Others, who are extremely unwell, are still waiting to have their say in court. Therefore, this is not a minor issue.

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

Again, I am very sympathetic tothe problem that the hon. Gentleman describes. We understand the issue; the question is whether it is the right amendment. Has the hon. Gentleman taken advice from people whom he can trust to do a good job to find out whether there is any scope in serving a court order, such as the order of mandamus, on the disciplinary tribunal to speed things up? Long delays in investigations is a regular problem.

John Mann (PPS (Rt Hon Richard Caborn, Minister of State), Department for Culture, Media & Sport; Bassetlaw, Labour)

The fact that all sorts of tactics have been applied unsuccessfully shows that justice will not be done or be seen to be done for my constituents.

Kevan Jones (North Durham, Labour)

Does my hon. Friend agree that the comments made by the hon. Member for North Southwark and Bermondsey demonstrate just what Committee members have not grasped. People such as my hon. Friend’s constituents have not got either the legal know-how or the resources to go through this very expensive legal system.

John Mann (PPS (Rt Hon Richard Caborn, Minister of State), Department for Culture, Media & Sport; Bassetlaw, Labour)

As my hon. Friend well knows, a disproportionate number of people give up because they feel intimidated by the process. As I am not a lawyer, I will bow to the Minister’s advice that the amendment might not do exactly what I intend. However, I will leave her to consider the following question along with the subject of the Rayleys cases and the Solicitors Disciplinary Tribunal: how will the Bill create justice for that group of individuals? With that, I beg to ask leave to withdraw the amendment.

Nicholas Winterton (Macclesfield, Conservative)

It appears to me that we could dispose of the business up to clause 62 as there are no amendments. Would the Committee be happy if at that stage I suspended the Committee for an hour? I feel a need for some refreshment and I am sure that the Committee has a similar feeling after more than three hours of debate.

Nicholas Winterton (Macclesfield, Conservative)

I congratulate members of the Committee on getting back by zero hour. I just managed it. I took the stairs, and my heart is showing the result of that endeavour.