‘either while the ombudsman is considering the complaint or’.
The clause states at its end:
“Neither the complainant nor the respondent, in relation to a complaint, may institute or continue legal proceedings in respect of a matter which was the subject of a complaint, after the time when a determination by an ombudsman of the complaint becomes binding and final in accordance with this section.”
In other words, you cannot take legal action once you have been to the ombudsman and the ombudsman has decided. The amendment would prevent people from taking legal action while the ombudsman was considering a complaint as well as when it had finished doing so. I hope that the reason for that is obvious: it seems ridiculous to allow a legal process when at no separate court expense or report obligations the ombudsman is considering the matter. Let us keep to one process. The amendment would be a bar on two processes taking place at the same time. I hope that that is sensible and that the Minister will accept it.
When I first looked at the amendment I wondered why a lawyer would bother to sue their client if they did not think that they would be successful. It would be a much more expensive process to pursue hopeless legal proceedings than to endure the ombudsman’s determination. I wondered whether it was therefore a situation that would never arise.
Whether it does or not, I cannot accept the amendment because it would have undesirable, although I am sure unintended, consequences. The reason for the provision in clause 140(11) is to achieve finality of determinations under the ombudsman scheme. An additional provision such as the amendment proposes would go considerably further and raise questions about the Bill’s compliance with the Human Rights Act 1998.
The amendment could prevent a lawyer from taking legal action or require them to put on hold ongoing legal proceedings in the interests of a process that might not produce a binding determination, as the complainant might not accept the outcome. That barring of access to a determination of civil rights and obligations does not seem appropriate to the end that is sought in the amendments, particularly given the unlikeliness of a lawyer pursuing unfounded claims through the courts, with all the attendant costs, simply to avoid an ombudsman’s determination.
If a client was to refuse to pay legal fees, then it is clearly only right that the lawyer is able to recover those through the courts. If they could be stopped simply by the client making complaint to the OLC, that could undermine the court process and prevent the lawyer from seeking just restitution, which is obviously not a tenable position in which to put someone. The OLC could end up getting unnecessary complaints from those simply wishing to slow down or stop legal proceedings, which would clearly be a waste of the ombudsman’s time. We do not want to go down that road.
Let me explain how the Bill works with an unscrupulous lawyer trying to avoid or delay the complaints scheme by initiating legal proceedings, which is the other side of the same coin. Whether legal proceedings were begun before or after the complaint was made to the ombudsman scheme, the ombudsman would still be able to deal with the complaint. Whether it would be appropriate to do so in a particular case would be at the ombudsman’s discretion. However, rest assured that I consider it of vital importance for unscrupulous lawyers not to think that they can avoid a complaint by starting legal proceedings. They must realise that the ombudsman scheme is able to deal with all complaints.
The Bill, as drafted, gives suitable and sufficient protection. It already prevents the respondent from initiating or continuing legal proceedings once the determination has been accepted by the complainant. The intention here is to ensure that the determination is treated as a resolution of the matter in dispute, which I hope will provide respondents and complainants with the all-important certainty without which timely resolution of complaints and the informality of the system would be lost. On that basis, I hope that the hon. Gentleman will withdraw his amendment
The very mention that there might be a risk of the amendment not complying with the European convention on human rights is enough to frighten anyone into submission. As somebody who promotes the convention and all its works and has worked for the Council of Europe supporting it, I would not want to embarrass myself or anyone else. The Minister made what may be a good point about compliance, which our advisers and I had not thought about. Clearly we would not do something that was not compliant. For that reason, we ought to go away and look again. If there is a way of making progress without the problems set out by the Minister, then fine, but, if not, we may have to think of other solutions, by other means. I beg to ask leave to withdraw the amendment.