Coroners and Justice Bill

My Lords, I declare my interests recorded in the Register of Members’ Interests; in particular, being a partner in the national commercial law firm Beachcroft LLP. The Minister has reintroduced this group of amendments. I suppose that he is hoping that this will be the third time lucky. He has had to withdraw his amendments at the last minute both in Committee and on Report after finding that they were not really in accordance with what he sought to do. I am not sure that to have the first proper debate on such an important amendment at Third Reading is the right way to legislate. The Minister was at pains to stress in his speech that the Government had consulted over the summer. However, that was because they had tried to introduce amendments in Committee before the summer without bothering to consult anyone very much beforehand. Having spoken to a number of organisations that have been consulted, I believe that, in their view, these revised amendments will probably cause significant difficulties without properly addressing the problems that the Government have acknowledged exist, and which the noble Lord, Lord Lester, has just outlined. Well, we have been here before. If we look back at what has happened to the conditional fee agreements, as we were reminded in the previous debate, that regime said that the agreements would continue to be unenforceable unless they complied with regulations. I presume that they were similar to the regulations now proposed for damages-based agreements, although we have not seen them. I am not sure whether the Minister has seen any draft regulations. It would be very helpful if he could acquaint us with their substance, if not yet their detail. With CFAs there has been an enormous amount of satellite litigation, which has certainly not been in the public interest. The cases demonstrated that there were certain fundamental flaws in CFAs. Is the Minister satisfied that those fundamental flaws will not exist as far as DBAs are concerned? DBAs have been available for many years in non-contentious work. As the Minister explained, they are not permitted in court-based litigation here. We all know the problems that they have caused in the United States. They are, of course, available here for tribunal cases. The argument is that they are, in some ways, particularly suitable for employment and tax cases because it is very rare for the losing side to be liable for the other side’s costs. Above all, I ask the Minister whether he is satisfied that this move on his part is in the public interest. He has now tried to limit DBAs in the way that is expressed in Amendment 18. In many ways, this is all now based on some rather limited research to which he referred a few moments ago. That limited research, he feels, enables him to make regulations which ensure that DBAs are unenforceable unless they comply with regulations which are to be made, and might cover—I presume—such things as the percentage of damages that can be taken by the lawyer; exactly what costs are included in the percentage; the contractual terms; and the advice that must have been given before the agreement is entered into. I am guessing, because I have not seen the regulations. The Minister may well have seen some draft regulations. The amendments propose to make agreements which do not comply with such regulations unenforceable. I suppose that would mean that consumers who wish to challenge will have to take legal action to establish whether their agreements comply with regulations. I am not sure that consumers will be aware of whether their agreement complies or not. I also do not think they will be queueing up to litigate further. If they do, there will a similar round of expensive satellite litigation. Surely that cannot be in the public interest. It is anyway inappropriate for the Government to move in this direction, particularly when some of the people we are talking about are not regulated to the same level as solicitors. I immediately declare an interest: I was asked by my firm to give a report to the Law Society on the future regulation of solicitors. I pointed out that there are various areas where others have started to creep in—as we see extensively from TV adverts—to undertake work that is very similar to that of solicitors, but is not regulated in the same way. I hope that the Minister agrees that there should be a level playing field, and that the public interest demands that everyone is regulated to the same level. The Solicitors Regulation Authority has made clear that it has power to deal with concerns about solicitors, and it should be allowed to do so. If it is felt that the powers of regulators of those who are not solicitors are insufficient, the approach should apply only to them. Finally, the Minister has referred to the much-respected review of costs by Lord Justice Jackson, which is now under way. The Minister knows that I expressed the strong view that we should await that report before we start going down this particular road. The Minister has made clear that he does not think he can wait. I hope that, when he responds, he will take into our account our dismay at the way in which the amendment has been produced and the way he is explaining why it is so necessary. We need a little more detail than we have so far had.