European Union (Withdrawal) Bill

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I perhaps ought to clarify that I was responding to a question from the noble Lord, Lord Pannick. I meant the Government in the course of the Bill rather than the Government simply deciding that they wanted to do it.

[Baroness Hayter of Kentish Town]

I thank the noble Lord. I apologise for misunderstanding that point.

I am afraid there was an offline conversation between the noble Lord, Lord Kirkhope, and myself. I do not know whether he referred to that when he spoke but in that conversation he gave a very good description of the aims of the Bill—namely, that after we have examined it and are satisfied that all the stuff is going into UK legislation, everyone should know what the rules are and the Bill should achieve that outcome. That is what this measure is about. It is about whether we leave it to Ministers in the future to decide which bits of retained EU law they can deal with in secondary legislation. As my noble friend Lady Drake said, we need to restrain executive powers as ministerial promises will not suffice. That in a sense is where we are with this issue.

My next point relates to the issue raised by the noble Earl, Lord Listowel—namely, that we as legislators look at something but may forget sometimes to undertake consultation, be it with families or anyone else. That is one of the other great advantages of primary legislation: it is much more out there for people to talk about.

The noble Lord, Lord Pannick, as always trumps everything I do and comes up with much better arguments. However, I too had not noticed the lack of a time limit in Schedule 8. I am sure that we shall want to return to that.

As we have heard a number of times, the Minister said that there has been no parliamentary scrutiny of the current EU law, so anything we get in future will be better. I remind him that much of that law goes through the Council of Ministers, where we have a Minister, and through the European Parliament, where we have British MEPs. Therefore, the idea that there is no democratic involvement from the Brits is not quite right. We are listening to the concerns of consumers, workers and, indeed, business, about the Bill and I think there will be amendments to it to address some of their concerns. However, we are looking now to future-proof it to ensure that we do not give Ministers rights that we may not want them to have. We will come back to that in the broader discussion. However, for the moment, all noble Lords will be very pleased to know that I beg leave to withdraw Amendment 21.

Marriage: Humanist Ceremonies

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Thursday 21st January 2016 Lords Chamber

[Lord Faulks]

The vast majority—well over 90%—were in favour of humanist marriage. Humanists represented by far the greater majority of those who responded to the consultation. Pagans and naturists also responded—the latter, for some reason, were particularly keen on outdoor ceremonies, which might be challenging at this time of year.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it seems to me that the Minister is taking the Law Commission view ahead of Parliament. It was this Parliament that decided that the Secretary of State should have this power. Is it not now time to move on that?

[Lord Faulks]

I respectfully reject what the noble Baroness says. She is quite right that it is a matter for Parliament, and it is also a matter for the Government to consider. The Law Commission has produced a very valuable and thorough report—as I am sure she will agree, having read it—which provides material for the Government to consider. The report was only produced just before Christmas. After considering that report, the Government will then make a decision.

Criminal Justice: Transgender People

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Wednesday 4th November 2015 Lords Chamber

[Lord Faulks]

As I indicated, the Prison Service tends to—correctly, I suggest—allocate prisoners according to their legally recognised gender, but there is a discretion to respond to the individual circumstances of a case, which is often as a result of a thorough risk assessment involving both the prisoner and other prisoners. Often, a multiagency panel will be involved. It is indeed the policy of NOMS to make sure that these matters are dealt with sensitively.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, returning to what the noble Lord, Lord Marks, said, the Minister seemed to suggest that this happens at the point of prison, which really is too late. Surely, when a person is leaving court, they need to be in the right van to go to the right prison. Should the decision not be taken earlier, before they leave court? Can he assure us that the staff there are properly trained and that the decision is taken at the right point?

[Lord Faulks]

The noble Baroness makes an important point and the National Offender Management Service is currently looking at ways to facilitate the proper recording of this information through the introduction of an equalities self-declaration form to be completed by all defendants who are adjourned for the preparation of a pre-sentence report. These details are very difficult to obtain while adopting appropriate sensitivity and recognising the obligations under the Gender Recognition Act.

