HL Deb 11 March 1997 vol 579 cc248-53

8 p.m.

Lord Mackay of Drumadoon

My Lords, I beg to move that this Bill be now read a second time.

The Scottish Legal Services Ombudsman and Commissioner for Local Administration in Scotland Bill will increase and clarify the powers of the Scottish Legal Services Ombudsman which are set out in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 and will strengthen the powers of the Commissioner for Local Administration in Scotland which are contained in the Local Government (Scotland) Act 1975.

The Bill gives effect to a recommendation made by the Scottish Legal Services Ombudsman in his 1994 annual report to the Secretary of State for Scotland. The proposal was that the ombudsman should have the power to recommend that a professional organisation (that is, the Law Society of Scotland, the Faculty of Advocates and now the Scottish Conveyancing and Executry Services Board) should pay compensation of up to £1,000 to a complainer who has experienced loss or distress because of the organisation's poor handling of their complaint about the actions of a solicitor, advocate, qualified conveyancer or executry practitioner. The remaining provisions in the Bill relating to the ombudsman refine his existing powers and bring them broadly into line with those of his counterpart in England and Wales.

The Bill also strengthens the powers of the Commissioner for Local Administration in Scotland (better known as the Scottish Local Government Ombudsman) by enabling him to investigate maladministration arising from the action or inaction of individual members of authorities within his control. He would, for example, be able to investigate an allegation that injustice had been caused to a member of the public from the failure of a councillor to declare an interest in a matter under discussion at a council meeting. The provision is introduced in response to the report of the joint Scottish Office and the Convention of Scottish Local Authorities Task Force on Local Government Conduct which my right honourable friend the Secretary of State for Scotland established in July 1995. It fills an important gap in the Scottish Local Government Ombudsman's jurisdiction and brings his powers into line with those of the ombudsman in England and Wales.

This Bill will increase consumer protection for members of the public using legal services in Scotland or obtaining services from a local council or similar body. I understand that both the Law Society and the Faculty of Advocates are content with the Bill and Scottish local government support the new powers provided for the Commissioner for Local Administration in Scotland.

It may be that noble Lords do not need to be reminded in detail of how the complaints system works in the legal professions. In essence, the professions are self-regulating, with the professional organisations having a statutory duty to investigate complaints about their members. Although that self-regulatory system generally works well, it is sensible to have a watchdog to ensure that it operates as fairly as possible and best practice is not only observed, but also encouraged. This is the role of the Scottish Legal Services Ombudsman, who investigates any complaints about the way in which the professional organisation handled a complaint about one of its members. He does not investigate the original complaint itself.

It is clearly essential that the ombudsman should be able to consider all the evidence looked at by the professional organisation in coming to its decision on the complaint so that his investigation of their handling of a case can be complete and thorough. It is also important that the professional organisations are required to respond within a relatively short timescale to his reports and make it clear what action they have taken on his recommendations. And there should be a sanction—we have decided on publicity by the ombudsman—where the professional organisation decides not to comply with a recommendation in full or in part. The Bill before us today achieves all these aims.

I am not sure it is necessary for me to go through the clauses of the Bill in detail; they are relatively self-explanatory. In those circumstances, I commend the Bill to the House.

Moved, That the Bill be now read a second time.— (Lord Mackay of Drumadoon.)

8.6 p.m.

Lord Carmichael of Kelvingrove

My Lords, I can be brief in view of the full explanation given by the noble and learned Lord the Lord Advocate. He will be only too aware that the Bill has been improved and simplified because of amendments made in another place, and for that we are grateful.

The enhanced powers of the Scottish Legal Services Ombudsman facilitate and render more transparent the protections made available to consumers of legal services. The Bill will also help to some extent to remove the mystique of law and perhaps even make some recompense for the misdemeanours of some of its practitioners. Anything that makes the law more understandable for people and takes away the mystique is a great help. The fact that someone as powerful as an ombudsman is behind any complaint as a longstop is a great advantage. We feel generally that the Bill is well worth while.

8.8 p.m.

Lord Mackie of Benshie

My Lords, I read the proceedings in the other place and the Bill received a general welcome. However, my honourable friend Mr. Campbell had some reservations about the powers of the ombudsman to demand confidential information. He was not worried so much about legal and other bodies, but confidential information in regard to a person who may not be concerned. For example, two people may have been involved in an accident and one was not suing and the other was.

No doubt the noble and learned Lord the Lord Advocate read the Commons proceedings and will know exactly what I am talking about. Is he satisfied that these powers will not be misused by the ombudsman in a case of that sort? Apart from that, I understand that the Bill received a general welcome.

8.9 p.m.

Lord Mackay of Drumadoon

My Lords, I am satisfied that there is nothing untoward in the powers in the Bill. My understanding is—although I was not involved in it—that both the Law Society and the Faculty of Advocates were consulted in some detail about the matter. The Law Society, with its usual diligence in these matters, offered observations on the detailed drafting of the legislation.

