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Legal Services Bill [Lords]

Volume 465: debated on Wednesday 24 October 2007

Lords message considered.

Clause 15

Carrying on of a reserved legal activity: employers and employees etc

Lords amendment: 4A.

I beg to move, That this House does not insist on Commons amendment No. 4 to which the Lords have disagreed, disagrees to Lords amendment No. 4A proposed in lieu of that amendment and proposes amendments (a) to (c) in lieu of Lords amendment No. 4A.

The House will be aware that although this House agreed with the Government amendments to clause 15 that apply to trade unions, they were not accepted in the other place. Their lordships disagreed and substituted different words that limited the exemption that trade unions would have from the need to be regulated as entities. In our original wording, trade unions were to be exempted in respect of any reserved legal services provided by virtue of membership. In the Lords amendment, the exemption applied only to what we might call a limited range of employment-related services.

I have thought about the issue very carefully and I accept the spirit of the Lords desire to narrow the exemption. Although I would still be happy with a wider exemption, I acknowledge the strength of feeling about the subject and particularly the concerns that were held by some consumer organisations about whether union members might not get the full level of protection. As everyone will be aware, I am very concerned that all consumers—whether they are union members or otherwise—are properly protected.

I think it would be right to say that no one wanted to prevent unions from continuing to provide legal services to their members in areas connected to their employment, trade, occupation or other membership-based activities. The services that unions provide are vital for access to justice and for industrial relations, but I can see force in the argument that preserving that position does not require an absolute exemption for all kinds of legal services.

Nevertheless, today large numbers of people earn their living in ways that differ from the traditional employer-employee relationship. It is important therefore that the amendments that narrow the exemption recognise that and provide for the different ways in which people work today and through which, by virtue of their membership of a particular union, they may benefit from assistance by that union in the same way as people employed in more traditional employment situations. On that basis, we have tabled amendments that will have a similar effect to those considered in the other place, but that will also ensure that services relating to trades, occupations or other activities associated with a person’s union membership are included.

Our amendments are not confined to employment in the narrow employer-employee sense. There are many other ways of earning a living or of being a trade union member, including through self-employment and holding a non-remunerated occupation, and trade unions deal with all of them. That is covered by the definition of “relevant activities” in proposed new subsection (9) to clause 15.

Our amendments go wider than the Lords amendments in the range of circumstances that they cover. The Lords amendments were fairly closely focused on the workplace, but our amendments apply the exemption to other situations as well. For example, proposed new subsection (5B)(b) to clause 15 covers other

“activities carried on for the purposes of or in connection with, or arising from”

the member’s employment, trade, occupation or other relevant activities.

An example would be that of a university lecturer who has a publishing contract arising out of his or her research obligations. That contract would not be with the university that employs him or her, but it does arise out of the lecturer’s employment by the university. That provision enables unions to provide services if a dispute arose about the publishing arrangements. Another example would be a case in which an agent acts on behalf of a musician who is a member of a union. The provision would allow the union to provide services to the member if there was a problem regarding an engagement, even if the agent was working on the member’s behalf.

Proposed new subsection (5B)(c) covers events that occur in the course of, or in connection with, a member’s employment, trade, occupation or other relevant activities. That would, for example, allow unions to continue to provide services to teachers who need legal help when something untoward happens on a school field trip. Proposed new subsection (5B)(d) covers activities carried on by a member for the purposes of, in connection with or arising from membership of the union. That will apply the exemption to matters that do not directly concern the member’s occupation but are nonetheless an important part of his membership role. An example would be a member’s position as a trustee of an employer’s pension fund.

Obviously, those are only examples, but I hope that the House will agree that it was important to cover the wider range of work-related and membership-related activities; I hope that Members agree that the amendments do that. Of course, under the amendments, the Lord Chancellor has the power to clarify the reach of the provisions by order, on the recommendation of the legal services board.

