I am grateful for this opportunity to speak to Amendments 72 and 74, and I congratulate my noble friend on the honour of being appointed a privy counsellor. It is richly deserved, and we can all bathe, I hope, in reflected glory. I look forward very much to hearing from my noble friend how her Amendment 73 will impact, and possibly supersede, my Amendments 72 and 74.
Before that, however, I want to raise my concerns about the new powers included in Clauses 76 and 77, which raise a tribunal charging power in respect of wasted resources. I do not disagree that there may be circumstances in which unnecessary costs arise, but it
is a very dangerous precedent to set that a First-tier Tribunal or Upper Tribunal may—as I understand it, for the first time ever—charge the participant. Without going into the details, which I am sure the House is familiar with, I will briefly set out my concerns, those raised by the Law Society of Scotland, and those of the Select Committee on the Constitution in its report published as House of Lords Paper 149.
In the view of the Law Society of Scotland, the reason that Clause 76 is “problematic, unnecessary and unacceptable” is that:
“The First-tier or Upper Tribunal is to be given powers to charge a person exercising rights of audience or rights to conduct litigation if that person is found to have acted improperly, unreasonably or negligently. Under current statutory”
law—for example, the Solicitors (Scotland) Act 1980—
“and common law powers professional regulators have sufficient powers to deal with matters of professional discipline such as improper or unreasonable conduct. It is inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts. Furthermore, we note that any amounts charged under this clause for negligence are to be paid to the Consolidated Fund rather than to the client who may have suffered as a result of any alleged negligence. This appears to be a form of”
backdoor
“taxation rather than compensation for negligence.”
Through these two small amendments, I would like to understand better the thinking with which the Government have drafted these two clauses. Amendment 74 is consequential on Amendment 72, simply leaving out Clause 77 if the House was minded to remove Clause 76.
I am delighted to say that the House of Lords Constitution Committee, in its report of January this year, also quoted the Law Society of Scotland and said in paragraph 94:
“There is at least the potential that these new rules could discourage legal representatives and immigration advisers regulated by the office of the Immigration Services Commissioner, as well as applicants, from raising or engaging in legitimate proceedings.”
I would like to think that this was not the intention behind the government thinking, but I would very much like to hear reassurance from my noble friend the Minister that this is indeed the case.
To conclude, in the view of the Law Society of Scotland this clause is “unnecessary”; there are already existing statutory and common law powers for the appropriate regulators to deal with such issues as “matters of professional discipline” following existing complaints procedures; and it is therefore
“inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts.”
I also set out the Law Society of Scotland’s and my objection to the fact that this would be
“paid to the Consolidated Fund rather than”
towards reimbursing
“the client who may have suffered as a result of any alleged negligence.”
With these few remarks, I beg to move. I look forward to hearing the Government’s response.