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2 July 2008 : Column GC61
Grand Committee
Wednesday, 2 July 2008.
The Committee met at a quarter to four.
[The Deputy Chairman of Committees (Lord Geddes) in the Chair.]
The Deputy Chairman of Committees (Lord Geddes): I remind the Committee that in the event of a Division in the Chamber, which I am told is distinctly probable, I will adjourn the Committee for 10 minutes to allow Members to vote. I also advise the Committee that in the case of each statutory instrument, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. The Motion to approve the statutory instrument will be moved in the Chamber in the usual way.
Probate Services (Approved Bodies) Order 2008
Lord Bach rose to move, That the Grand Committee do report to the House that it has considered the Probate Services (Approved Bodies) Order 2008.
The noble Lord said: This order is presented under Section 55 of, and Schedule 9 to, the Courts and Legal Services Act 1990. It will enable the Institute of Chartered Accountants of Scotland and the Council for Licensed Conveyancers to become approved bodies which can authorise their members to provide probate services for a fee, gain or reward. By probate services, I mean the preparation of any papers on which to found or oppose a grant of probate or a grant of letters of administration.
At the moment, Section 23 of the Solicitors Act 1974 restricts the provision of probate services for a fee, gain or reward to specified legal practitioners; namely, solicitors, barristers and notaries. However, Section 55 of the Courts and Legal Services Act provides an exception for members of an approved body. The ICAS and the CLC are the first applicants seeking to provide probate services under the Courts and Legal Services Act approval mechanism since the provision was commenced in December 2004.
The applications have passed through the required statutory approval procedure set out in Schedule 9 to the Courts and Legal Services Act. In doing so, they have been considered and approved by the legal services consultative panel and the president of the Family Division and, as a result, have our full support.
Briefly, the ICAS is a professional body of accountants which received its royal charter in 1854 and has more than 17,000 individual members and 200 member firms. Members are required to meet the academic and post-qualification requirements of the ICAS before being eligible for membership and obtaining accountancy-practising certificates. Its members routinely have long-standing relationships with clients, giving them tax and financial planning advice. Under the terms of the application, probate practising rights will be granted
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Before members of the ICAS are granted practising rights, they will need to show that they can satisfy the requirements set out in Section 55 if they wish to provide probate services. These include being suitably trained and ensuring that their employees are suitably trained, including meeting the continuing professional development requirements set by the ICAS; having satisfactory insurance and compensation arrangements in place to cover adequately the risk of any claim made against them and to protect the client in the event of them ceasing to provide probate services; and having a complaints scheme in place, including a route of appeal to the Legal Services Ombudsman.
As with members of the ICAS, members of the CLC will need to demonstrate they have the similar arrangements in place before being granted probate rights. The CLC was established in 1987 by the Administration of Justice Act 1985 to regulate licensed conveyancers in the provision of conveyancing services. It currently has around 1,043 licence holders and 42 recognised bodies. Members are required to have undertaken the qualification and practical training requirements set by the CLC before being granted a licence to practise. Only those members who hold licences will be eligible to apply for a probate-practising certificate.
In order to meet the full requirements set out in Section 55 of the Courts and Legal Services Act, the CLC requested approval to extend its existing compensation fund to cover probate matters. An order to this effect came into force earlier this year. This will ensure that clients of licensed conveyancers will be protected against fraud, negligence or dishonesty on the part of the licensed conveyancer. Consumer protection is something that both the ICAS and the CLC have demonstrated they take seriously in their applications. As established professional bodies in their fields of expertise, they already have in place effective systems of monitoring and enforcement. They have made sure that they and their members have, or will have, in place suitable arrangements for the provision of probate services.
