Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014
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Lord Faulks
That the draft orders and regulations laid before the House on 21 July, 13 and 20 October and 3 November be approved.
Relevant documents: 8th, 9th, 10th and 13th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 25 November and 1 December.
Compensation (Claims Management Services) (Amendment) Regulations 2015
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Lord Faulks
That the Grand Committee do consider the Compensation (Claims Management Services) (Amendment) Regulations 2015.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
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 (Claims Management Complaints) (Fees) Regulations 2014
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014
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Lord Faulks
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
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.
Offenders: Rehabilitation
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Lord Cormack
To ask Her Majesty’s Government what is their policy on the rehabilitation of offenders who have served their sentences and wish to resume their careers.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, most convictions become spent after a specified period and the person is then treated as though they had not committed the offence. The Government have reduced rehabilitation periods and allowed more convictions to become spent. However, to maintain public protection, certain spent convictions are disclosed for sensitive occupations.
Lord Cormack (Con)
My Lords, I thank my noble friend for his Answer, but would he not accept that sending someone to prison is the punishment and that the purpose of prison, wherever possible, should be to rehabilitate so that that person can return to normal life and live a normal life? I accept that that is not always possible, but in most cases it should be. It is grievous to think of young people, in particular, who have had a successful career but who have made a mess, not being allowed to do that and almost being encouraged to reoffend.
Lord Faulks
I entirely accept that at least a significant part of imprisonment should be concerned with rehabilitation. I also accept what my noble friend says about the importance of encouraging ex-offenders to resume their life in so far as possible. We do, however, expect employers to be sensitive to re-employing offenders, depending on the particular nature of the employment.
Baroness Corston (Lab)
My Lords, while acknowledging the importance of the opportunity to resume career and noting that many men who come out of prison have a family home to which they can return, is the Minister aware that for the overwhelming majority of women coming out of prison, accommodation is their priority, not employment? They want somewhere to live with their children. Is he aware that women who are remanded for 28 days and who are not then charged lose their home and their children, with little chance of getting either back?
Lord Faulks
That is clearly a matter of concern. The Government are aware that that can be an issue and are anxious to ensure, so far as possible, that when offenders leave prison they are given as much support as possible. The noble Baroness will be aware of the transforming rehabilitation steps that have been taken by this Government. We wish to ensure, so far as possible, that the return to the community is as satisfactory as it can be.
Lord Dholakia (LD)
My Lords, will my noble friend agree with me that the provision in my Private Member’s Bill, which is now incorporated in the LASPO Act, has benefited a large number of young people and a large number of offenders leaving prison? Will he therefore now look at the international dimension, in particular at what is going on in Sweden, and at how such provisions can help to reduce the prison population in this country?
Lord Faulks
My Lords, I am grateful to my noble friend for acknowledging that we have made progress. We hope to continue to make progress. Of course, he is quite right: we must learn from experience elsewhere, in Sweden or wherever else there is good practice.
Lord Beecham (Lab)
My Lords, will the Minister explain how the crucial process of rehabilitation is assisted by the present state of our prisons, suffering as they do from overcrowding, staff shortages and a rising tide of self-harm and suicide?
Lord Faulks
The noble Lord makes a number of allegations about the unsatisfactory nature of our prisons. There are different reports for different prisons. I cannot possibly deal with all prisons at the Dispatch Box. I do not share his gloomy view of the state of our prisons, having visited a number of them. The work done in our prisons is of a very high standard and we have a dedicated body of prison officers who take great satisfaction in their work. I do not accept his description.
Lord Laming (CB)
My Lords, will the Minister agree that the size of the prison population has reached an almost all-time record and that that is a cause for concern, particularly given the difficulties there are now for courts in finding alternatives to prison for relatively minor offenders and those who have serious problems, such as drug or alcohol abuse? Would it not be worth while thinking again about the status of the probation service in this country?
Lord Faulks
The number of offenders who are in prison depends, of course, on what judges decide is appropriate and on the number of offences committed. I accept that the prison population is high at the moment; I do not accept that there is overcrowding within conventional definitions. However, I entirely accept what the noble Lord—who has great experience in this field—says: we should be looking, in so far as possible, for alternatives to prison, particularly to combat difficulties with drugs, alcohol or other matters that predispose people towards offending.