I can also confirm that our amendments are intended to ensure that “excepted membership services” includes reserved legal services for a member, or one of the other persons set out in proposed new subsection (5A)(a), where such services relate to, or have a connection with, activities set out in proposed new subsection (5B) that have been carried out by another person on behalf of the member. In other words, if a musician who is a member of a union has a contract for music services negotiated by an agent, any reserved services to the member that relate to, or have a connection with, those music services should be covered by proposed new subsection (5B).

Finally, for the sake of completeness, I should add that none of what I have said changes the general position on regulation that we have already set out. Any reserved services within that exemption that a union provides directly will still have to be carried out by a qualified lawyer. Approved regulators will still be able to take action if something untoward develops. Union members will still be able to take complaints about reserved services to the office for legal complaints, and will still be able to complain within the union’s rules, too.

I hope that it is agreed that the amendments deal with the main concerns expressed about the original exemption. The amendments will continue to enable unions to provide the range of work and membership-related services that they do now, which I think we all agree is important. However, the amendments also ensure that the exemption is not wider than necessary. I commend them to the House.

I declare my interests as a member of the Law Society and of the corporate finance faculty of the Institute of Chartered Accountants. Putting aside the mechanical complexities of the ping-pong process, the issue that we are dealing with first today is straightforward. That issue is whether the trade unions deserve exemption under the Bill and, if so, to what degree. We recognise that the Government have made significant movement on the issue.

The Government’s original amendment, tabled in Committee, attempted to exclude trade unions entirely from the requirement, under part 5, to become licensed alternative business structure firms when providing reserved legal services to their members. Unsurprisingly, that wide-ranging amendment, which would have allowed a trade union that operated entirely outside the regulatory structure to provide, say, conveyancing services or representation in divorce proceedings, was rejected in the other place when the Lords were belatedly given the opportunity to examine it. A proposal was then put forward by my noble Friend Lord Kingsland, limiting the trade union exemption to those legal services ancillary or incidental to the trade unions’ main employment-related function, and it was accepted in the other place.

The Government have now tabled a compromise amendment, which attempts to broaden our narrowing of the union exemption to cover membership services which relate to what they describe as the “relevant activities” of a member or former member of an independent trade union. But, taking a step back, it still remains unclear to me why the Government were prepared to expose union members who receive legal services to a potentially lower level of regulation and protection than that which other people receive when accessing similar legal services from bodies other than unions.

We are at least thankful that the Government have now accepted, however grudgingly, the absurdity of a blanket exemption for trade unions. We do, however, maintain that as a matter of principle the trade unions should not be granted that special treatment. Why should mutual societies, voluntary and not-for-profit bodies such as Citizens Advice, and small legal entities such as trade mark and patent attorney bodies, which have operated as companies without significant complaint against them for many years, all be required to be regulated alternative business structures if unions are not? Why should trade unions receive special treatment?

Who is prepared to speak out for the bodies that I mentioned, and to recognise the unequal way in which the Government are dealing with bodies that will be affected by the Bill? It is the Conservative party that is prepared to speak out, and it is the Conservative party that is prepared to question the trade unions’ unjust influence over the Government, which the unions have levered to ensure that their circumstances, and only theirs, were thought worthy of a blanket exemption and now a partial exemption. Could that be something to do with the fact that 73 per cent. of cash donations to the Labour party in 2006 came from trade unions? Perhaps the Minister would like to comment on that.

The Government should be thinking about the interests of trade union members, and not the interests of trade union bosses. We will be watching to see whether the union privileges granted under the Bill are abused. On Report, various Labour Members maintained that unions were regulated by the certification officer. The role of the certification officer is a matter for another debate, and we should have that debate, but why should trade union members be exposed to poor, inadequately regulated legal services from trade unions? The result of the union exemption, if it goes through, will surely be to make necessary a thorough review of the certification officer’s role.

I know that the hon. Gentleman has a paranoia about trade unions, but does he not realise that millions of people in this country who get access to justice would not do so if it were not for the legal services provided by trade unions?