The potential benefits to the consumer of these bodies being approved include: more choice of provider; more competitive prices; and, in the case of organisations such as the ICAS which have an existing customer base, the opportunity to provide them with a more cost-effective and efficient service. This is precisely what Section 55 is intended to do and is in keeping with the principle, which is central to our policy, of providing new or better ways of providing legal services and a wider choice of persons providing them at more competitive prices. If consumers are unhappy about the way in which the ICAS or the CLC has dealt with a complaint about one of its members providing probate services, they can refer the case to the Legal Services Ombudsman. The ombudsman’s jurisdiction was extended to cover bodies authorised under Section 55 in October 2004, shortly before the Section 55 provisions were commenced. She has been approached by both organisations and has agreed to accept complaints
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In the longer term, complaints about these two bodies’ members will be dealt with by the new Office of Legal Complaints in line with complaints about members of other legal professional bodies. If this order is approved, a subsequent order will need to be laid. This will amend the Legal Services Act to bring both bodies under the jurisdiction of the Legal Services Board and ensure that they retain their probate rights in the future regulatory regime. I commend the order to the Committee. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Probate Services (Approved Bodies) Order 2008. 22nd report from the Joint Committee on Statutory Instruments.—(Lord Bach.)
Lord Henley: I thank the noble Lord for explaining the order. I do not think that it is controversial and I suspect that we can happily agree to it. However, I have a couple of short questions. The first concerns consultation. The order states:
“The Secretary of State has considered the advice given to him by the Legal Services Consultative Panel and the President of the Family Division”.
Who else was consulted? What is the process of consultation on these matters?
I ask my second question with some embarrassment. Why is the affirmative procedure being used? I notice that the order is being passed under the Courts and Legal Services Act 1990, which was enacted when my party was in government. I believe that the noble Lord referred to a slightly later Act, which may have consolidated the earlier Act. It seems to me that some of the affirmative orders which come before us might be better dealt with by the negative resolution procedure. I am not clear why we need to deal with this order by the affirmative procedure, but no doubt the Minister will explain.
Lord Thomas of Gresford: I have reservations about this order. Probate is a difficult and challenging area of the law. It can be successful if it is simple, but it can lead to long delays, particularly if it involves the administration of trusts under a will or matters of that sort. It is a much more complicated area than conveyancing, and indeed quite a long way removed from accountancy. It is right, therefore, that the Government should have made necessary inquiries before bringing this order forward. What is not apparent is, for example, the track record of the Council for Licensed Conveyancers. Have there been complaints, and has its compensation fund been used in relation to conveyancing?
Another matter to which I draw the Committee’s attention is that the Legal Services Consultative Panel did not immediately give a clean bill of health to the Council for Licensed Conveyancers and thought it desirable that it should have a separate fund to deal with compensation for probate matters as opposed to the existing conveyancing fund. However, since that recommendation was made, the Government have for
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The other matter that causes me some disquiet is why the Institute of Chartered Accountants of Scotland should be seeking powers to deal with probate in England and Wales. There are quite different and separate jurisdictions in Scotland and Wales, and the area of the law covering probate and trust is quite different in Scotland from the system in England and Wales. As I said, accountants are fairly well removed from this area anyway, so why do they want to extend their business into England and Wales? What training will they have in these aspects of English and Welsh law which will be satisfactory?
In the long term, all may prove to be fine. On behalf of my party, however, I wish to put down a marker that these extensions of business should not be accepted without the most rigorous consideration of the standing and record of the one fairly new organisation, the Council for Licensed Conveyancers, and the longstanding record of the Institute of Chartered Accountants of Scotland whose members are coming across the border to take the business of practitioners in England and Wales without, so far as I can see, any reason appearing on the papers which have been put before us.
I voice these reservations in the hope that if the Minister cannot respond to them today, he will be able to do so before this draft statutory instrument is brought before the whole Chamber and its implementation is sought.
