Legal Services Bill [Lords]

The hon. Gentleman will have his chance to speak. I ask him to let me make my case. The Minister was happy to accept that the behaviour of some trade unions was appalling, but she also states that the purpose of the exemption is to maintain the status quo with regard to the unions. We will not accept such a weak position. We are here to improve things for the consumer, and not simply to maintain the status quo. Perhaps she should think a little more about union members and a little less about union bosses. I should like to repeat the Solicitors Regulation Authority's opinion on the trade union exemption. It asks hon. Members to reject the amendment, which it says"““will have the effect of exempting trade unions from being regulated in the same way as other bodies who provide legal services to the extent that they provide such services to their membership. The SRA are opposed to any route that would exempt trade unions from part 5 in relation to reserved legal activities. The SRA's view is that trade union members deserve the same protection in relation to reserved activities as any other consumer of legal services””." The SRA goes on to say that it is"““a matter of principle—the principle that the Bill is seeking to achieve for the future, and the principle envisaged by the Clementi Report. This principle is that any organisation ""providing reserved legal services to the public or a section of the public needs to be properly and proportionately regulated””." In a memorandum of 10 October this year, the SRA again highlighted its concerns about the trade union exemption. I foresee that attempts will be made to defend the Government amendments by stating that if the unions were to provide reserved legal services to the public rather than to members, advice given by lay officials would have to fall within the alternative business structure licensing regime. The SRA's view, which I quoted, is that members deserve the same protection as any other consumers of legal services. Even if one accepted, for some reason, that trade union members did not deserve such protection, the question of what constitutes a member is open for interpretation. I would like to express our extreme uneasiness about who could be considered a member of a union, and who would therefore not be classed as a protected member of the public. In a letter to me of 21 June this year, the Minister helpfully clarified her position on the union exemption. She wrote that in Committee"““Members raised the issue of whether a union would be able to grant 'associate membership' to unconnected people and provide services to them within the exception made through the amendments that were passed. I should make it clear that the terms of the amendments are that a union is excepted where it is providing services by virtue of membership. The detailed drafting makes clear that this includes retired members and family members, but it does not otherwise distinguish between classes of membership. It will be up to the unions to determine who is a member and to whom they want to make membership-based services available. If they want to extend services to associate members, that will be a matter for them.””" It is astounding that it will be up to the unions to determine who is classed as a member, and therefore to whom they can extend reserved legal activities without needing to be licensed under part 5. That clearly creates the possibility of unions bringing in associate members and providing a poor service to them, as happened in many of the miners' compensation cases. The Minister went on to highlight the weakness of the position under the amendments that the Government proposed in Committee:"““I do not think that similar problems can be tackled by restricting the categories of 'member' to whom clause 15 should apply. If we were explicitly to exclude associated members, unions might instead create other classes of member, or simply give people bogus 'membership'. And even if we did restrict the clause 15 exception, there would still be the deeper problem of the unions not providing a good enough service. The solution to that is regulation: through the authorised persons providing the service and, for claims management, through the framework and code of conduct that we have established””." I find it almost unbelievable that, on one hand, the Minister fully admits that the unions might potentially become involved in dodgy practices such as giving people bogus membership so that they can give them advice while remaining outside the licensing requirements of part 5, and that, on the other, she says that the issue of who is classed as a member is completely up to the unions. That highlights the fact that the exemption is not only unacceptable in principle but simply far too wide-ranging in practice. The Minister states that the deep problem is with the unions not providing a good enough service, and that the solution to it is the regulation of authorised persons by existing regulators such as the Law Society. Why are we bothering to pass the Bill if sub-standard service on the part of the legal profession can be sorted out by existing regulators under the existing regime? I fully understand that if trade unions were to become fully licensable under the alternative business structure regime, advice on potential employment disputes given by lay shop stewards could fall within the ambit of the regulations. I understand that it might be undesirable, from the unions' viewpoint, for such advice to come within the ambit of legal services regulation, although I think that that should be debated further. What I cannot understand, however, is providing such a wide exemption. In a letter of 10 September to Lord Kingsland, the Law Society stated that"““Under the current formulation, trade unions will be able to provide reserved legal services of any sort to members, without requiring to be regulated under the Act as all law firms (and not for profit organisations) will be. Trade unions could, for example, provide conveyancing services or representation in divorce proceedings, as well as advice in relation to employment disputes. Indeed, because the question of membership of a trade union is simply a matter for the trade union's own rules, there would be nothing to stop a trade union from offering membership to the public at large and then providing reserved legal services to those newly recruited members. I should say that there is no reason to suppose that any trade union currently has plans to develop its services in that way. But that hardly seems a justification for creating such a wide potential regulatory gap"." The Law Society stated that it thinks that the problem could be easily solved if the exemption for trade unions applied only to services that are ancillary to the trade unions' main function of representing employees in relation to their employer. That would mean that a trade union would be exempt from regulation under the Legal Services Act if it was providing representation in relation to, say, a contractual dispute with the employer, or an accident at work, but not when it provided legal services on an unrelated matter. If trade unions wish to provide reserved legal services unrelated to main functions, they should be able to do so only by obtaining an alternative business structure licence under part 5. The inherent weakness of the decision to exempt trade unions is highlighted by the Minister's letter to me of 21 June:"““If a union extends services to anyone other than members, it has to be regulated as an entity and licensed as an ABS body. But the key to members' protection is, as I took pains to explain at Committee, that reserved activities still have to be carried out by authorised lawyers, who still have to be regulated by approved regulators. If a regulator concludes that the public interest requires that lawyers in these situations work in a regulated environment it will be able to make appropriate rules. This will of course be subject to the Legal Services Board being satisfied that those rules are proportionate to the problem and consistent with the regulatory objectives. I made this clear in the debate and I am happy to confirm it now. If the circumstances warrant it, a regulator such as the Law Society will be able to introduce a rule that allows a solicitor employed by a union to practise only through a regulated entity. Alternatively, it will be able to limit the services that lawyers are allowed to provide while working within a union.””"