Clause 144

Legal Services Bill [Lords] – in a Public Bill Committee at 5:45 pm on 26th June 2007.

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Reporting misconduct

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

I beg to move amendment No. 276, in clause 144, page 76, line 17, leave out ‘may’ and insert ‘must’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments:

No. 277, in clause 144, page 76, line 19, at end insert

‘A copy of the report made to the ombudsman under this section must be sent to the complainant by the ombudsman.’.

No. 298, in clause 144, page 76, line 30, at end add—

‘(6) The ombudsman may, when so requested by a complainant, make a request to the relevant authorising body to review the decision it has made as set out in a report made under subsection (2), and may request the relevant authorising body to notify it of the result of any such review.’.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

It is a pleasure to have you in charge of our proceedings again, Sir. Nicholas. This is about the procedure for a complainant to find out what happens  after making a complaint. If I may start at the beginning of the process, a complainant who is dissatisfied with a service from a provider of legal services will first try to resolve their complaint with the legal server directly. If that fails, as we have just established with the last vote, there is only one place to go: the Office for Legal Complaints. Once there, the office can decide whether it is a complaint about the standard of service, the conduct of the professional who delivered the service, or partly one and partly the other.

To illustrate the points that I am about to make, let us take a situation where the ombudsman and Office for Legal Complaints consider that there is a mixed case of standards and conduct. The ombudsman will say to the complainant, “I think that there is possibly an element of poor standard of service here. I will investigate it and let you have my decision. However, I also think that there is possibly a problem with the conduct of the person who delivered the service to you and I shall refer that to an approved regulator”. The complainant might spot the difference between those two outcomes and say, “Just a minute. You have told me that I will hear about the result of the complaint about the standard of service, but I did not hear you say anything about what I will hear about the conduct”. The ombudsman will say, “That is quite right. Either I will not bother to deal with it and will ask for a report myself about how it is dealt with, or, even if I do take action, I do not have to tell you anything about it”.

As far as consumerism is concerned, that is a very unsatisfactory situation. As a matter of good standards of practice it ought to be the case that the ombudsman says, “I have decided that part of this matter is about standards. I will investigate it and let you have my decision. The other part is possibly about conduct. I am going to get somebody else to investigate that for you and I will let you know the outcome of that investigation too”. I do not think that any other outcome is satisfactory. However, at the moment, the way that clause 144 is drafted means that that is not the case.

First, the ombudsman does not even have to ask the approved regulator to let them know the outcome of an investigation because the Bill states that the ombudsman may request a report back, which means that they need not if they do not wish to. The clause is silent on the ombudsman telling the complainant the result.

Amendment No. 276 changes “may” to “must”, which means that the ombudsman must always ask for a report from the approved regulator. I was pleasantly surprised to receive recently from the legal services ombudsman a special report called, “Legal Services Reform—a perspective”, dated June 2007, in which my argument is echoed on page 26. It reads:

“The OLC rules must require a report from the Approved Regulators on every case that has been referred from the OLC for potential misconduct. The OLC could then use this information to build up a picture of any systemic problems in regulation”.

In addition to my argument that it must be best practice to let a person know the result of their complaint, the ombudsman has here given another very good reason—spotting systemic failure in the system and having that information every time.

My amendment No. 277 would provide that when the ombudsman has insisted on receiving the report, he ought to pass it back to the complainant. That, again, is my argument about best practice. I then push the boat out a little bit with amendment No. 298. What would happen if a result from the approved regulator is that no action be taken, but the complainant, on hearing that from the ombudsman, says, “But that is outrageous! This is the worst case I have ever heard of. How on earth could that be the outcome?”? There is no remedy if that is the attitude of the complainant. There is the possibility, of course, that the Legal Services Board, a long time down the road, might pick up a lot of similar complaints and take some decisive action, but nothing could happen as a result of that one complainant thinking that the outcome was poor. I suggest that the complainant could say to the ombudsman, “Will you please go back to the approved regulator and ask it to reconsider the decision and have a fuller look at it?” There would be a filter because the ombudsman could say, “This is a very unreasonable person. I have been dealing with their complaint for a very long time. I really do not think that there is anything in this”, or they could say, “Well, actually, I was a bit surprised by the outcome and on this occasion I will ask for a report back”. Again, I think that I am supported by the same report from the legal services ombudsman. Page 25 states:

“There is no mechanism for the consumer to ask for a review of any of these decisions, as there is no longer the Legal Services Ombudsman independent review available to them”.