Baroness Browning (Con)
More broadly, what are the Government doing to encourage employers to employ ex-offenders, even if it is not the original occupation that they held before they entered prison?
Lord Faulks
My Lords, we have an employers’ forum for reducing reoffending, which is there to recruit employers who are willing to take on offenders. This is a success story; 200 offenders have been employed in the last 12 months. The story that we receive from employers is that, on the whole, ex-offenders are extremely good employees. They are grateful for the job and have a very high retention rate in employment.
Baroness Farrington of Ribbleton (Lab)
My Lords, will the Minister place on record that he and the Government are satisfied with the health services provided for people in custody? Will he give the figures for prison officers and those working with prisoners in care and education? Have the numbers gone up, or have they gone down at the same time as the number of prisoners has gone up?
Lord Faulks
As the noble Baroness will know, responsibility for health in prisons is for NHS England. I am afraid that I cannot give the figures she seeks at the Dispatch Box but will write to her with them.
Divorce: Effect on Children
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Baroness Deech
To ask Her Majesty’s Government what is their assessment of the survey findings reported by Resolution on the adverse effects of divorce on children.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government agree with Resolution that parents need to minimise conflict when separating or divorcing to reduce adverse impacts on children. We encourage the use of mediation rather than litigation to resolve disputes about children and finances. Court processes now require consideration of mediation in such cases.
Baroness Deech (CB)
Does the Minister appreciate that mediation cannot work if the law is as uncertain as it is, especially now that legal aid has been removed and more than 50% of the money cases involve at least one litigant in person? Will he undertake to do an impact assessment on the removal of legal aid from the family courts, which has resulted in the strain that Resolution has pointed out? Will the Government commit to reforming the law on financial remedies on divorce to save money and remove some of that strain from the families and the children?
Lord Faulks
The noble Baroness is, of course, taking through this House her own Private Member’s Bill, which makes various recommendations for giving greater clarity to the arrangements on divorce. The Government are considering that, together with the Law Commission’s report on prenuptial agreements and financial arrangements after divorce. Certainty is of course desirable, but at the same time flexibility may be necessary to deal with difficult cases. The Government have already made it clear that they do not propose to bring forward legislation in this Session. The next Parliament will have an opportunity to consider not only the Law Commission’s thorough consultation but all the good work that the noble Baroness is doing in respect of her Bill.
Lord Beecham (Lab)
My Lords, what assessment have the Government made of the Family Matters project, currently being piloted in Oxford, Crewe and Newcastle, which addresses the problems faced by families and children in these circumstances? What guidance and resources are they giving to schools and the National Health Service to detect and support children who are suffering from the effects of marital or relationship breakdown?
Lord Faulks
I am afraid that I am not briefed on the precise matters that the noble Lord has referred me to. Of course, the Resolution report referred to by the noble Baroness emphasises the various problems that are occasioned to children on divorce; they are well known, but they are helpfully emphasised in that report, and the Government are considering its consequences very carefully.
Lord Mackay of Clashfern (Con)
Would it not be helpful to divorcing couples to have a framework of the resources that should be allocated, with power in the court—if it went to court—to depart from that at the judge’s discretion? We could have a framework from which the parties would start as a way of settling their dispute, rather than coming into a situation where there were no rules at all and the question was completely open. Surely, it would help to restrict the question a bit if a framework existed.
Lord Faulks
The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.
Lord Morris of Aberavon (Lab)
My Lords, is the Minister aware of the significant concerns relating to the noble Baroness’s question about the absence of legal aid and the problems arising therefrom?
Lord Faulks
Legal aid is no longer available, as from April 2013. Whether divorces are always helped by lawyers is, of course, open to question. The Government are not convinced that lawyers are desirable at every stage of the process. Indeed, they feel that mediation is a much more satisfactory way of resolving disputes, whereas cases often result in benefits only to the lawyers rather than to the parties involved. Legal aid is available, within scope, for mediation. Following a recent development in April 2014, mediation is available to both sides, even though one side only is eligible for the initial MIAM session and for the first session after that. We believe that mediation is a much more satisfactory way of sorting these matters out.