I totally accept that, but when we last debated the subject on Report, the hon. Gentleman said, when referring to the certification officer:

“I have some criticisms about the system’s lack of teeth”.—[Official Report, 15 October 2007; Vol. 464, c. 610.]

I agree with him, and we should review that.

Furthermore, it must be highlighted once again that under the amendment it will still 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 still creates the proven possibility of unions bringing in non-connected associate members and providing a poor service to them. I would be grateful if the Minister could outline how the Lord Chancellor would consult on what are the “relevant services”. In particular, would that need to be confirmed in a statutory instrument?

The Government should be aware that the provision, together with the role of the certification officer, represents unfinished business. The compromise reached remains far from ideal, even though we accept that the Government have made a dramatic concession on the issue. The exemption would be limited to the relevant activities of the union members, but what does that mean? How would that be regulated by the Lord Chancellor? On this matter of principle, we are not yet satisfied, and we will press the amendment to a Division.

As the House may recall from our previous discussions on the subject, we had two problems with the Government’s proposal. First, the blanket exemption was far wider than we were prepared to accept, because in the provision of legal services by trade unions, it would have allowed what I would term trading in the open market. There is nothing to stop trade unions offering legal services on the basis of a general legal practice, rather than on the specific areas that were relevant to members.

The other issue for us was the position of other mutual organisations and how they might be accommodated. We still do not have satisfaction on that, but I accept that it would be extraordinarily difficult to draft an appropriate amendment to the Bill which did not effectively provide a get-out clause for a great number of organisations that would want to provide legal services on a commercial basis. Although I still think that there is a substantial argument that what is right for the trade union goose should be right for the mutual gander, I have yet to persuade myself that I can draft something that adequately makes the point in legislation. I therefore do not criticise the Government for acknowledging the point but failing to accommodate it.

On the position of trade unions, I welcome the amendment moved by the Minister. It represents a substantial reduction in scope from the previous drafting. I find little difficulty in accepting the Minister’s amendment as being very close in spirit and in letter to that which was proposed by noble Lords in another place, and it achieves the same results. The hon. Member for Huntingdon (Mr. Djanogly) shakes his head, but I look at the Lords amendment and at what the Minister has produced today, and I do not see a substantial difference between them. Of course there are still issues of definition. We know that there always would be, because it is impossible to provide a schedule to the Act that lists every single potential activity of a trade union. I accept that there are still problems of definition.

However, I do not have the same sort of problems, which seem to be reaching phobic proportions on the part of the hon. Member for Huntingdon, in respect of trade unions providing services to their members. I acknowledge the valuable work that they do. I shall therefore recommend to my right hon. and hon. Friends that they support the Government amendment. I have quarrels with the Minister later, so she should not feel too complacent. I applaud the considerable movement that the Government have made in our direction and see the amendment as an acceptable compromise.

I support the amendment, which is a sensible compromise. We heard again today from the hon. Member for Huntingdon (Mr. Djanogly) his complete ignorance of the way in which trade union legal services operate. Reference has been made, for example, to trade unions offering conveyancing to members and their families. Most trade unions do so now, but they do it though a panel of solicitors or it is put out to various legal firms. They will be covered by the Bill because they are independent solicitors or legal practices. The Conservatives seem to wish further to limit the activities of independent trade unions and to damage them.

Does my hon. Friend agree that the hon. Member for Huntingdon (Mr. Djanogly) has done us a service by reminding us of all the anti-trade union measures introduced by his party when it was in power?

I am grateful to my hon. Friend for that point. I was proud to work for a trade union that offered legal services to its members. In some of those cases people had suffered industrial injuries and would not have had access to justice if not for the trade union. The Conservative party should recognise that the service is given to many millions of people across the country, including even people in Huntingdon, who rely on trade unions for that service. We should get away from attempts to emasculate independent trade unions. I hope that the new Conservative party will recognise that independent trade unions providing such services are a vital part of a modern democracy.

I commend my hon. Friend the Member for North Durham (Mr. Jones) for again making relevant and pertinent points, and I commend the hon. Member for Somerton and Frome (Mr. Heath) for succinctly putting across arguments of great relevance, as he often does in our debates.