Ministerial Code

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Tuesday 3rd November 2015 Lords Chamber

[Lord Faulks]

The noble and learned Lord is quite right. He points to the difference between the dualist system, which we have, and the monist system whereby unless law is incorporated in an Act of Parliament, it does not become automatically a part of the law. The question of the amendments to the Bill of Rights, when or if it comes before Parliament, is somewhat separate but he accurately states the necessary constitutional principles.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, if the former AG, journalists, campaigners, senior lawyers, ex-Ministers, ex-civil servants and academics think this change is wrong, is it possible that they are right and that the Government are not? Can the Government explain why they sneaked this change through, along with a change to the code for special advisers, rather than make a proper Statement in the House?

[Lord Faulks]

There is no question of sneaking it through. It has been available since 15 October 2015 and this is the second time in a week that I have answered questions at the Dispatch Box on the Ministerial Code. It has also been the subject of much debate, as the noble Baroness points out, in the newspapers and elsewhere. Those authors she cites are entitled to their view, but it is not a view that I agree with.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Monday 1st December 2014 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the order before the Committee today amends Schedule 1 to the LASPO Act 2012 to maintain the status quo regarding the provision of legal aid for proceedings involving gang injunctions in respect of under-18s and to reflect the expansion of advocacy in special educational needs matters. It also ensures that advocacy is available for new proceedings created by the Anti-social Behaviour, Crime and Policing Act which are in the scope of the civil legal aid scheme generally by virtue of consequential amendments made by that Act to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This order does not alter means or merits and does not bring any new matters within the scope of legal aid.

Before setting out further details about this order and why the Government are taking this action, I will briefly explain some background. Anti-social behaviour orders on application and anti-social behaviour injunctions will be replaced with “Injunctions” under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014. Legal aid for advocacy in respect of applications for anti-social behaviour orders under the Crime and Disorder Act 1998 is provided under the criminal legal aid scheme currently, but the Anti-social Behaviour, Crime and Policing Act 2014 brings all Part 1 injunctions within scope of the civil legal aid scheme. For under-18s, Part 1 injunctions, along with parenting orders made in respect of a youth subject to such an injunction, will be heard in a youth court and the route of appeal from the youth court is to the Crown Court.

Schedule 1 to LASPO sets out the matters on which civil legal aid is available. This is subject to the exclusions at Parts 2 and 3 of the schedule which detail the availability of advocacy. Because of the general exclusion of advocacy except for specified proceedings, it is necessary to add the relevant proceedings to the exceptions in Part 3 of Schedule 1, which will expand the scope of civil legal aid to include advocacy in these proceedings.

Section 18 of the Crime and Courts Act 2013 will amend Part 4 of the Police and Crime Act in relation to gang-related injunctions which concern persons under the age of 18 being heard in the youth court and not in the county court, which is where they are heard currently. As I previously mentioned, the appeal route from the youth court will be to the Crown Court. In order to enable civil legal aid for advocacy in such proceedings to remain available, it is necessary to add them to the list of exceptions for advocacy in the magistrates’ and Crown Courts in Part 3 of Schedule 1 to LASPO to reflect the change in venue for these proceedings.

Part 1 injunctions under the Anti-social Behaviour, crime and Policing Act are intended to address the same kinds of behaviour which are currently dealt with by anti- social behaviour orders and anti-social behaviour injunctions for which legal aid, including advocacy, is currently available. It is therefore reasonable that legal aid for the new injunctions, including related parenting orders, should be made available. That intention is achieved in part by the consequential amendment made to Schedule 1 to LASPO by the Anti-social Behaviour, crime and Policing Act.

However, the amendment made by that Act was partially defective as it failed to take account of an amendment to paragraph 7 of Part 3 of Schedule 1 to LASPO, which had already been made by the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014. It also did not include provision for advocacy in the Crown Court, which is necessary with regard to appeals. The order therefore provides for advocacy in both the magistrates’ court and the Crown Court in relation to injunctions under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 and related parenting orders.