A little later on the same page it states:

“The proposed new OLC process will therefore represent to the consumer the loss of the independent Legal Services Ombudsman review as against the current scheme.”

In other words, if we legislate as the Bill is currently drafted, we will introduce a system that is actually worse for the consumer in that specific situation than the current system. I do not think that that is what the Minister intends or what the consumer groups outside this Room are expecting to hear and find at the end of our deliberations. If she does not like my proposal in the amendment, she ought to consider another way of ensuring that the ombudsman system is replaced by something at least equally as robust.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

We support amendments Nos. 276, 277 and 298. I congratulate the hon. Member for Stafford on the way in which he proposed them. In fact, I gather that they have the full support of Which? and the NCC. I congratulate Which? and the NCC on the excellent briefing that they gave the Committee and on the practical stance that they have taken. Obviously, the Opposition have been unable to support every one of their requests, but certainly we support the amendments. I had a lot to say on them, but he has made the case strongly already. All that I would like to do is endorse what he said and point out that it has the support of everyone in the Official Opposition.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The hon. Member for Stafford made an excellent point: for the measure to work properly, it must be driven by the consumer. Obviously, if the consumer does not know what is going on, they cannot drive anything and, therefore, we support wholeheartedly the three amendments.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I was at first going to be very resistant to the amendments, but my hon. Friend has made a couple of very important points about the consumer knowing the end results and about how, having made the complaint, it is important in good practice for them to know the end result. I would therefore like to look at them again. I was initially resistant because my main concern is that the system should not be overly bureaucratic and costly. On that basis, I ask my hon. Friend not to press amendments Nos. 276 and 277.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs 6:00 pm, 26th June 2007

Given that I have the advantage of everyone supporting me on this, I am obviously concerned that we should keep progress going forward. On the possible objection regarding costs, does my hon. Friend agree that if it is ingrained in the practices of everyone concerned, and they are already under duties to exchange information with each other, it need not be an additional cost?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

My hon. Friend makes a very good point. As everyone on the Committee knows, the parliamentary ombudsman always writes back to the relevant Member of Parliament and complainant when a complaint is made. I am sure that there is an efficient way in which these matters can be dealt with that is not too costly.

I cannot accept Amendment No. 298, however. It is not the OLC’s role to ask an approved regulator to review disciplinary decisions. We have to make sure that the Bill sets out a clear distinction between redress, which is for the OLC to consider, and discipline, which is a matter for approved regulators. I accept that the Bill does not allow the board or complainants to challenge a regulator’s decision in an individual disciplinary case, but it does allow the OLC to build up a picture of how well regulators are dealing with disciplinary matters so that they can report any concerns to the board. I do not want to accept the amendment because it could blur some of those issues. Allowing the board to build up a picture of how well the disciplinary arrangements of each regulator is working is an acceptable way forward and the Bill provides the necessary safeguards to ensure that discipline is dealt with properly. I therefore ask my hon. Friend not to press the amendment for reasons quite different to those for the previous two.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

As it is very much scratch drafting in amendment No. 298, I shall not want to press it to a vote until the wording has been improved. However, on the principle that there should be some ability to query why no action has been taken in a conduct case, for example, I should like the Minister to consider that we are losing the ombudsman’s role and that nothing is replacing it.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I should have said in my closing remarks that although I can see that the legal services ombudsman makes a very good job application on page 25 of the special report, I believe that what we are putting in place is far more robust and far stronger, more independent and better for the consumer than the current system. That is the very reason why we are making the changes.

Photo of David Kidney David Kidney PPS (Rt Hon David Miliband, Secretary of State), Department for Environment, Food and Rural Affairs

I am grateful to my hon. Friend for giving me that opinion. Perhaps I can pursue her between now and Report to examine it and satisfy myself that it is the case.

I am willing to withdraw amendment No. 276, because the Minister seems to have fully accepted the principle of what I have said, and there is more than one way to achieve the result that I want to achieve, so I await with relish the Minister’s amendment on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 144 ordered to stand part of the Bill.

Clauses 145 to 149 ordered to stand part of the Bill.