Considering the amount of thought that the Minister has put into the Bill and the amount of listening that she has done to detailed representations through formal channels and informally from my hon. Friend the Member for North Durham and me, one would expect that on this matter of all matters she would have got things right. I am pleased to inform the House that she has listened and she has got things right.

If anyone were wary of a loophole, it would be my hon. Friend and I. I would call it the Union of Democratic Mineworkers question, against which all trade union legislation needs to be proof. In law, the UDM is a recognised trade union, albeit one not within the TUC and not with many members. The UDM question is whether there would be any loophole in the law that would allow the UDM to find a route through it. If there is a loophole, the union will pay vast amounts of money for advice to find a way through it. If I felt that the Government were allowing a UDM loophole, I would want that loophole closed. Those who listen to these debates know that that would be the case for me and for my hon. Friend the Member for North Durham, so we commend the Minister for the detailed thought that she and her civil servants have put into responding to the many points that have been raised.

It is with a little incredulity though no surprise that I find the hon. Member for Huntingdon (Mr. Djanogly) continuing to attempt to promote his career through traditional but rather antiquated attacks on the trade unions. Only last week he attempted to equate what he was doing with the fight of miners for justice over their compensation. Sadly, he has been all too quiet about supporting the work that has been done in relation to that. He may want to consult his hon. Friends the Members for Newark (Patrick Mercer) and for Boston and Skegness (Mark Simmonds), who will be able to describe in detail how the work done by Back Benchers to challenge injustices can be taken forward by Conservative MPs with vigour equal to that of some of the Labour Members who have done so. To confuse the issue seems disrespectful to the quality of our recent debates.

I appreciate that there are pressures on the hon. Member for Huntingdon as he gets his instructions to stick the boot in and go for headlines in some obscure publication unsympathetic to the trade unions. However, he does his party and its vague attempts to move to the centre ground a great disservice. There are 7 million trade unionists in this country, and the hon. Gentleman has done nothing more than remind us of his party’s traditional, unthinking bias against trade unions over the past 20 or 30 years.

Trade unions, after all, are a fundamental and integral part of a free and democratic enterprise society. I would have thought that in attempting to move to the centre, the hon. Gentleman’s party would recognise the vital and valuable role of trade unions. Sadly, old prejudices die hard, even among some of the newer and younger members of the Opposition Front Bench. That is to their cost; the public and trade union members across the country will see them out on that.

I commend the Minister on how she has listened in detail to all parts of the House, including Back Benchers, to get the Bill right.

For completeness, I should say to the hon. Member for Huntingdon (Mr. Djanogly) that I am disappointed that he has not been mature enough to join the consensus that everyone else has reached; he obviously wanted to make his partisan party point. There are safeguards in the amendments. I remind the hon. Gentleman again that reserved services can be provided only by qualified lawyers who are subject to regulation by the approved regulators. I do not think that I can make the point much simpler for him; perhaps he should speak to his right hon. and hon. and learned Friends in the other place, who might be able to explain it to him in words of half a syllable. That might help.

I understand the point made by the hon. Member for Somerton and Frome (Mr. Heath) about mutuals. However, mutual bodies and other membership-based organisations can have exemptions under proposed new subsection 15(4) if they meet the relevant criteria, which involve not providing services to the public or a section of the public. A lot of membership-based bodies will qualify for that exemption. I commend the amendments.

Question put:—

Clause 31

Performance targets and monitoring

Lords amendment: No. 10A.

The Government have listened carefully to the debates on thresholds and the persuasive arguments put forward in both Houses. I recognise the concerns expressed by Members that the board should consider the wider impact on the regulatory objectives before taking action, and I believe that the amendments reflect consensus on that important issue. The Bill now strikes the right balance, allowing the board to take decisive action where there has been, or is likely to be, an adverse impact on a regulatory objectives, but preventing the arbitrary use of its powers. The amendments do just that. They were welcomed when they were debated in the other place, and I welcome them here and commend them to the House.