The order also seeks to maintain the availability of civil legal aid for under-18s in respect of advocacy related to injunctions to prevent gang-related violence. This is necessary in order to reflect the change of venue for such injunctions made by the Crime and Courts Act from the county court to the youth court, which is, as the Committee will know, a specialist type of magistrates’ court.

I now turn to advocacy in special educational needs matters. Part 3 of the Children and Families Act 2014 came into force on 1 September. Paragraph 96 of Schedule 3 to that Act makes amendments to paragraph 2 of Part 1 of Schedule 1 to LASPO in order to allow for the funding of civil legal aid services in special educational needs matters. However, as I have previously mentioned, Parts 2 and 3 of Schedule 1 allow for advocacy only in certain circumstances and the amendments made by the Children and Families Act do not allow for the availability of legal aid for advocacy in special educational needs proceedings in the Upper Tribunal.

The Government consider it appropriate that legal aid should be available for advocacy in the new special educational needs matters under the Children and Families Act before the Upper Tribunal. Advocacy is already available for similar proceedings arising under Part 4 of the Education Act 1996 and the Government therefore consider that it should be available for these proceedings. It follows that in order for advocacy for such matters to be in scope, an order under Section 9 of LASPO is required to amend Part 3 of Schedule 1.

With that background, I turn to the reason for the order before us today. The injunction under Part 1 will replace anti-social behaviour injunctions and anti-social behaviour orders. The new injunctions under Part 1 will combine the provisions of both previous orders. The order must be made to ensure that legal aid for advocacy is available for injunctions under Part 1 and related parenting orders.

Proceedings relating to gang injunctions have been moved from the County Court to the youth court due, as I said, to the consequential amendment made by Section 18 of the 2013 Act. Although it is yet to be commenced, in the interests of providing for advocacy in the youth court for such proceedings and in the Crown Court for related appeals, we must make appropriate provision in the order. In special educational needs matters, the Government consider it appropriate that legal aid should be available for advocacy in those proceedings.

In summary, in order to achieve the policy intention that I described, it is necessary to make an order specifying that advocacy for such proceedings is in scope of the civil legal aid scheme set out in LASPO. That is achieved by the order before the Committee today. I hope that noble Lords will welcome the order. It makes relatively minor but none the less important changes to the civil legal aid scheme which complement the wider changes made by the Anti-Social Behaviour, Crime and Policing Act 2014, the Crime and Courts Act 2013 and the Children and Families Act 2014. I therefore commend this draft order to the Committee and I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for moving and explaining the order. It is always rather worrying when one reads in a background note that, as became apparent in the words the Minister used today, an order that had gone through Parliament was defective. It is hard to know whether that was because the original LASPO Act was so badly thought out that it trickled down to the implementing measures, or because the Ministry of Justice had cut its staff to the bone and was asking too much or simply because it was careless. However, whatever the reason, with regard to this part of the order, will the Minister tell the Committee how many cases have had to be delayed as a result of the defective order or, more worryingly, how many have gone ahead without legal aid being available? Perhaps the legal aid should be used to draft rather better SIs in future.

I hope that the order will be passed today and go through the House and be implemented fairly rapidly because, as the Minister anticipated, we welcome its content. It will ensure that certain young people, particularly those with special educational needs or disability, and people involved in parenting orders will be able to be properly represented at magistrates’ and county courts and in the Upper Tribunal, thanks to civil legal aid being available.

I am sure that the Minister will know that we remain deeply concerned about the types of cases and the number of people affected by having to represent themselves in hearings because of the absence of legal aid. Apart from that policy decision by the Government, it is regrettable that under the Government’s LASPO Act nothing qualifies for legal aid unless it is made an exception. It is a very negative way of describing something. As the evidence today shows, it is rather short-sighted because it means that even quite administrative, de minimis or, in the words of the Minister, minor changes to legal aid, such as these, require affirmative statutory instruments. That does not seem the best way of ensuring that human rights are safeguarded in all our courts. The content today is to be welcomed, but some of the procedures and effects are areas for concern.

