FUNCTIONS AND POWERS OF OMBUDSMAN (Hansard, 26 February 1997)

§ Mr. Malcolm Chisholm (Edinburgh, Leith)
I beg to move amendment No. 1, in page 2, line 42, leave out from 'and' to 'the' in line 44.
The Bill is largely uncontroversial. It clarifies and extends the existing powers of the legal services ombudsman, and gives extra powers to the local government ombudsman. We welcome the new power for the legal services ombudsman to recommend that a professional organisation—the Law Society of Scotland or the Faculty of Advocates—should pay compensation of up to £1,000 to a complainant who has suffered loss or distress because of its poor handling of his complaint. The amendment is motivated by our concern about the handing over of confidential information or documents to the ombudsman.
The issue was first raised in the Scottish Grand Committee by the hon. and learned Member for Fife, North-East (Mr. Campbell), my hon. Friend the Member for Linlithgow (Mr. Dalyell) and myself. The Minister tried to reassure us by saying: The ombudsman can require bodies to produce such information only if he considers it to be relevant … The ombudsman is concerned only with the Law Society's handling of a case—confidential papers from solicitors' offices are not relevant … I am a lawyer … I have no desire for the ombudsman to be involved with confidential papers".—[Official Report, Scottish Grand Committee, 9 December 1996; c. 74.] Therefore, we were surprised that a Government amendment was tabled in Committee that provided that the supplying of confidential documents to the ombudsman could not be legally challenged on grounds of breach of confidentiality. To be fair, the amendment contained other changes that we welcomed, but we were surprised by the inclusion of the words: notwithstanding any duty of confidentiality owed to any person by the professional organisation as respects any such information or, as the case may be, documents, the organisation shall comply with such a requirement. We take the view that it would be better to leave that open to legal challenge so that the greatest possible care would be taken in handing over confidential documents. To be fair, the word "relevant" provides some check. Clause 1 also states: the ombudsman … may require the professional organisation … to provide him with such information, being information which is within the knowledge of the professional organisation, as he considers relevant to his investigation; or … to produce to him such documents, being documents which are within the possession or control of the organisation, as he considers relevant to his investigation". The question of who decides what is relevant still arises, and the answer is that the ombudsman decides. In Committee, the Minister also told us: the Secretary of State for Scotland will direct the ombudsman to use only information or documents that are obtained in the exercise of his powers in connection with his statutory functions."—[Official Report, First Scottish Standing Committee, 28 January 1997; c. 5.] 370 That may provide some small comfort, but other checks are necessary.
I considered tabling an amendment to provide that the consent of the complainant should be required before documents were released. If our amendment is accepted, it would be wise for the consent of the complainant to be obtained before confidential documents are handed over, because that would give the Law Society and the Faculty of Advocates some protection. However, the wording "with the consent of the complainant" would not have covered every eventuality, because the confidential documents could belong to someone else, as the hon. and learned Member for Fife, North-East pointed out in Committee.

§ Mr. Charles Kennedy (Ross, Cromarty and Skye)
He did a good job.

§ Mr. Chisholm
I agree. The hon. and learned Gentleman made a helpful speech in Committee. Although I accepted the substance of his amendment, I was not entirely happy with the wording, which is why I have tabled my amendment today.
The amendment is partly about protecting the interests of third parties. In Committee, the hon. and learned Member for Fife, North-East gave the example of an accident involving two passengers in a car. The complainant might agree to his medical documents being handed over but the other passenger might not. The example of medical records is the most obvious type of document that some people might not want handed over, because they contain confidential information about previous medical history.

§ Dr. Norman A. Godman (Greenock and Port Glasgow)
I am grateful to my hon. Friend, although I do not know why, after this morning's performance. The Minister's performance was even worse. They both talked about E. coli 0157, when they should have been talking about the care of the elderly.
If the amendment is not accepted, could the ombudsman overrule a complainant's legitimate objections about confidential documents and acquire them anyway?

§ Mr. Chisholm
That is precisely the point. The Bill would give the ombudsman the power to do so, if it is not amended. The Minister tried to answer the point about medical records in Committee. He said: Medical records could be released only with the consent of the individual concerned … consent is implied when a complaint is made".—[Official Report, First Scottish Standing Committee, 28 January 1997; c. 14.] That may sound contradictory, but it amounts to saying that consent would not have to be specifically asked for because it would be implied when the complaint was made. In other words, the power of the ombudsman will override confidentiality. That power is not held by the local government ombudsman or the Parliamentary Commissioner for Administration. Indeed, the Parliamentary Commissioner must seek the agreement of a complainer before confidential documents are handed over.
In Committee, it was suggested that if an amendment such as this were passed, it would obstruct the ombudsman in the course of his necessary and welcome 371 duties. The last thing that we want is to obstruct the ombudsman going about his duties. Before Committee, we had many representations from the Consumers Association and other bodies saying that they wanted the Bill. The point is that the ombudsman would still have recourse, if documents that he thought were essential for an investigation were withheld, to apply to a sheriff by way of summary procedure for an order determining whether such information should be provided.

