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Legal Services Bill [HL]

I am grateful to noble Lords for giving me the chance to talk about this important issue. I start from wishing that all members of the public would make a will. That would be a good thing. The noble Lord will know that we have been considering whether will-writing should be made a reserved legal activity. The difference between will-writing and everything else that is provided for in the legislation is that the services set out in the Bill have been reserved for many years. This would add a new reserved service, which means that it would be restricted to members of authorised bodies. We cannot do that until we are absolutely certain about the evidence before us. The same applied with our consideration of the compensation culture, on which there was a lot of evidence. Concern was felt across your Lordships’ House and, even more important, outside your Lordships’ House that the area needed to be dealt with, and the Government moved swiftly to regulate. So we have, as the noble Lord, Lord Hunt of Wirral, says, no concerns about regulating where necessary, but I have concerns about regulating without evidence to suggest that there is a real problem. In March 2005, my noble and learned friend the Lord Chancellor said that we would consider the case for the regulation of will-writing. Since then, we have worked with consumer bodies, the legal profession, those who provide will-writing services and the Office of Fair Trading, and asked for evidence that would suggest that there is a systemic failure in the will-writing market. We received information about some cases, but it did not show the level of failure sufficient in our view to warrant regulation. In fact, we have had some evidence from the Probate Service of a higher number of probate applications from solicitors being rejected because they were not properly prepared. There is an issue around will-writing, but it is not necessarily around those who are not members of the legal profession. We reached the conclusion that we did not have the evidence to suggest that this problem was systemic. That was supported by the National Consumer Council and Which?—consumers have therefore played their part through those organisations in looking at the evidence that we had. The Office of Fair Trading also supports our not regulating at this point. I accept that there can be problems where potential mistakes, as the noble Lord said, are not discovered for many years. I have already said that there is no evidence to suggest that will-writers are more likely to make such mistakes. But we agree absolutely that we need to ensure that standards are raised generally and are consistent with the regulatory objectives of the Bill, and that the LSB should work with current and future providers to achieve that, not least in terms of understanding. The noble Lord, Lord Hunt of Wirral, said that the changing nature of family relationships means that wills can be even more complicated for people with different kinds of families, and that that needs to be taken into account when considering how and by whom one’s will will be drawn up. At the end of the day, we have to be proportionate and base regulation and bringing this provision into reserved activity on an assessment of risk. If we do not do that, we start to add in things—creating a more expensive system, I would argue—that do not provide additional benefit to consumers. So our approach to this has been to make sure that standards are raised. We would expect that to happen. Equally important, if real evidence emerges rather than—and I am not suggesting that it happens in your Lordships’ House—anecdotal evidence of a systemic problem, the area can be regulated under Clause 23 and, indeed, under the Compensation Act, on which I worked with the noble Lord, Lord Hunt of Wirral, when we enabled regulation of other areas where it was clear that that would be necessary. So the capacity to do that exists, but I would hesitate to suggest that we should bring the provision in without evidence showing that the problem is such that it requires will-writing to be made a reserved function and that full regulation should take place. Should that happen, we would do that, but it is not the case at the moment.