[Lord Faulks]

I am grateful to the noble Baroness for her comments on this. Clearly, I do not accept all that she says about the LASPO Act, which, in the Government’s view, was a necessary correction to reflect the amount of money that was being spent on legal aid. Some difficult choices had to be made, and of course the noble Baroness will remember that on page 5 of the Labour Party manifesto there was an undertaking to make savings in legal aid.

As the noble Baroness quite rightly said, there was an error in the drafting. These things happen. I do not know precisely who is to blame, but I assure her and the Committee that policy and legal teams within the Ministry of Justice are working together closely to put in place clear procedures to monitor all planned changes to legal aid in primary and secondary legislation to prevent any future possibility of conflicting amendments.

As to the noble Baroness’s question regarding how many cases have been affected by this, I am told that the answer is none. New cases in the youth court are possible only after Section 18 of the Crime and Courts Act 2013 is commenced. Current cases are in the county court, and legal aid is directly provided for such proceedings. I understand why the noble Baroness asks that question, but I am able to reassure her on that.

Following from that comes the question of why not very many gang injunctions have been issued as yet. It is a matter for local partners to consider the best way to prevent gang violence and support young people. These gang injunctions are relatively new. We know that local partners regard them as a useful tool, and there is more information and communication to ensure that they are appropriately and properly used. They have become an important, although not oppressive, part of the equipment to deal with the scourge of anti-social behaviour.

Therefore, I hope that I can assure the noble Baroness that this is a necessary change. It will regularise the position and ensure that legal aid is maintained as appropriate. There was an unfortunate slip. Fortunately, however, it has not resulted in any injustice. In those circumstances, I ask that the matter should proceed. I suggest that this is an appropriate amendment and that the special educational needs matters are uncontroversial.

Compensation (Claims Management Services) (Amendment) Regulations 2015

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Monday 1st December 2014 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the Legal Ombudsman provides a route of redress for consumers where they have complaints about the service they receive from regulated legal service providers. There is no charge to consumers for bringing complaints with costs being met by the regulated businesses that fall within its jurisdiction.

Section 161 of the Legal Services Act 2007, once commenced, will extend the remit of the Legal Ombudsman to enable it also to deal with complaints about claims management companies regulated under the Compensation Act 2006. I know that noble Lords will welcome the Legal Ombudsman being able to deal with these complaints. The claims management sector has acquired a reputation for being somewhat unscrupulous as a result of a number of companies engaging in poor business practices. The Legal Ombudsman will provide a new avenue of redress for consumers of regulated claims management companies and will assist the Claims Management Regulator in driving out poor standards and practices in the market. The Legal Ombudsman has a greater range of redress powers, including the potential for awards of compensation which are not currently available.

The fees order enables the Lord Chancellor to impose fees on regulated claims management companies to recoup the costs of complaints handling by the Legal Ombudsman. It sets out the fees payable by regulated claims management companies for this purpose. These fees will be charged on a sliding scale based on the relevant turnover of the regulated claims management company. This will enable the Government to achieve full cost recovery without putting a disproportionate burden on small and medium-sized businesses. The Government will keep the fee structure under review and will consider making changes when more information is available on complaints volumes and the types of complaints that are being considered by the Legal Ombudsman. If this order is approved, we will commence Section 161. It is intended that the ombudsman will commence this new work on 28 January next year, subject to parliamentary agreement.

The amendments to the Compensation (Claims Management Services) Regulations 2006 make the current regulations compatible with the requirements of the Legal Services Act 2007. In order to enable the handling of complaints about claims management companies by the Legal Ombudsman certain changes must be made to the powers of the Claims Management Regulator. These include the removal of the regulator’s power to award redress, the removal of the power to review how a claims management company has dealt with a consumer’s complaint and amendment of the power to issue directions to a claims management company. The amendment regulations also allow for information sharing between the regulator and the Legal Ombudsman in specified circumstances, something that is particularly important in ensuring a robust regulatory regime.