4 pm
Lord Bach: I am grateful to both noble Lords for their responses. I shall deal first with the question of why this is an affirmative resolution, in answer to the noble Lord, Lord Henley. The comments made by the noble Lord, Lord Thomas of Gresford, give the answer to that. It is always an important step when the law is changed to enable bodies to take part in legal practice when they have not been able to do so before. There are always a number of doubts and concerns surrounding such a change and it is important that Parliament should have the right to deal with orders that make such changes in a positive, affirmative way. I hope I do not embarrass the noble Lord, Lord Henley, too much if I commend his Government for having made these orders affirmative; it would have been a subject of potential criticism if they had been merely negative orders.
The obligation is that consultation must be with the two bodies I have mentioned. The statutory approval process means that the Secretary of State has to seek the advice of the Legal Services Consultative Panel and the president of the Family Division, but no one else is consulted in the process. That is for these particular applications, but, before Section 55 itself was commenced, I am advised that a full consultation took place. I hope that deals with the queries that the noble Lord rightly raised.
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I take on board the doubts that the noble Lord, Lord Thomas, has expressed. I want to reassure him as best I can that, given the status of the LSCP and of the president of the division, all the matters he was concerned about have been taken fully into account. Indeed, so far as the conveyancers were concerned, he is right that there was initial concern over the lack of compensation arrangements, and the LSCP recommended that that application should be approved only if adequate compensation arrangements were put in place. It further recommended that the Secretary of State give consideration to legislation to amend the Administration of Justice Act to allow the CLC to extend its existing compensation fund to cover probate work.
The endorsement from the president of the Family Division for that recommendation was received in February 2008, and ministerial agreement was given in the same month. In March the Courts and Legal Service Act 1990 (Modification of Power to Make Rules about Licensed Conveyancers) Order 2008 was laid. The order gave the power to the CLC to extend its existing compensation funds to cover probate work. That has allowed that body to make rules about paying compensation to people who had suffered loss, as I told the Committee a moment or two ago, as a result of negligence, fraud or dishonesty. The system, if I may say so, seems to work. The body that, by statute, has to be consulted on this made a recommendation. That recommendation was taken on board by the Government, and has now been put into force. There is confidence all round that that is a suitable body to get this right.
The noble Lord, Lord Thomas, asked the obvious question—although I do not mean “obvious” in any derogatory sense—about why an organisation with “Scotland” in its title should want to do this work and why it should be entitled to. The name may be slightly misleading in that, as I understand it, a number of members of that body already do considerable work in England, even though the name of the organisation has “Scotland” in it. That is true also for banks whose names include the word “Scotland” but that have an important function in England too. The noble Lord may come back to me and say, “Well, the Scottish legal system is rather different from the English legal system but that may not be so true about the banking system”.
The fact remains, however, that some ICAS members already work in England as accountants. The ICAS plans to provide training, which is what the noble Lord was concerned about, through a variety of methods, including compulsory training courses at its examination centres and using solicitors who practise in England and Wales to assist with courses. The ICAS has also approached the Society of Trust and Estate Practitioners about the possibility of members attending STEP training courses and, if that application is successful, would enter into a formal agreement.
I mention those factors because the Government are satisfied that both bodies are eminently suitable for the work that they have applied to take on. While the noble Lord is of course right to express doubts, and while this is an important step, we are satisfied, as are the consultative bodies and the president, that this is a good move which will pay off.
On Question, Motion agreed to.
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Representation of the People (Amendment) Regulations 2008
4.06 pm
Lord Bach rose to move, That the Grand Committee do report to the House that it has considered the Representation of the People (Amendment) Regulations 2008.
The noble Lord said: The purpose of these regulations is to introduce a new fee payable by persons who are authorised to be supplied with copies of the marked registers of electors.
The Deputy Chairman of Committees: A Division has been called in the Chamber. I was hoping that we would get the timing absolutely spot-on but we just missed it. The Committee stands adjourned until 4.17 pm, or that much sooner if all interested parties are back.
[The Sitting was suspended for a Division in the House from 4.07 pm until 4.13 pm.]
Lord Bach: The purpose of the regulations is to introduce a new fee payable by persons who are authorised to be supplied with copies of the marked registers of electors, lists of postal voters, proxy voters and proxy postal voters that are produced at elections.