§ Mr. Norman Hogg (Cumbernauld and Kilsyth)
Does my hon. Friend agree that there is some logic in all the ombudsmen having precisely the same powers and remit, so that there is no confusion in the public mind? I can see no argument at all for this ombudsman having powers greater than those of, say, the Commissioner for Local Administration in Scotland. I do not understand what the Government are doing.

§ Mr. Chisholm
My hon. Friend makes a good and pertinent point. Consistency is not a hallmark of the Government, but perhaps the Minister can rise to the challenge of that point when he replies. It is up to the Government to explain the discrepancy between the powers of the legal services ombudsman under the Bill and those of other ombudsmen.
Those concerns were expressed on Second Reading and in Committee. We approached the matter in various ways. The hon. and learned Member for Fife, North-East suggested one formulation that was not successful. We suggest the simple expedient of deleting the words that mean that confidentiality will be overridden. Our amendment would mean that the ombudsman would have to be much more careful about demanding confidential documents. If he must get such documents, there will still be recourse in law. The amendment provides the necessary protection for individuals whose records are held by lawyers or the Law Society.
I am sure that my hon. Friends wish to speak because they have concerns. The amendment does not mean that we want to water down the powers of the legal services ombudsman or the scope of Bill. We welcome the Bill and the new powers, and we do not believe that the amendment will damage them. However, it is important to write safeguards into the Bill for those whose confidential records may be held by the legal profession.

§ Mr. Norman Hogg
I listened with interest to my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm). I want to return to the point that I made in support of the amendment.
It is not very helpful to look at the amendment because it simply deletes some words. I hope that, when the Minister replies, he will be able to say exactly why this ombudsman should have a remit different from those of the other ombudsmen in Scottish statute. The public could become confused about the powers of ombudsmen if we give each of them different powers. I understand that they operate in different areas and that this ombudsman operates in a specialist area relating to one profession, whereas the local government ombudsman deals with many professions and many functions discharged by local authorities. To a lesser extent, that is true of the health service ombudsman. The Bill deals with a specialist 372 ombudsman who is to have different powers. Why do we always seem to be giving lawyers different and better regulations from the ones that we give to everyone else?

§ Dr. Godman
Quite right.

§ Mr. Hogg
My hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) says that I am quite right. I am encouraged to proceed further. I hope that the Minister, who is himself a distinguished lawyer—

§ Dr. Godman
He is an advocate.

§ Mr. Hogg
The Minister is no less than a Scottish advocate—someone who is really to be respected. I hope that he will say why lawyers are, as usual, being treated differently. Why should the regulations that affect this ombudsman be more extensive than those for other ombudsmen who cover professions of equal status and of equal importance to Scottish society? If he does that, he may be able to convince me that this Bill has merit as it stands. At present, I think that the amendment moved by my hon. Friend the Member for Leith is sound.

§ Dr. Godman
I have no doubt that the Minister will employ all his legal skills to defeat the amendment but, even though he is a lawyer, he must agree that complainers must have complete trust in the handling of complaints by the ombudsman. He will have received complaints from constituents—not many; they do not come along very often—and, like the rest of us, he will have sent to the Parliamentary Commissioner for Administration complaints that have been raised with him. I recently sent one. I explained the position in detail to my constituent, who believes that he has a complaint against a Department of State—not the Scottish Office, I hasten to add. It is welcome to have such an ombudsman, because, God knows, lawyers need to be monitored.
Lawyers are the most conservative profession in the land. They are as conservative as the medical profession. It is right and proper that people can take complaints to an ombudsman. The Law Society and the lay observer perform important functions, but the question of confidential documents is important. I raised the matter in Committee with the hon. Member for Kincardine and Deeside (Mr. Kynoch).

§ The Parliamentary Under-Secretary of State for Scotland (Mr. George Kynoch)
indicated dissent.

§ Dr. Godman
Perhaps I raised it with the Minister of State.

§ The Minister of State, Scottish Office (Lord James Douglas-Hamilton)
indicated assent.

§ Dr. Godman
I might add in passing that the Minister of State is far more handsome than the other Minister—not that he behaved very handsomely towards me in this morning's Adjournment debate. This question of confidential documents is important. It is all very well for the Minister of State to laugh—he is behaving like a typical Edinburgh lawyer.