I am grateful to the Minister for her comments. We are looking at the role of the Legal Services Board and its oversight of the approved regulators in terms of the modus operandi of its duty to intervene and the decisions by the approved regulators on when and how it intervenes—the so-called trigger points. It is important to look at the key principles. First, the board must recognise that the primary responsibility for regulation rests with the approved regulators. The board should apply the test that the approved regulators had taken unreasonable action, or had not acted, before it could exercise any powers, and it must seek to resolve any matters informally before resorting to exercising them.

Throughout the whole process, there has been a substantial amount of debate about where and how the board should intervene and the trigger points. If one looks back to Sir David Clementi’s report, he had in mind a small oversight role as regards regulation. He was concerned that the board should not try to second-guess or micro-manage what the approved regulators were trying to do. I am glad that the Minister has made it clear, through the Government amendments that have been tabled, that the regulatory objectives will be considered as a whole. I believe that she has listened carefully to what was said in the other place, in Committee, and by us. The amendment tabled by the Minister, which is slightly different from the one that was agreed in the House of Lords, says:

“‘and, in preparing that statement, the Board must have regard to the principle that the Board should not exercise any of those functions by reason of an act or omission of an approved regulator unless the act of omission was unreasonable.’.”

What we have here, to some extent, is the insertion of the Wednesbury test of unreasonableness, about which there was a substantial amount of discussion by various legal experts. We now have a format that will ensure that there is no unnecessary micro-regulation or involvement by the board as regards the various approved regulators, who will be allowed to get on with their job—the work that they know best. Indeed, those approved regulators have built up a substantial amount of respect with the different organisations that they represent and that they are involved with regulating.

This is another example of where discussion and a degree of effective collaboration between the Opposition parties and the Government has resulted in what we want. There was substantial debate in the other place, and in Committee. I would like to say how grateful I am to those outside organisations that have been so assiduous and conscientious in advising us on this aspect of the Bill, particularly the Bar Council and the Law Society, and some of the smaller organisations that also have the status of approved regulators.

The provisions are important because if there were a board that tried to look at every single last detail of the approved regulators, and tried to second guess exactly what they were doing day in and day out, it would have been a recipe for over-burdensome bureaucracy and far too much red tape and unnecessary involvement. However, the Government have listened carefully to the organisations that will implement the new Bill, and I am pleased to say that they have not just listened, but responded. They have introduced an amendment today that gives us exactly what we wanted originally. Rather than saying to the Minister, “We should have had that long ago,” I say that we have it now because there was proper consultation and discussion. I am grateful to the Minister for what she has done, and we are very pleased with the outcome.

In agreeing to the principles set out in the other place on this matter, the Minister has passed the tests of proportionality and reasonableness. We concur.

Lords amendment agreed to.

Lords amendments 11A to 14C agreed to.

Clause 49

The Board’s policy statements

Lords amendment: No. 15A.

I beg to move, That this House disagrees with the Lords in the said amendment and proposes Government amendment (a) in lieu.

Hon. Members may recall that when we discussed the issue of the board’s policy statements in Committee we were broadly in agreement with the amendments made in the other place, but we were not able to accept the requirement for a policy statement to ensure that the board would not act unless satisfied that the act or omission of the approved regulator was not an approach it could reasonably have taken, because that could have restricted the board from taking action in appropriate circumstances.

The hon. Member for North-West Norfolk (Mr. Bellingham) has already alluded to much of this matter, and as there is broad agreement on it, I ask that the Government amendment is accepted.

Lords amendment disagreed to.

Government amendment (a) in lieu of Lords amendment No. 15A agreed to.

Lords amendment: No. 74A.

I beg to move, That this House does not insist on the Commons amendments to which the Lords have disagreed, and proposes Government amendments (a) to (l) in lieu.