In conclusion, it is right that the Legal Ombudsman’s costs relating to regulated claims management complaints are met by the claims sector in the same way as the costs relating to legal complaints are met by that sector. This fees order will achieve this. The amendment regulations make the relevant claims management regulations compatible with the Legal Services Act and in so doing allow for claims management complaints handling by the Legal Ombudsman. I commend the order.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for introducing these two orders, which, not surprisingly, we warmly welcome. They will allow complaints against CMOs to be taken to the Legal Ombudsman and will enable LeO to raise the necessary money to fund that. My only complaint, for which I gather I cannot get redress, is that it has taken rather a long time. It was actually August 2012 when this rather excellent policy decision was taken, and it was announced by the then Parliamentary Under-Secretary at the MoJ, Jonathan Djanogly. However, as the Minister said, it will not actually come into effect until 2015.

However, the Minister might not know that I have long form on this one. The initial delay after the policy was stated was, of course, not his department’s fault, but the fault of the Treasury, which raised umpteen issues about raising a levy to enable the cost to be met for the work that LeO did. It was therefore in my name that we tabled an amendment to the Financial Services (Banking Reform) Bill in order to implement that. It was an effective intervention by his predecessor, the noble Lord, Lord McNally, together with the noble Lord, Lord Newby that managed to finally unbundle all of this. That enabled the Government to produce the correct amendment, which appeared in the names of the noble Lord, Lord Deighton, and myself. That is why I am so happy that this is finally here today. It is a shame that it has taken so long: even that amendment was in December last year, so it has taken another 12 months for it come here. Given the role of the noble Lords, Lord McNally and Lord Newby, in this, perhaps we should call it the McNally/Newby amendment. It will be important for complaints about those companies, so we wish it well and wish LeO all haste and good work in taking on these complaints.

[Lord Faulks]

I am grateful for the noble Baroness’s comments. As she says, she clearly has form in this area and has made a contribution to the development of the approach to this issue. In fact, the existing arrangements allow for certain remedies that could refund fees and order that the work be redone if feasible and direct that an apology be made. However, this gives a much greater power to the consumer and it seems to us—and I pay tribute, as she does, to the noble Lords, Lord McNally and Lord Newby, in assisting in this—that it should be financed by those claims management companies and that the complaints are now properly directed to the Legal Ombudsman, who should be able to deal with them in the most effective way possible. I suggest that, while this new route is obviously a little bit late, it is nevertheless the right answer.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Tuesday 25th November 2014 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I shall also speak to the draft Legal Services Act 2007 (The Institute of Chartered Accountants in England and Wales) (Modification of Functions) Order 2014, the draft Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014 and the draft Referral Fees (Regulators and Regulated Persons) Regulations 2014.

The first order—for CILEx, the Chartered Institute of Legal Executives—is made under Section 69 of the 2007 Act and modifies the functions of CILEx. CILEx is currently an approved regulator under the Legal Services Act 2007 for the following reserved legal activities: probate activities, the exercise of a right of audience, reserved instrument activities, the administration of oaths and the conduct of litigation. If made, this order will enable CILEx to operate more effectively by modifying its powers to make regulatory arrangements.

Specifically, the order will enable CILEx to make compensation arrangements as defined in the 2007 Act and allow it to make rules authorising it to establish and maintain a compensation fund, requiring CILEx-authorised entities to contribute to it. The compensation fund will protect clients of CILEx-authorised entities who suffer loss in the event of dishonesty or a failure to account.

In addition, this order modifies the provisions of Schedule 14 to the 2007 Act so that the intervention powers there are available to CILEx in its capacity as an approved regulator. For example, these powers would enable CILEx to seek an order from the High Court to intervene into an entity, to enter its premises and seize documents or property. This power will both protect consumers and provide the public with continued assurance that there are mechanisms in place to protect and safeguard their interests.