§ Lord James Douglas-Hamilton
Is the hon. Gentleman aware that, had the hon. Member for 373 Edinburgh, Leith (Mr. Chisholm) not asked so many questions, I would have spent much longer answering his points? However, the hon. Member for Leith raised serious issues, which I answered.

§ Dr. Godman
You see what I mean, Madam Deputy Speaker—a typical Edinburgh lawyer. I suspect that he was trained in the Edinburgh faculty and not in Glasgow—he has not got that Glasgow look about him.

§ Madam Deputy Speaker (Dame Janet Fookes)
Order. I had better give the hon. Gentleman a gentle warning that—interesting though his observations are—he is now going rather wide of the amendment.

§ Mr. Norman Hogg
On a point of order, Madam Deputy Speaker. I think that my hon. Friend is out of order, I really do.

§ Madam Deputy Speaker
Would the hon. Gentleman like to come and do my job?

§ Mr. Hogg
Who told you that that was what I wanted?

§ Dr. Godman
You are famous for your gentle reprimands, Madam Deputy Speaker. I shall not stray again, but I could not resist having a wee go at the Edinburgh lawyer opposite.
To return to a serious point, there are legal cases involving medical records that deal with matters that are not only confidential but extremely intimate. The Minister knows that I have been seeking to assist several women in my constituency who suffered grievously because of the malfunctioning of the Inverclyde cervical smear programme. Those women had to seek legal advice in order to pursue, rightly and properly, their case against Argyll and Clyde health board. I have spoken to the Minister about those cases, which illustrate perfectly the concerns expressed by my hon. Friend the Member for Edinburgh, Leith (Mr. Chisholm).
The women—there are, thank heavens, few of them—have had to give all kinds of information to their legal representatives. If one of those women wanted to raise a complaint and approach the legal ombudsman, she should have the right to say, "Yes, by all means you may have access to all of my confidential records." Conversely, she should also have the right to say, "No, there are certain documents that I do not want to be released to the ombudsman." In addition, I do not like the ombudsman being able to appeal to the Secretary of State.
All kidding aside, I appeal to the Minister of State to treat the amendment with the seriousness that it deserves. If he cannot accept the amendment, I ask him to give an assurance that the leaflets that go out to citizens advice bureaux and libraries telling people how to apply to the legal ombudsman will contain a paragraph on the issue of confidential documents.

§ Mr. George Foulkes (Carrick, Cumnock and Doon Valley)
It has been a long time since I participated in a Scottish debate. Not only does being here give me a feeling of déjà vu, but the Minister of State's presence doubles that sensation. Not only is he an Edinburgh 374 lawyer, as my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) said, but he is a former Edinburgh councillor. He and I crossed swords in another chamber on many occasions and I have great respect not only for his legal ability, but for his wit and perception. I know that he will be able to deal with all the points raised.
I want to raise a serious point, but I will not keep the House long in doing so. It follows on from the remarks that my hon. Friend the Member for Cumbernauld and Kilsyth (Mr. Hogg) made earlier about lawyers being treated differently, because one of the matters that concerns me is the method of self-regulation. Admittedly, the legal services ombudsman is outwith the legal system, but until a complaint reaches that stage all complaints against lawyers are dealt with by lawyers and by the Law Society in particular.
5.45 pm
I do not know about other hon. Members' experience, but I have found that when complaints are made by Members of Parliament on behalf of constituents who have experienced problems with lawyers and legal firms, the Law Society does not deal efficiently and effectively with those complaints. I have engaged in long correspondence with the Law Society about several complaints against lawyers. I shall not mention all the cases—to do so would take far too long and would be far too tedious—but I want to refer to two in order to illustrate the problems. The issue of confidentiality comes into those cases.
I do not know whether the Minister remembers the case of the crooked lawyer, Graeme Adam, who practised in Ayrshire during the 1980s, at a time when many miners were receiving large redundancy payments. I know that my hon. Friends will remember the time when the current Deputy Prime Minister was closing pits that were allegedly uneconomic, but which would still be running today had he not shut them down. Various individuals and organisations rushed in to give the miners advice on how to invest their redundancy money. One of those was the solicitor Graeme Adam, who was subsequently imprisoned for having embezzled the money paid to miners for their long periods of service in the mines.
What had happened was clear to the miners, to me as their representative and to people with whom I discussed the case, but when I raised the problems with the Law Society, I found that the presumption which applied within that organisation was that the lawyer was automatically innocent and that that sort of thing could not happen. That attitude was displayed throughout the organisation, all the way up to the then secretary, Kenneth Pritchard. The Law Society was dismissive of the miners' complaints.
That has happened on several occasions when I have raised constituents' complaints about lawyers. The Law Society's presumption is always that such problems cannot happen and that lawyers do not do that sort of thing—they are honourable men and women who cannot possibly involved in wrongdoing. As a result of that presumption, many people have had to fight hard to get justice out of the Law Society, which takes a great deal of time and effort.

