My Lords, on behalf of my noble and learned friend, I beg to move that the House do now resolve itself into Committee on the Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 1 [The regulatory objectives]:
1: Clause 1 , page 1, line 7, at end insert—
“( ) protecting and promoting the public interest;”
The noble Lord said: It is my privilege to start on a long road by introducing the first amendment to this Bill. I am happy to say that I think I can be short in introducing it, because I said all that I want to say at Second Reading.
I am concerned to ensure that the public interest stands at the forefront of the Bill. The Minister’s brief may contain words to the effect that this is all unnecessary and goes without saying, but that is not the case. It is important that we do not succumb to political correctness or modern-day fashion by putting the consumer ahead of the public interest in its widest connotations. Protecting and promoting the public interest is a lawyer’s prime duty. It sometimes means that they are, as I said at Second Reading, in conflict with the consumer, the client for whom they are acting. Nevertheless, it is a lawyer’s duty to put the public interest first. I submit to noble Lords that that should be the first principle, ahead of consumer interest, in the Bill. I beg to move.
I strongly agree. It is difficult to understand what has changed since the previous Lord Chancellor issued a consultation paper entitled In the Public Interest? I believe that he had it absolutely right—it is very much in the public interest that the reform of the legal profession should take place. But the noble Lord, Lord Thomas of Gresford, has quite rightly noticed that the terminology has changed. It has suddenly become of concern to the Government that the reform of the legal profession should be in the interest of consumers and no longer in the public interest.
I thank my noble friends who served with me on the Joint Select Committee. This matter came to our attention and, in our report published on 25 July, we stressed the importance of bringing back “public”. I pause for a moment to consider what that word means. It is much wider than the consumer interest. The consumer interest is important—it is part of the public interest, but it is of course the interest of those who have used, or who use, the services. There is a much wider concept here, which was rightly recognised by the previous Lord Chancellor, that any move towards reforming what has always been seen as an independent, impartial legal profession must be in the interest not just of those who use the service, but of the much wider public interest.
The Minister has already heard me say at Second Reading and previously that the definition of “public” covers what could be termed as being in the national interest—the interests of this country as a whole. Is it in the interest of this country that we should have an independent, impartial legal profession? Of course it is. The consumer wants it pretty cheap, and quite rightly so, but not necessarily high quality. Although one always tries to seek the advantage of having not only value for money but also high quality, quality perhaps does not rate as highly as the cost with some consumers. Of course many consumers, particularly those of the criminal legal system, are to be found in most of Her Majesty’s institutions. That we should be bringing forward reform in the interests of the criminals is not something which should be paramount in our minds. I am glad that the Minister smiled because she dared me to say that in this Chamber. Well, I have said it.
The public interest covers what is in the interest of UK plc. It is clearly in our interests that our legal profession should continue to be respected across the world. I have been lobbied by many senior Silks. It is the only time I have ever really come across them—they tend to be exceedingly expensive. I remember once having breakfast with a very senior Silk who afterwards charged me £2,500 for the privilege. I will not go into the detail of that case, but there are Silks who practise in other jurisdictions. There are lawyers, solicitors and barristers who practise across the world—not only in Commonwealth countries and not only in those that accept the English system of common law, but on a much wider scale. It is therefore surely in the national interest that whatever bodies we establish under this Bill should be in the interest of UK plc.
It has also come to our attention that these words apply not only to the Legal Services Board, but will apply to the Office for Legal Complaints and to approved regulators. Therefore, we are dealing with a very wide concept. I warmly applaud the words of the noble Lord, Lord Thomas of Gresford. I took the opportunity to surf the internet just before this debate to try to work out a definition of public interest. Wikipedia, the free encyclopaedia, directed me to “common well-being”, which is an interesting concept. It also reminded me that public interest is often contrasted with private or individual interest, so one could say that it is very different from consumer, private or individual interest. It is much wider. Wikipedia repeats the words of many philosophers throughout the ages who stress that the public interest is a crucial concept in much political philosophy. Protection of minority rights is arguably part of the public interest. It is also a defence against certain lawsuits.
I was also just looking at the ruling on 11 October last year in a very important case by our Judicial Committee, upholding the vital principle of press freedom in the public interest. Therefore, “the public interest” is found not only in this amendment, but in other key locations. I could say much more on the subject, but it strikes me that the Minister has been listening carefully and nodding from time to time. Her body language is very acceptable to this House. Therefore, I will sit down and hope that she will respond positively.
I agree with everything that was said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Hunt of Wirral. However, I have one reservation about Amendment No. 1, which relates to access to justice. Amendment No. 2 is preferred because, as was pointed out so clearly by my noble friend just now, the public interest qualifies the consumer interest. Having said that, the only justification for this Bill as amended is if it is in the public interest, which includes the interests of the client now referred to as the consumer.
The width of public interest, which comes within the remit of the board, is fantastic. Before it makes any of its administrative decisions—be they on directions, public censure, financial penalties, interventions, cancellations, designation, policy statements, practising fees, regulatory conflicts or, indeed, the licensing—it has to take into account the public interest. It is a very wide remit. The amendment is of crucial consequence because it stands as guardian over all the other amendments to the Bill. My noble friend Lady Butler-Sloss—she was once my learned friend—said on Second Reading that consumer interest, if contrary to the public interest, is subservient to it. That is recognised by the drafting of Amendment No. 2.
This is all very well, but there has been a fantastically wide delegation of powers to the board, which has been commented on by the Delegated Powers Committee. This raises the question of whether it should remain a matter of policy without some form of judicial supervision. It is a crucial consequence that the public should have confidence in the way that this proposed regime works. I suggest that they cannot have confidence in these circumstances, which are wholly exceptional, if there is no judicial control by way of judicial review.
There are two aspects of public interest touched upon by my noble friend Lord Hunt. The first is the interest of the client to have independent and quality advice, which is in the public interest, too. The second is the standing of our legal professional as seen by other countries in the world.
I spoke on Second Reading about this Bill and should perhaps declare my interest as a practising barrister, former member of the Bar Council and once chairman of the Bar.
It seems that there is no argument of substance between the two sides today, because the noble Baroness, Lady Ashton of Upholland, was good enough to write to me saying there was no need to be concerned about the public interest. She said that the Government shared our interest and had put in references to the public interest in Clauses 3(3)(c), 27(3)(c) and 113(3)(b), provisions dealing respectively with the Office for Legal Complaints and a couple of other bodies. They have put those words in to control the activities of the three most important bodies created by this Bill.
Once you concede that, there is really no basis in principle on which you can object to our proposal that the Bill should proclaim on its front the importance attached to the public interest—and that it not be a matter of scurrying through a lot of clauses and getting as far as Clause 113, if anybody goes that far. We should put it right up on the front of the Bill, just like the White Paper that was put out earlier about the public interest. It fits very well beneath the reference to the rule of law but ahead of that to consumers. Without abandoning my colleagues on Amendment No. 2, I prefer the notion of the noble Lord, Lord Thomas of Gresford, that this should go in as a separate provision, coming in as Clause 1(1)(c). That is the place it obviously belongs and it should be put in there. I am grateful to the noble Baroness for having written to me, and I hope we shall see further actions reflecting the body language witnessed earlier.
The other point to make is that the noble Lord, Lord Hunt of Wirral, was the chairman of the Joint Committee of the two Houses that examined the Bill, to the best of our ability. Part of our second recommendation was that these words should be introduced into Clause 1. I thought that that was right when we made the recommendation, and I still think that it is right.
If the noble Lord, Lord Hunt, is correct about the Minister’s body language, I wish to say no more at all. But whether that be so or not, it seems clear that there must be a reference to public interest in Clause 1, especially as there is a specific reference to consumer interest. Of the two amendments, like the noble Lord, Lord Neill, I prefer Amendment No. 1.
As a person who does not claim to be at all familiar with the law, the legal professions or legal services, I am a little puzzled by the need to distinguish the public interest and the interest of consumers. I do not intend to make heavy weather of that. I have listened carefully from the beginning to the arguments that have been advanced. As a consumer of legal services and many other things, I welcome the reference to the interest of the consumer in a Bill of this kind, while not remotely arguing that one interest should take preference over another.
The noble Lord, Lord Hunt, said that the consumer interest may be best defined as people wanting to find the cheapest services that they can, which may not always be services of quality. That may be so in respect of certain consumers of certain services, but we should remember the phrase “caveat emptor”—let the buyer beware. Certainly the cost of services, legal or otherwise, needs to be taken very seriously. So I shall listen carefully to the Minister’s arguments as to whether the amendment is appropriate and necessary.
I have no objection as a consumer to placing the interests of the public above that of consumers provided that the interests of the consumer are treated equally fairly and on the same line as the public interest. After all, we are at a stage and an age when the provision of legal services is always subject to very close scrutiny. Rightly, the legal profession, in its many forms, has its own monitoring and scrutiny arrangements. We shall come later to how those services can be better used to protect the interests of the public and the consumer.
I cannot see the Minister’s body language from the back, but I have listened carefully and I hope that we do not make very heavy weather of whether the interests of the consumer or the public are paramount. As a member of the public, I fully subscribe to all that has been said about the interests of the public but I hope that I have made as strong a case as I can that the interests of the consumer are entitled to be considered equally.
I hope that we will make very heavy weather of this. I look forward to the Minister’s response, but in telling us her view could she say precisely why the Government omitted a reference to the public interest from the regulatory principles in Clause 1? I am not asking what they have put into the other clauses—I understand why they have done that—but it would be very interesting to know why they have omitted that reference.
I support the objective of both amendments, although I slightly prefer Amendment No. 1. There is an important distinction between the point made by the Minister in her letter to the noble Lord, Lord Neill of Bladen, and the point that we are considering. Amendment No. 1 suggests that the regulatory objectives should protect and promote the public interest. That is what I believe we should seek to do. The other three clauses—Clause 3(3)(c), Clause 27(3)(c) and Clause 113—simply require that those governed by those provisions “have regard to” the public interest. It is not quite the same thing. Protecting and promoting are stronger; the words are clear. I hope that the Minister, whose body language looks pretty useful, will rise to give us some comfort.
I hope that the Minister’s body language is not too conciliatory on this. I declare an interest as chair of the National Consumer Council. This Bill is about regulating the relationships between the legal profession and its clients. It is not about broader matters; it is about precisely that. It is therefore important that the consumer interest is given primacy. The two interests are not equal. On the face of it I would have no objection to a reference to the public interest. However, I have a deep suspicion that what certain protagonists here mean by the public interest includes a big chunk of the interests of the legal profession itself. I am not going to participate much in Committee, but my noble friend needs to be aware that some of the amendments tabled today raise that suspicion. Whatever concessions the Minister may be prepared to make, we need to be clear that this Bill is primarily about consumers. It should have regard to the public interest—and there is provision for that later in the Bill, as the noble and learned Lord has just said—but the purpose is to protect consumers.
My name is attached to Amendment No. 2. I was a little unnerved by the intervention of the noble Lord, Lord Neill of Bladen, whose name is also attached to Amendment No. 2, but not to Amendment No. 1. At some stage—I do not know when—the noble Lord must have decided that he preferred Amendment No. 1 to Amendment No. 2. That speaks highly of the eloquence of the noble Lord, Lord Thomas of Gresford, who has obviously returned to your Lordships’ House in sparkling form and, with a few deft flicks of his paintbrush, has portrayed a very attractive case for Amendment No. 1. I congratulate him.
Our reason for aligning, in Amendment No. 2, public interest with consumer interest is simply this: the Legal Services Board is entitled to intervene on the basis of any one of the seven criteria in Clause 1(1), so that if you have public interest as a stand-alone category, consumer interest is also left as a stand-alone category. For example, the Legal Services Board could intervene solely on consumer grounds, quite independently of the public interest. That is why we combine public and consumer interest: it forces the Legal Services Board to balance the consumer interest against the public interest before intervening.
It is strange that public interest does not appear in Clause 1(1). Before the draft of the Bill became public, all the indications were that there would be a public interest provision. After all, the terms of reference for the Clementi report were the public and consumer interests. There is absolutely no doubt whatsoever that the Joint Committee, chaired so ably by my noble friend Lord Hunt, wanted public interest to be a category in the regulatory objectives.
The noble Lord, Lord Thomas of Gresford, and so many other noble Lords who have spoken have rightly said that the public interest and the consumer interest will not always coincide. A number of your Lordships have hazarded a definition of the public interest, but to me the crucial ingredient of the public interest in this context is justice. The courts are here in the United Kingdom to attain justice; that is their role. There will sometimes be a conflict between the attainment of justice and the provision of legal services at a certain price. It is that conflict with which the Legal Services Board has to grapple. Unless the public interest is one of the objectives, there will be no requirement for the Legal Services Board to grapple with it. That is the worry.
The noble Lord, Lord Neill of Bladen, has rightly drawn your Lordships’ attention to the letter from the noble Baroness on the three regulatory bodies in the Bill. I am looking at Clause 3, on the Legal Services Board. In Clause 3(3)(c), we see “the public interest”, but if one looks at the way in which Clause 3(3) is introduced, one sees that the requirement is for the board to “have regard to” the public interest. But, at the end of the day, having had regard to it, the board is not obliged to take it into account in its decision-making. This is a very weak provision in favour of the public interest. I very much support all your Lordships who have intervened to say that the absence of the public interest in Clause 1(1) ought to be rectified by the Government.
I do not think that I mentioned the legal profession in my reply. I certainly do not think that the interests of the legal profession should be paramount; indeed, there are many stipulations in Clause 1(1) that would qualify the paramountcy of the legal profession. My concern about public interest is about the courts and justice, which is a very distinct phenomenon from the interests of the legal profession. Members of the legal profession are advocates in front of the courts, but the courts ultimately are run, and their decisions are made, by judges in the interests of justice. That is the public interest that I think is crucial.
I am clearly going to have to keep my body under control during the passage of this Bill. I should not have said that; it begs enormous numbers of comments. None the less, by nodding at noble Lords I was trying to indicate that I fully understood the points that had been raised.
For me, the public interest is why you regulate. Regulation is about something that we do as a Government to support the public interest. As noble Lords have rightly pointed out, the Government were very keen, in responding to the Joint Committee, to tackle the issue appropriately. The noble Lord, Lord Neill of Bladen, referred to the letter that I sent to him and to the fact that in Clauses 3, 27 and 113 we have put in,
“have regard to … the public interest”,
for the specific aspects in the Bill. That was our attempt to respond to the Joint Committee appropriately. The noble Lord, Lord Hunt of Wirral—on whom we have all heaped praise for his chairing of the Joint Committee—should just assume that I praise him each time I mention him, which will save us some time, for it is always at the back of my mind.
What has changed? Nothing has changed. We felt that we had dealt with the issue appropriately in those clauses. I accept the concerns of my noble friend Lord Whitty. When the noble Lord, Lord Kingsland, talked about the balance between the consumer interest and the public interest, it made me a little nervous, because I do not see it quite in that way. I accept—and I wanted to listen to this debate very carefully—that there is an issue that we have not quite got right in the Bill, and I am very keen to address it. I did not know whether we would go for the approach in Amendment No. 1 or in Amendment No. 2, so it was interesting that we had a mixture of both. Perhaps the amendment of the noble Lord, Lord Thomas of Gresford, found more favour in this particular debate.
I worry a little that we are trying to balance something when in this instance the regulation, as my noble friend rightly says, is primarily about the relationship between the legal profession and the consumer, customer, citizen or client—whichever word noble Lords prefer—whom the profession is seeking to serve. That all takes place within the context of the public interest, whether the definition is from Wikipedia or from the noble Lord, Lord Kingsland. I am very mindful of what my noble friend Lord Whitty has said. Indeed, in discussions, organisations that are particularly concerned about consumer interests have been keen to make sure that we are mindful of what the regulation is seeking to achieve. None the less, I think that we have something that we need to address and we will endeavour to do so.
For my part at this stage, what I would say is that we are very interested in this debate, on which I will reflect very carefully. The noble Lord, Lord Campbell of Alloway, raised the question of judicial review; I know that he has an amendment later in the Bill that specifically tackles that. I had the opportunity to discuss with him earlier today the whole question of judicial review and I think that he will accept that we are absolutely confident that those who are being regulated will be able to go to judicial review where they feel that there is an issue to be resolved. But I think that we should wait for that debate to talk about the matter in greater detail, as other noble Lords may wish to add to that.
So in essence we agree with what the Joint Committee was seeking to do. We believed that we had resolved it appropriately. If noble Lords believe that we have not, we will endeavour to do so, building on this debate and perhaps in discussion with those who put forward Amendments Nos. 1 and 2, but being very mindful of what my noble friends Lord Whitty and Lord Graham of Edmonton said about ensuring that we are clear about the purpose of regulation. I do not think that there is any difference between us. On that basis, I hope that noble Lords will feel able not to press their amendments, and I shall return to the subject at Report.
I wonder whether the Minister would be quite specific in addressing the point that has been made about the difference between having “regard to”—which occurs in Clause 3(3)(a)—and having concern for the public interest as an objective. They seem to be two quite different approaches.
They are. The purpose of the phrase “have regard to” was to focus on the particular institutions, if I can call them that, in the Bill. The question that I was seeking to get advice and a steer on from the debate was whether by including the public interest with the consumer interest, as suggested in Amendment No. 2, that could put the public interest either in conflict or in a secondary position, or whether what we were seeking to do was to have an overarching principle within Clause 1 that would cover this. I need to reflect on where I think noble Lords have got to with that debate. That was really what I was seeking. The aim is not to say “have regard to” in Clause 1; it is rather to put this issue in a different position in order to reflect what I think the noble Lord, Lord Hunt of Wirral, believes we did not quite get right from the Joint Committee.
Will the noble Baroness bear in mind that the public understand very well the need for both these things? It is great news that the noble Lord, Lord Whitty, is there reminding us about consumers, which most of us are. Most of us know that the legal profession needs to be kept in order. There are all sorts of things we could say about it. The noble Lord, Lord Whitty, may very politely say some of them during these proceedings and I may say, “Hear, hear.” But the public also understand very well the importance of the public interest because what a particular consumer wants is not necessarily what everybody else wants. People understand the importance of the rule of the law. I do not think that politically the Government need be frightened of giving paramountcy to the public interest. I think the public understand that but they also know very well that they need to be protected from lawyers.
What I should have said, as the noble Lord, Lord Hunt of Wirral, quite rightly indicated, is that it was my noble and learned friend Lord Irvine of Lairg who began all this with a document about the public interest. My noble and learned friend is always right and in this case we begin to see the fruits of his labour being writ large within the Bill. I will of course take this away.
I do believe we are making progress. I referred to the general principle of “in the public interest” and now that my noble friend has spoken to Amendment No. 2, as have a number of other noble Lords, I should give an explanation. It was the unanimous recommendation of the Joint Select Committee that the words in Amendment No. 2 should be added to the Bill. Although the Minister has paid tribute to the previous Lord Chancellor, I do not think that she has yet quite explained why there has been a change in terminology. That is particularly important, in the light of the words of the noble Lord, Lord Graham of Edmonton. He reminded us that he is a member of the public; he is also a consumer of legal services, as are many members of the legal profession. But many members of the public do not use legal services; indeed, they spend their whole life hoping that they will never have to. It was once said that you can live without a lawyer but you cannot die without one. Lawyers ultimately catch up with people at some stage. Therefore, the noble and learned Lord the Lord Chancellor was quite right to question whether the legal profession was in the public interest. That is the key question.
I pay tribute to my noble friend Lord Kingsland for having spoken to the amendment that was tabled following the unanimous recommendation of the Joint Select Committee. I should like to explain why we were concerned about the Minister’s response. The Government responded to the Joint Select Committee report by saying,
“we do not think it appropriate that the two”—
the interests of the public and of consumers—
“should sit within the same objective”.
Therefore we come back to the point made by the noble Lord, Lord Neill of Bladen: is it right that these should be in the same objective? We discussed this in the Joint Select Committee where the view expressed was that of the noble Lord, Lord Graham. The noble Lord said that he was a member of the public but also a consumer. In those two capacities, his interests may not be exactly the same. His wish is to see the two taken into account. The terms of reference set by the Government for Sir David Clementi’s review were that he should consider the public and the consumer interest. Those are the Government’s words; they actually have said that there are two interests—public and consumer—and that both should be considered.
As noble Lords know, I am a practising solicitor and I have always declared that interest. My worry is that putting the public interest where it is in the Bill, in the genuine belief that doing so was responding to the Select Committee’s recommendation, has resulted in the worst of all worlds. Instead of the public interest being a regulatory objective and clearly set out on a par with the consumer interest, it is relegated in Clause 3 to something to which the board and the other institutions must have regard.
All the Minister’s words are authoritative but we need in this instance a particularly authoritative explanation of the difference between the public and the consumers’ interests. Why have the Government moved from their position that the reform must be in the consumer and public interests, as they said in their instructions to Sir David Clementi, to saying that the regulatory objective must include only consumers? It may well be that the noble Lord, Lord Whitty, has, behind the scenes, exercised such power and influence that he has won this critical battle. Judging by what he said to us earlier, it is, to him, a very important battle, but it is one on behalf of just a section of the public. We now need to ask the Minister to reflect on putting the public interest right at the heart of the regulatory objectives, not necessarily as the first objective—they are not in any order, and we will debate that a little later—but certainly back where it started under the noble and learned Lord, the previous Lord Chancellor.
I agree with a huge amount of what the noble Lord said. I say again that the Government took on board the recommendation and sought to achieve it in the Bill in two ways. One was to put it in the clauses that we have already talked about—Clauses 3, 27 and 113—to make clear the organs that are being developed under the Bill. But we also believed that, when the regulatory objectives were taken together, we had dealt with the public interest: if the regulatory objectives were being dealt with, then the legal professions would be operating within the public interest.
Noble Lords have talked about the difference between the overarching public interest that is served by the legal professions and by regulation—that is the point that I was seeking to make—and the interests of those on the receiving end of the services where regulation is important in ensuring that a proper and fair deal is had. That, in a sense, was the point made by my noble friend Lord Whitty, who has lobbied me not at all on this issue. However, I am pleased to say that I have met representatives of organisations who have talked me through some of these questions from their perspective, and I am grateful to them, as I am to the Law Society, the Bar Council and others.
Within this debate, we were looking to recognise the strength of feeling in this Chamber that this matter needed to be considered and to think about how best to reflect what noble Lords have said. As Members of the Committee know, the different amendments offer different approaches. The view that I have taken from the debate is that we probably need to think about the public interest in a slightly more overarching sense. Obviously, I shall need to consult colleagues because I am not the policy Minister in this case, but I think that the sense of the debate is to go in that direction and I have no difficulty with that. But we also need to be mindful of the purpose of the regulation, which I think is where my noble friend Lord Whitty was coming from.
I hope that I have answered the noble Lord’s points. There was no desire to move away from the issue; it was simply that we felt that we had achieved what was desired. If we have not, we need to think about that. However, from our perspective, the combination of objectives ensures that the public interest is served; simply inserting it as one objective would not achieve what we thought we had achieved and might not be as good as what could be achieved if we thought about it again. I hope that the fact that I will talk to noble Lords between now and Report will be acceptable to the Committee.
I thought that it was uncharacteristic—not to say unworthy—of the noble Lord, Lord Whitty, to suggest that, in putting forward this amendment, I was in some way trying to protect the interests of the legal profession. That is not the case. I think that putting the consumer first strengthens a perception among the public that it is only the consumer or client who counts. The lawyer is not the paid mouthpiece of the client who is prepared to say whatever the client will pay him to say. He has a much more independent position. Perhaps the public perception is that lawyers are just paid mouthpieces, but the discipline and ethos of the legal profession are entirely against that—they are to act independently and to take into account the public interest first.
If the Bill were simply about the relationship between the legal profession and the consumer, I am sure that it would be phrased in a much narrower way. However, the regulatory objectives in Clause 1 start with:
“(a) supporting the constitutional principle of the rule of law”—
I do not see much about consumers in that objective—
“(b) improving access to justice;
“(c) protecting and promoting the interests of consumers”.
When the regulatory objectives are expressed like that, surely it is right to include that primary purpose of the legal profession to protect and to promote the public interest.
The Bill is not simply concerned with regulating the legal profession’s relationship with consumers. The regulatory body, the LSB, has relationships with the Bar Council, the Law Society and other regulators and the regulatory objectives are to be used in connection with those relationships. I am very heartened by the expressions that we have heard from the Minister's lips—I leave out references to other parts. In the course of discussions before Report stage, I hope that we can sort out this point. If not, we shall pursue it. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
moved Amendment No. 3:
3: Clause 1, page 1, line 9, at beginning insert “subject to the objectives in paragraphs (a) to (c),”
The noble Lord said: Amendment No. 3 inserts the expression “subject to the objectives in paragraphs (a) to (c)” at the beginning of Clause 1(1)(d), so that it would read,
“subject to the objectives in paragraphs (a) to (c), promoting competition in the provision of services within subsection (2)”.
Promoting competition is clearly a desirable objective. It is of particular importance in the Bill in regard to alternative business structures, to which we shall turn later on in Committee. However, our view is that the introduction of such structures, or indeed any other matters concerning competition, should not be capable of overriding the three principles expressed in Clause 1(1)(a) to (c); that is, supporting the constitutional principle of the rule of law, improving access to justice, and protecting and promoting the interests of consumers. Only in the context of the achievement of those three objectives should the competition objective be given free rein.
Quite apart from that point, I have two other issues on Clause 1(1)(d) I want to raise with the Minister. The first is that Clause 1(1)(d) refers to,
“the provision of services within subsection (2)”,
which draws our attention to services that are provided by authorised persons. As a consequence of Clause 1(1)(d), will the OFT have responsibility—the responsibilities of the OFT are excluded from supervising services provided by authorised persons—or will the Legal Services Board and the OFT have co-responsibility for competition in this area? I am not sure of the position.
I also ask the Minister about the expression “promoting competition”. I suggest to her that it is not desirable for the LSB to have a role in actively promoting competition. I understand that the LSB ought to be alert to anti-competitive practices and have the power to act where it identifies them. That is quite different from the active promotion of competition, however. The market, the authorised persons who want to engage in certain activities, should be free to do so. Only if they engage in those practices in an anti-competitive way should the Legal Services Board be able to act. It should not in itself be able to take initiatives which seek to enhance competition.
The Minister has not been given notice of that observation, and I understand if she wants to reserve her position at this juncture. We must at some stage, however, be clear about the relationship between the Legal Services Board and the competition powers in the Bill. I have said enough to give the Minister a basis upon which to respond, and I beg to move.
That was speedier than I thought.
I understand entirely what the noble Lord, Lord Kingsland, is getting at. We do not want to be unduly restrictive by putting in the Bill a duty on the regulatory bodies to consider one objective subject to another. In any case, it may sometimes not be relevant. Of course, there are other areas of concern, where other groups, individuals or Members of your Lordships’ House or another place might consider that the ranking should be different and that there should be a paramountcy of one objective above another, or that some are stronger than others.
We were keen to ensure that the regulator was able to look at the objectives in the round and weight them as it saw fit. The Joint Committee recommended that the Explanatory Notes should make it explicit that the objectives were not listed in order of importance. We agreed with that, and the Explanatory Notes reflect it. The way we have done this reflects David Clementi’s recommendation that the board, the Office for Legal Complaints and the regulators would be best placed to determine which objectives and principles were the most important in a particular instance. That is the right way to approach this.
As the noble Lord said, the promotion of competition is an important objective and should be considered appropriately. However, those looking at what is happening in the regulatory framework should weight the objectives as they see fit. I understand what the noble Lord seeks to do. Clearly, there will be circumstances where different objectives need to be looked at in a different way, with some coming into play and some not. That is the regulator’s role. It is not for us to try to rank them in the Bill.
On the Office of Fair Trading, I looked at what we did in the Compensation Act 2006, because the competition issue had been raised. During the passage of that legislation, the Office of Fair Trading pointed out to me that it does not have responsibility for competition for any regulator designated under that Act—or, therefore, under this Bill. Behaviour of individual firms and individuals remains subject to the competition enforcement provisions in the normal way and, therefore, under the OFT’s supervision. We were able to satisfy your Lordships that we had addressed the need for competition as an important part of both consumer and public interest approaches to the legislation.
I am not sure that that fully answers the point about the Office of Fair Trading, but I hope that it demonstrates that we have looked at the issue. I shall talk further with the noble Lord to ensure that I have picked up all his concerns. None the less, that is why we do not want to put the ranking in the Bill; it is for the regulator to determine.
I am grateful to the noble Baroness for her reply. We do not dispute the desirability of having competition as one of the objectives. Our concern is about the weighting that competition should have in respect of certain other objectives including the interests of consumers. It is a point about weighting rather than substance. The Minister has responded with her customary sensitivity. I suspect that in doing so she is gently telling me nevertheless that she does not like my amendment. I shall reflect on the consequences of what she said and take a view about it on Report.
By the end of this stage in your Lordships’ House it is desirable that we have a clear idea of the precise responsibilities of the Legal Services Board. We have to remember that, at the end of the day, all this regulation is paid for by the professions. I think that they would rightly view with alarm the Legal Services Board turning itself into a fully fledged competition authority, particularly if it were an authority which had the power to promote competition. The possibilities are lamentably endless. It is not just a question of legislative precision. The legislative precision has very practical consequences for everyone being regulated under the Bill in terms of how much it will cost them. The issue of competition perhaps goes a little wider than my amendment envisaged. I apologise to the noble Baroness for broadening it out beyond what I suspect she expected to respond to.
I am always delighted to broaden things out. One of the advantages of Committee is that it enables us to look more widely. Perhaps I may remind the noble Lord that the OFT’s competition scrutiny is provided for in Clauses 56 to 60. That might address some of his concern. Within the Compensation Act, with the regulation transferring to the Legal Services Board, the OFT’s position has to shift slightly.
I shall be happy to talk further about competition. It is an important area. We had a number of interesting discussions in Committee on the then Compensation Bill about the meaning of “promote”; the relationship with the Office of Fair Trading; the importance of competition to benefit consumers—we broadly accepted it in that piece of legislation as we probably shall do in this—making sure that the language is right; and so on. It would be interesting to do so again.
I did not have the privilege of featuring in debate on the then Compensation Bill. I was unaware, therefore, that the matter had been fully debated in that context. My concern is about boundary lines and demarcation. My objective is to make sure that we understand exactly what the Legal Services Board can and cannot do. I do not have a particular view at this juncture about what powers the board should have; but I am clear that whatever it has must be crystal clear on the face of the Bill.
Instead of promoting competition and the provision of services as one of the regulatory objectives, is it worth considering at some later point in the Bill that one should have regard to the importance of competition? It would slightly demote the issue in that sense but might better achieve what the Committee seeks to achieve. I throw that out as a possible suggestion.
I intrude in the debate a little tardily but feel it is important to indicate to the noble Lord, Lord Kingsland, in particular that he will not stand alone in putting forward his amendment. It was not intended entirely as a probing amendment at this stage.
It is fair to point out that competition is normally advantageous to the consumer, which makes it appropriate as an objective for the regulatory provisions of the Bill, but it is not necessarily universally so, and it is possible that the body would have to pick and choose between different regulatory objectives in reaching a decision, even in the interests of the consumer. It would be possible to lose sight of the consumer in promoting competition. It would be theoretically—indeed, more than theoretically—possible to promote competitive behaviour in order to benefit the providers of the services. It is clear that if it came to an evaluation of which criteria and objectives should be given weight in the event of a conflict between the regulatory objectives of promoting access to justice and promoting competition, then the promotion of access to justice would clearly appropriately be given priority. I see no harm in spelling that out in the Bill.
We think it is for the regulator to determine in a particular set of circumstances which objective is weighed in the balance against which. If one was ranking the objectives, there are organisations that would wish to see consumer interest, for example, ranked as number one, but other organisations would rank other objectives first.
Our view is that, when faced with a particular proposition, one should look at the objectives in that context. Competition is important. Noble Lords may feel that it is less important generally but, in a particular set of circumstances, it might for particular reasons become extraordinarily important because of what it is providing for the consumer, public interest and so on. It is in the public interest to have competition. All we are really arguing about is who should deal with it. Our view is clear: it should not be for your Lordships’ House to determine the ranking. Points have been well made about the sets of circumstances the regulator needs to look at, how it should weight the objectives in the balance, and which are relevant, which are not and which should carry more weight. That is absolutely right and proper. It does not mean that I disagree with what the noble Lord, Lord Maclennan, said.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
In speaking to the question of whether Clause 1 should stand part of the Bill, I shall speak also to Amendment No. 3A. I apologise to your Lordships for tabling that amendment so late, but the point that underlines it only came to me yesterday when I was looking through the Bill—not, I hasten to add, for the first time, but again.
I asked to speak on clause stand part and tabled the amendment because I have come to the view that Clause 1, the regulatory objectives clause, applies to too many disparate regulatory authorities. Clause 1 applies not only to the Legal Services Board but also to the Office for Legal Complaints and to all the authorised regulators. These three different types of regulators have distinct and disparate functions. Perhaps the most startling difference is between the Legal Services Board and the authorised regulators. The Legal Services Board, as the Government have said on many occasions, is essentially a supervisory board, supervising the work of the other regulators. By contrast, the authorised regulators are the front-line regulators. Under the Bill, the Legal Services Board, in principle at any rate, intervenes in the work of an authorised regulator only if that authorised regulator is alleged to have been in some way delinquent.
To have one set of regulatory objectives to cover three types of regulatory authority with very different responsibilities is not a sensible way of proceeding. It means that the regulatory objectives have to be so broad and loosely defined that they cover all three types of authority, but, because they seek to cover all three, each one is insufficiently pinned down by the objectives for the Bill to give an accurate picture of what it ought to do. Therefore, the regulatory authorities will have far more freedom of manoeuvre to act than they ought to have. The basis on which I oppose the question that Clause 1 stand part of the Bill and tabled Amendment No. 3A is that there should be not one, but three, objectives clauses in the Bill: one for the Legal Services Board, one for the Office for Legal Complaints and one for the authorised authorities. That will enable the draftsmen to be much more specific about what it is that each one of these separate categories of regulatory authority ought to do.
My draft of the new clause in Amendment No. 3A is submitted almost in the spirit of a probing amendment. Proposed subsection (1) seeks to set out what I consider the board’s regulatory objectives ought to be—the objectives of the board alone—but I entirely understand that other noble Lords might take a different view. On mature reflection, I, too, might want to change the categories in proposed paragraphs (a) to (e) either to alter one or more of them or to add to them, but the point of principle is that each separate regulatory authority ought to have its own distinct objectives.
We would then get from the Bill an understanding of the precise relationship that each of these authorities has one with another. It ought to have an extremely beneficial effect on the disease of what is often described as “regulatory creep”, which we find so often in other fields of regulation. I emphasise as I did when promoting the previous amendment that, because this is a self-financing scheme, it is particularly important that those who are paying for this regulatory regime are very clear about what they are getting for their money. The present structure of the Bill does not provide that.
I strongly support the noble Lord in opposing the question whether Clause 1 stand part of the Bill and on his Amendment No. 3A, of which he has given us a feel. In our Joint Committee—the noble Lord, Lord Neill of Bladen, may correct me if I am wrong—we did not quite appreciate that Clause 1 would apply not only to the Legal Services Board and the Office for Legal Complaints, but also to the approved authorised regulators. I can therefore see that we would have liked to spend a little more time on this area.
As my noble friend Lord Kingsland pointed out, similar bodies being set up have carefully defined objectives. My main concern with these regulatory objectives is that there is a great deal about what the bodies are to do but very little about what they should not do. Duties are a very useful way of setting out exactly what we expect of a body. I look forward very much to some more detailed amendments, perhaps on Report, but in the mean time we seek an indication from the Minister that she is prepared to look at this, just to ensure that when we create these bodies we give them carefully defined terms of reference. We will debate in greater detail later amendments setting out the need to avoid overlap between the approved regulators and the Legal Services Board and the need to act in partnership.
I am persuaded by my noble friend that we ought to look at setting out very carefully, succinctly and in exact terms what we expect of these bodies. We will expect different things from each body. The Legal Services Board is seen as the overarching regulator, but the detail is left to the front-line regulators. The Office for Legal Complaints has a completely different persona; we want it to sort out complaints and ensure that those who wish to complain are treated quickly, promptly and efficiently. There is a need for that; indeed, some would say that the main reason for the Bill, apart from the original OFT report, was that the area of complaints had a cloud hanging over it. Without ascribing blame to anyone, I suggest that there was a feeling that the whole business was not being dealt with as efficiently as possible. However, I am not sure that the Office for Legal Complaints will have the same regulatory objectives, duties and powers that we will give the Legal Services Board, or equally the same as those we would want the approved regulators to have.
My noble friend is doing us all a great service and has spotted something that, in our rush to complete and deliver our report, the Joint Committee omitted to notice. We should have spent more time on it; thanks to my noble friend we will now be able to do so.
Perhaps I may sound a word of caution. If you have three different boards with three different sets of objectives, all slightly differently worded, and something that is in set one is not in set two, or differently worded in set two, are you not promoting the most wonderful field day for lawyers to produce enormously complicated arguments? They could argue, for example, on the basis that set one says “x”, but set two says “x with y added”, and set three says “x with z excluded”. You would be asking people to dance on the head of the proverbial pin, trying to find reasons or arguments based on such subtle distinctions. Would it not be better to have a wider set of principles that apply to all three sets and allow the person doing the work and anybody asked to adjudicate on that work to say, “These are all the objectives, but this one is less important in the context of the work that my body is required to do”? I thought of this only while the noble Lord, Lord Kingsland, was speaking, but I wonder whether he is not simply creating a very profitable field for our profession.
I am grateful for the last intervention, since I, too, came to the subject very late in our deliberations, when this new amendment was tabled. The old Latin tag of construction,
“inclusio unius est exclusio alterius”,
popped into my head and I wondered whether we had a series of regulatory objectives applying to the Office for Legal Complaints that were different and that excluded one of the criteria or objectives. There would be considerable uncertainty about why that was so. My mind is by no means closed on this, but if the noble Lord, Lord Kingsland, were to come up with some specific examples of where it would be inappropriate to apply some of the proposed regulatory objectives to all the bodies that the Bill seeks to regulate or to provide the means for regulating, then perhaps the case might be a little stronger. In principle, it is likely that each case considered by the Office for Legal Complaints or the Legal Services Board would give rise to different factual circumstances, which may mean that different weights would be given to different objectives. But I think that the objectives broadly spelt out—particularly if they are amended to include the general objective of the public interest—would be pretty transferable between the bodies to which the Bill applies.
Once again, we have had an interesting debate. In a sense, we began from Sir David Clementi’s final report, in which he said that the first step of establishing a regulatory regime should be to make clear the objectives of that regime. That is what we have sought to do in Clause 1, bearing in mind what I have already said about public interest. It reflects what I think the noble Viscount is alluding to. We wanted to say, “This is what the regime should be about: there are different players within that regime, but these are the objectives that should cover the regime”. We wanted to be very clear about what those objectives ought to be.
The report then goes on to say—and this is critical for those charged with regulatory responsibility—that those who have separated the regulatory and representative function should carry out their regulation in accordance with those objectives and subject to the oversight. So these are, in a sense, the founding principles. We also go on to say under Clause 48 that the board may make policy statements. We think that this may be an area that we could explore in the context of what the noble Lord, Lord Kingsland, is seeking to do. I share the noble Viscount’s concerns and the initial concerns of the noble Lord, Lord Maclennan of Rogart, although he will want to reflect further on this, that we run the risk of creating confusion and—love the profession as I do—of creating opportunities for people to acquire further work from a legal perspective in order to clarify what is meant.
My inclination is to say that we need a founding set of principles for the regime. But it may be that under Clause 48, which provides for the board to make policy statements, we can do more to set out what we would be seeking to achieve and how the regime and the overarching regulatory objectives would translate into the work of the individual players, without pre-empting what we would wish to happen, which is that the board itself should be working closely with the different regulatory bodies in figuring out precisely what they should be doing.
I am keen to discuss this matter and I am not averse to trying to be clearer, particularly about the Office for Legal Complaints, about which noble Lords have raised issues. But I would be loath to try to set this up in three different sets of objectives in the Bill, because it would be confusing, as others have indicated. We can continue to discuss this. There may be other ways of seeking to clarify further what the policy statements would be and the rules that would follow on from those. That is the way that we have often sought to demonstrate further what the Government are seeking to achieve in discussions about legislation in your Lordships’ House. I am happy to consider that and to discuss it with the noble Lord, Lord Kingsland, if it would be a way forward.
I am grateful to the Minister and to all noble Lords who have spoken in this debate. My objective is for the Bill to be clear about the objectives and functions of each one of the three regulators. In my view, the Bill as drafted is not sufficiently clear. It is undesirable, particularly in a self-financing regulatory regime, for there to be imprecision in this area. It may well be that my proposal is not the optimal solution, but the situation as it stands is wholly unsatisfactory. There may be another way of achieving what I am seeking to achieve. The Minister suggested Clause 48 and we may be able to look at other clauses. However, I also accept that there is the duty on me to go away and look at the objectives not only of the Legal Services Board but of the Office for Legal Complaints and the authorised regulators, and try to come up with a set of objectives that accurately reflect what I think should be the responsibilities of these three regulators. The Minister has been kind enough to say that her mind remains open on these issues, and we shall have time between now and Report to make some progress.
While we are still dealing with Clause 1, I wanted to tell the Minister how much the Joint Committee appreciated the Government’s response in a number of amendments that have been made to the original draft Bill, particularly following our recommendation 3 in Chapter 3 that,
“the professional principles set out in clause 1(3) of the Bill should be amended to include the duty to the court explicitly in the professional principles”.
I know that my noble friend Lord Neill of Bladen—if I may call him that—felt very strongly about that. We are very pleased that the Government felt able to re-word the professional principles to include that explicit duty.
The Government also accepted our recommendation 4 in Chapter 3 that,
“the independence of the profession should be included explicitly in the regulatory objectives and that objective (e) should be redrafted to”,
become the words that are now part of the Bill, which are,
“encouraging an independent, strong, diverse and effective legal profession”.
Although the Government did not feel able to accept a number of our recommendations, it is right that I should pay tribute to the Minister and her colleagues for recognising the importance of those recommendations and implementing them.
4: Schedule 1 , page 112, line 6, leave out “the Secretary of State” and insert “Her Majesty on the recommendation of the Lord Chancellor pursuant to the provisions of section 85(1)(b) of the Constitutional Reform Act 2005”
The noble Lord said: We now come to an important part of the Bill, dealing with the independence of the Legal Services Board. The danger seen generally and reflected in the speeches at Second Reading is that the Legal Services Board be thought a body set up simply to introduce government influence into the legal profession. I am sure that is not the intention of the Government, and it is important that they make that absolutely clear in the Bill.
The Legal Services Board is going to deal with a number of bodies—to take two, the Law Society and the Bar Council, which will presumably be approved regulators—that are well established, with a long history of self-regulation and completely independent of government. It is essential that the Legal Services Board itself be seen to be independent and to carry weight. It will deal with people in the profession who know that profession from the roots up. The board, consisting as it will of a number of lay persons, must demonstrate that it is a weighty body capable of giving directions, and independent of any government or political interference.
The Bill simply provides that the Secretary of State, unnamed—it could be any Secretary of State, perhaps even the Home Secretary—is the person who appoints the Legal Services Board. We do not think that is adequate. The importance of giving stature to the board is such that the Bill ought to follow the procedure in the Constitutional Reform Act 2005. Your Lordships will recall that when it was decided that the Lord Chancellor should cease to have the function of appointing judges and the matter was handed over to an appointments board, various levels of mechanism were introduced to make those appointments. In our view, the appropriate level of appointment is that set out in Section 85(1)(b) of the Constitutional Reform Act 2005, whereby the appointment is made by Her Majesty on the recommendation of the Lord Chancellor, but a recommendation which is informed by the selection process of the commission set up under that Act.
The sort of office holders that Section 85(1)(b) referred to are, for example, district judges and people of considerable importance and rank, certainly of no less or greater rank than one would envisage in a member of the Legal Services Board. Removing the appointment of members of the board from simply the Secretary of State—who can appoint anybody—to the mechanisms used for office holders seems a sensible way of proceeding.
We will later debate in Amendment No. 5 and the amendments grouped with it the proposal that the appointments be made with the concurrence of the Lord Chief Justice. I am sure that the objectives of those who tabled those amendments are exactly the same as mine—that is, to ensure independence, integrity and weight. In my view, it is far better to go to the machinery that we have in place, although it may need some amendment. It would require us to amend the first part of Schedule 14 to the Act to include members of the board as appropriate office holders, which could be done by a simple order by the Lord Chancellor. But we believe that the Lord Chancellor should be the person who makes the appointment and recommendation from a selection by the commission, and it is Her Majesty’s appointment that guarantees independence. I beg to move.
That was a very helpful steer as to the comparative powers of the Prime Minister and the Government. But on the Prime Minister’s move to abolish the post of Lord Chancellor, which it appears that the Minister and the rest of the Government opposed, I do not want history to be rewritten—and the Minister is pressing me on this.
If I recall the position correctly, we had the decision of the Prime Minister, Mr Blair, to abolish the post of Lord Chancellor, and we heard in this House that our Lord Chancellor and our Speaker had been abolished. There then arose the question of who would open the proceedings of this Chamber on Friday 12 June 2003. I think that I have the dates reasonably exact. A message came through from No. 10 asking whether this House would kindly agree to give the noble and learned Lord the Lord Chancellor permanent leave of absence—or, at least, leave of absence for that day so that the whole mess could be sorted out. If I recall, this House decided not to give him leave of absence. I then have this wonderful picture, which I shall carry with me to my grave, of a small, rather rotund figure, encompassed in a huge wig and massive cloak, suddenly emerging as the new Lord Chancellor, re-established—
I am not sure that this is a road that I should be walking slowly down, but I wanted to put the record straight. It was this Chamber—this House—that decided that the post of Lord Chancellor could not just be abolished. In the Government’s defence, I do not think that anybody had taken advice from the civil servants. Indeed, I have met a number of previous Cabinet Secretaries who have told me with great authority that if only someone had asked the Cabinet Secretary, he would have pointed out all the difficulties in abolishing such a post. However, I was not proposing to go down that route until the Minister pushed me.
This is a wonderful opportunity for us all to say that we look forward to the moment when that envelope sees the light of day.
Amendment No. 4 would take us into the Constitutional Reform Act 2005 by making the appointment that of Her Majesty on the recommendation of the noble and learned Lord the Lord Chancellor. As the noble Baroness has just pointed out, we still have the noble and learned Lord the Lord Chancellor. There is no doubt that, under the Constitutional Reform Act 2005, there is a procedure which is far better to adopt where the appointment we are now debating is concerned. Although I will be speaking to Amendment No. 5, to which I have attached my name, I look forward very much indeed to hearing the Minister’s explanation as to why the Government decided on this course of action so far as the appointment is concerned.
On several occasions I have heard Ministers reassure us all from the Dispatch Box that there is no need to worry because Nolan principles will apply. Of course, this is very much part and parcel of my experience in government. I was the Chancellor of the Duchy of Lancaster who set up the Nolan committee to examine standards in public life. I recall our discussions with that committee when it established the seven principles of public life. Indeed, there was a feeling that those principles did not need to be spelled out, because they were so much part and parcel of what we all accept in public life; they are selflessness, integrity, objectivity, accountability, openness, honesty and leadership. They are features that have always been there in our public life and it was slightly sad that we needed to spell them out in such terms, but it is good now to have them on record.
Although the Nolan committee at the time said that standards of behaviour in public could not be said to have declined, there was a perception that they might have. It was that perception that it tackled. It did not in any way substitute any other principles or guidance for the appointment of key people to government quangos, public bodies, et cetera. It did not remove the final arbiter of public appointments, namely the Minister concerned. Indeed, I recall that in his report the noble and learned Lord, Lord Nolan, spelled out in no uncertain terms that, when dealing with appointments, nothing that the Nolan committee produced removed the responsibility of Ministers to make the right appointment. This, therefore, is my response to members of the Government who keep quoting the Nolan principles. Indeed, nothing in the Nolan principles is substituted for the need to take consultations. As in this amendment, nothing in the Nolan report would inhibit Her Majesty the Queen—or, indeed, the Prime Minister—in making what they believed to be the right appointment. The Constitutional Reform Act 2005 laid down a number of key principles and procedures that need to be followed, which is why I was persuaded by the noble Lord, Lord Thomas of Gresford, that this is, indeed, an amendment to which we should hear the Minister’s response.
I support the amendment, at least as a very careful probing amendment. There seems to be a great deal of force in the suggestion that this should be an independent appointment, similar to those applying to district judges, which is after all a very important role but not the highest rank of the judiciary. The principle should certainly apply to members of this board.
I would be grateful if the Minister could explain the difference here between the Secretary of State and the Lord Chancellor. As a Minister in the Department for Constitutional Affairs, she probably understands that a great deal better than me and probably better than one or two other people. We know that “Secretary of State”, when it appears in a Bill, can mean any Secretary of State. It is obviously deeply undesirable that the board that regulates the independent legal professions should be appointed by a Minister such as the Home Secretary, who has such plain conflicts of interest. I do not anticipate that the Government would be likely to move the position in practice so that the Home Secretary could do that, but some Government could do it, and I can quite easily hear such a Government saying that Parliament had approved it because it simply required a Secretary of State to do it. That is another reason for moving away from that wording.
Assuming that the “Secretary of State” in the mind of the Government—and the Minister will confirm this or not—is meant to refer to the Secretary of State for Constitutional Affairs, how do that department, the Minister, or the noble and learned Lord the Lord Chancellor, see his functions as Lord Chancellor as compared to his functions as Secretary of State? It may be that it is already on the record, and that I am just ignorant. I look forward, if it is on the record, to having my attention drawn to it, and if it is not, to hearing it expounded by the Minister.
First, I apologise for missing the first few moments of the speech of the noble Lord, Lord Thomas of Gresford, on the amendment. I entirely support his reasons for wanting an amendment here. The independence of the Legal Services Board is very important, and that independence depends on who makes the appointments and who is in a position to sack the members. My preference would be, however, unlike on Amendments Nos. 1 and 2, for Amendments Nos. 5 and 7—
“the concurrence of the Lord Chief Justice”—
rather than what is being argued for by the noble Lord, Lord Thomas; but provided it is done one way or the other I would be happy.
I am most grateful to the noble Lord, Lord Thomas, for the amendments that he tabled. In some respects, they foreshadow the line introduced by Amendment No. 5 and the line introduced by—
I think, as a Front-Bench spokesman for the Opposition, I am required by convention to speak before the Minister.
Perhaps I do not sound like a member of the Opposition.
Like the noble and learned Lord, Lord Lloyd, while applauding Amendments Nos. 10, 13, 15 and 16, my preference is for the approach taken by Amendment No. 5, which is to require the noble and learned Lord the Lord Chancellor to consult and indeed to have “the concurrence of”, in the words of the amendment, before making the appointment. Nevertheless, the suggestion made by the noble Lord, Lord Thomas, is interesting.
Where I find myself in complete agreement with the noble Lord, Lord Thomas, is over the substitution of the Lord Chancellor for the Secretary of State. The Secretary of State can be any Secretary of State. However unlikely it might seem to your Lordships, I suppose one might foresee in future responsibility for the Legal Services Board being transferred, say, to the Home Secretary. Could your Lordships’ House be confident that the Home Secretary would have the same consideration for the rule of law as would the Lord Chancellor? After all, the Lord Chancellor is statutorily bound by the Constitutional Reform Act 2005 to take into account the rule of law. It is an obligation which is expressly placed on the shoulders of the Lord Chancellor. No Secretary of State is similarly encumbered.
If, as I suspect she is going to when we come to the next group of amendments, the noble Baroness opposes the suggestion that the noble and learned Lord the Lord Chancellor should be required to obtain the concurrence of the Lord Chief Justice in making the appointment, her case will be even weaker if she insists on the deciding authority being the Secretary of State and not the Lord Chancellor. At least if it is the Lord Chancellor alone who is taking this decision, he is obliged to take it in the context of his obligations with respect to the rule of law. No Secretary of State is under—
I am most grateful to my noble friend. He was focusing, as I understand it, on the words of the Constitutional Reform Act 2005 expressing a statutory obligation on the Lord Chancellor, but would he not agree with me that every Minister in any Government is obliged to uphold the rule of law and is governed by the rule of law? Whatever may be added in the Constitutional Reform Act 2005 does not subtract from that obligation which should never be let go of.
Of course I agree with my noble and learned friend that every Minister is bound to uphold the rule of law, but the noble and learned Lord the Lord Chancellor has a specific obligation in relation to the rule of law with respect to the conduct of his Cabinet colleagues. If, by any remote chance, one of his Cabinet colleagues fails to take the rule of law into account in formulating a policy or in drafting a Bill, then the noble and learned Lord the Lord Chancellor is bound by virtue of his obligations under the Constitutional Reform Act 2005 to intervene. So in my submission, the Lord Chancellor does have a very specific and special obligation in relation to the rule of law which is not shared by other Secretaries of State. If, as I have already sadly concluded, the noble Baroness is going to spurn my attempts to convince her about Amendment No. 5, I am going to suggest to her that her case would be strengthened if the decision-maker under this Bill was the Lord Chancellor and not the Secretary of State.
As to the other amendments, as I think I have indicated already, the approach is better than the one in the Bill but is not as good as the one enshrined in Amendment No. 5.
I entirely agree with the noble Lord, Lord Kingsland, about the different duty that rests on the Lord Chancellor. Indeed, if he looks at the evidence given by the noble and learned Lord to the Constitution Committee, I think he will find that the noble and learned Lord the Lord Chancellor has himself expressly recognised that he has a more positive and a more intense duty than that generally imposed on Ministers. I certainly think it is right that the appointment should be made by him.
I confess I do not understand why the two sets of amendments are being treated as alternatives. The Lord Chancellor’s recommendation can be made with the concurrence of the Lord Chief Justice, whether it is the Secretary of State or the Lord Chancellor. The person should not be appointed without the concurrence of the head of the legal profession because he will be regulating it, and if the people concerned are incompatible, there will be chaos. It is therefore a mistake to treat the two sets of amendments as alternatives—they are cumulative. If the recommendation has to be made by the Lord Chancellor, the need for the concurrence of the Lord Chief Justice is slightly less because the Lord Chancellor would be more likely to consult him. However, they are both highly desirable. The present amendment is essential and would fly in the face of the division of responsibilities which the Lord Chancellor has set out.
I probably need your Lordships’ help. We have strayed into debating three groups of amendments. It would be much easier for me if I could deal with them all at the same time, but, sadly, the groupings do not work like that. I will have to be the one with restraint, which does not mean that noble Lords should read anything into what I might then say about anything.
Probably, but I will not try—the noble Lord can do it for me.
The noble and learned Lord, Lord Lyell, asked me about issues to do with the breakdown of the responsibilities between the Lord Chancellor and the Secretary of State. I would rather deal with that when we come to the amendment on who should have responsibility because I will have more to say then. Equally, some noble Lords prefer Amendment No. 5 to this one, while others see this as being part and parcel of Amendment No. 5. Others feel that if I answer regarding the Secretary of State and the Lord Chancellor, I will have strengthened—or weakened—my case when we come to Amendment No. 5. Let me deal with the specific amendments before us; I hope that as we move through and noble Lords reflect on this, more of a picture will be created.
Two issues have emerged from our debate: the first is how we ensure independence. Noble Lords would feel varying degrees of comfort, depending on the role of the Lord Chancellor, the Lord Chief Justice and Her Majesty the Queen, but the underlying issue is to make sure that this is done independently. There are ways of ensuring that noble Lords can be comfortable that the board is independent that do not necessarily require these amendments. I have had discussions with noble Lords and various organisations and there is a fundamental principle I do not shy away from as an area where people are looking for ways to be encouraged that this is the case. The Government argue that the way we have set it up is right, and I will say more about that shortly.
Secondly, we are setting up a regulatory regime. Set practices under this Government and previous Governments for establishing such regimes have served us well. The Financial Services Authority, the Office of Fair Trading, the Commission for Racial Equality and the Competition Commission were all appointed by Secretaries of State; they all serve us well and are considered by everyone to be independent. We have reflected on how best practice has been established and has grown up to set up a regulatory regime. The Office of the Commissioner for Public Appointments would play the key role, and the code of practice—noble Lords will be familiar with it, but I am happy to place a copy in the Library—sets out the principles under which that should be done. Ministerial responsibility, merit, independent scrutiny, equal opportunities, probity, openness and transparency, and proportionality are the principles under which appointments are made.
The code of practice, which runs to some 65 pages, is specific about how these things will be done. We should pay tribute to the commissioner’s office for its work in that regard. The code was clarified and amended in part in August 2005. Some noble Lords may not be familiar with it and, before we reach the next stage of our debates, I strongly recommend that they look at it because it contains the principles and the basis on which appointments will be made. We believe that they reflect independence, openness, transparency and merit as the key principles within the seven that I indicated with which one would go about making appointments.
We have sought to apply regulatory regimes and current best practice. We have been very clear and consistent in saying that that is precisely what we would do. No one has suggested to me that any of the other bodies that have been appointed either under the practices at the time or current practices are anything other than independent, open, transparent and all the things that noble Lords would seek. I begin from that principle, but I also recognise that noble Lords are looking to tease out the matter, to hold more discussions and to look at ways in which we can be even clearer about the independence principle. I look forward to the succession of debates that we will have on the back of this one.
On the amendment concerning the role of Her Majesty the Queen, of course Her Majesty is eminently qualified to exercise her jurisdiction in relation to some public appointments but, in this case, we do not believe that that is necessary. For the reasons that I have given, we believe that the procedure should be that used in appointing the eminent regulatory bodies that have already been set up, and it is not appropriate to link these appointments to the Judicial Appointments Commission. That commission was set up to do a different job and involves a different set of skills. In my view, it is doing fantastic work but it is a different job from this one, and we think that the regime that we are proposing under the OCPA rules is the best one to take forward.
I know that I have not addressed all the other issues that will come out in debates on the other amendments, but I hope that I have given the basis for rejecting this amendment.
I do not know whether it is in order for me to speak briefly. I want to make a point that I do not want to elaborate on but I think that it would be rather hypocritical of me simply to go along with what the Minister said. I believe that an objective analysis might find some difference in the degrees of independence of some of the bodies that have been appointed from time to time. I speak as a lawyer and have obviously declared my interest and I might be thought to be parti pris on this, but the importance of independence of the legal professions in any free society is great. Their duty to stand up to Governments and to the sometimes overweening power of the authorities of whatever sort, sometimes in moments of great unpopularity, is such that we should seriously consider a method of appointment which is even more clearly independent than the others. Of course, I support all the Nolan principles and those that the Minister has so eloquently adumbrated, but I am not completely happy in my own mind that they always work. We should continue to pursue with a good deal of vigour what we are seeking to achieve by this and related amendments.
I completely respect and accept what the noble and learned Lord says about the importance of the legal professions. Nothing that I have said is meant to imply other than the importance of the role that they and, separately, the judiciary play and the value that we place on them. I am simply trying to elaborate the fact that a regulatory regime covering how the consumer, customer, client or whatever relates to someone who is providing a service should have a framework around it, and that is what we have sought to do. I have already indicated that I understand that noble Lords around the Chamber see a need to think about independence as being of especial importance because of the nature of the profession that we are describing. I do not believe that I have a solution before me that I could possibly accept, but that does not mean that the issue is not in my mind.
I have a small point but it may be important in relation to the amendments to come. When the Minister spoke of Her Majesty signifying assent to such appointments—I may be quite wrong and I shall read Hansard carefully to see whether I am—she seemed to suggest that Her Majesty had a separate discretion. That passage of her speech was of some importance. On reflection, is that really what she was saying? If the Prime Minister advised Her Majesty to accept the nominations from a Secretary of State—it would be open to argument—by convention, by constitution or by whatever we have in the mists and airs that surround this curious place, she might be obliged to accept what the Secretary of State said. So no one but the Secretary of State, who no doubt would be bound to consider the rule of law and the like, would decide, but he might be a very young Secretary of State in another place. Would that not be the end of the matter?
The role of Her Majesty in determining appointments varies. I would not wish to suggest that Her Majesty would always be bound to accept the recommendation in all circumstances because I do not know how appointments would be set out in individual cases. Certainly Her Majesty would look very carefully at recommendations that came forward from the Prime Minister or Secretary of State.
On this regulatory regime, my view is that it is inappropriate to ask Her Majesty the Queen to take on that role because we already have a good system in place. I am seeking to make the point that, because it is the legal profession, the issue of independence is one about which noble Lords feel passionately. On this series of amendments, we are probing, challenging and prodding the system as it currently stands to see what more, if anything, might be done. The Government are content that we have a good independent system through the OCPA rules. Quite reasonably, Members of the Committee are challenging that and together we are thinking how to take this forward.
I confess that I find the Minister's reply on this amendment somewhat disappointing. Although she has given some praise and support to the changes in regulations in respect of other professions and other bodies, and suggested that the rules applicable to them are, by general consent, working well, in this debate I do not believe that she has applied herself to regulation of the legal professions and services.
Her tidy implication that what is good for the financial services in this country can be transferred simply to the legal professions seems to me to have ignored the special circumstances and the history of the independence of the legal professions and the provision of legal services. It is not entirely satisfactory to say that she will return to some of these arguments later, because this amendment has been advanced as a proposal very closely following the argument that was deployed by the Government in advocating the arrangements for the appointment of the judiciary in the Constitutional Reform Act 2005. Those arguments are much closer to the present circumstance that we are considering in this amendment than are the arguments about the regulation of financial services. It is extraordinary simply to seek to sidestep it. It is very difficult to understand where the objection comes from to what is proposed here. We are not picking holes in other systems of regulation, but what holes are the Government picking in this proposal? It seems to me that that has not even been hinted at.
I am sorry to disappoint the noble Lord. I shall try to help him understand the direction in which I seek to go.
I do not accept the principle that the appointment of the judiciary is equivalent to the appointment of a regulatory body determining the relationship between the consumer and the provision of services by the legal profession. They are different. Therefore, the work of the Judicial Appointments Commission and the work of many noble Lords in making the Constitutional Reform Act 2005 as good as it is are very different. I have argued that a closer example of what we are seeking to do is to set up a regulatory regime based on what we know works well. No noble Lord has really challenged that. The noble Lord, Lord Lyell, rightly says that some would be argued against better than others but, essentially, people believe that regulatory regimes work well.
I have explicitly said that I understand that noble Lords are trying to look beyond what I have said, and say “Well, that is all fine and dandy”—which is what the noble Lord, Lord Maclennan, is saying—“but these are different people and need to be thought about in a slightly different way”. I have not disputed that or said that it is not an important issue. I have said that I do not equate it with the appointment of the judiciary and the value and critical nature of the independence of that process. It is different. That does not mean that I do not accept that there is an issue which noble Lords wish me to address.
I welcome this exchange, which is beginning to focus on some of the questions that have caused concern. It has not been part of our argument that the process of appointment or objectives of the Legal Services Board are identical to those of the judiciary. The Government have provided a means of appointing the judiciary which has been widely accepted. The underlying reasons for that are cognate to those which have motivated the advancing of the amendment. The objective is to ensure that the legal system and services—of which the judges are the pinnacle, but of which those providing legal services below them are an integral part—are not tampered with by the intervention of a Minister who may have absolutely nothing to do with the law.
The appointment of a Secretary of State to run the show could bring that about. It is clearly a different situation from the appointment of judges. The Government recognise the virtue of this construct. As they did not rely solely on Nolan principles or declaratory statements about openness and transparency in the appointment of judges, so they should not in this sensitive area. In my humble submission, they must go back to the drawing board on this.
I commend the argument advanced by the noble Viscount, Lord Bledisloe, that the amendment lies nicely with Amendment No. 5 of the noble Lord, Lord Kingsland, ensuring that there is a concurrence of the senior judge. Those two amendments are not mutually contradictory; one does not have to pick and choose between them. I hope that the Government will see the force of that argument and accept it.
It has perhaps escaped the Government that there is a conflict with the Government themselves in so many fields of the legal profession. The independence of the judiciary is guaranteed in this country because there is also an independent legal profession. If the Minister had ever had the experience I have had of appearing in jurisdictions where one has one’s doubts about the independence of the judiciary, she would appreciate much more keenly how important it is that the legal profession retains its independence and is seen to do so by any means possible. That is why an analogy with other bodies or professions which are subject to regulatory regimes is inappropriate. I am not claiming that the legal profession is above everything else but it has a particular role to play in the constitution of this country: that is, the independent role of people who will stand up and shout against the Government. The history of this country has been illuminated by lawyers who have been prepared to do that. To this day, the arguments against government are pursued not only in the courts of this country but also in the European Court of Human Rights. Standing up against the Government is in large part what the legal profession is about. If the Government are going to introduce a body which is to control, to regulate, the legal profession it is in their interest to ensure that it is seen to be as independent as possible of government.
The Home Secretary is a Secretary of State. Many times during the past few months the current Home Secretary has criticised the judiciary and lawyers because of this conflict. He does not stand in the same position as the Lord Chancellor, who has that statutory obligation regarding the rule of law. He is a person who gets involved on the government side. It would be disastrous if it were thought that a Secretary of State could put the squeeze on the legal profession in one way or another because he was not happy with the independent stance it was taking. It is an important point of principle that we have to pursue.
Lord Wedderburn of Charlton: Does the noble Lord agree that there is experience on the Continent, not least as the Weimar Republic gave way to the autocratic regime that followed, that judges, however much they might try to resist the power of the state, are in a much worse position to do so if they are not addressed by an independent advocate and the equivalent of what we have seen as the Bar in this country? It is a way in which the independence of the judiciary is surely linked to the independence of the profession which, if it is not independent, retracts from the independence of the judiciary itself.
This has been illustrated all over the world, perhaps critically in South Africa in the days of apartheid. Some of the lawyers who made their names at that time are now luminaries of the legal profession and the judiciary in this country. All over the world the importance of the integrity and independence of the legal profession is paramount and to the forefront in the preservation of liberty and the basis of constitutional government.
I hope that we can progress further. There are debates to follow on similar topics. I wait to hear what the Minister says. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 5:
5: Schedule 1, page 112, line 6, at end insert “with the concurrence of the Lord Chief Justice”
The noble Lord said: Amendment No. 5 and the other grouped amendments raise issues which have been foreshadowed in the debate just concluded. The wording of Amendments Nos. 5, 7 and 12 is entirely that of the noble Lord, Lord Neill of Bladen, whose name is rightly one of the names in support of the amendments. The issue is simply that the Bill as it stands puts too much power in the hands of a Minister both in relation to the appointment and the removal of the chairman and members of the Legal Services Board. This is so in spite of recommendations that came from the review conducted by Sir David Clementi and from the Joint Committee on the draft Legal Services Bill chaired by my noble friend Lord Hunt.
In the final report of his review, Sir David concluded that these appointments should be made by the Secretary of State in consultation with a senior member of the judiciary. It is quite clear from looking at the evidence that was given to the Joint Committee in written form or orally that a large number of witnesses were extremely concerned about the proposed manner of appointment to the board. Those concerns were reflected in the committee’s final report. The Joint Committee recommended that appointments to the board should be made only after full consultation with the Lord Chief Justice.
Your Lordships may recall the response of the noble and learned Lord the Lord Chancellor at Second Reading when he referred to the Lord Chief Justice as being somebody who consumers,
“rightly see … as another lawyer in the process”.—[Official Report, 6/12/06; col. 1164.]
Of course, although he started out as a member of the legal profession, the Lord Chief Justice is a judge. He is, indeed, the head of the judiciary; and I hope that, on reflection, the noble and learned Lord the Lord Chancellor feels that he may have overstepped the mark somewhat in making his observation.
Nevertheless, it is not just a question of the factual situation; it is also a question of perception. It is vital that the system is seen to be independent and that appointments to the Legal Services Board are seen to be wholly independent of government influence. Running through the Bill, one cannot help but form the opposite impression. It is not just in appointment and dismissal that the noble and learned Lord the Lord Chancellor has such a powerful role; there are other matters in relation to the operation of the Legal Services Board where, in our view, the Lord Chancellor—or the Secretary of State, as he is described in the Bill—has overweening powers.
It is for those reasons that we tabled these amendments. Some powerful speeches were made at Second Reading about the importance of the independence of the legal profession. We heard a most eloquent speech from the noble Lord, Lord Thomas of Gresford, in winding up on the previous group of amendments. I do not propose to add to that in any way because I think the subject has already been adequately dealt with by other Members of the Committee. We on these Benches regard this amendment as crucial. I beg to move.
My name is also on this amendment and it is correct that its language was my suggestion. I communicated it to colleagues in this House some time before Christmas. I was a party to the recommendation of the Joint Committee, which used different language. It recommended that the appointment of the chairman should be made,
“after full consultation with the Lord Chief Justice”.
I shall come in a moment to say why I have changed my mind and prefer the formula which noble Lords have before them now and which has been taken up by my noble friend.
Noble Lords will find that recommendation 10 comes out of paragraph 142, which is part of chapter 4 of the committee’s two-volume report. It is one of the things which persuaded me, having for the first time been put on a pre-legislative committee, of the important role that a committee can perform once a draft Bill is in existence. It can then assemble evidence from all parts of the kingdom, reflecting all shades of opinion, as to what people think of a sharpened up proposal post-Clementi.
One of the main points in the evidence which struck me—noble Lords will find it in volume 1, chapter 4 of the report—is the degree of fear being expressed by very different people about the threat to the independence of the legal profession. It is very striking. When noble Lords get a chance to look at page 42 of volume 1 of the report, they will see a list in footnote 119 of all the people who expressed worry about this topic. I shall give the Committee a couple of examples of the wide spectrum of opinion on this issue. One comes from a source which the noble Lord, Lord Whitty, were he still with us today, might say is a typical example of lawyers feathering their own nest. The example comes from the evidence that we received from Clifford Chance, which was once upon a time in the City. It said:
“The independence of the profession has attracted high calibre entrants to it and contributed to the success of UK law firms in overseas markets. Interference with this independence, or even with the perception of such interference, will only have a negative effect, both on success in recruiting high quality applicants and on the brand of ‘solicitor’ in overseas markets”.
From the other end of the spectrum—if I may put it that way—the Law Centres Federation said:
“We share the concerns of others, about proposals for the appointments to the Legal Services Board to be made by the Secretary of State for Constitutional Affairs. In our view, this will not give sufficient confidence in the LSB’s independence from Government”.
This is quoted in paragraph 134. People have seized on who will fill the key post of chairman of this newly created body, with its wide jurisdiction and powers to give direction to the front-line regulators. That is the breadth of the anxiety which is felt. Sir David Clementi used the first formula that we had in our report,
“after consultation with the senior judiciary”.
Noble Lords will find that quoted in paragraph 139.
Perhaps I may mention a point on which I touched at Second Reading and which we ought to keep in our minds as we look at the evidence as the Bill is debated and we hear more from overseas. We have received evidence, particularly from the president of the Law Society, of comments made in overseas legal centres and cities by those who, she suggested, were rather jealous of the big inroads which the English legal profession had made into the legal profession within the European Community. They were using this Bill as an argument for saying, “Well, you’re really ceasing to be independent in the UK. You’re having a government-dominated system”. I have not heard this said first hand, but I want to keep an eye on it. I hope that the Government, equally, will watch it to see how much reality there is in it.
Even if we set aside the overseas dimension and forget completely how we will be regarded from overseas, how will we be regarded internally? I think that I have said enough to show that we have received a lot of evidence from within this country of concerns about independence. This is number one in the list we made in the report of the points at which independence is seen as being under threat. The numerous powers vested in the Secretary of State is another point, but independence is number one in the list.
Why do we wish to insert the words, “with the concurrence of the Lord Chief Justice”? It is really very simple. I thought back on my career as a barrister and remembered cases in my experience where the relevant statutory requirement has stated that, “X must be consulted before such and such an act can be done by a Minister”. I have come across unfortunate examples of what has turned out to be perfunctory consultation. In other words, the Minister says, “Yes, I wrote him a letter saying, ‘This is what I propose to do, but I should like to hear within seven days any comments you have to make’”. So far as the law is concerned, provided the letter is written in good faith, that is “consultation”. I have become worried about it as being a fetter in any way.
If one can suppose that there could ever come a time in this country when the judiciary was not best of friends with the Executive, or when the Executive were to criticise the judiciary, one can imagine a situation in which consultation would not be enough. We therefore propose that the Lord Chief Justice’s involvement should be set at a higher level. The Lord Chief Justice would have to concur in the appointment and not merely to have been consulted.
I support the amendment. I agree with what the noble Lord, Lord Neill of Bladen, has just said, in particular, his reasons for preferring,
“concurrence of the Lord Chief Justice”,
to “consultation”. I shall say no more on the importance of the independence of the legal profession, because it was so well covered by the noble Lord, Lord Thomas. The analogy of other regulatory bodies seems to be far removed from the importance of ensuring the independence of the legal profession.
I shall say a brief word in support of what the noble Lord said about perception. As many of your Lordships will remember, perception was a key feature in the argument which the Government used during the passing of the Constitutional Reform Act. It was said over and again that the Law Lords, for example, must be removed from this building to the Middlesex Guildhall because they were not perceived to be independent so long as they were sitting here. If perception is important from that point of view, surely it is equally, perhaps even more, important from the point of view of the establishment of this body. If the chairman of the Legal Services Board is appointed by a Minister, it will be perceived by people—perhaps not by people with as much knowledge of these things as we have, but by ordinary people—as making the profession less independent of the Government than it should be. If that is true of the appointment of the chairman and members of the LSB, it is surely even more true of their removal from office, which, again, can be done by the Secretary of State. That point was not greatly emphasised by the noble Lord, but it does arise under Amendment No. 24. The provision to which it relates must be amended for the very same reasons. The dismissal of the chairman and members of the LSB seems to be absolutely contrary to any idea that the body is independent of the Government. I hope that the amendment will be approved in due course, as well as Amendment No. 24.
I wish to make a small point, without any notes. It may be thought that these arguments are advanced merely by great luminaries of the law, of whom there are many in your Lordships’ House, such as those who have spoken—those at the top of the profession. My plea is for those at the bottom of the profession. I more or less abandoned my limited practice to remain in academic life and to take part in the proceedings of your Lordships’ House in the 1970s. But I well know from my own case and that of students, whom I regularly saw go to the Bar, that the most important thing that is said to you, sometimes by people with whose outlook you violently disagree, is that you must say what you think is right. That belief, inculcated into a profession, is at the centre of what noble Lords have come to term “independence”. It may be thought that independence is being talked of as some great luxury, but it is not a luxury; young barristers come to observe it as integral to their role.
I am not saying, and I do not take other noble Lords who have spoken as saying, that the Government intend to interfere with that. But I can say with total conviction that if young students of mine were going from my seminars into a profession regulated by a board—I emphasise heavily the word “regulated”—they would think twice about whether they still intended to occupy their position as they rose through the ranks of their chosen branch.
It is therefore essential that young students, who have no direct voice in your Lordships’ House, know and can see in legislation that a new regulatory power introduced by the Government over the profession that they intend to enter is appointed and exercises its powers with the maximum number of conditions imposed. They must be able to see that those whom they recognise as reasonably independent of government have a place in such matters. I believe that the Government will come to accept that that must be made clear in the Bill because I believe that they intend that the profession should remain independent. However, the profession must be made clearly to appear, from a student’s point of view, to be still in that condition.
I see sitting in the Chamber no fewer than five noble and learned Lords from Scotland, so I hesitate to rise. But I have to point out that the Law Society of Scotland, somewhat surprisingly, feels very strongly about these amendments; it is strongly in favour of them. This part of the Bill applies entirely to England and Wales, but the Law Society of Scotland believes that, should it be enacted as it stands, a politically appointed regulatory body over Scotland’s regulatory bodies may be established or at least proposed.
The Scots Parliament has just legislated for legal services, having passed the Legal Profession and Legal Aid (Scotland) Bill before Christmas. The Bill does not contain provisions for a regulatory board but provides for a complaints commission. During the passage of that part of the Bill, the Parliament inserted a provision that the senior judge in Scotland, the Lord President of the Court of Session, should play a part both in the appointment to the commission and in the provisions for dismissal. That was felt strongly in Scotland. The Law Society of Scotland very much hopes that Parliament here will ensure that such arrangements exist for the regulatory board.
I was somewhat surprised to hear the Minister keep suggesting that the regulatory board is just like any other regulatory board and that there does not have to be any difference in the way appointments are made. But to regulate the regulators of an independent legal profession is a very different thing. My view is that in Scotland, a much smaller country where people see one another all the time and know one another very well, it would be even more important than in England and Wales to have an independent regulatory board. I make that point because it is interesting that the implications of this Bill go further than England and Wales.
I strongly support almost everything that has been said. I am sure that it is right that the concurrence of the Lord Chief Justice be required, for exactly the reasons given by the noble Lord, Lord Neill of Bladen. I also agree with the noble Viscount, Lord Bledisloe, that it is not a question of one thing or the other; these amendments tie in together and there is strength in that. A triangle is much stronger than a single limb. We need at least a triangle, or all the strength you can get, to maintain a free society.
We are discussing the concurrence of the Lord Chief Justice, but I hope that we will return to and accept the position of the Lord Chancellor within the constitution. I question what the noble Lord, Lord Neill of Bladen, said only in the sense that I think he was using irony during a portion of his speech, and I learnt when I was quite young in politics that irony is no good because the ironic point is missed.
I do not want to put my next point too strongly, but it is difficult not to. The past few years have seen some absolutely lamentable criticism of the judiciary by those in high ministerial office, which ought never, ever to have taken place, and which fortunately has been slapped down recently by the noble and learned Lord the Lord Chancellor. But it did happen, and it is very important to fight against it.
As the noble Lord, Lord Thomas of Gresford, pointed out, a legal profession that will support the judiciary in its independence and a free press that will report what is argued in court so that the whole country can read it are bulwarks of our free society. I am sure that the noble Baroness and the Government agree in principle with all those sentiments. I hope that they will help us to reflect them in the proper construction of this Bill.
What the Joint Committee said on this cannot be taken as gospel or as binding what this Committee decides to do. But it is worth repeating the majority view of the Joint Committee—the noble Lord, Lord Neill of Bladen, has already referred to it—in paragraphs 142 and 144 of volume 1 of its report. The committee concluded that the Secretary of State should do the appointing but only after full consultation with the Lord Chief Justice. I argue that it reached that view because Sir David Clementi came to the same conclusion. Sir David was quoted by the noble Lord, Lord Hunt of Wirral, who so ably chaired the committee, as saying:
“Given the need for independence, and the objective of the rule of law, it seems right that the judiciary should be involved in the appointment”.
“The proposal of this Review is that the appointment by the Chairman and Chief Executive should be made by the Secretary of State in consultation with a senior member of the judiciary”.
The Committee should consider carefully that view when deciding on this Bill. It is worth emphasising that Sir David Clementi did not support the conclusion that the appointment had to be made with the “approval” of the Lord Chief Justice, or with his “concurrence”—if there is any difference in the meaning of those two words.
I am grateful to the noble Lord, Lord Bach, for reminding us of, I think, the only division that we had in the Joint Committee. No, there were two divisions, but this division was initiated by the noble Lord himself, in relation to the words that he has just referred to. This is in no way critical of the noble Lord, Lord Neill of Bladen, as he was absent for very good reasons, but, had he been present, the vote would have been tied. I say that only because there were differing views within the Joint Committee. Therefore, I would not disagree with a word that the noble Lord, Lord Bach, has just said—that was our conclusion.
But even that conclusion does not meet with the approval of the Government and it is right to remind ourselves that, until this moment, the Government have not given ground on anything in this area, whether on “in full consultation with”, or “with the concurrence of”, the Lord Chief Justice. Of course, as the noble Lord, Lord Bach, will know, my preference in that division was for the word to be “concurrence” rather than “consultation”. It was an amendment at the time—
If I can just finish the sentence. I prefer that the Lord Chief Justice should have to give his imprimatur—he should concur with, or approve of, the appointment. There were differing views, which I acknowledge, but as I was the chairman of the Joint Committee, I would want to go with the report of the committee and that is to what I now speak.
What has the response of the Government been? I quote from the speech of the noble and learned Lord the Lord Chancellor. At Second Reading, he dismissed our recommendation in these terms:
“The Joint Committee … suggested that such appointments and dismissals should be made only after full consultation with the Lord Chief Justice. While I can see why that would give comfort to members of the legal profession, I have to say it gives little comfort to consumers”—
he continued with words that I am sure, or I hope, he now regrets—
“who rightly see the Lord Chief Justice, although he is a man beyond reproach, as another lawyer in the process”.—[Official Report, 6/12/06; col. 1164.]
I wanted to emphasise the importance of knocking that down. The Lord Chief Justice is not just another lawyer in the process; he is a judge. He is not only a judge; he is the most senior judge. He is a judge of independence and integrity who is seen as having that independence and as being full of integrity. He is in a special position. That is why the noble Lord, Lord Neill of Bladen, is right to single out the Lord Chief Justice—although there are differing views as to whether the wording should be “approval”, “concurrence”, or “in full consultation with”. This is really the whole point of the debate—to try to persuade the Government that there should be something in the Bill that makes it clear that the Lord Chief Justice has to be involved in the appointment.
To some extent we are in the dark, as came out in the previous debate. We do not know who is going to be the Secretary of State. At the moment we are in abeyance. We do not know who is going to be the Prime Minister later this year, although we have our suspicions. We are told by Mr Brown that it will probably be him. I do not know whether it will be. What I know is that this House sadly failed to persuade the Government that the Lord Chancellor should be a Member of this House. It also failed to persuade the Government in a number of other respects—that he should be a lawyer and so on. Therefore, later this year when Royal Assent is looming for the Legal Services Bill, we may be faced with a Secretary of State who is not in this House, who is not a lawyer and who is first and foremost a party person. Indeed, there are some who are clearly seen as party people, while others are seen as more statesmanlike. I do not know. The Minister indicates that it may be her, in which case a lot of my fears are removed. But it may be anybody.
When we are dealing with the appointment of a quasi non-governmental organisation—a quango—that is going to regulate an independent legal profession, a signal needs to be sent. As the president of the Law Society and chairman of the Bar have constantly reminded us, there are foreign, protectionist jurisdictions that would love to have the opportunity of pointing the finger at the legal profession in England and Wales, saying that it is controlled by government and giving examples.
The Minister will recall that our Joint Committee was concerned that there were a number of references to the Secretary of State—in fact, there were 111. When I revealed at Second Reading that the number of references to the Secretary of State had increased from 111 to 288, I placed somebody’s health in jeopardy; it is the only time that I have ever been interrupted in Hansard—it is at col. 1180—by a noble Lord saying, “Good gracious!”. But the Minister has sought to reassure me by saying that,
“the number of times the Secretary of State is mentioned does not necessarily correlate to the number of powers he exercises. In addition, I would also like to stress that we have sought to remove the Secretary of State’s role in respect of a number of different functions”.
Fine, but still the number has gone up and it was calculated on exactly the same basis—not the number of functions but the number of references. The number has still gone up from 111 to 288. The Bill grows and so does the role of the Secretary of State.
In that context, it becomes increasingly important that the power of appointment and indeed the power of removal should be seen as a power exercised by a non-political Minister. We would have far preferred it to be a Lord Chancellor in the mould of predecessors in that office. Nevertheless, if the power is to be exercised, it must be done at least in consultation with and, as the noble Lord’s amendment says, with the concurrence of the Lord Chief Justice, which in practical effect would be more or less the same thing, but we can debate that. Certainly the Lord Chief Justice should be named in the Bill as not just another lawyer and not just as a representative of a consumer organisation, but as the symbol of an independent legal profession of the greatest integrity respected across the world. That is why the Minister must start to give ground and begin to explain to us what she would accept and what the noble and learned Lord the Lord Chancellor would accept, which would communicate right across the world that nothing is going to change and that the English and Welsh legal system will still be the independent legal profession that is widely respected globally.
I have listened with great interest to what the noble Lord has had to say on this amendment. However, can he explain to the Committee how “full consultation with” is somehow the same as or the equivalent of “concurrence” or “approval”? I do not see that they are the same at all.
If the noble and learned Lord the Lord Chief Justice were consulted about a person and he said, “No, you can't possibly have that individual chairing the Legal Services Board”, or whatever, I may be wrong but I cannot believe that the Secretary of State would ignore that. I suppose that is what gives rise to this issue. I look forward to the noble Lord’s support if we ever propose an amendment that includes the Lord Chief Justice in the Bill as being an individual with whom the Secretary of State should consult. Although I have probably not persuaded the noble Lord, I hope that I have explained that, in practical terms, the phrases would be more or less the same.
This has been a debate of great passion and I will think very carefully about all that has been said. I am grateful to the noble Baroness, Lady Carnegy of Lour. I knew when I saw her in the Chamber that I needed to have the Scottish information in front of me. Indeed, she is absolutely right. The Scottish Parliament has taken a view on the Scottish Legal Complaints Commission and the role of the Lord President of the Court of Session exactly as she identified. I do not accept her briefing about the potential for some kind of superstructure. I have not received a copy myself, but I will look carefully at what the Law Society of Scotland is saying.
I was trying to say in our previous debates, clearly not as effectively as I would wish, that the model of regulation is one from which I begin. It is not an attempt to say that I do not recognise the importance and value of the independence of the legal professions at all. It is to say that the model of regulation—because this is a regulatory regime—is the one from which we begin. But I take the points that have been made about independence. I hope that Committee Members will realise that although I will not agree to the amendments, I none the less understand the point that has been made and I am thinking carefully about these issues and listening very carefully to what has been said.
I cannot resist going back to the 288 references, because I went through them on the back of what the noble Lord, Lord Hunt of Wirral, said at Second Reading. There were so many of them. A whole range of other clauses—45 clauses have been added over time—are actually about the Secretary of State being the conduit back to Parliament, so although it feels like a huge number, I ask Committee Members who are concerned about it to recognise that it is quite often the best and most effective way of making sure that, for example, we have affirmative action by the Government. Indeed, the Delegated Powers and Regulatory Reform Committee refers in a number of cases to that. Although it feels like a huge number, Committee Members should recognise that the vast majority are positive because they are ways in which Parliament is able to hold the Government to account about what is happening.
My right honourable friend the Chancellor of the Exchequer has been very careful never actually to say that he expects to be Prime Minister. He has said that decisions will be made by whoever leads the Labour Party and is therefore Prime Minister. For my part, I will be perfectly delighted if he becomes Prime Minister, but he has never said it and I should make that clear.
The noble Lord, Lord Neill of Bladen, and other noble Lords made interesting points. I am grateful to the chairman of the Law Society and indeed the chairman of the Bar Council, who have discussed the international perspective with me. I will spend a weekend in Dresden with the Justice and Home Affairs Council meeting of Ministers under the presidency of the German Justice Minister, and I have already planned to talk to her about the position. I know that the German Bar has often been raised as an issue. I have also talked to the European Commissioner for Competition, Neelie Kroes, in my capacity as the representative of the DCA on European Union matters. She is very keen and interested in what we are doing on legal services and has a positive perspective about the opportunities that there could be.
I have not received any representations of any kind from international bodies, and I do not believe that there have been any to the department about what this might do, but I will do my own research by talking to colleagues in other countries. If I find any information, I will put it to your Lordships’ House as well as to my colleagues in the department.
The noble Lord, Lord Neill of Bladen, also mentioned the value of pre-legislative scrutiny. I agree completely. The importance of that may be the only thing I agree with him completely about.
My noble and learned friend’s remarks have been referred to two or three times. He was not referring to his own view of either the office or the office holder of Lord Chief Justice, which both he and I would hold in the highest esteem, both as an individual and as an office. He was referring to the perception that exists—of which I have heard. I am not saying for a second that it is correct, but there is a perception that the Lord Chief Justice is an eminent lawyer, of the profession and therefore part of it. The noble and learned Lord, Lord Lloyd of Berwick, talked about perception in the context of the Constitutional Reform Act 2005. Inevitably, if you are trying to deal with consumer confidence, you have to be alive to the issue of perception. It is not the prime reason why I do not accept the amendment, but it is important. My noble and learned friend was referring to that. He would be the first to argue the eminence of the noble and learned Lord, Lord Phillips, and the first at the barricades to support the role of the Lord Chief Justice, so I hope that his words will be taken in that context. I am positive that that is what he meant, having looked at Hansard. We should not forget that perception is important, and think about it in this context.
There are lots of issues relating to the debate about concurrence or consultation. I understand what the noble Lord, Lord Hunt, is saying and agree with the differences that my noble friend made between the two. The noble Lord argued that you could not actually appoint somebody if you were doing it in consultation with anybody else and they disagreed with you. But other organisations would feel strongly that they should also be consulted, not least perhaps some of the more eminent consumer organisations that have worked closely on this Bill and feel passionately about the importance of the issue, and there may be others. We are not saying under any circumstances that the Lord Chancellor would not consult people; we are saying that we do not want that specified in the Bill. If an amendment were proposed to make a change about consultation, I fear that the Government would reject that too. We do not think that it is right to have one individual as the only person who would be consulted. There would be opportunities—indeed necessities—when the Secretary of State concerned would be keen to consult people about the right appointment.
I am disappointed to hear what the Minister has just said, as will be all the members of the Joint Committee. The noble and learned Lord the Lord Chancellor used “rightly”. It is all well and good to say that consumers may see the Lord Chief Justice,
“as another lawyer in the process”,
but he said that they,
“rightly see the Lord Chief Justice … as another lawyer in the process”.—[Official Report, 6/12/06; col. 1164.]
I do not see how any other interpretation can be drawn. The Minister said that, having read it all, she is sure that the noble and learned Lord the Lord Chancellor did not really mean what we say he meant, but he did say “rightly”. I hope that he will participate in our debates at some stage and take the opportunity to put the record straight. I also hope that the Minister is not closing the door as she appeared to indicate, but is prepared to reflect on the considerable body of opinion that has been expressed in this Committee. Many more could have participated but we have already had 45 minutes and that is long enough. I hope that she will still think about the points that have been made.
My noble and learned friend was indicating the views of consumer organisations and groups and not his particular views. I cannot do anything about the interpretation that the Committee chooses to put on the remarks, but they know my noble and learned friend well and it is known that he holds in high regard the importance of the office of the Lord Chief Justice and would not consider him in any way, shape or form as just another lawyer—far from it. However, it is clear that there is a perception that organisations do not differentiate, and why should they? Until I was involved in your Lordships' House I did not know the background, history and role of the Lord Chief Justice, so many organisations and individuals, equally, would not know and would see it as part of the same profession.
There is a concern in any form of regulation—we had this in discussions about the then Compensation Bill—that those who are looking to be part of this should be independent. It is the essence of the debate we are having.
I am closing the door on this amendment, which would not be acceptable to my noble and learned friend. As I have indicated, I am not closing the door on the question of independence and ensuring that there are ways that we can look carefully at that. I would not wish to suggest to your Lordships, were this amendment to be voted on this evening or returned to, that the Government could change their mind. I am sorry to disappoint all noble Lords on that basis—it is not my desire to. I am not closing the door to thinking carefully about the independence point, but I do not believe that we address it successfully via this amendment, not least because we believe that the rules by which we appoint people and the safeguards built into them work well. Noble Lords may disagree with that, but we as a Government believe they have worked well and—
Can I just get clear what the noble Baroness is saying? For all the distance between us, I put the question as if I were her noble friend, as I still feel I am. This is important: is she saying that the Government will carefully think again about reinforcing the clear appearance of independence on the face of the Bill?
I will certainly consider how we might address any further concerns about independence. Whether that would be on the face of the Bill I could not commit to, not least because I am not the policy Minister. That would be for my colleague Bridget Prentice to consider carefully, and anyway it might not be necessary. I am not suggesting that noble Lords think it is not necessary, but there are a number of routes that one might go down. I am not going to say definitively one thing or another.
I tried to be clear that I could not accept this amendment, but that I get the point about independence and will explore that, not least with noble Lords who have raised it with me.
I just want this clarified a little further. In saying that she does not intend to consider this amendment further, is the Minister setting her face against the concurrence point, or against the involvement of the Lord Chief Justice—which, after all, was a recommendation of the Clementi report, and was supposed to lie at the base of the Government’s Bill?
The Government’s position is that we set our face against the involvement of the Lord Chief Justice being on the face of the Bill. I think I said at Second Reading, and say again now categorically, that there may well be circumstances where the Secretary of State or Lord Chancellor would wish to consult the Lord Chief Justice and others. It may happen. That does not satisfy the noble Lord and I do not expect it to, but I am not—
Can the Minister clarify what she has just now said twice, about independence not being on the face of the Bill but somewhere else? The place where you would expect to find independence being protected, with this new framework being created, is in the Bill itself, so that readers could see it was there. Anything that is not in the Bill does not carry the will of Parliament.
Yes indeed, and the noble Lord’s position is absolutely clear. I was indicating that the principle that Members of the Committee are looking for is to ensure that we have fully considered the issue of independence and whether further steps could be taken. Noble Lords are clearly suggesting that they would not be satisfied unless those steps were on the face of the Bill. I take that away, and I listen with great care. I was not committing to the noble Lord, Lord Wedderburn, that there would be something on the face of the Bill that I might return to, because I simply do not know. I will not make a commitment that I cannot guarantee I could honour.
I understand the points being made. Noble Lords may decide that they want to vote at this juncture and do whatever is the will of the Committee. It is entirely up to your Lordships, of course. I will not commit further than that because I cannot. We are absolutely not willing to accept this amendment, or an amendment on consultation.
I had almost forgotten that I introduced this amendment, there having been so many eloquent speeches made on all sides in support of it. I am not going to attempt to sum them up; your Lordships have all spoken so perceptively about these issues that nothing further needs to be added. I will just draw out two matters which I think are particularly germane to the way the noble Baroness has responded on the issue of independence.
First, the noble and learned Lord, Lord Lloyd of Berwick, rightly reminded us that the Constitutional Reform Act 2005 was driven wholly by perceptions. The Government were at pains to emphasise that there was absolutely no evidence whatever that any judge had ever been suborned; and the only reason why the Appellate Committee was being physically removed from your Lordships’ House and renamed was because there might be a perception that it was not independent. It is a mystery to me why that should have been the over-riding consideration for the 2005 Act yet not a consideration at all when it comes to this Bill. As all your Lordships have emphasised, the perception of independence is almost as important as the fact of independence.
The second issue has already to some extent been rehearsed in the earlier amendments introduced by the noble Lord, Lord Thomas of Gresford—the link between the independence of the judiciary and that of the legal profession. For liberty to be entrenched in our society, it is vital that both are independent. You cannot have an independent judiciary if you do not have an independent profession. With great respect to the noble Baroness, this is the real flaw in her argument. In responding earlier to the noble Lord, Lord Maclennan of Rogart, when he advocated the Judicial Appointments Board as the appropriate model for selecting the Legal Services Board, she said, “We do not see it like that at all. This is a regulatory authority like any other regulatory authority”. I suppose she means the authorities that regulate gas or telecommunication. Yet it is because of the link between the independence of the judiciary and that of the profession that this approach by the Government is deeply flawed.
This is not a regulatory authority like any other. It goes to the heart of the liberties of this country and it cannot be treated like any other regulatory authority. The model of the Judicial Appointments Board, advocated by the noble Lord, Lord Maclennan of Rogart, is a much more appropriate model with which to approach appointments to the Legal Services Board than is, for example, the telecommunications regulator.
That, in my respectful submission, is the crucial point that I hope the noble Baroness will take away and reflect on between now and Report. She must know that there are strong feelings in the House about this issue. She will know that unless the Government play a different tune when this comes back, this House will vote and we will defeat her. She can be in no doubt about the strength of feeling on this issue. There will have to be movement on the Government’s side if we are to find some solution other than one of direct confrontation. We all regard this issue as absolutely central to producing a good Bill. I can see her nodding, but characteristically smiling at the same time. I do not think she is in any doubt about the direction in which we are all heading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
I remind noble Lords that if Amendment No. 8 is agreed to, I cannot call Amendment No. 9 because of pre-emption.
moved Amendment No. 8:
8: Schedule 1 , page 112, line 12, leave out sub-paragraph (3)
The noble Lord said: Amendment No. 8 refers to a line in Volume II of the Bill, on page 112, where it refers to the powers of the Secretary of State to determine the size of the Legal Services Board. Paragraph 1(3) of Schedule 1 states:
“The Secretary of State may by order amend sub-paragraph (1) by substituting for the limit on the maximum number of persons for the time being specified in paragraph (c) of that sub-paragraph a different limit”.
On the face of it, this is a quite extraordinary provision, because it suggests that, by what I understand to be a negative order, the Secretary of State can expand or contract the size of the board. It must be perfectly clear to the Minister as to the scope that that might give to a Secretary of State for manipulating the size of the board and therefore producing decisions from the board that would be different from those produced by a board differently constituted. The Minister may have a benign explanation for this measure; I cannot anticipate what she is going to say. But if the power is unconstrained, as it appears to be, I suggest that it is wholly inappropriate. We would certainly, on Report, in the absence of any explanation or offer to constrain the power in some way, want to remove it from the Bill. I beg to move.
I strongly support my noble friend. We were treated to a very helpful report from the Delegated Powers and Regulatory Reform Committee, which spent quite a bit of time going through the Bill. Indeed, I recommend to noble Lords that we should spend time going through the instances that the committee set out. The Minister started off by saying that the Government would bring forward amendments to meet the concerns and recommendations of that committee, including, presumably, on this amendment and power. It might well short-circuit a number of debates if the Minister could give us greater detail about how she proposes to amend the Bill in line with the committee’s recommendations. I recognise that she may not be able to do that immediately, but in the little while before the next day in Committee it would be helpful if she could give some indication of what she intends to do.
I thank the noble Lord for that opportunity. It will not surprise him to hear that I do not want to go into detail on everything now. The position that I hold is that we accept the recommendations on specific points that the Delegated Powers and Regulatory Reform Committee asked us to consider. There are a number of areas on which it has asked the Government and this Chamber to think further, and we will listen with interest to what is said on those matters.
I shall give what I hope is the benign explanation of these provisions. We set out in the framework of the Legal Services Board that it should have a lay majority, but we have also been very clear that, as there is regulation of different bodies, expertise and experience is needed on the board as well. In future, the Legal Services Board may take on two or three new areas of regulation that are not currently covered. I shall not speculate on what they might be; they may not exist, but they might. Indeed, there are amendments to the Bill that we shall come to later that suggest at least one area in which that might be the case in future. If that were to happen, the board might reasonably wish to add on someone with expertise in those professions, which would lead to the lay members becoming a minority. So the power is specifically to enable the Lord Chancellor or Secretary of State to come in and, by order, improve the numbers so that the lay members remain the majority. It is reasonable to ask whether, if that is the only circumstance, it should not simply be put in the Bill—but, as always, those are simply the circumstances that we can think of at the moment. I cannot think of any others, but there might be some.
The issue that the noble Lord, Lord Kingsland, raises is that the Lord Chancellor may be able to sneak something under the wire by negative procedure. One way in which to address his concerns would be for me to take the matter away to allow us to make it an affirmative rather than negative resolution. That would mean that, if the numbers were to be expanded, it would have to come through a debate in this Chamber and another place, so nothing could be done that would suggest that the Secretary of State was trying to increase the numbers for other reasons. The noble Lord also has the knowledge of my remarks, which are in Hansard, about the purposes to which the provision will be put. If there were other purposes, the Minister—whether it was me or another Minister—would have to explain in full detail to this Chamber and in another place precisely what was being done and why. I hope that that addresses the noble Lord’s concern. He may not wish to answer that directly now, but I put the offer on the table.
I am grateful to the Minister. I am certainly not going to reject the offer of an affirmative resolution, which seems to me a step in the right direction. On the face of it, the explanation that she gave, if not falling wholly into the benign category, is certainly a plausible one. I hope that she will consider, between now and Report, trying to find an alternative form of words to those that appear in the Bill, which might reflect the purposes for which the provision was inserted in the first place, as she describes them. I still take the view that the measure is too widely cast; but she is now on record in Hansard as saying what she is saying. Perhaps, in the intervening time between now and Report, the Minister might consider the drafting of that sub-paragraph to see whether she could make it reflect more accurately the purpose that she set out in her speech. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9: Schedule 1 , page 112, line 12, leave out “Secretary of State” and insert “Lord Chancellor”
The noble Lord said: These amendments grouped together give the Minister the opportunity to address a central issue of our previous discussions—why the Secretary of State and not the Lord Chancellor. Amendments Nos. 9, 11 and 17 deal with appointments to the board by the Secretary of State. Amendments Nos. 20 to 23, 25 and 26 deal with the removal from office of members of the board by a Secretary of State. Amendments Nos. 27 to 30 deal with borrowing and accounting, and Amendment No. 36, in the name of the noble Lord, Lord Kingsland, primarily deals with reports to Parliament.
There are two possibilities why the term “Secretary of State” is introduced. The first is that the Lord Chancellor is now to be regarded as a title of an honorary kind and that his office within the Government is now to be known as Secretary of State for Constitutional Affairs, in which case we should cease thinking of the Lord Chancellor as anything other than a title with little power. The second explanation is that the Government envisage that control over the Legal Services Board should pass from the Secretary of State for Constitutional Affairs or the Lord Chancellor to another department of government. That is the point at which we all become particularly concerned.
The position of Lord Chancellor is at the apex of the legal profession. Anybody who has achieved that office is devoid of further ambition because there is nowhere higher to go. It is the absolute pinnacle. Consequently, a person holding the office of Lord Chancellor has been able to hold it without concern for his own personal future or the future of anything else. He fulfils the duties of that office. The office of Secretary of State, on the other hand, may—particularly if the Secretary of State is in the other place—be held by a person with departmental or non-departmental responsibilities. It may be held by an ambitious person, who wishes to make their way and is therefore anxious to please those in power within his or her particular party at a given time. The Secretary of State is a very nebulous concept.
We believe that appointing members of the board—and, in particular, removing them from office—should remain in the hands of the Lord Chancellor. We still wish to uphold that office, not as a title to be handed around within the Government as a bauble, but as representing a person who, as hitherto, has reached the very top and has no further ambition. The purpose of tabling these amendments is to enable the Government to give us a full explanation of the use of the expression “Secretary of State”. I look forward with interest to what the Minister will have to say. I beg to move.
I have already, to some extent, spoken to the substance of this amendment, when I indicated the dangers of a Secretary of State, such as the Home Secretary or the Secretary of State for Trade and Industry, taking over responsibility for the Legal Services Board. It would be tempting in those circumstances for one or other of those Secretaries of State to rank other considerations higher than the rule of law. The Lord Chancellor, by contrast, would be obliged to place the rule of law at the head of his considerations in making decisions about the Legal Services Board. For that reason alone, I wholly support the amendments of the noble Lord, Lord Thomas of Gresford.
So do I. I also strongly support the words of my noble friend. I know that we have debated this already and that reference has been made to the positions of the Lord Chancellor and the Secretary of State under this Bill. We are in something of a quandary, because when we have a Lord Chancellor, who is responsible for the operation of the legal system and is required, under his oath of office, to respect the rule of law, we have confidence that the occupant of that post will follow the example of his learned predecessors and maintain the independence of the legal profession and all the other values that we have talked about in today’s debates.
The transition from a Lord Chancellor to a Secretary of State is an uncomfortable one. This Bill refers only to a Secretary of State, who could be any of the Secretaries of State. We are filled with nervousness about the transitional period. That is why I am very grateful to the noble Lords for tabling this series of amendments and to my noble friend for his amendment—Amendment No. 36, I believe. Responsibilities could be transferred to a Minister whose other departmental responsibilities would cause him or her to give less weight to the importance of maintaining an independent, strong, diverse and effective legal profession. That is where we are all coming from. These are not great party-political issues—far from it. We are united in wanting to see reform of the legal profession that maintains all the very high standards that we have been so proud of. We want to continue being proud of the international standing of the legal profession of England and Wales.
As I understand it, responsibility for these issues currently rests with the Secretary of State for Constitutional Affairs, rather than with the noble and learned Lord the Lord Chancellor, as a result of a transfer of functions order, made shortly after that initial decision to abolish the post of Lord Chancellor, which was then reversed. At the time—and I am not criticising anybody in this House—the issues raised by that transfer of responsibility were not properly considered, either publicly or in Parliament. Ensuring that the functions rest with the Lord Chancellor would help significantly to demonstrate to sophisticated international audiences that the new structure for regulation of legal services does not open the legal profession to political control. That, in essence, is what we are talking about: political control from a government Minister. The fact that the Lord Chancellor is required, under his oath of office, to respect the rule of law, would reinforce that.
If the Bill were to be amended along the lines suggested, it would also be desirable to ensure that the position could not subsequently be changed by a transfer of functions order. This could be done by excluding the functions concerned from the permitted scope of orders under the Ministers of the Crown Act 1975, in much the same way as was done in respect of the Lord Chancellor’s functions relating to the judiciary in the Constitutional Reform Act. I very much hope that the Minister might reflect on that. I note that the Tribunals, Courts and Enforcement Bill refers only to the Lord Chancellor. It would be very helpful if the noble Baroness could explain why that Bill differs so fundamentally from this Bill, which refers to the Secretary of State.
The noble Baroness has already very kindly said that she will explain the difference between the use of “Secretary of State” and “Lord Chancellor”; I very much look forward to what she has to say on that subject. When the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern, were Lord Chancellor—and, indeed, for the whole of my legal and parliamentary life—it was absolutely axiomatic that if the Government or a member of the Government sought to stray from the law, which sometimes happens, it would be made clear that, if the matter were not immediately corrected, the Lord Chancellor and the law officers would resign. There would be a constitutional crisis of massive proportions. I would like to think that that still applies. I shall listen very carefully to what the noble Baroness says in her explanation.
I have listened with great interest not only to the comments that have been made in the debate on this amendment, but those made in our wide-ranging discussion on questions of independence. Although I do not accept, as noble Lords would expect, that other Secretaries of State would not carry out their role fully, I understand completely what noble Lords are saying about the role of the noble and learned Lord the Lord Chancellor. When the Constitutional Reform Act was completed—noble Lords will remember the concordat in that—certain elements were classified. The noble Lord, Lord Hunt of Wirral, referred to the example of the transfer of functions order, which sat in the remit of the two positions embodied in a single person. The legal professions rested with the Secretary of State. That is a very simple explanation of why it ended up there.
I have listened with great care, and I have said in all these debates that I am keen that we reflect as a Government on the issues where noble Lords are rightly and reasonably saying, “We hear what you say, we do not necessarily agree with you, but we think that you need to think about independence”. I know that a number of noble Lords, including the noble Viscount, Lord Bledisloe, who is not in his place, and the noble Lord, Lord Kingsland, referred to the fact that my case is weaker because I do not look at this amendment properly and fully. Noble Lords will notice that I am not speaking from notes. Therefore, I am going to accept the amendment. We will have to make consequential amendments to the Bill because I do not think, with the best will in the world, that noble Lords have captured all the references. I am prepared to accept the amendment, but I am not prepared to go as far as the noble Lord, Lord Hunt of Wirral, is asking me to at this point, which is to put something in the Bill that says that you cannot transfer functions. I know, because I have checked, that we do not need another transfer of functions order if I accept the amendment, which goes a long way to doing that. If I accept the amendment, we do not need to do anything else. I hope that noble Lords will recognise the good will in that acceptance towards what they seek to achieve.
The explanation that I gave was that, in the concordats with the Constitutional Reform Act, decisions were made about how the different functions would be divided, and that was the way the functions were divided. I am sorry if the noble and learned Lord wanted more, but there is no more. That is it.
On Question, amendment agreed to.
[Amendment No. 10 not moved.]
11: Schedule 1 , page 112, line 15, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
[Amendments Nos. 12 and 13 not moved.]
13A: Schedule 1 , page 112, line 17, leave out “first”
The noble Lord said: It has not been my habit, in the 10 years that I have been in this place, to attend legal debates. I have been attracted to do so arising out of the activities of some—I repeat “some”—members of the legal profession who, I believe, have been cheating mine workers. I will not go any further down that lane; my feelings are well documented in debates in this House. Since I have been coming to these debates, I have enjoyed some of them, and I have been bored some of the time. I acknowledge the skills of the senior lawyers and the rest of the lawyer fraternity in this House. Since I have been attending these debates, I feel better informed.
As the Committee is aware, the Bill states that only the first chair of the LSB will be a non-lawyer. To demonstrate its independence from the profession, and to give confidence to consumers, the non-lawyer criterion should also apply to all future chairs. For the life of me, I cannot understand why the first chair should be a lawyer. What is the reason? My amendment is to leave out “first”. I am being looked at from down there; I do not know whether I am confusing someone.
I am saying that he should not be a lawyer. I am not saying that because I have fallen out with some members of the profession in recent times. I really believe that to give confidence to all concerned, it would be better to have a non-lawyer in this position. I cannot understand why the first chairman is to be a lawyer. Stop me if I am wrong. Is it possible that in fact the first chairman could be a lawyer?
I need to clarify this so I am clear that it is not me who is getting this wrong. The Bill says that the first one is not a lawyer. Noble Lords will agree with me on that. The first chairman should positively be a non-lawyer. Subsequently, we leave it open for the normal rules to apply, because there may be someone with appropriate experience who happens to have been qualified as a lawyer and who we would wish to see appointed, and we do not want to rule that out for ever. The first appointment of the chairman has to be a non-lawyer.
moved Amendment No. 14:
14: Schedule 1 , page 112, line 26, leave out “never been” and insert “not within the last ten years practised as”
The noble Lord said: Amendment No. 14 concerns the definition of a “lay person”. Paragraph 2(4) of Schedule 1 contains the definition of a lay person, which prohibits, in all circumstances, anyone who has been,
“an authorised person in relation to an activity which is a reserved legal activity”.
In other words, it prohibits anyone qualifying as a lay person who at any stage of their career has been a professionally qualified lawyer. In our submission, this prohibition is too severe. I am sure that the noble Baroness can think of a number of examples, as I can, of individuals who, at a very early stage of their lives, qualified as a solicitor or a barrister, and might or might not have practised for a few years, and then went on to do something entirely different, perhaps for as many as 20 years. It seems to me to be unnecessarily limiting the field for selection to exclude people of that sort. Indeed, one might well argue that they were particularly well qualified because they had knowledge of the profession and yet had sufficiently wide experience outside it to put their knowledge in perspective.
In sum, we believe that the definition in the schedule is too absolutist and that the Government should qualify it in the way that we have set out in the amendment, or find some other way of including that class of people who have had an early experience of the profession and who have moved on to other activities which would otherwise qualify them as lay people, had it not been for the fact that they became professionally qualified and briefly practised early in their career. I beg to move.
I support this amendment. I have to confess that I feel a very subjective involvement in its terms since it is at least 10 years since I practised law myself and I have certainly forgotten more law than I ever learnt. But I think that there are still quite a number of people who obtain legal qualifications, practise briefly and go into other lines of business or other professions whom the Government would have no reason to wish to exclude from serving in the way that this Bill provides. It might even be considered an oversight to have been so restrictive in this respect.
I hesitate to intervene in this debate. I do so only because I was rather disappointed that the noble Lord, Lord Lofthouse, failed to move the last amendment. Perhaps the Minister can help me. If the first chairman is to be a lay person, but not any subsequent chairman, could not subsequent chairmen bring with them the baggage of the legal profession and use their position as chairman to lay down the basis for an improved legal career thereafter and therefore rather misuse their post? It is just a point that occurred to me and I think that the noble Lord, Lord Lofthouse, may well have been right in the amendment that he did not move.
I see this really as a probing amendment, giving the Minister an opportunity for reflection. I can see the good sense of the first chairman not being a lawyer in practical terms and I am sure the word “perception” may emanate from the Ministerial Bench at some point in the reply. But if I had done more homework, I think I could have produced a rather surprising number of people of enormous independence who just happen 35 years before to have qualified as a solicitor or something of that nature, or possibly to have passed the Bar exams and done a pupilage but nothing more, who would be excluded. All I would commend to the Minister is that she might, with the assistance of her department, go away and think about it and see if a sufficiently clear form of words could be found which did not exclude quite a lot of the field.
I am grateful for the contribution of the noble and learned Lord, Lord Lyell, on this issue. Indeed, when this amendment was tabled we all started to think about eminent people we know who begin their careers in the law and then become experts, advocates or campaigners in a whole range of things, leading on from their early legal career.
I think noble Lords know what we are trying to do here. It is very important for there to be a huge statement of confidence in the first chairman bringing in the transition, and we think it right that that should be a lay person. We have said subsequently that that should not be a criterion that is overarching. A number of criteria will be considered. I do not really think I have to say to the noble Lord that someone who is quite clearly coming in to enhance their own career would be spotted through the process along the way. Lots of discussion goes on about the people who put their names forward, so I am less worried about someone doing that than he perhaps is. I am not sure about 10 years, either. I think 10 years is quite recent, particularly in your Lordships’ world. But I do take the point about people briefly practising 25 or 30 years ago and then moving on as not being a suggestion that they are linked to the profession. I am very nervous about linking anybody to the profession in that way.
What I would like to do is take this away. I have had one brief discussion with my noble and learned friend about this today. We wanted to do two things: have a think about what we might do, and talk to the consumer groups that feel very strongly about this to explain our thinking so that we keep that balance right. I will come back with a suggestion perhaps for the next stage. But the point that is being made is that somebody who a very long time ago qualified and practised briefly in law and is the eminent person may be debarred. I had rather hoped that this would be in secondary legislation. This is a classic case of where being able to amend something because you have moved on would be better, but it is in primary legislation so we need to think about how we make sure we do not exclude eminent people of the future. I take the point.
I am most grateful to the noble Baroness. I think she has said enough to give me hope that on Report she will come up with either an amendment or at least a proposal which will meet the concerns that have been expressed. It must make sense to make provision for this category of people, as the noble and learned Lord, Lord Lyell, said. He can think of a number of people who fall into this category and it would be quite wrong to exclude them from being appointed to the board. I think the noble Baroness has got the point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
17: Schedule 1, page 113, line 17, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
[Amendment No. 18 not moved.]
19: Schedule 1, page 113, line 17, at end insert “secure that persons are appointed on merit and in accordance with the principles appearing to them to represent the best practice in making appointments to public office, and must”
The noble Lord said: This amendment stands in my name and that of my noble friend Lord Kingsland. Its purpose is to insert in paragraph 3 of Schedule 1, dealing with the Legal Services Board, that, in appointing persons to be ordinary members, the Secretary of State must,
“secure that persons are appointed on merit and in accordance with the principles appearing to them to represent the best practice in making appointments to public office and must”—
then the clause continues—
“have regard to the desirability”,
et cetera. Really, this amendment seeks to do what the Select Committee recommended in our report; namely, that there should be some reference in the Bill to Nolan principles. We have already dealt with Nolan principles, but this amendment would ensure that all the appointments of members of the Legal Services Board had to be made on merit.
This amendment is not only in line with the recommendation of the Joint Committee, but a number of other bodies have said how strongly they support such an amendment. Of course it follows on from our discussions about the independence of the legal profession. The Bar Council has stated that it believes that this amendment would enshrine the Nolan processes without explicitly referring to them by name, and would ensure that we get the best possible people. In our Joint Committee we recommended that Nolan itself should be in the Bill. We recommended that recruitment by Nolan processes should be included explicitly on the face of the draft Bill. But I think we would recognise that this amendment in effect does that a little more discreetly, because from time to time these principles may well be changed, improved or further amended, so by putting “Nolan” in the Bill we may be unnecessarily restrictive. The Select Committee’s belief that adherence to the Nolan principles should underpin all government appointments is strongly held. For the actuality and the appearance of independence, it is important to maintain that there should be a statutory requirement in the Bill to ensure that those principles are followed.
In effect, the amendment would underpin the independent nature of the members of the board. It is a provision that at all times a majority of members of the board should be lay persons. That is why the previous amendment was so important in ensuring that the definition of “lay person” would not exclude people who in the past have had some legal training or experience. Whatever one feels about the Legal Services Board, I think we are all unanimous in believing that its members have to be the best possible people. That is why we need to ensure that the right processes are followed.
Comments are always made—indeed, there has been a recent report by a think tank—that some appointments are political or include members of a particular political party. We all want to rise above that in setting up the Legal Services Board, which is why I have much pleasure in moving an amendment that I believe will secure that aim. I beg to move.
I am grateful for the explanation of what noble Lords are seeking to achieve. I agree that the principles should apply—there is no difference between us on that point. As I indicated when I referred to the code of practice, the Commissioner for Public Appointments produces quite a lengthy document—65 pages—which includes the appointment criteria and processes. We would not wish to put this in the Bill; we do not believe that it is required. As the noble Lord, Lord Hunt, said, we recognise that things change over time; we do not want to set in stone criteria that may be out of date in a few years because we have moved on to greater and higher principles or the situation has changed, so we would not want to set out anything detailed.
I know that noble Lords are seeking an assurance on this. Any appointment to a public body by a Minister falls within the remit of the commissioner, who has the duty to scrutinise it. The code of practice is committed to ensuring that appointments are made on merit and are subject to independent scrutiny. They must comply with equal opportunities requirements and are subject to probity, openness, transparency and proportionality. The commissioner and the role of the Office of the Commissioner for Public Appointments is engaged when Ministers seek to make appointments, and the commissioner has a duty to scrutinise them.
The responsibility and duty of the commissioner, engaged by ministerial appointment, combined with the code of practice plus our commitment to the principles provide what noble Lords seek. We would not wish to put such a provision in the Bill because we do not want to run the risk of criteria changing over time and because we think it is unnecessary. That is not to say that we do not agree with the principles behind the amendment, but we do not think it is necessary.
I am slightly bemused because I heard the noble Baroness say that we should not put in the Bill something that might change; there might be other ways of making appointments. I remind the Minister that the amendment refers to people being appointed on merit,
“in accordance with the principles appearing to them to represent the best practice in making appointments”.
That is not going to change.
There is an issue which I did not mention but have been thinking about. I talked about the principles upon which we operate and about the Office of the Commissioner for Public Appointments, which works across government. The implication of the amendment could be that a Minister appointing in this set of circumstances did not agree with those principles and would prefer something else. I am not suggesting that any Minister would go by a different set of principles, but let us go through the theoretical proposition. I am a bit nervous about the language that the noble Lord has chosen because it implies that a choice rests with the individual. We believe that there are clear guidelines and principles for appointments made by Ministers; the commissioner has a duty to engage with the Minister at the moment of appointment. The Minister is in that process, because that is the right and proper process; I agree that processes change over time—indeed, the code of practice has been updated to reflect changes in thinking—but I would not want to give the individual Minister the right to disagree with the principles and do something different, and the amendment provides the potential to achieve that.
I was anxious not to interrupt the Minister because I felt the more she spoke, the more she would come round to the amendment. She has put forward the view that Ministers should not be allowed to depart from the principles which appear to the Government to represent the best practice in making appointments to public office. I agree with her—that is why I have moved the amendment.
They are not departing from it, not because of this legislation but because of custom and practice, convention, and the role of the Office of the Commissioner for Public Appointments. I am not disagreeing with the principle of what the noble Lord is trying to do, but I think his amendment takes us to a slightly different place and appointments would already be covered by those principles via other legislation and conventions.
I am very grateful to the Minister for giving us a different dimension which I confess I had not really thought deeply enough about. It is clear to me that I should go away and think more carefully about this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
20: Schedule 1 , page 114, line 5, leave out “Secretary of State” and insert “Lord Chancellor”
21: Schedule 1 , page 114, line 6, leave out “Secretary of State” and insert “Lord Chancellor”
22: Schedule 1 , page 114, line 7, leave out “Secretary of State” and insert “Lord Chancellor”
23: Schedule 1 , page 114, line 9, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
[Amendment No. 24 not moved.]
25: Schedule 1 , page 114, line 20, leave out “Secretary of State” and insert “Lord Chancellor”
26: Schedule 1 , page 114, line 21, leave out “Secretary of State” and insert “Lord Chancellor”
27: Schedule 1 , page 116, line 16, leave out “Secretary of State” and insert “Lord Chancellor”
28: Schedule 1 , page 116, line 17, leave out “Secretary of State” and insert “Lord Chancellor”
29: Schedule 1 , page 116, line 25, leave out “Secretary of State” and insert “Lord Chancellor”
30: Schedule 1 , page 116, line 33, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendments agreed to.
Schedule 1, as amended, agreed to.
Clause 3 [The Board's duty to promote the regulatory objectives etc]:
moved Amendment No. 31:
31: Clause 3 , page 2, line 24, at end insert—
“( ) The Board must, so far as is reasonably practicable, act in partnership with the approved regulators.”
The noble Lord said: One of the recommendations of the Joint Committee was that the draft Bill should ensure that, consistent with the Government’s policy, lead responsibility should rest with the approved regulators; and that the Legal Services Board should act in partnership with the approved regulators, seeking to resolve differences by agreement wherever possible. In their response to the Joint Committee, the Government said:
“The Government agrees that the intention of the Legal Services Board should be to work in partnership with the authorised regulators, leaving them with the responsibility for day to day regulation. The Legal Services Board should exercise its powers only where approved regulators are clearly failing”.
The wording of the amendment flows from that initial view of the Joint Committee, subsequently endorsed by the Government in their response.
Behind the amendment is the fact that the Bill appears to say nothing about the way in which the Legal Services Board should approach its task. But from what the Government have been saying about the Bill as we have moved towards the parliamentary stage, it seems clear—to me, at any rate—that the existing professional bodies should act as the frontline regulators and the Legal Services Board should act in a supervisory role, intervening only if it believes that a frontline regulator is failing in some way or another to fulfil its task. The amendment seeks to reflect that in the Bill.
In the absence of this amendment, or one like it, in our view the Bill will fail to reflect the balance that the Government say they want to achieve between the frontline regulator doing the hands-on work and the Legal Services Board acting in an overseeing role, intervening only when the frontline regulator fails to fulfil its task. I readily accept that the noble Baroness may feel that an amendment differently worded would better reflect the balance of power between the Legal Services Board and the frontline regulators. I should be perfectly happy to consider—indeed, I would probably accept—any such amendment. I am extremely anxious to hear from the noble Baroness, first, whether she agrees with my interpretation of the relationship between the two and, secondly, whether she is prepared to endorse what the Government said in their response to the Joint Committee or some other form of words which would equally reflect the Government’s response. I beg to move.
My name is attached to this amendment and, of course, we support it from these Benches. It provides a way of ensuring that the Legal Services Board will act with a light touch. It would be extremely unfortunate if a Legal Services Board decided to interfere directly and to constantly make directions and orders and so on to the Law Society, the Bar Council and any other regulatory bodies in such a way as to take over their functions. To us, the idea of acting in partnership is to be commended, and I hope that the Minister will accept it.
I strongly agree with both my noble friend and the noble Lord, Lord Thomas of Gresford. We spent some time in the Joint Committee talking about the phrase just used by the noble Lord: “light touch”. We heard that phrase on many occasions. I recall with a fond memory that, when my noble friend and I were in harness together on the Financial Services and Markets Bill, we heard constant reiteration of the words “light touch”. Indeed, that has been the principle behind the way in which the Financial Services Authority and its leaders have sought to conduct regulation.
It is very interesting to hear those who are subjected to statutory regulation by the FSA talk about light touch in theory but heavy bureaucracy in practice. Often the engine room will listen to its leadership but will resort to what is called the “box-ticking phenomenon”, in which one suddenly finds oneself enmeshed in a bureaucratic nightmare of regulation. I am sure that the Minister will say that that is far from the intention in setting up the Legal Services Board. Indeed, when the Joint Committee made this recommendation, which has given rise to the amendment, it said that it wanted to accept the Government’s policy that lead responsibility should rest with the approved regulators.
Against that background, we sought to put forward this idea of partnership. The term “partnership” is readily understood: the regulating bodies should act in harness, and the lead regulator should not interfere in a micro-management sense and certainly should not intervene unless there is clear evidence that the approved regulators are failing. In addition, not only should there be clear evidence that they are failing but their failures should have been brought to their notice and directions should have been issued with which they neglected to comply.
So we are really talking about finding words that will express “light touch” in simple phraseology, and I cannot think of anything better than “act in partnership”, unless the Minister can suggest some other words. Certainly, this is very much in line with government policy and all the words that we have heard about light touch. Here is an opportunity for the noble Baroness to do what we have not paid sufficient tribute to her for doing already—that is, to accept amendments. The Minister set a marvellous example to all her ministerial colleagues in listening to the argument and suddenly deciding, “Yes, I will accept”. If one is allowed to refer to the Box and the noble Baroness’s advisers, I saw a sign of shocked silence when she accepted the previous set of amendments. I am not saying that they were caught by surprise but they just looked surprised. Please may they look surprised yet again by the noble Baroness accepting this amendment.
At Second Reading, I said that it would be a nice idea to get the concept of “light touch” into the Bill. I think that I expressed my feelings about my own incompetence as regards how that could possibly be done. It seems to me that this is about as good a shot as you can have at expressing “light touch”. There may be a slight difficulty with the words,
“must, so far as is reasonably practicable”.
I can see that trouble could develop if the board had established a policy over a particular area or with one part of the profession and if adopting a different policy or some other bit of it was under discussion. There could be potential conflicts ahead where the board might say, “We’re very sorry, it just isn’t practical. We’ve taken a position and that is how we are acting”. Having said that, I think that this is the best job that one can make of “light touch”.
I was reading some of the comments of my honourable friend Bridget Prentice when she appeared before the Select Committee. She was keen to get rid of overused words such as “light touch”. Certainly, in my experience over many years, “partnership” is another of those words that are difficult to define. We all know what we mean, but if we are to include it in the legislation as a duty on the Legal Services Board, we have to be very clear about what we mean.
I say at the outset that I completely accept the principle that says, “We are creating a regulatory regime in which different people perform different functions and work cohesively together”. In a sense, that is one definition of “partnership”. I have no objection to being very clear that we want the Legal Services Board and the frontline regulators, if they do not mind me calling them that, to be able to work together consistently. We have had some very useful discussions—for example, yesterday with the Law Society—about how rules are dealt with, which I am keen to pursue. I intend to talk to colleagues about that this week.
In principle, I have no objection to this at all. I am not keen to put a duty of partnership on the Legal Services Board without a clear definition of what we mean. The noble Lord, Lord Neill, has raised an additional problem that we would have to think about. But I cannot accept the amendment, and I hope that the noble Lord will not refer again to things I do when I should not do them, as I will end up with no job if I am not careful. Perhaps we can try to be explicit about what we mean, which may be more about what I say rather than what we put in to the Bill, to be fair. We have no difficulties about putting out some specific points. I have said to the leadership in the professions, particularly in the Law Society and the Bar Council, although not exclusively to them, that I am very keen and happy for useful things to be said during the passage of the Bill so that matters can be made clear, although we cannot include them in the Bill as they would change the legislation. I hope we can have those discussions so we can be sure that we have clarified matters.
I agree with the principle of working together in a regulatory regime and of ensuring that the Legal Services Board works effectively with those organisations. But I am not sure about a duty of partnership in statute, because I think that that is different. I am keen to make matters as clear as possible and to consider other options, especially for the future.
I am most grateful to the Minister. I believe she has fully understood the point that we have tried to make. Between now and Report stage, she will reflect on the wording. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 32:
32: Clause 3 , page 2, line 25, leave out “, so far as is reasonably practicable,”
The noble Lord said: The Minister might find a certain irony in the fact that in Amendment No. 31 we were urging her to accept an amendment which contained the expression,
“so far as is reasonably practicable”,
but in Amendment No. 32 we ask her to remove that expression from Clause 3. As I hope will become clear, our approach is wholly rational in relation to both amendments.
Amendment No. 32 refers to Clause 3, which concerns the Legal Services Board’s duty to promote the regulatory objectives set out in Clause 1(1). Clause 3(2) states:
“The Board must, so far as is reasonably practicable, act in a way—
“(a) which is compatible with the regulatory objectives, and
“(b) which the Board considers most appropriate for the purpose of meeting those objectives”.
Our submission is that if one expunges the expression,
“so far as is reasonably practicable”,
from Clause 3(2), the Government will still get exactly what they want from the clause. We believe that the expression,
“so far as is reasonably practicable”,
unnecessarily qualifies Clause 1(1). What is the point of setting out the regulatory objectives in Clause 1(1) if one does not require the board to respect them in Clause 3(2)? If the expression is left in the clause, clearly one removes the obligation, in some circumstances, for the board to act in accordance with the regulatory objectives.
I believe that Clause 3(2)(b) fulfils exactly what the Government ought to want from the clause. The board ought to respect the regulatory objectives, but equally it ought to have the discretion to determine the most appropriate manner for meeting those objectives. As long as the board has discretion to determine the way in which an objective is met, surely that is sufficient. Surely in those circumstances the board can meet its obligation to meet the objective if it has the flexibility to decide the manner in which the objective is met.
In short, in our view, the expression,
“so far as is reasonably practicable”,
not only unnecessarily undermines the objectives set out in Clause 1, but is otiose because Clause 3(2)(b) meets all the requirements that the Government could possibly want from the clause. I beg to move.
We on these Benches agree with the argument put forward by the noble Lord, Lord Kingsland. In our judgment, it is a mistake to give an escape clause of this kind which undermines the force of the objectives set out in Clause 1. I hope that the Minister will be persuaded by the argument that she has already heard.
I suppose that in this amendment we seek not to lose the ground that we have gained. We have now persuaded the Government to have as one of the regulatory objectives,
“encouraging an independent, strong, diverse and effective legal profession”.
However, we do not want the words,
“so far as is reasonably practicable”,
to restrict in some way the victory that we have achieved in persuading the Government to include that regulatory objective. We are really asking the Minister to explain why she thinks that the words,
“so far as is reasonably practicable”,
I should be delighted to do that. The noble Lord, Lord Kingsland, and I had a brief conversation about this earlier and I have received legal advice. He reasonably pointed out how Clause 3(2)(b) is drafted and said that, by removing the phrase, I would not be creating the problem I feared. I was fearful that the amendment would place an obligation on the board and on regulators to act in a way that was compatible with all of the regulatory objectives all of the time. That is obviously contrary to the principles proposed by Sir David Clementi which we discussed in part earlier this evening regarding the ability of regulators to judge for themselves how to balance one objective against another on a case-by-case basis.
In the Bill there may be tensions between some of the objectives in some circumstances. A case may arise in future where the objective to improve access to justice is more important, as we discussed on the competition issue, than the objective to promote competition. In such a situation it would be difficult for the Legal Services Board to comply fully with both regulatory objectives. The noble Lord, Lord Kingsland, will agree that in our earlier discussion, when we considered the matter, he thought that Clause 3(2)(b) addressed the issue and that we did not need to look at it again. However, I have now taken advice from lawyers in the department. I shall not read out the advice in detail but will send it to Members of the Committee who have spoken in the debate so that they can look at it properly.
We do not think that the effect that the noble Lord seeks will be achieved. The problem that I have outlined would be created because of the way in which the Bill is drafted. The result would be that the LSB would have to act in a way that is compatible with the regulatory objectives and that the board considers most appropriate for the purpose of meeting those objectives. “So far as is reasonably practicable” qualifies both of those. They require different things that would be differently affected by no longer being qualified by “so far as is reasonably practicable”.
I shall stop there. However, that is the difficulty. The phrase is qualifying both, but in different ways. We shall discuss the point between now and Report to ensure that I have made that as clear as possible. I understand what the noble Lord seeks to do, but we need the provision in the clause in order to prevent the effect that the noble Lord’s amendment would accidentally achieve.
I am most grateful for the Minister’s response. I accept that there may be difficulties with my crafting of the amendment; but if the government lawyers say that it does not achieve the result I want, that still leaves us with the problem. The expression “so far as is reasonably practicable” leaves it open to the Legal Services Board to effectively ignore one or other of the objectives in making its decision. That would not be acceptable. So if our amendment does not achieve the objective we wish, we must find some other way of doing so.
Nor is it in the Government’s interest that the Legal Services Board should effectively be able to make a decision by ignoring one of the objectives it is obliged to take into account under the Bill. We must find a solution to that problem. If the amendment does not do so, I hope the Government will go back to their lawyers and find some other way of doing so which does not involve a clause entitling the Legal Services Board to ignore one of its objectives.
That is the difference. We do not think we have entitled the board to ignore them. We have already said that there will be times when the weighting of different objectives and considerations is essential. For example, some objectives may not be engaged at all. We will look at this again. We do not believe that there is a problem as the noble Lord maintains but we need to convince him of that. We agree with what he is trying to achieve but we think that it is already there.
I am less persuaded than usual by the Minister. However, she knows that I am not going to press the matter to a vote this evening. I look forward to seeing what she does on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.