Hon. Members will know that my noble Friend Lord Hunt of Kings Heath recognised in his opening speech that the issue is important and it has been the subject of a great deal of scrutiny and debate at almost every stage of the Bill’s passage. Some will argue that we should go further in respect of concurrence. Reflecting on the points made in earlier debates, it is clear to me that there is genuine concern about what consultation with the Lord Chief Justice might involve. That is why my noble Friend was at pains to set out the detail of how it would work. He confirmed that I had written to the Lord Chief Justice to consult him on the process we are undertaking for the appointment of the chair of the board, and he said that I would write again shortly with respect to other members of the board, which is absolutely the case.

The consultation with the Lord Chief Justice focused on the criteria against which candidates for the position of chair are judged, and he was asked to look at the draft specifications for the chair. He was invited to comment on the process we are undertaking, including the composition of the appointments panel and how we will be carrying out the campaign in line with the Office of the Commissioner for Public Appointments guidance. He was also invited to suggest names of potential candidates that recruitment consultants may wish to contact. I understand that he will be discussing that with the Judicial Executive Board before writing back to me.

This detailed consultation is an important part of the appointment process, and I understand the strength of feeling behind setting out what we mean by consulting the Lord Chief Justice in the Bill. I sympathise with that view, which is why I have tabled amendments that would require the Lord Chancellor to consult the Lord Chief Justice on the appointments process as well as the final appointment. I hope that that gives assurance that consultation with the Lord Chief Justice will not only extend to the person to be appointed, but will embrace the arrangements for the process leading up to it. That process will apply to every appointment made, not just the first.

I can reassure the House that it is entirely a matter for the Lord Chief Justice to decide whether he makes public any disagreement he might have with the Lord Chancellor over the appointment of the chair and members of the board. Although I believe that the arrangements I have just set out will reassure hon. Members that consultation with the Lord Chief Justice, rather than concurrence, is the right approach, I want to mention some other reasons why we have adopted this approach.

First, the approach is consistent with the original recommendation of Sir David Clementi. Secondly, it is consistent with the recommendations of the Joint Committee on the draft Legal Services Bill. Thirdly, it ensures proper accountability over the appointments process because we continue to engage the oversight and regulation of the commissioner for public appointments. Importantly, we provide proper parliamentary accountability because the Lord Chancellor can be called to explain his actions to Parliament in a way in which the Lord Chief Justice cannot. Fourthly, we have transferred the function of making those appointments from the Secretary of State to the Lord Chancellor, in whom we have entrenched those functions. That is important because, under section 3 of the Constitutional Reform Act 2005, the Lord Chancellor has the specific duty to have regard to the need to defend judicial independence and

“the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.”

As I said when we last looked at this issue, those are very good reasons why we cannot accept concurrence; it conflicts with accepted best practice. Consultation does not. I hope that the amendments I have tabled ensure that the appointments do not conflict with best practice, but that the Lord Chief Justice is involved in not only appointments to the Board, but in the process of making those appointments.

Following past debates on the issue, we have moved to tackling the sort of role that the Lord Chief Justice should have.

The view of the Opposition parties in this place and the decision of the other place was that the formal role of the Lord Chief Justice should be clearly set out through the requirement that appointments to the board were to be made through the Lord Chancellor with the “concurrence” of the Lord Chief Justice. We supported that in Committee and on Report, and it remains our ideal position. However, the Government have now moved away from a simple reference to “consultation” and provided some clarification of what consultation with the Lord Chief Justice must involve. Specific reference has also been made to the fact that

“before appointing an ordinary member, the Lord Chancellor must consult the Lord Chief Justice about the process for appointment of the member and about the person selected for appointment”.

We have maintained throughout that at no stage should the independent legal profession in this country be undermined. For that reason, we have pushed to ensure that the independence of the Legal Services Board from Government is protected through the role of the Lord Chief Justice in the appointments procedure. I believe that we were right to push that issue instead of simply accepting that a reference to “consultation” alone was sufficient. The statement of Lord Hunt, the Minister in the other place, on 17 October 2007—only last week—on the matter was telling. He stated:

“I think it will be helpful if at this stage I outline how the Lord Chief Justice is to be consulted. My ministerial colleague”—

the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice)—

“has written to the Lord Chief Justice to consult him on the process we are undertaking for the appointment of the chair of the board.”

