Clause 1 [The regulatory objectives]:
1: Clause 1, page 1, line 5, at end insert—
“( ) protecting and promoting the public interest;”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 31, 32, 115, 116 and 331.
The Government have given very serious consideration to the view expressed by noble Lords in Committee that recognition of the public interest should be given greater prominence in the Bill. I thank all those who took part in those debates and who subsequently gave me the benefit of their advice on how I might take this issue forward. I was very persuaded by the views expressed, and I now bring to your Lordships’ House this group of amendments to alter provisions in the Bill which deal with the public interest in a way that I hope noble Lords will feel able to support.
In Committee, noble Lords felt that there were two principal ways in which we could achieve this objective, and I want to explain why I have taken the approach that I have. I resisted the initial thoughts of the noble Lord, Lord Kingsland, who sought to add the public interest to the objective of protecting and promoting consumers’ interests, which noble Lords will find at Clause 1(1)(c). I said in Committee that I was concerned that that had the potential to create confusion because, as noble Lords indicated, the consumer interest and the public interest may not always coincide. Although we expect to see a healthy tension between individual objectives, I want to try to prevent the creation of tension within each objective. Therefore, I was more attracted to the proposition of the noble Lord, Lord Thomas of Gresford, who cannot be with us today. He proposed creating a new regulatory objective to protect and promote the public interest, which I felt had the clear advantage of recognising the need to protect and promote the public interest as an important objective in its own right.
As a consequence of setting out this duty as a regulatory objective, it is necessary to remove the existing duty to have regard to the public interest at Clauses 3, 27 and 113. I beg to move.
My Lords, in the absence of my noble friend Lord Thomas of Gresford, who is in sunnier climes—although, I hasten to say, working very hard—I thank the Minister for the important concession made in these amendments. The specificity of the public interest within the statute is, in our view, a matter of considerable importance, and it is of course of paramount importance that the Government have accepted that. So we support the amendments.
My Lords, we, too, support the Government’s amendment, although, more generally, we are extremely disappointed by their reaction to other key clauses in the remainder of the Bill.
Our original amendment was to link the consumer interest and the public interest simply because we felt that, by aligning the two, the Legal Services Board would be compelled to balance the two fundamental concepts that ought to lie at the root of the Bill. However, I am extremely happy to yield to the greater perspicacity of the noble Lord, Lord Thomas of Gresford.
I am not surprised that the Government have been able to concede this point to your Lordships. It would have been extremely difficult for the noble Baroness to refuse to insert in the Bill as one of its objectives that the public interest would be respected. I note that the noble Baroness nods as I speak. Nevertheless, we are of course extremely pleased to see the amendment there.
My Lords, I am grateful to the noble Lord. I always like to try to begin on a high however much the noble Lord may fear that I will descend to a low from his perspective. With regard to the public interest, I do not think that there has ever been anything much between us on the issues, which we will find as we go through the Report stage; it is a question of how to achieve them. I listened with great care to the need to stamp the question of public interest further in the Bill. There was never a desire on my part not to recognise it. We have found a way through and I am grateful for the support.
On Question, amendment agreed to.
[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: My Lords, the noble Baroness will recall the exchanges on this amendment over the Dispatch Box in Committee. In particular, I hope that she will recall that two questions were at issue. The first was whether the competition objective ought to be subservient to the first three objectives in Clause 1(1); that is, whether it ought to bite only if the Legal Services Board was satisfied that the first three objectives had been achieved. The noble Baroness’s response, consistent with responses on Clause 1 in other respects, was to say that in her judgment all seven—now eight—objectives of the clause should carry equal weight, and that the Legal Services Board should exercise its judgment freely as between the appropriate weight given.
As the noble Baroness has not tabled an amendment on this issue, it is reasonable to conclude that that remains the Government’s position. It is now up to us to decide whether to put the matter to a vote. However, there was another dimension to the amendment, to which the noble Baroness promised to give further consideration. Clause 1 provides that the competition responsibilities of the Legal Services Board apply only to anti-competitive behaviour by “authorised persons”.