Taken together, the increased safeguards put in place by this order will enable CILEx to authorise and regulate entities for the first time. This will enable individuals who have been assessed by CILEx as sufficiently competent to carry on one of the reserved legal activities for which CILEx is designated to set up independent businesses for that reserved legal activity. The LSB conducted a public consultation between 23 June and 21 July 2014. No responses were received. This order follows a recent order designating CILEx as an approved regulator for reserved instrument activities and probate activities, bringing the total number of reserved legal activities it can regulate to five.

The Section 69 order for the Institute of Chartered Accountants in England and Wales modifies the functions of the institute in two main ways. First, it enables the institute to make regulations or rules providing for appeals to the First-tier Tribunal against its decisions as an approved regulator and licensing authority. Secondly, and similarly to the CILEx Section 69 order, this order modifies the provisions of Schedule 14 of the 2007 Act so that they apply to the institute in its capacity as an approved regulator. This gives the institute the same intervention powers as an approved regulator that it already has automatically as a licensing authority. This order follows the two orders, made in July and August this year, designating the institute as an approved regulator and licensing authority for probate activities.

This Section 69 order, dealing with appeals and intervention powers, now comes before the House following a public consultation by the Legal Services Board. No responses were received to the consultation. The recent designation of the Institute of Chartered Accountants in England and Wales as an approved regulator and licensing authority for probate activities has been an important step. The institute’s entry to this sector will help to contribute to the growth of the legal services market and bring further innovations, leading to benefits to consumers of legal services.

The order will ensure that the institute’s decisions as both an approved regulator and a licensing authority can be appealed to the First-tier Tribunal, which will help to ensure consistency of regulation. The order will also provide the institute with the same intervention powers as an approved regulator that it already has as a licensing authority, similarly ensuring consistency of regulation.

With regard to the Section 69 order for the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys, CIPA and ITMA are both approved regulators under the Legal Services Act 2007 for the following reserved legal activities: the exercise of a right of audience, the conduct of litigation, the administration of oaths and reserved instrument activities. CIPA and ITMA have applied to be designated as licensing authorities in relation to the same reserved activities for which they are approved regulators.

The order essentially does two things. First, it harmonises the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are registered bodies—that is, non-alternative business structures—or licensed bodies—that is, alternative business structures. It does this by making various provisions to ensure that the regulatory framework for CIPA and ITMA is the same whether they are acting as an approved regulator or as a licensing authority. Secondly, the order enables CIPA and ITMA to make rules or regulations providing for appeals to the First-tier Tribunal or High Court against decisions made by CIPA and ITMA as an approved regulator and, in certain circumstances, as a licensing authority.

CIPA and ITMA are not yet licensing authorities, but they applied in May 2013 to the Legal Services Board to be designated as licensing authorities in relation to the same four reserved activities for which they are already approved regulators. Following a recommendation from the LSB to the Lord Chancellor, a decision in principle to make such a designation order was made by the Parliamentary Under-Secretary of State on 5 March. The order was laid in Parliament on 20 November. The present Section 69 order modifying the functions of CIPA and ITMA comes before the House following a public consultation by the LSB. No responses were received.

The order puts in place a number of measures to harmonise the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are acting as approved regulators or, eventually, as licensing authorities. This will help to ensure consistency of regulation and will pave the way for the continued widening of the legal services market.

With regard to the CILEx referral fee ban order, the background is that on 1 April 2013 a ban was introduced on the payment and receipt of referral fees in personal injury cases by “regulated persons”. The ban was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which defines “regulated persons” as solicitors, barristers, claims management companies and insurers. This ban was a response to the concern, highlighted in Lord Justice Jackson’s review of civil litigation costs, that referral fees in personal injury cases contribute to the high costs and volume of personal injury litigation.