§ Dr. Godman
In view of his criticism of the Law Society, does my hon. Friend nevertheless agree that those 375 persons who have performed the role of lay observer have done so with remarkable distinction and that that role is close to that of the ombudsman?

§ Mr. Foulkes
I certainly accept that, but I would be straying from the amendment if I pursued the point.
What worries me is that the people whom I represented were not getting all the information. Disclosure of information and issues of confidentiality are extremely important in such cases. At one point, I had to take a deputation of legal clients to the Law Society to get it to look into the problems relating to Graeme Adam. The Law Society's attitude was unbelievable—implying that it was the clients who were mistaken and that the lawyer was in the right. In the end, in the case of Graeme Adam we found that the opposite was true.
I hesitate to go into detail, but confidentiality is also important in cases of child abuse or sexual abuse. Such cases are being highlighted currently by the Daily Record. I have great respect for that newspaper, but it is ironic that it is now highlighting the problems of child abuse and the threat to young children from convicted paedophiles. My hon. Friend the Member for Greenock and Port Glasgow will remember the Ayrshire child abuse case, which I dealt with some months ago. On that occasion the Daily Record took the other side of the argument. I suppose that it is the privilege of the fourth estate to take such a contradictory line.
I have made a complaint to the Law Society about a Glasgow lawyer, Mr. Paul Burns, who made statements during the Ayrshire child abuse case which were critical of social workers in Ayrshire and which I believe were unjustified. The Law Society has rejected that complaint and said that I now have the opportunity of going to the Scottish legal services ombudsman, which I am considering.
When one complains about a lawyer, there is always the feeling that one will not get anywhere and that the Law Society will not look at the case in detail. As my hon. Friend the Member for Greenock and Port Glasgow said, the legal profession in Scotland is a relatively small and closed profession. There is no better example of a closed shop, especially the advocates.

§ Mr. Thomas Graham (Renfrew, West and Inverclyde)
My hon. Friend will know that I worked in a law company for five years and I saw one side of it. However, as a regional councillor and now as a Member of Parliament, I have met many people who feel that the legal profession is a fortress that cannot be penetrated and that one needs to be towing the Bank of Scotland to be able to afford to purchase justice. Using the ombudsman is the right course for folk with a problem, but ordinary men and women in the street are terrified; they believe that lawyers are God's gift to man and that one cannot have a go at them. In my constituency, there was a horrifying case of a person who was impoverished by over £100,000; he was totally innocent, but the Law Society could not do anything about it.

§ Mr. Foulkes
I understand only too well the problems that my hon. Friend has experienced.
I just want to express my concerns. One puts a great deal of trust in a lawyer, whether one is buying a house or dealing with other legal issues. The profession is a 376 closed shop and we have to go to lawyers to get things done. Therefore, it is of paramount importance to trust a lawyer. I believe that that trust has broken down in Scotland in a number of cases in the past few years. Many of my constituents are concerned about the legal profession. It needs to pull its socks up.
The Law Society needs to ensure that complaints against solicitors are dealt with quickly, efficiently and effectively, and its consideration of them must be seen to be as fair as possible. That means something different from self-regulation. An independent element needs to be introduced in a decisive way. I hope that the Minister will take account of my points when dealing with the amendment.

§ Mr. Ian Davidson (Glasgow, Govan)
In view of the criticisms about lawyers and the Law Society, will the Minister accept that one way of resolving the difficulties would be to abolish the Law Society's powers to exercise self-regulation over the profession? We may have reached a point at which we accept that for lawyers self-regulation can be shown to have worked not in the public interest but only in the interests of the profession.

§ Lord James Douglas-Hamilton
This has been a useful debate and many important points have been raised. In answer to the hon. Member for Glasgow, Govan (Mr. Davidson), I should say that we wish to avoid excessive regulation. The hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) raised some important points in that connection. It has been the view of successive Governments that the legal profession should police itself. Under the Solicitors (Scotland) Act 1980, the object of the Law Society is the promotion of the interests of the solicitors' profession in Scotland and the interests of the public in relation to that profession.
As has been said, we do receive complaints, but in general we are satisfied that the system works well. I am encouraged by the fact that the Scottish legal services ombudsman supports the present system of self-regulation and suggests that few advantages would be gained from wholesale change.
The hon. Member for Carrick, Cumnock and Doon Valley will be assisted if I say that the Law Society's three complaints committees all have four lay members out of a total of 14. A lay member is regularly called on to prepare the report on a complaint for the committee to consider, particularly when it is clear that a lay person's perception of events may differ markedly from that of a member of the profession.