I am slightly concerned that, given that we have been considering the Bill for roughly 11 months, consultation with the Lord Chief Justice has involved only a single letter. Consultation on the appointment of other members of the board does not appear to have even reached the letter-writing stage. Lord Hunt also pointed out last week that the Under-Secretary

“will write again shortly with respect to other members of the board.”—[Official Report, House of Lords, 17 October 2007; Vol. 695, c. 747-8.]

Perhaps she could advise the House on the outcome of the consultations. I would also be grateful if she confirmed whether she has considered the use of parliamentary confirmation hearings for appointments, as suggested by hon. Members of all parties on Report.

However, the Government have come a long way on the issue. I accept that Government amendments highlight moves towards the crucial recognition of the need to involve the Lord Chief Justice in not only the method of appointment but the decisions. Although we still maintain that they could go further we accept that we have reached a clearer and more transparent position. On that basis, we will not request the House to divide on the matter.

The hon. Member for Huntingdon (Mr. Djanogly) differs from the Liberal Democrats on dividing on the matter. We still believe that the principle is important. I accept that the Under-Secretary has travelled a great distance on all sorts of matters—she knows that I appreciate that. Indeed, even on the issue that we are considering, the proposal is much better than what the Government previously suggested. The process that has been outlined is clearly better than what was previously described. I simply want her to take that last little step because it will convey an important signal about what we hope to achieve in the Bill.

I do not believe that there is a huge practical difference between the amount of consultation that has been offered and concurrence, which we believe to be so important. It is inconceivable that the Lord Chancellor would make a political appointment that did not have the support or at least the acceptance of the Lord Chief Justice. The stakes have been raised too high in terms of public and professional acceptability if the Lord Chief Justice were to make a report or simply make public his or her lack of confidence in the person appointed to the post of chairman.

Our acceptance of the principle that the chairman should be a lay member is important to the board’s independence. I am pleased that we included that in the Bill because it means that we have a guarantee of independence from the legal profession. That also guarantees credibility among the wider public. However, credibility must also be shared by the judiciary and the legal profession. In the context that we considering, I do not perceive the Lord Chief Justice as head of the profession—that would be wrong. If it were suggested that the president of the Bar Council or of the Law Society should have any sort of handle on the final appointment, that would be wrong, because it would mean accepting a legal closed shop, which, I hope, we are busting wide open in the process.

However, as head of the judiciary and in a specific context in our constitutional arrangements, the position of Lord Chief Justice has changed. It is one of the great offices of state. The seal of approval from an independent judiciary as well as Ministers and the House is to be encouraged. I therefore hold to the view that concurrence is a more satisfactory arrangement and that the House should insist on it. I shall advise my hon. Friends to vote against the Government amendments.

It is like Groundhog day because we have gone over the arguments on numerous occasions. The Under-Secretary has ably conducted proceedings on the Bill and the Government have taken on not only constructive amendments and representations from Back Benchers but even some suggestions from the hon. Member for Huntingdon (Mr. Djanogly).

I do not understand why Liberal Democrats want to divide the House—

It being one hour after the commencement of proceedings, Mr. Deputy Speaker forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That this House does not insist on the Commons amendments to which the Lords have disagreed, and proposes Government amendments (a) to (l) in lieu:—


Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(7) (Programming of bills),

That the following provisions shall apply to the Local Government and Public Involvement in Health Bill for the purpose of supplementing the Orders of 22nd January and 17th May 2007 (Local Government and Public Involvement in Health Bill (Programme) and Local Government and Public Involvement in Health Bill (Programme) (No. 2)):

Consideration of Lords Amendments

1. Proceedings on Consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion four hours after their commencement at this day’s sitting.

Subsequent stages

2. Any further Message from the Lords may be considered forthwith without any Question being put.

3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—[Mr. Alan Campbell.]

Question agreed to.