As CILEx-regulated practitioners did not fall within the definition of regulated persons at that time, they were not included in those provisions. However, if made, the CILEx Section 69 order being debated here today will bring CILEx-regulated practitioners who are authorised to conduct litigation within the scope of the referral fee ban. Without formally extending the ban to them, they will be able to pay and receive referral fees. This would compromise consumer protection and would give them an unfair commercial advantage over other practitioners in the field.

This order therefore adds CILEx to the list of regulators for the purposes of the ban and specifies the group of practitioners to whom it will be applied. In so doing, it fulfils one of the major objectives of statutory regulation—namely, to protect and promote the public and consumer interest. It will also create a level playing field in relation to other regulated legal service providers.

In conclusion, these orders enable those bodies to strengthen their regulatory powers, leading to greater consistency and greater protection for consumers, and I commend them to the Committee.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I rise simply to welcome the first three orders which extend alternative business structures—which, of course, started under the 2007 Act. That change is gradually rolling out and is to be welcomed.

I want to say a particular word of welcome about the first order, on CILEx, because CILEx has gone through part of the process to enable legal executives to carry out reserved or regulated legal activities, which now include litigation, rights of audience, administering oaths, probate and conveyancing. As the Minister suggested, CILEx members are currently not able to set up their own businesses unless they get together with someone else who is regulated by another regulatory body such as the Law Society. In future, however, with this change, CILEx will be able to authorise independent CILEx businesses. That is good for clients. As we know, many local firms, particularly small ones, will not go to a lawyer when they have a legal problem because of the expense. This much broader provision of legal services will therefore be very good. At the moment, only about 12% of small businesses turn to a lawyer even when in difficulties. With this gradual increase in what they can do, as well as a greater availability of CILEx businesses, these specialist firms will be able to offer a service.

I want to say just one other thing. Because of the particular way in which CILEx’s members come up through the institute and become lawyers, CILEx is composed of a far broader mix of people, from a broader range of backgrounds, than is perhaps the case with the traditional lawyer. It has a much more diverse membership in terms of, for example, ethnicity, as one-third of CILEx members are from ethnic minorities; gender, as three-quarters are women; and social background—indeed, 86% did not have parents who went to university, a statistic which is quite different from that applying to some other groups. What is happening with individual lawyers will now also happen with these new businesses. They, too, will be more diverse, and represent the diverse needs of consumers. I therefore thank the Ministry of Justice for getting this through. The Minister indicated that there had not been many responses to the consultation but, as I understand it, that is basically because people were happy with the change. I think that it will be broadly welcomed.

--- Later in debate ---

[Lord Faulks]

My Lords, I am grateful for the contribution to this debate from the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, who I know broadly welcome all these changes by statutory instrument. I shall deal first with what the noble Baroness said about CILEx. She accurately described this as the next step in rolling out CILEx so that its increased role and activities can be used by more people. She rightly pointed out that many people will go to legal executives rather than spend more money on lawyers. There is increasing confidence in the standard of advice that they are giving. I have been to a number of events of theirs, and it is a profession that is in good health. The noble Baroness is also right to point to the range of diversity among their number. Although my figures do not precisely coincide with hers, as there were some CILEx members who chose not to provide information, I confirm that on the figures that the MoJ has, 74% of CILEx members are women and there is a higher than usual percentage of members from black and minority ethnic backgrounds—certainly not less than 16%, which is encouraging.

The noble Lord, Lord Kennedy, asked whether the Government were satisfied that CILEx had put effective and appropriate arrangements in place generally for these arrangements. He will appreciate that under the Legal Services Act 2007 the Legal Services Board was set up as a super-regulator. It was his Government who brought in that legislation, and it is not for the Government to regulate the regulator who then regulates the regulator, so we have to be satisfied that the Legal Services Board is in fact doing its job. Of course, as with all arm’s-length bodies, it is regularly reviewed.