At an election, when a ballot paper is issued to an elector in a polling station a mark is made against the name of the elector in the electoral register to indicate that the elector has received a ballot paper and therefore we can assume has voted at the election. This is the marked register of electors. The list of persons who have appointed a proxy to vote on their behalf is marked in the same way when a ballot is issued in the polling station to a person voting as a proxy. Further, under changes made by the Electoral Administration Act 2006, the lists of postal voters and proxy postal voters are also marked to show which voters have returned their postal votes.
Copies of the marked registers and other lists may be supplied after the election to certain authorised persons, including candidates and political parties, who may use the registers and lists for electoral purposes. The political parties, elected representatives and candidates attach great importance to the marked electoral register for campaigning purposes and for maximising turn-out at elections. Access to these records allows them to see the extent to which electors voted, if their known supporters voted and to gauge the effectiveness of their campaigning. The Government feel strongly that marked registers serve a useful purpose in the democratic process and that we should not hinder access to them by persons who have a legitimate interest in the information contained within them.
4.15 pm
The regulations before us set out the new fee payable for supply of the marked register and other lists produced at parliamentary elections in England, Scotland and Wales and at local government elections in England and Wales. The new fee will also apply to the marked electoral register produced at an election to the National Assembly for Wales. I shall go into the details of the
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Ideally, these regulations would have been in force prior to the recent May elections. Unfortunately, it was not possible to complete the various steps required to bring the new fees into force by 1 May. Importantly, we have given careful consideration to assessing the costs to local authorities of producing copies of the marked registers and the impact of any new fee level on them. This has resulted in taking a little longer than originally expected in bringing forward new fees, although we believe that the very thorough and careful consideration has resulted in new fees that are fair and proportionate. I can reassure the Committee that the new fee will apply to requests for copies of marked registers after these regulations come into force, including copies of marked registers from the May 2008 elections.
Let me set out the background and explain why we are bringing forward new fees for the marked register. In the May 2007 elections we introduced a new framework governing access to and supply of marked electoral registers produced at elections. That new framework introduced a formula for calculating the fees. The aim was to standardise the fees and to ensure consistency in the amounts charged for elections across the UK. Importantly, the fee was intended to cover the reasonable costs of local authorities in producing copies of the documents, not to provide a profit for them. The effect of those fees was to increase the amount that political parties and candidates had to pay for copies of the marked electoral register.
The earlier regulations that set out the revised fees were developed in consultation with key stakeholders and they were also debated and approved in both Houses. However, as noble Lords may know, it sometimes happens that the full implications of a new proposal do not come to light at the time that it is put forward. On this occasion, in hindsight, it seems that the impact of the new fees was not fully understood and only became apparent when the new regulations took effect at the May 2007 elections. Clearly there are lessons to be learnt, which we will take on board when developing new proposals in the future.
After the elections in May 2007, the Government received representations from the political parties and a number of Members of Parliament expressing concern about the impact of the new fees. Joan Walley, the honourable Member for Stoke-on-Trent North in the other place, put down an Early Day Motion on the impact of the new fees which was supported by a significant number of Members of Parliament from all sides of the House. We were concerned at those representations and, as a result, last July we issued a consultation paper setting out proposals concerning the fees. The consultation was aimed at political parties, local authorities, local electoral offices in the UK and the Electoral Commission.
Various options were set out. No fee at all was one option; setting fees at the lower end was another; and making no changes to fee levels was a third. Some 97 responses were received and we have published a response paper to the consultation which sets out a
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In the light of the lack of consensus, Ministry of Justice officials conducted further work. They consulted a sample of local authorities which had responded in order to understand in more detail the cost drivers for producing the marked electoral register. We obtained useful information. In developing our proposals we want to get the balance right between the costs incurred by local authorities and the importance that the political parties attach to the marked register for campaigning purposes and maximising turnout.
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