§ Mr. Foulkes
Can the Minister say who chooses the lay members? Is it the Law Society?

§ Lord James Douglas-Hamilton
Yes, but they must be independent of the Law Society and the legal profession. The Scottish legal services ombudsman must be a lay person and is prevented by statute from being a solicitor, advocate or other member of the legal profession. There is no special pleading on behalf of my profession. The lay person is able to have a different perspective to oversee the process and to ensure that it works fairly.
The hon. Member for Cumbernauld and Kilsyth (Mr. Hogg) raised important issues about whether there is a discrepancy in the ombudsman's powers. The legal 377 services ombudsman looks at how a professional organisation handles a complaint, not the complaint itself. The local government ombudsman and the Parliamentary Commissioner for Administration look at the complaint itself, so the remits and powers are different.
The legal ombudsman must be able to look at all the papers that a professional organisation has considered. The handling of the complaint must be relevant. The hon. Member for Cumbernauld and Kilsyth asked for consistency. I can confirm that the local government ombudsman and the Parliamentary Commissioner may require any member or officer of the body being investigated or any other person who in their view is able to furnish information or produce relevant documents to do so. There is no suggestion that confidential documents or information would be considered exempt.
In Committee, I told the hon. Gentleman that I had no desire for confidential material to be produced. I was talking about confidential material that was not relevant to the handling of the complaint. The amendment would remove the provision that the professional organisation's duty to provide relevant information or documents supersedes any duty of confidentiality that the organisation owes to another person. The provision is essential to ensure that the ombudsman has access to all relevant information.
The important word is "relevant". The ombudsman investigates the organisation's handling of a complaint, not the actual complaint. Any information or documents required have to be relevant to the consideration of the complaint. It is right that the ombudsman should have access to all relevant documents so that he can investigate the matter properly. The current provision in the Bill puts the existing practice on a statutory basis and provides protection for the professional organisations.
The complainer who has asked the ombudsman to investigate the handling of a case would have no reason to complain that the ombudsman had seen documents which would otherwise be confidential. It is in the interest of the complainer that the ombudsman should have access to the relevant information. Documents containing confidential information relating to third parties—a point raised by the hon. Member for Edinburgh, Leith (Mr. Chisholm)—would be unlikely to be relevant to the way in which the organisation handled the complaint. They are therefore unlikely to be required by the ombudsman.
I understand hon. Members' concern to prevent confidential information obtained by the ombudsman from being misused. I give an undertaking to the House that the Secretary of State for Scotland will issue the ombudsman with a direction that he should use such 378 information or documents only in exercising his powers in connection with his statutory functions, and should ensure that his staff do likewise.

§ Dr. Godman
What size staff is envisaged for investigations? Will the Minister advise the ombudsman to ensure that leaflets are published which can be given to people—for instance, in citizens advice bureaux?

§ Lord James Douglas-Hamilton
The staff will be sufficient to handle matters effectively. An annual report will be published in due course.
I hope that the hon. Member for Leith will not press the amendment.

§ Mr. Chisholm
I thank the Minister for his reply. I agree with him that the word "relevant" is relevant. We hope that it will never be necessary for confidential documentation to be handed over.
I thank my hon. Friends for their valuable contributions. I support everything that was said by them, with the possible exception of the remarks about Edinburgh by my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman). I have a certain Edinburgh solidarity with the Minister of State, the right hon. and learned Member for Edinburgh, West (Lord James Douglas-Hamilton), who represents a neighbouring constituency to mine and is poaching some of my constituency for the general election, although I do not think that he will get many votes from that area.
We shall keep a close watch on the way in which the Bill operates, and pay particular attention to problems with confidential documents.

§ Mr. Davidson
I endorse the welcome given by my hon. Friend to the contributions made by our hon. Friends. I take it that he agrees with the criticisms of the Law Society. It can be said that professional self-regulation by lawyers has now received a yellow card. It will be closely monitored during the term of the next Labour Government, with a view to possible abolition.

§ Mr. Chisholm
I am not sure how wide a topic was covered by my hon. Friend's remarks, so I shall be careful in replying. It was an interesting point.
I do not intend to press the amendment to a Division.

§ Lord James Douglas-Hamilton
I beg to move, That the Bill be now read the Third time.
I could speak at immense length, but I think that we have given the subject a general airing.