The Ministry of Justice analysed each application made to it by the Legal Services Board before the Lord Chancellor agreed to make the specific orders that are before the Committee today. That included looking at the underlying regulatory framework. I can assure the noble Lord that that additional step was taken. The Ministry of Justice has to be satisfied with the overall framework of regulation that exists in relation to all these professions, whether it is legal executives or trade mark and patent attorneys. The Government are satisfied that effective and appropriate arrangements have been made in respect of the regulation and authorisation of CILEx members, and indeed in relation to compliance with the Legal Ombudsman, although the noble Lord did not specifically ask me about that.

The intention, by setting up the compensation fund and giving rights to intervention, is clearly to put such professionals in the same, more established position applying elsewhere and to provide additional security for consumers. That has been done, in so far as one can ever be 100% sure of these things.

[Baroness Hayter of Kentish Town]

Before the Minister sits down, I want to apologise: his figure was right and mine was wrong. The one-third figure refers to new CILEx students, so I got that wrong. His figure of 16% is right. However, up to one-third of new CILEx students are from black and minority ethnic groups.

Commonhold and Leasehold Reform Act 2002

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Wednesday 7th May 2014 Lords Chamber

[Lord Faulks]

I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.

[Baroness Hayter of Kentish Town (Lab)]

The noble Lord the Minister must surely know that there are delays occurring between an application for a hearing relating to a right to manage and the First-tier Tribunal hearing the case. There is then another delay in getting an outcome. However, when I asked a Written Question on that, the noble Lord, Lord Newby, replied that such information on timings was not available. Surely the Government need to know things like that, to know how this Act is working. Will the Minister put the research in hand so that we can have such information?

[Lord Faulks]

As the noble Baroness will know, the question goes across departments—that for housing and the Ministry of Justice. I do not have the details available but I will certainly ask for inquiries to be made along the lines of the question.

Housing: Commonhold

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Monday 10th February 2014 Lords Chamber

[Lord Faulks]

The noble Lord is right about the degree of success. The House might like to know that only 16 commonholds have been registered in England and Wales, and the legislation came into force in 2004. None of them is particularly large. The largest, which has 30 units, is apparently a caravan site and only one with four units seems to be a conversion from leasehold.

During the passage of the Bill to which the noble Lord referred a number of increased rights were given to leaseholders, in particular of flats, to allow them to take over management of the building; to make it easier for leaseholders of flats to buy, collectively, the freehold of their building; and to allow unreasonable service charges to be reviewed by leasehold valuation tribunals. Part of the reason for the lack of take-up may be because other advantages accrued to leaseholders as a result of that legislation.

I am afraid that I am not in a position to give any of the assurances that the noble Lord required from me, but of course this is a matter that goes across different government departments and all his observations will be taken back to the Secretary of State.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this group of leaseholders is very lucky that it has the noble Baroness, Lady Gardner of Parkes, speaking on its behalf. But does the Minister accept that there is absolutely nothing in the Consumer Rights Bill currently going through Parliament to help this group or any other group of consumers in any meaningful way on a group issue such as this? Will he agree to try to work with BIS to strengthen that Bill to help these and other issues where a group of consumers is not getting the requirements that it wants?

[Lord Faulks]

The noble Baroness is no doubt right, although I cannot confirm that there is nothing in that Bill that adds to the rights of potential commonholders. The position is that, although it has been available, it simply has not been taken up by professionals who might be considered to be aware of it—solicitors or surveyors. It has not been the subject of articles in journals. There simply does not seem to be genuine enthusiasm for it. That is regrettable, but it is a fact and the Government do not believe that people should be forced to go into these arrangements if they do not want to.

Defamation Bill

Debate between Baroness Hayter of Kentish Town and Lord Faulks

Tuesday 23rd April 2013 Lords Chamber

[Baroness Hayter of Kentish Town]

It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.

To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I understand her desire not to encourage unnecessary litigation, but perhaps she could help me and the House with this. Even under the amendment it will be necessary for a court to decide whether a non-natural person is performing a public function. That of itself may be the question of a judicial decision, so even her amendment is not going to preclude any involvement of the judges.

[Baroness Hayter of Kentish Town]

It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—