Baroness Shackleton of Belgravia (Con)
My Lords, I speak as one of the evil lawyers who practise in this area of the law. Does the Minister recognise that children’s disputes are very difficult to settle when financial disputes are rampaging through the courts? It is very difficult to settle financial disputes, particularly in non-wealthy families. The wealthy of course have the privilege of spending as much money as they like on lawyers, and where the law remains uncertain, the judge’s discretion is so large. Can the Minister assure us that the Government will address the issue of certainty, which the Bill of the noble Baroness, Lady Deech, seeks to address? It is a political matter and not one to be left to the judges.
Lord Faulks
My noble friend is well qualified to tell the House about the difficulties in settling matters, including those concerning children, where there are other, financial aspects that remain uncertain. She will be aware that the Ministry of Justice and the Department for Education recently published A Brighter Future for Family Justice, which covers the implementation of the Children and Families Act. That encourages mediation and the creation of child arrangements orders as opposed to the old contact orders and residence orders, and presumes the involvement of each parent in the life of the child. I am sure that the House will agree that, whatever the difficulties in financial arrangements, the interests of the children must come first.
Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments
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.
Lord Kennedy of Southwark (Lab)
My Lords, the three orders that we are discussing today modify the functions of the Chartered Institute of Legal Executives, the Institute of Chartered Accountants in England and Wales, the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys in respect of regulatory matters to the extent necessary to modify their powers under the Legal Services Act 2007, and the one regulation extends the ban on the payment and receipt of referral fees in personal injury cases to include appropriately qualified practitioners who are members of the Charted Institute of Legal Executives.
CILEx is an approved body to award practice rights in the reserved legal activity area and this regulation will be undertaken by ILEX Professional Standards. It also has to have the ability to protect the interests of the public who use the services of its members, and this includes the power both to provide redress in the form of compensation to clients and to be able to intervene into legal practices. The order gives it the required powers to set up a compensation fund and collect the required fees and, secondly, to take appropriate enforcement action to protect the interests of consumers. I agree with my noble friend Lady Hayter of Kentish Town that this is good news for consumers in giving them a wider choice in the marketplace when looking for legal services and in providing the public with proper protection. It is a boost to legal executives seeking to widen the sphere of work that they undertake, particularly unsupervised work, as they can demonstrate that they have proper protections in place.
The order in respect of the Institute of Chartered Accountants in England and Wales provides for appeals to the First-tier Tribunal against decisions made by the institute as an approved regulator and as a licensing authority. It also changes its arrangements and increases its scope for using intervention powers. This again is a sensible measure, and the Opposition have no issues with what is proposed here. Giving consumers uniform protections and rights is in itself a sensible move and works towards improving the efficiency of the regulatory and protection framework for legal services.
The third order makes changes to the regulatory arrangements in respect of the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys acting as approved regulators and, if designated in the future, as licensing authorities. Again, the Opposition have no issue with what is proposed, but I have a few questions for the Minister. In respect of the order relating to CILEx, what work has the Ministry of Justice done to satisfy itself that the Legal Services Board has acted with due diligence in coming forward with this proposal and that CILEx has the range of competences required to undertake these new regulatory powers?
In respect of the order regarding the Institute of Chartered Accountants in England and Wales, what work has the MoJ done to satisfy itself that this order is appropriate and, again in respect of the third order, what specific work has been undertaken in the MoJ to satisfy itself that these measures are proportionate, they deliver the objectives being sought here and those objectives are right in practice?
I have no issues to raise in respect of the regulation adding CILEx-registered practitioners to those banned from the paying and receipt of referral fees.
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.
Legal Services Act 2007 (The Institute of Chartered Accountants in England and Wales) (Modification of Functions) Order 2014
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (The Institute of Chartered Accountants in England and Wales) (Modification of Functions) Order 2014.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments
Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments
Referral Fees (Regulators and Regulated Persons) Regulations 2014
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Faulks
That the Grand Committee do consider the Referral Fees (Regulators and Regulated Persons) Regulations 2014.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments