Consideration of amendments on Report resumed on Schedule 1.
7: Schedule 1 , page 112, line 6, at end insert “with the concurrence of the Lord Chief Justice”
The noble Lord said: My Lords, I am not tongue-tied—I thought it better to allow a short period for Members of the House to withdraw. In moving the amendment, I make the normal declarations of interest I have made on previous occasions. I am a practising member of the Bar, in my time I served on the Bar Council and I was chairman of the Bar. I also served on the Joint Committee that looked at the Bill, and I owe it to that period of service that I have at any rate some sort of working knowledge of some of the main provisions of the Bill.
My amendment raises a key issue about the mode of appointment of the leading figures who will be operating under the Legal Services Act. We are talking today about probably the most important of the offices: the chairman of the Legal Services Board.
I want to link back. It is fortuitous that the noble Lord, Lord Kingsland, should have mentioned that there are certain aspects of what we are debating that to my mind have no flavour at all of party politics. The issue we are talking about now is how the chairman of the Legal Services Board should be appointed, and whether it is sufficient that his appointment should be in the hands solely now of the Lord Chancellor. It would have been the Secretary of State, but now, as I read the amendments, it will be the Lord Chancellor who makes the appointment. As we know, however, the role of the Lord Chancellor has been transformed. The august office whose former holder is present today is now scarcely recognisable under the title of Lord Chancellor. These issues have nothing to do with party politics, but everything to do with trying to move forward on this new legal services territory—which, it is quite honest to admit, is experimental—and doing so on the basis of consensus so that you carry people with you. It is therefore important not to ignore perfectly valid points.
The basic submission I will be making with this amendment is that it is valid to argue that the top player on the scene—that is, the chairman of the Legal Services Board; I put him top—should get there by being appointed by the Lord Chancellor but with the concurrence of the senior judge, the Lord Chief Justice. Why is that important? It is really too obvious to state: because the legal profession must be brought on board and go along with what is happening.
One thing came out clearly in the evidence to the Joint Committee, and we referred to it in our report. The impression had been created by various provisions in the Bill—I will mention two in a moment—that in some way the legal profession of this country would lose its independence and be manipulated by party politics and by government. One ground for that perception was itemised in detail by the noble Lord, Lord Hunt of Wirral. On two occasions he drew attention to the number of places in the Bill where there is a reference to the Secretary of State—perhaps it is now the Lord Chancellor—being in a position to order this, that or the other thing to happen, or to give directions. There are numerous examples. The other place where it was picked up was the territory we are now in—that is, who appoints the key players? Is it simply done by the Lord Chancellor or should it be done with the full support of the legal profession, evidenced by the judgment and verdict of the Lord Chief Justice, as there can be no more suitable officer to do that?
Wading through the Bill to look at the provisions we are repealing shows many examples of appointments and like matters being done by a Minister but with the concurrence of the Lord Chief Justice. Sometimes more than one judge is mentioned; sometimes two or three office-holders are mentioned. The concept of acting with the concurrence of a high legal officer of the judiciary is very familiar.
I am happy to see that the amendment has the backing of others. To repeat a point that I touched on at Second Reading but certainly made in Committee, if the Government accept the amendment, it would be a major step in harmonising or bringing on board the good feeling of members of the legal profession who, in some quarters, feel isolated. How can one resist the proposal that the Lord Chief Justice should concur in such an important appointment?
The noble and learned Lord the Lord Chancellor said—I am sure that these are not words he is very proud of—something along the lines that consumers tend to think of the Lord Chief Justice as just another lawyer. Even if there were any empirical evidence to establish that, which I very much doubt, consumers come in all shapes and sizes—some will know perfectly well who the Lord Chief Justice is. They will know his reputation and if they do not know the man, they will know the office. The office of Lord Chief Justice has been there for centuries as one of the branches of the courts. There were two or three at one time but for the past 100 or 150 years, there has been one Lord Chief Justice. It is no answer to the argument to say that people regard the Lord Chief Justice as another lawyer. That is saying that to associate a lawyer with the appointment somehow contaminates it. What is the validity of saying that people will look on him as just another lawyer? So that is not an answer.
With the greatest respect to the noble Baroness, Lady Ashton, I think it is fair to say that although she displayed her usual courtesy and charm earlier, we got no further than her indicating that this was not on the agenda or the menu so she was not in a position to give any of the body language that we have had on other occasions with regard to this amendment.
On the terminology of the amendment, the Joint Committee’s report contained language such as “after consultation with the Lord Chief Justice”. On reflection, I am a party to that report, so I could be said to be departing from what we recommended. However, in the light of my experience in public law, where sometimes a perfunctory consultation has been held to amount to consultation, I came to think that it would be much better to use the old language that I found in the old precedents and talk about “the concurrence” of the Lord Chief Justice. You could also refer to “the approval” of the Lord Chief Justice. An amendment on removal to be debated later refers to approval.
Incidentally, it is obvious that the point that I am now making about the appointment of the high officers who will run the service will hold equally good for their removal. Amendments later today deal with that. I think that I have said enough to indicate why this is a desirable amendment and why the House ought to adopt it. I beg to move.
My Lords, perhaps an innocent bystander—a member of the public and consumer—might join in at this point. I see that the noble Lord, Lord Whitty, as chairman of the National Consumer Council, is here as a top consumer, sitting and listening to this debate. I rather thought that he was disagreeing with the noble Lord who moved the amendment. From listening to what people say about these things, I think that the public would trust a judge or lawyer far more than a Minister, politician or political Peer, which I suppose I am. The noble Lord’s point is a good one. It would give the public confidence. They would not think, “This is just another lawyer”. They do not think that judges are like that. When reading reports of cases and what judges have decided, the public very seldom criticise what the judge has done. They may criticise the lawyers, but not the judge.
The noble Lord has a good point and I rather hope that the head of all consumers—the noble Lord, Lord Whitty—will answer me on that point, because I do not think that what the public thinks is against this amendment.
My Lords, I should like to question the purposes of the amendment moved by the noble Lord, Lord Neill of Bladen. I agree that just because the Lord Chief Justice is a lawyer is no valid reason for not wanting his concurrence in the appointment of a person such as the chairman of the Legal Services Board—not at all. I raise more of a constitutional issue related to some of the constitutional changes to which the noble Lord, Lord Neill of Bladen, referred; namely, the change in the past couple of years whereby the Lord Chancellor no longer straddles the legislative, executive and judicial roles of government. That was an anomaly, but he did so to the delight of law students over the decades if not centuries. As a former teacher of law, I am one of those who regrets that that anomaly has disappeared.
One of the consequences of the disappearance is that the head of the judiciary is now the Lord Chief Justice. He or she is exclusively in the judicial arm of government and not involved with the Executive. In a short while, when the Supreme Court is set up, he or she will not be part of the legislature. I am one of those who regrets that he or she will not be part of this House because I remember Lord Chief Justices in the recent past, such as the late Lord Taylor, intervening in criminal justice Bills and so forth—intervening rarely but gently and persuasively on many matters. I regret that, but that has been the change. My constitutional point is simply that it is no longer appropriate in the present constitution, when the Lord Chief Justice is purely head of the judiciary and not part of the Executive or the legislature, that he should have and be given by a Bill such as this a role in appointments—albeit a concurrent role but none the less intended by the noble Lord, Lord Neill of Bladen, in his amendment to be an important role, not a minor one. I question the appropriateness of it in light of the changes recently made.
My Lords, is the noble Lord aware of the fact that the Lord Chief Justice has many administrative tasks in running the whole system of the courts and as the head of the judiciary has plainly enormous space for confidence from the profession? Since the Lord Chancellor in future may not be a lawyer but a junior Minister who knows relatively little about the whole process, what is the objection to extending the administrative tasks of the Lord Chief Justice so that he is consulted in this matter? We do not have a written constitution that makes it forbidden; to say that it is unconstitutional is to make up some new rule. Surely the noble Lord would not want the whole process to be downgraded by not having the Lord Chief Justice consulted.
My Lords, I am not sure whether my noble friend, or former noble friend, is asking me a question or making his own speech. My own view is that, certainly, the Lord Chief Justice has many administrative duties in running the courts, but that is not a case for giving him the appointment role or concurrence in appointment role of the chairmanship of the Legal Services Board. My former noble friend Lord Wedderburn has not answered my main constitutional point.
My Lords, I start by making a declaration of interest, as I am a practising member of the Bar and head of a set of barristers’ chambers with more than 80 barristers in it. We on these Benches support the amendment moved by the noble Lord, Lord Neill of Bladen. He moved it with great clarity and I shall try to restrict my remarks to a relative minimum.
As the noble Lord said, the appointment of the chairman of the board is not merely an important appointment but the appointment of a person who will have great influence over standards exercised by advocates and in the courts. One needs only to look at the professional principles set out in Clause 1 to see the very great jurisdiction that the chairman of the board will have as he directs his board.
The clear message of the amendment is that those at the Bar, solicitors, possibly the judiciary—for whom I do not dare to speak—and certainly a large swathe of the public wish to be assured that the legal system in this country will remain independent of the Executive. I do not want to be seen as grudging or ungrateful for Amendment No. 6, which was conceded by the noble Baroness, Lady Ashton, but that amendment is meaningless in the current environment. I think that the concession was made before the announcement that there would be a Ministry of Justice, or certainly the Minister did not seem to know that there was going to be an announcement of such a ministry—and I see that she is assenting to that proposition. The effect of the amendment is actually nil when it comes to an assessment of the independence of the legal system.
We now know that the Lord Chancellor is likely to be an elected Member of the other place, a party appointee, an instrument of government and quite possibly from time to time someone with no knowledge whatever in any depth of the legal system. Any theory of the independence of the office of the Lord Chancellor, to which the noble Lord, Lord Borrie, alluded, is now gone for ever. The Lord Chancellor no longer sits astride the constitution in part as a Cabinet Minister and in part as an entirely independent person—the sort of role that was carried out so ably by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place this afternoon. How do we assure the profession, the public and the judges of that crucial independence of the legal system without something like this amendment, which seems to me to provide a simple answer?
As we started this debate, I was reminded of my noble friend Lord Hooson, who in one of his most celebrated cases during an illustrious and distinguished career at the Bar, defended Ian Brady on charges of murder. A role of advocates is sometimes to do what is deeply unpopular with the public at large and to show a quintessential independence which is not motivated by being reasonably rewarded for the case, but rather by a tradition that somebody has to appear in that unpopular cause. If instructed, we do it because we have the confidence that, provided we act within professional ethics, we will be regarded at all times as independent.
Every young barrister who has made his or her first appearance in the Lord Chief Justice’s court in the Court of Appeal Criminal Division learns very quickly what that means—that if you step outside the line of proper preparation and presentation, and if you say too much or too little, you will be given a clear lesson by the Lord Chief Justices and their Lordships before whom you appear. There are one or two here before whom I have appeared, but in the fairly distant past, I am bound to confess.
The recent Sullivan case is a very good example of my next point. If a member of the Bar or other advocate goes to the Court of Appeal and criticises a member of the judiciary for discourtesy, bias or laziness—as happens from time to time—they know that, as long as they act within the professional standards set out in Clause 1, the Court of Appeal and the senior judiciary as a whole will uphold their right to represent the interests in the case independently.
From time to time barristers have to appear on behalf of Secretaries of State to defend indefensible decisions by Ministers. We should consider the huge number of cases that successive Home Secretaries have lost in the Administrative Court. I am not making a party-political point, because they are all as good or as bad as each other in this context. What we have is a profession that understands that if it behaves properly its independence will be protected. But who protects its independence? It is certainly not Ministers. If we ask independent advocates how much they feel that their independence is protected by Ministers, they will laugh because they know that that is not where their protection comes from. If we ask them whether their independence is protected by chairmen of non-governmental organisations, committees, the Bar Standards Board or any other independently appointed committee, they will guffaw because they know that is often far distant from what they do every day. The answer they will give in the end, when you press them, is, “We are protected by the judges. We may not like some of the judges before whom we appear. They may treat us roughly or they may treat us kindly, but at the end of the day they are the guarantors of our protection as advocates”. But we are not just talking about the advocates. When judges protect advocates, whom are they really protecting? They are protecting our lay clients—citizens who often constitute extremely unpopular causes, such as the examples I have given.
To provide that assurance to the public, the amendment takes a small but important step. Our constitution is not written. The noble Lord, Lord Borrie, spoke, if I may say so, with respect, as though it was immutable. What the noble Lord, Lord Neill of Bladen, I and others seek to do today is to put into our mobile, changing constitution an important and surely rather uncontroversial piece of independence. Indeed, I suspect that the Minister agrees with the principle of everything that I have said so far. I suspect she is really concerned about the mechanics. If that is right, I urge her to put aside the mechanics and to recognise that absolutely no harm, and certainly a lot of perceptual good, could be done by this change.
The guarantee of independence is part of the golden thread, as it has been called by others, of the British legal system. In this amendment, the noble Lord seeks to provide a little more strength to that golden thread.
My Lords, there has been a tendency in recent years to say that judges must only judge and that they should do nothing outside the judicial function. We have heard that particularly from politicians and even from Ministers. We heard it when the Human Rights Act was proposed: “We must not have the Human Rights Act as part of British law because it will involve the judges in political decisions. Do not let the judges make statements about matters of public interest; they might verge on the political. Above all, do not have the Law Lords in the House of Lords; it muddies the somewhat obscure principle of the separation of powers”. The amendment does not muddy anything. On the contrary, it brings a very necessary element into the taking of decisions that would be covered in the provisions to which the amendment relates. I strongly support the amendment, because there is a special function to be performed here by a senior judge and in particular by the Lord Chief Justice. I very much hope that the amendment will be accepted.
My Lords, as anticipated by the noble Baroness, Lady Carnegy of Lour, I am strongly opposed to the amendment. Listening to most of these contributions, I feel that I live in an entirely different world from that of most of the people who have spoken today. I am particularly surprised at the noble Lord, Lord Neill of Bladen. We need to consider how this will look to the punters out there.
The noble Baroness has already declared my interest. I speak on behalf of consumers in one sense—in the strict sense that they are the clients of the legal profession—but also more widely on behalf of citizens who are concerned with the safeguard of the public interest, which was spoken about so much earlier this afternoon, when I say that this looks like a carve-up. It is subject to the concurrence—or the veto—of someone who people around the country see as the top lawyer. I know, and Members of this House know, that there is a difference between the judiciary and practising lawyers. Actually, practising lawyers appear before the courts; the courts are their arena. Many of them aspire to be members of the Bench, and many may aspire to be Lord Chief Justice. You cannot be Lord Chief Justice without being a lawyer. There is a difference in function, but there is not a difference in culture, and there is basically not a difference in interest.
This seems to me to be an occasion where the intuitive view of the general public would be very different from that which the noble Baroness was alluding to. It may be that judges are held in somewhat higher esteem in Edinburgh than they are in south London. Nevertheless, I do not think that this would be seen as anything but the lawyers attempting to pull back the regulation of their profession to their own. I see that the noble Lord, Lord Currie, is no longer here, but it is almost as if the chair of Ofcom were appointed subject to the concurrence of Rupert Murdoch, or the chair of the Competition Commission were appointed subject to the concurrence of the chair of Tesco. That is the public appearance. I am sorry, but legal services are, in that sense, no different from any other service to the public and to consumers.
I make this other point: that any appointment by a Secretary of State, whether it be the Lord Chancellor or anyone, is subject to the proceedings which the noble Lord, Lord Neill of Bladen, has greatly advanced, and they are transparent proceedings. They are understood in all these areas of regulation, but the idea that the chair of the regulatory authority should be subject to the concurrence of those who are being regulated seems to me to be a complete nonsense and undermines the intention of the Bill. The idea that the Bill alters the balance between the independence of the legal profession and the state is a complete misunderstanding of the intention, the content and the letter of the Bill. It attempts to change the balance of power between the legal profession and its clients, and we have been given enough examples during the Bill’s earlier stages of when that relationship has clearly broken down and where we need a regulatory authority that is truly independent of the profession. I do not think that this amendment would in any way advance that perception among the general public.
My Lords, the speech of the noble Lord, Lord Whitty, runs on to the rocks of logic. I understand what he is saying, but at one point he said, “It all depends on how the public look at it”. I think I am putting that fairly, but what would the public say about putting a professor of philosophy in charge of an organisation dealing with health, or vice versa? The noble Lord misjudges the public appreciation, and the public will not look at each profession or service in one way. They will be content with someone chosen as an expert—an acknowledged independent operator in that profession.
My Lords, the noble Lord, Lord Whitty, clearly represents a considerable section of the punters. But others of us—and I, despite having been a judge, also meet the punters—do not entirely share his view of what the general perception of the amendment would be. We must remember that the Legal Services Board will be the linchpin—the absolutely essential part—of the whole Bill. Its chair will be the person who sets the tone. We have to remember that he is setting the tone for lawyers and that some input from the Lord Chief Justice, who is not just another lawyer, is essential. I respectfully endorse everything that the noble Lord, Lord Neill of Bladen, has said in moving the amendment.
My Lords, I venture to take part in this debate because a large part of my practice for the past 25 years has taken place abroad—from practising in foreign countries and from receiving work from foreign countries. That, I am told, contributes something like £2 billion a year to our balance of payments—not personally, I am sorry to say.
One of the reasons why the English legal profession gets work from abroad is that we are seen to be independent. My main country of practice is one where the standard of lawyers is extremely high and there is no need to consult the English Bar—particularly me—for greater legal knowledge. But what that country values is that the English legal profession is totally free from government pressure, interference or influence. That is not true of most of the countries from which work comes to the English Bar. There is a very serious risk that that trade will be damaged if it is thought that the English legal profession has lost that independence from government. I am not saying that that will have happened, but we are talking about perceptions and, frankly, the clients that I am talking about are punters of considerable importance who fully understand what is going on. They do not think that the Lord Chief Justice is just another lawyer—they know well what he is; they have seen him; they have Lord Chief Justices themselves.
There is a great risk that that trade—for which I no longer receive much benefit, so I am not defending my own income—will very seriously be damaged unless it is made abundantly plain on the face of the Bill that this system of regulation is totally independent of government.
That is what I intended to say principally, but I cannot let pass the outrageous words of the noble Lord, Lord Whitty, without some comment. To suggest that the Lord Chief Justice is the same as a press tycoon is outrageous, unfair and totally inaccurate. After all, he is not the customer with whom the board will be dealing; he is an independent person who will receive the product of its work. It is in his interest to see that the board works well and produces good lawyers. It is not the judges who will receive the disbenefit of errors if the board gets it wrong. I really think, first, that the noble Lord, Lord Whitty, on reflection, should apologise and, secondly, that we should ignore his remarks.
Well, my Lords, he is part of the legal structure of this country. As far as the vast majority of the people in this country are concerned, and if you went out into the street and asked 100 people, “Does the Lord Chief Justice represent the legal profession?”, that must be the answer. We are trying to establish a system of regulation that has the confidence of the people.
My Lords, if the noble Lord is making another speech, perhaps he should answer the question directly. How on earth can he say that the Lord Chief Justice is one of the regulated? Surely that is a remark born of crass ignorance, if I may respectfully say so.
My Lords, whether that was respectful or not, I am not entirely clear; compared with some noble Lords’ remarks, that no doubt is the case. I am trying to reflect here how this will be seen by the general public. I am not saying, in the words of the noble and learned Baroness, Lady Butler-Sloss, that there should be no influence brought to bear by the legal profession or by the Lord Chief Justice; I am saying that the appointment should not be subject to the veto that “with the concurrence of” actually means—that I am opposed to that.
My Lords, since I have not spoken thus far, I am probably in order—even at Report stage. I do not practise in England and, therefore, can exclude myself completely from the battalions of those who will be regulated by the Legal Services Board. It is a mistake on the part of the noble Lord, Lord Whitty—and I understand perfectly why he said it—to say that the Lord Chief Justice is part of the regulated. He is not; the judiciary is not subject to the regulation of the Legal Services Board. The board, among others, will regulate the practices of those who have rights of audience in the courts, and the Lord Chief Justice is now, by virtue of the actions of this Government with the support of Parliament, the head of the judiciary. Therefore, the Legal Services Board will operate in an important way within the precincts of the courts by regulating those who have rights of audience there. Surely it is fundamental that those who have rights of audience in the courts should, in connection with the regulation, have an input from the head of the judiciary—the Lord Chief Justice.
When confronted with that point at Second Reading, the noble and learned Lord the Lord Chancellor said, in a phrase which I was astonished to hear, that the Lord Chief Justice is “rightly regarded” by consumers as just another lawyer. That does not say much for the Lord Chancellor’s input into the appointment of the Lord Chief Justice. The Lord Chief Justice is selected by Her Majesty the Queen on advice that she receives from Her Majesty’s Government, and under the new system there will be intermediate stages before that advice is given.
To suggest that the Lord Chief Justice is just another lawyer is to undermine the whole system of judicial determination. If our consumers have a dispute, ultimately they will have to go to the courts. The courts regulate the rights of consumers against those whose products they consume or whose services they take, and if their clients, the consumers, do not have confidence in the courts of law, our system will be in the gravest possible danger. I believe that the Lord Chief Justice enjoys in the community, not only because of his position but also because of the way in which he fulfils that position, a confidence which is unlikely to be shared by any Minister of the Crown.
It is perfectly proper that Ministers of the Crown should have responsibility for selecting and appointing those who take part in the Legal Services Board, which is a creation of Parliament with nominations by the Executive. But I believe it is right that, where the board has a function in relation to the rights of audience in the courts, of which the Lord Chief Justice is the head by the determination of Parliament, the Lord Chief Justice should have a say in who is to be ultimately responsible for managing the control system which is to be put in place. Therefore, I very strongly resent the idea that the Lord Chief Justice is “rightly regarded” as just another lawyer, compared by the noble Lord, Lord Whitty, with an official of Tesco, which I regard as a very high and important position, and also with Mr Rupert Murdoch, with whom I have not had much acquaintance. The Lord Chief Justice is well known.
The noble Lord, Lord Whitty, pointed out that my noble friend Lady Carnegy of Lour might be familiar with the situation in Edinburgh. I am reasonably familiar with the situation there but I also have a certain familiarity with the situation in this part of the world. In so far as we have a United Kingdom, it is important that the judiciary is regarded as having high status in all parts of that kingdom. I strongly support the amendment proposed by the noble Lord, Lord Neill of Bladen.
My Lords, I am probably better known as a supporter of the citizens and consumers out there than almost anything else. It was therefore with a somewhat divided mind that I initially approached this whole subject. However, I no longer believe that consumers and citizens will be offended by what is proposed in the amendment—far from it. I say that because of the changes that have already been made concerning the departments and the beginnings of doubt about the separation of powers between the Executive and the judiciary. It is crucial that in future they are seen as separate and independent, and surely, for the sake of confidence in the whole legal profession, it is not too much to ask for the Lord Chief Justice to have this minor but important role of concurring with an appointment. I am a huge admirer of Which?; indeed, I think that I sponsor one of its people who help your Lordships’ House. However, in this case, I am afraid that I take the opposite view.
My Lords, I declare an interest in that I was chairman of the Bar in 1999 during the passage of the Access to Justice Bill. That experience honed my capacity for objective thinking about my professional status in society and in its service. In the eight years that have passed since then, I suspect that this is the next major Bill to deal with the way that our legal services operate in this country. It is exceptionally important.
The noble Lords, Lord Neill of Bladen and Lord Carlile of Berriew, mentioned the importance of principle in relation to the way in which the Legal Services Board should operate and be seen to operate. To principle, I want to ally practice. Lawyers such as myself who travel abroad to work are often privileged to hear people saying, “How lucky you are in the legal system that you have with its independence, its integrity and its service of democratic value”. And we take it for granted. They do not. When I go abroad, people say, “How is it you get so much work in London from around the world?”. From a group of lawyers who probably number a couple of thousand at most comes £2 billion-plus a year in foreign earnings. That has gone up by 10 or 15 per cent over the past 10 years and is climbing. Adopting the pungent example of my noble friend Lord Whitty, do we seriously think that the financial punters in New York, Frankfurt and the other major legal cities in the world are not looking, as they always do, with the greatest care at the changes that we are making to our profession, waiting to seize, as they will, on any argument that will undermine our tradition of independence so that they can get the work? It is competition; it is the way the world works. That is practical.
The members of senior firms and senior barristers’ chambers who wrote to my noble and learned friend the Lord Chancellor and the Chancellor of the Exchequer about this issue were not oblivious to the needs of consumers. They were of the view—rightly, in my opinion—that this particular point had no adverse impact on the rights of consumers but, rather, that it sought to protect the foreign earnings made by the British legal profession. If you were in business out there, which we are reminded to think of, making £2 billion a year—a business where all the people in it perceived a serious risk—and you measured the risk with a perception of the vagueness that we have heard described, there would be no contest: trade would win every time. If it is to win, what will most accommodate maintaining our independence without in any way impinging on the objective of the Bill? The answer is to use the Lord Chief Justice. The House will forgive me if I remind your Lordships that only two years ago we passed the Constitutional Reform Act in which we legislated for the Lord Chief Justice of this country to be head of the judiciary, to be in charge of the administration of justice. It was called a concordat. He was given the right to report to Parliament—and is he just another lawyer? Please!
We are talking about the constitutional state of our country when we talk about the Lord Chief Justice. His role in this area is of limited effect, but it is to establish his concurrence that the chairman of the Legal Services Board is the kind of person who, in the opinion of the Lord Chief Justice, will meet the regulatory objectives. Under our constitutional concordat, the Lord Chief Justice is in charge of the good administration of justice. The amendment seeks no more than that. Is there anybody who would speak against it? I must confess to my noble friend Lord Whitty that the two organisations representing consumers to which I have spoken in the past few days have no particular interest in this point.
Has it been done elsewhere? Yes, in Scotland, where the Lord President has this function. It is not party politics; nor is it consumer rhetoric. It is an important trading aspect of our country with limited protection sought by using the person we regard as essential to our constitutional legal system. If it is not to be concurrence, why not consultation, as the Joint Committee suggested? I hope that the Government will give serious thought to that. Of course, they can limit consultation to the Lord Chief Justice because of his constitutional role. I would much prefer that to “concurrence”. My noble friend, with great charm and ability, has conducted the Bill so far most effectively. The only test I shall ask of her is that at this time she seeks a way towards consultation rather than concurrence; if we are told that it is not consultation, we are left with concurrence. I am sure that, on reflection, the Lord Chancellor either now or at Third Reading, will not risk £2 billion a year for some consumer perception.
My Lords, it is with some hesitation that I intervene at this stage of the debate on this amendment. In view of some of the things I have heard since I re-entered the Chamber, perhaps I should disclose an interest as a former Lord Chief Justice.
I apologise for not being here, but the reason may have some relevance. Tomorrow a new commercial court will be opened for Dubai’s financial centre. The chief justice of that court is Sir Anthony Evans, who is a distinguished judge and arbitrator, and a former member of the Court of Appeal. The court will apply the common law. It is being established in such a way because of the belief in the qualities of the legal system of which this country is the mother, and of the standards of judicial behaviour pertaining in this jurisdiction. I was about to engage in preparing a greeting to that court because I am now the president of a similar, sister court in the Gulf state of Qatar. Again, that court will apply common-law standards. I thought that it might be relevant to explain my absence; I was preparing that statement, which must go off tonight, as the arrangements for me to appear on video, as originally intended, have gone awry.
Even though I do not vote in this House because I also sit here as a judge, I want, if I may, to take the opportunity to make two more points. First—this should appeal to Ministers—I suggest that this amendment accords with the concordat that I was responsible for negotiating with the noble and learned Lord the Lord Chancellor to become a Minister of Justice. We saw the importance of a partnership between the role of the Lord Chancellor and the new role of the chief justice, particularly in relation to situations where it was important that it should appear that the roles of the Lord Chancellor and the Lord Chief Justice should be seen to be independent, but where they both had a legitimate interest to protect.
As to that legitimate interest in the present situation, the independence of our judiciary is dependent on the independence of our legal profession. We could not have an independent judiciary were it not for the independence of the legal profession from which our judges are selected. They become judges with that independence as part of their natural instinct. It is not something that they have to relearn when becoming a judge; it is the independence that they have practised throughout their professional life. It is so important that we take what steps we can to ensure that that independence survives and flourishes.
The board will be only one factor in the future of the legal profession that can have an impact on the independence to which I have just referred. Looking into the future, because of the constitutional changes that we have passed into law, we have to recognise that the role of the Lord Chancellor will evolve and change. We have to recognise that his involvement in the court system will be diminished not because of any wish on his part, but because of his other commitments. The very heavy responsibilities that he will have as Minister of Justice, with which no Lord Chancellor has ever been saddled, mean that he will not be so closely involved with the judiciary or with the legal profession, no matter what his personal inclination may be. He will be able to delegate to other Ministers many of his responsibilities. But a Lord Chief Justice does not and cannot do that to the same extent, if at all. The important matter to be borne in mind is that in requiring his concurrence, there will at least be a conversation of the sort that the concordat again and again envisaged between the Lord Chancellor and the Lord Chief Justice of the day, where one can be assured that the members of the board will be of the quality necessary to ensure the quality of the legal profession. I support the amendment, although, for the reasons I have given, I will not vote.
I shall say a final word to the Minister, if I may. I agree with the noble Lord, Lord Brennan, about her desire to meet the interests of those who have a point to make when promoting a Bill to the House. I echo what has been said about a desire to conciliate and mediate; that is highly desirable. The spirit with which the concordat was negotiated should be borne in mind by Ministers, including the noble and learned Lord the Lord Chancellor, when they come to make their decisions on the amendment.
My Lords, all of us who tabled the amendment are extremely fortunate that it was introduced by the noble Lord, Lord Neill of Bladen. He brings to what he said the enormous prestige of his career. He has been chairman of the Bar and chairman of the Senate of the Inns of Court, and he has had a towering practice at the Bar for many years, as well as great experience of public life in different roles. The mere fact that the amendment was introduced by the noble Lord ought to take us to at least a 75 per cent chance of victory, even before the Minister stands up and speaks.
When the Minister does stand up and speak in the next few minutes, I anticipate that she will say three things. She will underline the point, made by the noble and learned Lord the Lord Chancellor, that the Lord Chief Justice is a lawyer, although she may not make that point quite as strongly as she would have done had the noble Lord, Lord Whitty, not spoken in the intervening period. Nevertheless, given the fate of the noble and learned Lord the Lord Chancellor over the past few years, it may well be just a matter of time before there is no requirement for the Lord Chief Justice to be a lawyer, either. I hope that it will not come to that.
Two other points that I know the Minister will make deserve more weight in my reply. First, we already have the guarantee of the Nolan procedure to select the chairman of the Legal Services Board. The noble Baroness is right: the rules will apply. But the advertisement and terms of reference for the appointment are drafted solely by the Government. The chairman of the selection committee is almost invariably a senior civil servant. Although I have enormous respect for the Civil Service, particularly for its senior branch, that is an insufficient guarantee of the independence that your Lordships’ House seeks.
Secondly, the Minister will say that the Legal Services Board is a regulatory authority and that the chairman will be like the chairman of any other regulatory authority, such as that for electricity, gas or communications—Ofcom, for example. In those circumstances, the Secretary of State always has the last word on who gets the post, so why should it be any different for legal services?
The Minister will say that legal services are just like those other public services. That argument is totally misleading. The noble and learned Lord, Lord Woolf, the former Lord Chief Justice, put his finger on the essential reason why: the intimate link between the independence of the judiciary and that of the Bar and the solicitor’s profession. The link is particularly close because of our adversarial system. When a judge listens to counsel arguing in front of him, he takes it for granted that they are people of probity, that all the evidence relevant to the case will be brought before him by those lawyers and that nothing will be hidden. If one or other of those lawyers knows something that is adverse to his case, he will put that evidence before the court. If you do not have an independent legal profession appearing in front of the judiciary, the judiciary cannot take independent decisions, because it does not have independent and dispassionate evidence on which to base them. You cannot have an independent judiciary without an independent legal profession appearing in front of it.
Why, on the one hand, were the Government so obsessed with ensuring that the selection of judges be done wholly separately from the government mechanism by the Judicial Appointments Commission, with another commission to select that, yet in this case they endorse a selection that is done solely by somebody who everybody now accepts is likely to be, in future, a person without a legal qualification? The independence of the judiciary and the profession are intimately linked. The approach of the Judicial Appointments Commission, and the manner in which it is appointed, is the correct one for the appointment of the chairman of the Legal Services Board. I urge the Minister to be influenced by what she has heard tonight and to change her position on the amendment.
My Lords, the noble Lord, Lord Kingsland, got one out of three right. I have absolutely no intention of treading anywhere near referring to the Lord Chief Justice as a lawyer and I was not going to say that this is like any other regulatory body, because it is not. The noble Lord was right that I will talk about the process. I see the Benches filling up, so I already sense my fate. I want noble Lords to have information about the procedure as it would be, however, so that they can make their decisions at least with that in mind.
First, I have had the privilege—as a non-lawyer, of course—of knowing two Lord Chief Justices: the noble and learned Lord, Lord Woolf, and the present incumbent, the noble and learned Lord, Lord Phillips of Worth Matravers. They have both given me the benefit of their great wisdom and it has been an enormous privilege to know them. They are also great fun, as noble Lords will know. However, there is something to be said for the fact that, until I became a Minister, I did not really understand the role of the Lord Chief Justice or where he sits in the hierarchy. I am not trying to take anything away from that, but we must recognise that not everybody automatically understands what his function is or can differentiate it in quite the way that noble Lords obviously can. I did not. I do not consider myself either unintelligent or incapable of understanding how the courts work, but I would not have been able to describe it properly.
I shall explore the themes of trust and independence. On trust, the noble Baroness, Lady Carnegy of Lour, quite reasonably said that perhaps the Lord Chief Justice and the senior judiciary would have greater standing than politicians. The noble Baroness is right. I was looking at some polling evidence on whom people trust, because I do that kind of thing. Politicians do not do very well. We do better than tabloid journalists and people like that, but we do not do anything like as well as the judiciary, which has gone up in people’s standing in the past 12 months. As a member of the Department for Constitutional Affairs, I am proud of that. It is important that the respect and admiration for our judiciary continue to be promoted, pushed and supported by the department. It is also incredibly important for our democracy and society. Trust is an important part of this. When we think about the trust in the system, it is important that we recognise what we are trying to do with this legislation.
Noble Lords are concerned about independence. Partly, their worries concern what might happen in the Ministry of Justice. When we were in Committee, I did not know that it was to be announced; I heard about it probably only several hours before your Lordships did. The idea has been in the air for as long as I can remember. On occasion, I joke that, because I work in the European Union, I do not often talk about the Department for Constitutional Affairs because nobody understands what it is. I tend to shorthand it to “Ministry of Justice” or something like that. For me, the changes will simply be a continuation of that. I do not yet know the detail of what the changes will mean, not least for my own role in your Lordships’ House, which I suspect will expand rather than contract in terms of the amount of work—I cannot wait. However, I understand that there is an important aspect about where eventually accountability for the Ministry of Justice may sit, whether in your Lordships’ House or in another place.
The responsibilities laid out for the Lord Chancellor remain. They are set out clearly in the Constitutional Reform Act. The fact that someone is not a lawyer, or indeed not a Lord, does not mean that they would not take those responsibilities seriously. I say that as a non-lawyer because I hope that noble Lords recognise that I take my responsibilities very seriously. In another place, there are people of extremely high calibre on all Benches who I think would be suitable. However, I am rooting for the current Lord Chancellor, as noble Lords would expect.
I take what the noble and learned Lord, Lord Woolf, said about the concordat. It does not form part of legislation; it is a separate document. He is right to refer to the spirit of the concordat. It is not in the Bill, but it is taken very seriously by my noble and learned friend the Lord Chancellor. In making the appointments, we have always made clear the need to consult different people, including, I am quite sure, the Lord Chief Justice, as part and parcel of what may happen.
The argument rests on what should be in the Bill and what we are trying to achieve. The critical issue raised in all the contributions—and they were very powerful—was to ensure that the process is independent. The Commissioner for Public Appointments, appointed by Her Majesty the Queen, is independent of government. We should be very proud of OCPA because it sets the standards for recruiting. It regulates the recruitment process for appointment to public bodies wherever Ministers are involved. I have witnessed and experienced that process and I know that it is very rigorous. There is no question of independence being relegated. Codes of practice have to be maintained. It is critical that there is equality of opportunity, probity, openness, transparency and proportionality. Those are essential elements in making sure that appointments are made properly and appropriately.
We believe that we have an independent process that is absolutely clear and has worked extremely well. We believe that it is recognised as being of an extremely high standard and that it will not affect the independence of the legal profession, or indeed of the judiciary. We believe that it will stand us in good stead. In no circumstances does it prevent the Lord Chancellor from talking to and consulting the Lord Chief Justice or, indeed, anybody else. Noble Lords will remember that the board will have a majority of lay people sitting on it. Initially, for the first appointment, it will have a lay chair. There may well be other people whom the Lord Chancellor would wish to consult in the process of appointments. Indeed, one of the arguments made—in Committee, we discussed whether to put this in the Bill—is that there are other bodies that noble Lords would be comfortable with the Lord Chancellor consulting, perhaps concurrently.
I have discussed this matter at great length with my noble and learned friend and with the Minister with policy responsibility. We have considered it carefully. I am aware of the strength of feeling in your Lordships’ House, but we believe that questions of trust and independence are satisfied by the process, which has held us in good stead for a series of key appointments that have already been made. I say that on the basis that I yield to no one in my respect for the Lord Chief Justice—both the present and the previous ones—and for the critical importance of the independence of the legal profession.
My Lords, before the Minister sits down, in underlining the independence of the Lord Chief Justice she has not produced a single argument against the amendment. She seems to be resting her case on the public perception of the independence of the means of appointment introduced by Nolan. I put it to her that the Nolan procedures are far less well known and far less well understood than is the independence of the highest member of our judiciary.
My Lords, I was not for one second suggesting that public perception was involved in this. I agree with the noble Lord, Lord Maclennan of Rogart, that if you asked 100 people in the street you would find that they would be able to tell you much more about the Lord Chief Justice and his independent role than about OCPA, because who has heard of OCPA unless they are involved in it? That is not the point that I am making. My point is that, when you are trying to set up a body, you look at the process that is most appropriate, bearing in mind the issues of independence, which I completely accept and agree with. Here we have a body that will have a majority of lay people on it, with a lay chair to begin with. It has a particular and important function, and we have in government a process that is well regarded for providing independent, high-quality appointments.
Alongside that, it is completely reasonable for my noble and learned friend the Lord Chancellor to decide that he wishes to consult various people. The noble Lord does not agree with me, which is absolutely fine, but I just want to make sure that he understands that I am not making the point that he thought I was making. The approach is completely reasonable and is in the spirit of the concordat. Noble Lords will disagree with me but it is important that I make the point clear. This is not, for me, so much about public perception. It is about the fact that we have a process that works and which we believe we should use. We think that that is the right way to proceed.
My Lords, I have a question for the Minister. I was about to say “my noble friend”, but in spirit I feel that I can still put the question in that form. I am sure that it would be of great importance to noble Lords, if their opinion is to be sought on this matter, to know whether—I do not ask for a commitment while the Minister is on her feet—it would be possible to consider such an amendment if it had not been framed in quite the terms that it was. In view of all the points that have been made about the independence of the Bar, with which I agree, and about other matters relating to the Lord Chief Justice’s special position in our constitution, might consideration be given at a later stage to the appointment being made after consultation with the Lord Chief Justice?
My Lords, the debate has been extremely interesting, passionate and important, but it is at the end of a process. I have been in discussion with a number of noble Lords for some time about this issue, so this debate is a conclusion in a sense. Noble Lords have to decide what they want to do. I cannot make any commitments at this stage. I will of course look later at what noble Lords have told me that they want me to do and we will no doubt continue our discussions thereafter.
My Lords, one thing that I learnt at the Bar was to keep your reply short, otherwise your case usually gets worse. I am almost embarrassed, and I am certainly humbled, by the cloud of witnesses who have appeared on my side. A former Law Lord, a former Lord Chancellor, a former Lord Chief Justice and many colleagues at the Bar have rallied to my cause. The noble Lord, Lord Whitty, was an exception to those speaking in my favour, but I think that he has received a magisterial answer from the noble and learned Lord, Lord Mackay of Clashfern, and it would be otiose for me to add a syllable to what he said.
The noble Lord, Lord Borrie, raises the interesting constitutional question of whether we would in some way tamper with the office of Lord Chief Justice if we were to pass the amendment. For my part, I do not think so. The Lord Chief Justice carries a huge administrative burden today. Lord Chief Justices have done likewise over the past 20 or 30 years, and it has killed some of them. I think that the speeches were so eloquent and that the expression of opinion was such that it is right for me to invite the House to divide on this issue.
8: Schedule 1, page 112, leave out line 7
The noble Lord said: My Lords, the amendment would omit sub-paragraph (1)(b) and thus,
“the Chief Executive of the Board”.
We hear a great deal about good corporate governance, and in governance terms it is surely unacceptable that the chief executive of the Legal Services Board should be a member. The LSB should, of course, be independent and free to act in the context of its statutory duties, and ensuring that the chief executive officer is not a member contributes to that objective. The amendment would not prevent the chief executive providing advice and guidance to the Legal Services Board, but would reinforce his or her independence and his or her position as the accounting officer for the board. I am very grateful to the Law Society of Scotland for having brought this to my attention, and I have much pleasure in moving the amendment. I beg to move.
My Lords, it is always nice to have a new issue to consider in the course of our deliberations. I have looked at what other regulatory bodies have been doing. Like the noble Lord, Lord Hunt of Wirral, I can think of boards—I have sat on some of them—in which the chief executive plays one role and others play a different role. The best comparisons that I could think of were other bodies involved in regulation. Again, I am not trying to suggest that this is not a different, even unique, set of circumstances. None the less, comparisons can be drawn.
We looked particularly at the examples of Ofcom and the FSA, which have identical arrangements to those proposed for the boards in this legislation. Indeed, we looked again at Sir David Clementi’s original work, and this was his favoured approach. It brings together the executive and non-executive functions and allows the chief executive, who has an incredibly important role, as the noble Lord will agree, to help to drive the strategic direction of the board. In some organisations that I can think of, the finance director may well be a full member of the board too, because of his responsibilities for finance. Again, that is not necessarily the case, but the Bill allows for someone involved in that way to be part of the board. This is simply the choice that we have made. We think that it is better, in this context, to follow the example of Ofcom and the FSA and bring together the executive and non-executive functions to get that strategic direction. Again, this refers back to Sir David Clementi. I, too, am grateful to the Law Society of Scotland for raising this issue with us, because it gives us a chance to consider it. Having considered the matter, however, I am pretty content that our approach will be a good one and that it will give the chief executive a proper footing on the board to enable it to have appropriate direction.
My Lords, it is fascinating that the Minister should give the example of the Financial Services Authority. If I recall correctly, the original proposal for the FSA was that the chairman and chief executive should be the same person. Indeed, I moved an amendment to the then Financial Services and Markets Bill suggesting that it was wrong for the person who was chairman and chief executive to sit on the board because they were very different roles. As I recall, the Government initially resisted that amendment. However, this House insisted on its view, and the Government eventually conceded and split the role, but not until Howard Davies had moved on. It was a wonderful compromise. It is therefore quite remarkable that the Minister should choose that example. In many ways, it was not what the Government wanted; they wanted the chairman and chief executive to be the same person. They used the same arguments for Ofcom and a number of other regulators by saying that there was no place for corporate governance; namely, that there should be a separate chairman and chief executive.
I do not want to embark on a great battle of the boards, but I could start reciting a whole list of boards on which the chief executive does not sit, particularly when he is the accounting officer and offers advice and guidance to the board. I therefore hope that the Minister will think again about this in the light of my comments and that she might find some better examples that would persuade us. In the mean time, however, I will carefully reflect on what she has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9: Schedule 1, page 112, line 9, leave out “Secretary of State” and insert “Lord Chancellor”
On Question, amendment agreed to.
10: Schedule 1, page 112, line 9, at end insert “with the concurrence of the Lord Chief Justice”
On Question, amendment agreed to.
[Amendment No. 11 not moved.]
moved Amendment No. 12:
12: Schedule 1, page 112, line 14, at end insert—
“(4) An order made under sub-paragraph (3) is subject to affirmative resolution of both Houses of Parliament.”
The noble Lord said: My Lords, Amendment No. 12 deals with the powers of the Lord Chancellor in paragraph 1(3) to determine the size of the Legal Services Board. In particular, the paragraph states:
“The Lord Chancellor 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”.
Some of your Lordships may recall that this matter was raised on the first day of Committee. I raised it to express my concern about the scope that the wording of the provision might give to the Secretary of State, now the Lord Chancellor, for manipulating the size of the board, perhaps for malign purposes. In response, the Minister was exceedingly anxious to reassure me that the purpose of the provision was entirely benign; that there might be occasions in the future when it would be necessary to grant the Legal Services Board a wider range of functions. In that context the board would need to be supplemented by one or more individuals.
I apologise to the House for quoting the noble Baroness at some length, but it is germane to the point that I wish to tease out. She said:
“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”.
The power to expand the board in Schedule 1 is by negative resolution. She continued:
“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”.—[Official Report, 9/1/07; col. 163.]
So, at the suggestion of the noble Baroness, I have tabled my amendment for an affirmative resolution, which I invite her to support. I beg to move.
My Lords, the noble Lord, Lord Kingsland, of course quoted me accurately. I took away this amendment and looked to see whether we should remove the negative and put in the affirmative procedure for the reasons I outlined in Committee. When we looked at it, I was struck by two problems. I should say that I stand by my remarks about the purpose to which it should be put. The first difficulty was making sure that we would be able to find parliamentary time for debate and, secondly, whether the tradition of always going along with the Delegated Powers Committee was something that I wished to move away from. These may not seem like very good reasons to your Lordships. Indeed, if this were a matter of great importance, that would be completely reasonable.
However, the purpose of this clause is exactly as I said in Committee. It makes sure that if gaps need to be addressed, not least because the Legal Services Board takes on new functions, that could be done properly and speedily. Secondly, it would also enable us to reduce the size of the board if that were appropriate, which is something we did not touch on, but on which I have had many conversations since Committee stage. I know that we will come to the bureaucracy and cost of the board, and the way in which it functions and so on, particularly its relationship with frontline regulators. None the less, those are important issues.
I apologise to the noble Lord, Lord Kingsland, because I have not done what I said I would do. Before we got to this stage of debates, I indicated that there were some issues on which I have had to reflect again. This is one of them. The negative procedure will still give your Lordships the comfort needed to make sure that this process works well and is in line with what the Delegated Powers Committee recommended; namely, that it saw no need for this to change. That is my preferred option at this point.
My Lords, I am most grateful to the noble Baroness for her reply; but I will not disguise from your Lordships’ House my dismay at hearing it. I will not press the noble Baroness about the status of her statement at col. 163 of the Official Report on 9 January 2007. However, if it is not a commitment, it is as close to a commitment that one could possibly get. The decision by the noble Baroness not to support an affirmative resolution undermines her earlier statement about the motives of the Government in including this provision in the first place. The noble Baroness said that the proof that the Government have honourable intentions will be through the ability of your Lordships’ House to have a debate when the affirmative resolution is tabled.
The noble Baroness gave one or two other reasons for the fact that she thought again about an affirmative resolution, but I must say that I found them exceedingly unconvincing. The idea that the Government have now decided to move away, as a constitutional practice, from tabling affirmative resolutions is risible. Bills nowadays are characteristically skeleton Bills and one sees no change in Government legislative policy.
I do not accept that a negative order is the same as an affirmative resolution. There are strong constitutional conventions about praying against negative orders, which the House—I hope the noble Baroness will agree with me—respects. I shall not press this to a vote, but I will seriously consider bringing forward this matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
13: Schedule 1 , page 112, line 15, after “Lord Chancellor” insert “and Lord Chief Justice”
On Question, amendment agreed to.
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: My Lords, I can make this point exceedingly telegraphically. This amendment is about the definition of a lay member. Your Lordships may recall that the first chairman of the Legal Services Board is required by the schedule to be a lay member. The schedule goes on to define what characteristics a lay member should have, one of which is that he should never have been an authorised person as defined under the Bill. In Committee, I suggested that where someone had very early in their career acquired a legal qualification—perhaps a law degree and had gone on to qualify professionally—but thereafter had practised for only a very short time and then had 10, 15, 20 or even more years doing something else, it would be undesirable to exclude that person from being a candidate for the chairmanship of the Legal Services Board. The noble Baroness said that she would think about it. She has now had time to think about it and I should be most interested to hear her response. I beg to move.
My Lords, I rise almost as telegraphically as my noble friend to support this amendment, which I hope will find favour with the noble Baroness. It seems to me to be moving against the spirit of the age to rule out someone who many years ago had obtained a qualification from being able to play a very useful part as a lay member of the board if in all other respects he would seem to be a good member. In saying against the spirit of age, one can consider the position of juries. Members of the Bar and solicitors can now sit on juries whereas they could not in the past and it has turned out to be a good thing. I hope that that same spirit will apply here and the noble Baroness will see the good sense of this amendment.
My Lords, I supported this amendment in Committee. I gave my reasons on that occasion. We want to cast the net as widely as possible to those who would be suitable to discharge this important role. If we introduce the exclusionary principle to the extent that it is in the Bill without the qualification proposed in the amendment, we would limit our capacity to do so in a more unacceptable way.
My Lords, I observe for the noble and learned Lord, Lord Lyell, that Peers are now allowed to serve on juries, which is the other change that has taken place. I cannot wait to do jury service.
I have thought carefully about this issue; more importantly, we have consulted widely on it. We do not say that members of the legal profession cannot serve on the board at all because we expect a mixed membership constituted of appropriately qualified professionals and lay people appointed by the Secretary of State, the Lord Chancellor, after consultation with the chairman of the board. We will look for the best possible mix of skills. Consumer confidence is important in this context, as are effective regulation and professional expertise. For those reasons, we have provided that the board must be comprised of such a mix, with the majority given to lay members.
We have talked about the case of someone who has been qualified in the legal profession for many years but who had not practised for some time. None the less, they would have experience and an understanding of legal matters. The difficulty lies in trying to define where such knowledge begins and ends: when is someone a lay person or not a lay person? I am a lay person because I do not have any legal qualifications. That is simple and straightforward. There are people who are qualified and legally practising, and they too can serve on the board. Questions arise with those who have not practised for five years, 10 years, 20 years and so on. The noble Lord, Lord Kingsland, has put down a 10-year marker on it, and I understand that from his point of view the period is quite reasonable. However, when my officials talked to representatives from consumer organisations, they were very clear about this, and I too want to make the position clear. They felt it was important for “lay” to mean “lay” in this context. While those with legal training and experience are perfectly able to serve on the board, they should not take the places of lay members. They have argued that we could end up with the whole board being made up of those who at some point had been practising lawyers or were technically qualified as legal professionals. They felt that that would go against the spirit of what we are trying to do here. I shall quote the National Consumer Council in this regard:
“It is essential that all of the Legal Services Board chairs are demonstrably independent of vested interests”.
In the council’s view it is particularly important that the first chair should be lay so that the new organisation can get off to the best possible start in terms of the consumer focus. The council goes on to say:
“We do not think it is helpful to debate an amount of years when someone who is qualified as a lawyer but is no longer practising can be considered a lay person. This approach would inevitably lead to arbitrary decisions since some individuals might be able to demonstrate an independent outlook within a relatively short period of time, while others might never be able to do so”.
I do not say that that is my view, but I give this as an example of the strength of feeling among other interest groups.
On the basis that members of the legal profession can serve on the board, that beyond the first chair they can become chairmen of the organisation and that they will be able to contribute positively, we think that there is a good pool of talent of those with experience in other fields to bring to the board and that we are not discriminating in any way against those who are legally qualified. Rather, the board should comprise a broad mix, and to change the definition would mean that it would be possible to end up with no mixture, but a board comprised only of members who are legally qualified. Therefore I am going to resist the amendment, but on the basis that I have consulted widely on it and thought about it with care. On reflection, the balance is about right.
My Lords, again I have to say that I am extremely disappointed with the reply of the noble Baroness. It is not as if there are not plenty of lay persons on the regulatory bodies. A great deal has been made about the desirability of having a high percentage of lay representatives on the Legal Services Board; but is the noble Baroness aware that a large number of non-legal lay representatives serve on the boards of the authorised regulators? Listening to the Government promoting their Bill during the Committee stage, one might be forgiven for assuming that the Bar Standards Board and its equivalent in the solicitors’ profession consist solely of lawyers, thus generating the myth that lawyers are regulating themselves. Here I repeat myself, in my view with good reason, in saying that a high percentage of individuals within the authorised regulators themselves are not qualified lawyers.
Given that, why do we need to be so demanding about the definition of lay members generally? If the Government do not like my amendment, which provides for a period of 10 years not practising, why do they not go for a more demanding period, such as 20 or 25 years? That would at least include a large number of people who happen to have taken a degree in law or who practised as solicitors or barristers at the beginning of their career and therefore might be extremely good candidates. The Government are excluding all that talent.
My Lords, they are not authorised persons any more.
While I do not think the Government’s argument carries any weight, I am not going to press the amendment because, quite frankly, I intend to press other amendments. If I seek to divide the House on this amendment as well, we will be voting every 20 minutes. However, I must say that I think the Government are being somewhat churlish about this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
15: Schedule 1, page 113, line 17, after “Lord Chancellor” insert “and Lord Chief Justice”
On Question, amendment agreed to.
16: 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: My Lords, the Joint Committee felt strongly that adherence to the Nolan principles should underpin all government appointments, and indeed went further by saying that the Bill should be amended to reflect this. Amendment No. 16 would add to the end of line 17 in Schedule 1(3) a provision that the Lord Chancellor and the Lord Chief Justice 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”.
The remainder of the text of the paragraph and the sub-paragraphs then continue as presently worded. Amendment No. 42 is linked with this amendment, providing in Clause 8(6) that paragraph (a) should read,
“(a) appointed by the Board following public advertisement and selection by the prevailing standards for selection of members of public bodies and appointed on terms and conditions determined by the Board”.
Very strong views were held in the Joint Committee that whatever the rules are at any particular moment, they should be followed in making these appointments.
I should like to ask the Minister about the procedure that is going to be followed, given the changes made to the Bill this afternoon, so far as the Office of the Commissioner for Public Appointments is concerned. I understand that the practice until now has been that the committee considering candidates would be chaired by a senior civil servant in the Department for Constitutional Affairs. Bearing in mind the background to the debate earlier this afternoon, we ought to have some way of ensuring and enshrining a further degree of independent scrutiny. The principles currently set out in the code of practice underline the fact that the ultimate responsibility for appointments lies with Ministers. They also lay down that there should be an overriding principle of selection based on merit. There are of course the usual provisions about equal opportunities, probity, openness, transparency and proportionality, but to my mind the key provision in that code of practice is the one relating to independent scrutiny. “No appointment”, says the code,
“will take place without first being scrutinised by an independent panel or by a group including membership independent of the department filling the post”.
Having now looked at the code and listened carefully to the Minister in Committee, I think this is an issue that she should address, given that she will be reflecting on the decision of this House earlier this afternoon. In any event, when these appointments come to be made, there must be independent scrutiny. I beg to move.
My Lords, I am grateful to the noble Lord for raising this issue and enabling me to talk a little more about the appointments process. We have drafted the Bill, as the noble Lord has indicated, to ensure that best practice is followed in the making of appointments through the monitoring and regulation of the Commissioner for Public Appointments. There is a potential conflict if we try to try to set out, in addition to that, considerations to which the Lord Chancellor and, as in the amendment to which the noble Lord referred that was passed in your Lordships’ House, the Lord Chief Justice must have regard, in making appointments, as principles appearing to them as best practice: they could conflict with the principles that have already been set out in the commissioner’s code of practice. In other words, we would have a set of principles established for how public appointments are to be made, and then, on the face of this legislation, the opportunity for those making the appointments to look at any kind of practice they consider to be appropriate. The amendment says,
“appearing to them to represent the best practice in making appointments”.
I fear that that could take us in a very different direction because it would then be a subjective judgment on the part of those making the appointments about what they thought was best practice, as opposed to clearly laid down codes of practice and deliberations by the commissioner.
My Lords, it would be of great assistance to the House if the Minister could point to the reference to which she has just alluded; namely, the reference in the Bill to the code of practice and the Office of the Commissioner for Public Appointments; I cannot immediately find it.
My Lords, it is not in the Bill; it is the practice that is currently used by the Government. The Government have the commissioner, as well as a transparent process. The noble Lord himself has looked at the workings of the code of practice and so on, and that is the basis on which appointments are made. It is not in legislation, not least because the code of practice and the way appointments are made are updated from time to time, based on current best practice and best thinking. I am sure that over the years your Lordships’ House has had many debates, not least with the noble Lord, Lord Neill of Bladen, about making sure that there is an opportunity to update best practice and to be mindful of changes that could be made. It is not in the Bill; it is, however, the way in which public appointments are made where Ministers are involved. That has been the way of it, certainly so long as I have been a Minister. We follow the guidance on the basis of the detail I have already given about transparency, openness and so on.
I turn to who makes the appointments. The noble Lord is right that the way the guidance works is that the panel is chaired by a senior civil servant, but it is not run by them, except in so far as they have a responsibility as chair to ensure that the process is followed properly, that people participate appropriately, that the candidates are treated fairly and so on. They may indeed ask questions themselves, because they have a clear interest, but earlier today in Questions we were talking about the importance of the senior Civil Service and of its independence, in the context of a desire, from the Liberal Democrat Benches in particular, for a Civil Service Bill. None the less, it is important—I think noble Lords would concur with this—that the senior Civil Service is independent, acts with probity and pursues this policy and practice appropriately. That is who chairs it. That is how the appointments have been made. To my knowledge there has been no suggestion that they are handled with anything other than independence and probity. In addition, there is an independent assessor from the Office of the Commissioner for Public Appointments who sits on the panel and makes sure that the OCPA code of practice is followed. So there is already a senior civil servant, plus the independent assessor who ensures that the code is followed, and then there has to be at least one other member of the panel, someone who the OCPA code says represents a public body or other industry groups. In this context that could include a consumer or legal professional, or whatever was felt to be appropriate.
The guidance says,
“there may also be, where appropriate, a technical, medical or scientific expert when a specific area of expertise of applicants needs to be tested”.
That would enable the panel to have the additional expertise of someone who had the necessary technical knowledge. Taken as a whole, the guidance ensures that we have the right level of expertise and of impartiality.
When there is no final decision on the composition of the panel, there have been discussions about what kind of expertise there might be, and, through the implementation working group, what kind of individual might most appropriately be involved.
My Lords, my name is on the amendment, and I am rather puzzled. Does the chairman, the senior civil servant, have a vote? Would it be possible for us to see these codes of practice? Could they be left in the Library or something? I am getting rather out of my depth. I did not intervene before because I did not want to waste time, but now that I cannot understand what is going on, I am asking for some help.
My Lords, I am always happy to supply help. I think the codes of practice are already in the Library, and they are certainly available on the websites. I will ensure that the noble Lord, Lord Campbell, has his own copy of them. I was trying to describe in brief what the guidelines cover.
These panels do not necessarily end up voting, but if they do, the chair would indeed have a vote—if there were a disagreement on the panel, for example.
My Lords, I am not sure if it would be a casting vote, but we will confirm that to the noble Lord. It is about ensuring that there is a clear decision, and the chair has a responsibility to do so.
The panel consists of a minimum of three and possibly four people who are impartial and regarded as being able to follow the procedures appropriately. They then put forward their recommendations. My experience of this is that it works extremely well, and the ability of the panel to describe the process is highly regarded. The Office of the Commissioner for Public Appointments ensures that the process works very well.
That is the process that would be undertaken, and I would not wish to alter by amendment the way we do that. If you have an amendment that says you have people able to make their own judgments about what good practice is, we could end up in exactly the position noble Lords are fearful of, where the Minister decides he does not like that rule so he will have something different. Then it becomes very unclear.
We do not think it is right to put anything further on the face of legislation. It is important that we use the current procedures and allow them to develop and grow and not be tied by legislation that could eventually be out of date or not relevant. I have already made it clear that we would make sure that these appointments were made according to the principles of merit, probity, openness and transparency that apply to all other public appointments.
My Lords, I wonder whether I could add one sentence. I am neutral about the amendment, but I have sat on one of these panels. I was invited by the DCA to sit on a panel with a senior civil servant and another independent person. I was the only lawyer—I was not asked to sit on it because I was a lawyer—and there was someone from the Office of the Commissioner for Public Appointments. I confess that I was extremely impressed by the whole procedure and by the senior civil servant who chaired it. We came very amicably to a conclusion with which we were all happy. Since the noble Lord, Lord Campbell of Alloway, has expressed some concern, I wanted to say that although I was neutral about the amendment, the process seemed to be excellent.
My Lords, I understood that the Minister had merely given way to the previous speaker. I was hoping to ask, before she sat down, to deal with a point that she had made. I can ask the question very briefly. I certainly was not intending to flout the conventions or the Companion.
My Lords, I do not believe that it is flouting the conventions to ask the Minister before she has concluded to answer a particular point she raised. Would she be prepared to consider a form of words which made it plain that the decisions about appointments and the principles to be applied were not being made subjectively by the appointments board but objectively, according to merit and the principles she enunciated?
My Lords, I am sorry, but I had sat down. I am not considering a form of words because the process, with the Office of the Commissioner for Public Appointments, works extremely well. It serves the Government and Parliament very well. It is enshrined in the code of practice; it is publicly available; it is open and based on merit. There is no need to say anything other in the legislation than that we will follow that process; it applies to all ministerial appointments and does not need to be in the Bill. That is why I am resisting the amendment; it is not because I do not accept that noble Lords want to see a positive process of merit and transparency. We already have one, and we do not put it in legislation. The Office of the Commissioner for Public Appointments says that putting anything different in the legislation would undermine its work completely because it could not operate in the way it would wish, as we are bound to have said something that would arguably go against what it was doing.
My Lords, I thank noble Lords for a very interesting debate. I think that it is always open to noble Lords, having heard the Minister, to respond by saying that they do not agree. In fact, that is what I am going to say. I do not agree with the noble Baroness. The reason the Joint Committee took the view it did was because the appointments we are talking about have a closer similarity to the procedures relating to judicial appointments than to the ordinary run-of-the-mill appointments which are made in accordance with the code of practice.
Let me say to the noble and learned Baroness, Lady Butler-Sloss, that as the person responsible for introducing the code when I was in the Cabinet, I am pleased with the way in which it has evolved. But the appointments we are talking about here must have independence as a key hallmark. I read out the reference in the code to independent scrutiny. That is the feature I sought to stress and I was a little disappointed with the Minister—she went through merit, equal opportunities, probity, openness and transparency, and proportionality, but did not include independent scrutiny. I think that that is the most important thing of all, which is why I wish to test the opinion of the House.
My Lords, before I adjourn the House for dinner, in view of our discussion just before the vote on the last amendment, I would like to read a couple of lines from the Companion so that noble Lords will understand the rules on Report. It states:
“Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation”.
I have done my duty.
I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.30 pm.
Moved accordingly, and, on Question, Motion agreed to.