Reference was made earlier to amendments which were put forward when the Bill was in another place. My understanding is that the Law Society, which tends to be the branch of the profession that retains papers, unlike members of the faculty, who are in the happy position of being able to return them to the solicitor when the case is over, is satisfied that the amendments are in order.

We believe that the provisions are essential both to ensure that the ombudsman has access to all the relevant information and to provide the statutory protection which the professional organisations themselves sought in the unlikely event of there being any dispute over whether a particular document should have been passed on. The important word to bear is mind is "relevant". The ombudsman investigates the professional organisation's handling of a complaint and not the original complaint against the practitioner. Any information or document the ombudsman requires must therefore be relevant to the professional organisation's consideration of a complaint, such as a document taken into account by the professional disciplinary body in coming, or failing to come, to a conclusion.

In almost all cases the professional organisation's own file will be sufficient for the ombudsman. However, we believe it is right that he should have the power to require any other relevant information or document which is not on that file so that he can investigate the professional organisation's actions fully. As we understand it, that is accepted now by the Law Society, the Faculty of Advocates and the professional organisation that recently came into existence, which, although in its infancy, will in the fullness of time be before the ombudsman in his daily and weekly work.

With that reassurance, I hope the noble Lord, Lord Mackie, will be satisfied that the issue which was of concern in another place to the honourable Member for North-East Fife has been fully addressed and that there is no reason why the terms of the Bill should not be acceptable. I commend the Bill and invite the House to give it a Second Reading.

Lord Macaulay of Bragar

My Lords, before the noble and learned Lord sits down, and in relation to the point raised by the noble Lord, Lord Mackie, is there a penalty in the Bill for not responding to the requirement set out in Clause 1(5)? I have not had time to look at the Bill in detail but I have tried to tie it in with the other Bill going through the House with regard to the question of confidentiality. Are we not running into a problem here regarding professional confidentiality? What will happen if the ombudsman requires the professional organisation concerned to provide him with such information and so on as is set out in subsection (5) but the professional organisation says, "Go away ombudsman. We do not want to know you"? Presumably, the evidence that will be in the possession of the professional organisation will have come from members of that professional organisation. I just wonder whether we are falling into a legal trap.

Although I appreciate that the Bill is welcomed by everyone within the legal profession and no doubt by lay people, is it not advisable to have a look at its wording in order to ensure that we do not dig a hole and keep digging, as someone in another place once said? Will the noble and learned Lord have a look at the Bill in relation to the clauses of the Crime and Punishment (Scotland) Bill concerning legal aid and the code of conduct for solicitors, solicitor advocates and the Faculty of Advocates? From a quick reading of the Bill the issues seem to be intermingled. Perhaps we should walk slowly rather than run into the buffers, which, as I have said before, will provide a playing field for lawyers.

Lord Mackay of Drumadoon

My Lords, the issues raised by the noble Lord, Lord Macaulay, require to be looked at separately. The duty on the organisation to provide documents is a statutory duty. There is no reason to believe that any of the three organisations to which the Bill applies will fail to honour its statutory duty. If the individual body concerned took the view that the ombudsman had acted in excess of his statutory powers as set out in the Bill, it could no doubt challenge such an order, I suspect, by way of judicial review. But if the organisation was satisfied that the ombudsman had the right to seek the document, I do not believe for a moment that it would seek to challenge that.

I find it difficult to see how the issue of confidentiality would cause a practical problem. In normal circumstances the complaint is made by the former client of the solicitor, the advocate or the licensed conveyancer. As soon as he complains about the services he received or did not receive from his former adviser and hands over the documents to the disciplinary body dealing with the complaint, he will waive his confidentiality. Therefore, any duty of confidentiality will fly off.

The solicitor who is complained about by a client who has himself waived confidentiality would in normal circumstances not be under any continuing duty. But even if there were a continuing duty, whether due to the client or to some third party, it is important to bear in mind that the handing over of documents is not the publication of them to the wide world; it is handing them over to the ombudsman for the very limited statutory purposes he has. It would be firmly in the public interest that those who are dissatisfied about the way their complaints have been handled should have that complaint properly and fully investigated if for whatever reason the professional organisation has failed to investigate the original complaint.

It strikes me that the points raised by the noble Lord, Lord Macaulay, are precisely the kind of points we can address in Committee. I am grateful to him for giving me notice of his concerns. I shall certainly read carefully what he has had to say and look again at the concerns raised by the honourable Member for North-East Fife in another place. If it is necessary to have further amendment to the Bill to take account of those concerns, that will certainly be considered. I believe that if the Faculty of Advocates and the Law Society are satisfied with the provisions, both bodies containing, as they do, many highly skilled and experienced lawyers, it is doubtful whether further amendment will be required. As I have already indicated, the Scottish Conveyancing and Executive Services Board has only recently started its operations but it has within its numbers on the board a number of highly experienced lawyers. I have little doubt that all three organisations have looked at the Bill carefully and I am optimistic that it will not be necessary to amend it further. However, I certainly undertake to look at the concerns raised just a moment ago.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

The Earl of Courtown

My Lords, I beg to move that the House do now adjourn during pleasure until half-past eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.20 to 8.30 p.m.]