It is perfectly understandable that that should have been the Government’s approach as the Competition Commission and the OFT have no responsibilities in that area. However, the Bill is by no means silent on the responsibilities of those organisations. The Minister will recall that there are detailed provisions in Clauses 56 to 60 about the responsibilities of the OFT and the Competition Commission over the competitive behaviour of the regulators themselves. An extremely elaborate procedure is laid down whereby the OFT draws up a report and reports to the Secretary of State. There is then a provision for the Secretary of State to go to the Competition Commission for a further report on the same matter.
We have two competition authorities, therefore, dealing with the responsibilities of the regulators on the one hand and the authorised persons on the other. My concern, as the Minister well knows, is over the confusion and conflict between the competition responsibilities of the OFT, the Secretary of State and the competition authority on the one hand and the Legal Services Board on the other. It is hard to see how you can compartmentalise anti-competitive behaviour in a regulator which will inevitably have an effect on the competitive behaviour of an authorised person. How, in those circumstances, can you unpack the anti-competitive conduct so as to divide the responsibilities as clearly as the Bill does? I beg to move.
My Lords, briefly, I support the amendment. It is a requisite for the reasons given by my noble friend Lord Kingsland, but it is more than that. It is a form of consolidation between old Amendments Nos. 1 and 2, in which there was an element of division. For various reasons which I shall not repeat, I went for old Amendment No. 1 but my noble and learned friend Lord Lyell of Markyate went for old Amendment No. 2. In effect, the amendment removes any form of discrepancy in the drafting, achieving a result which ought to be accepted by the House for the reasons given by my noble friend.
My Lords, briefly, I support this amendment for the reasons I set out in Committee. The Minister was then good enough to say that she did not disagree with what I was saying. That led me to think that she would in due course consider what had been said and that there would be a positive response. I hope that that will be forthcoming.
My Lords, agreeing with what the noble Lord, Lord Maclennan of Rogart, says is something I always try to do, not least because he offers a great deal of sense in our debates, along with other noble Lords who have spoken. That does not necessarily mean, however, that I feel the need to amend the Bill; rather, as you would expect, it means that I would take it away and consider whether we ought to do more.
David Clementi was clear that you should not try to rank the regulatory objectives in the Bill, prioritising some over others, because that could create difficulties. Rather, he said, it was for the regulatory body to determine what weight to give at various points, depending on the issue before it. The Government have taken that approach, in line with what he said. He concluded that,
“it should be for the Regulator, operating a risk based approach to regulation, to judge the relative importance of each consideration on a case by case basis”.
We have consistently said that, and have acted upon the Joint Committee’s recommendation that the Explanatory Notes should make it explicit that the objectives are not listed in order of importance. We took it on board and dealt with it as appropriately as we could.
Effective competition is an important part of ensuring that good services are provided. The briefing given out by Which? quotes something from the Financial Times which struck me as I read it over the weekend—that:
“Competition delivers results in ways that government bureaucrats”,
which I guess includes me,
“cannot anticipate. Consumers can expect more choice, innovative services and lower prices”.
Those are important aspects of the provision of good, high-quality services. They may not be of a higher importance than the other objectives in all circumstances, but they are none the less important in certain circumstances. Therefore, we have deliberately not ranked the objectives, but left it for the regulatory body, which we think is the right place, to determine in the specific circumstances we are dealing with what weight to give—as the noble Lord, Lord Kingsland, said, the appropriate weight. That is why I resist the amendment.
As regards the difference between what happens in the later clauses—I think the noble Lord, Lord Kingsland, mentioned Clause 55—in terms of the anti-competitive role of the Office of Fair Trading and what is going on in the earlier clauses, Clause 1 applies to services provided by authorised persons, and Clauses 3 and 27 require the board and approved regulators to apply these objectives. Any rule maintained by an authorised body which restricts competition can be duly struck down by the board. It can do so following advice from the OFT under Clause 56. Clause 1, in particular, ensures that competition is understood by authorised persons and that they operate bearing in mind competition. Regulatory bodies and the role of regulation with the OFT comes in later clauses.
In drawing up the clauses we consulted the OFT, of course. If all else fails, I can rely on the fact that the Office of Fair Trading is comfortable and happy that we have dealt with these issues appropriately by giving it a clear role in terms of the legislation while seeking to promote competition where appropriate, for the reasons that it has outlined of the potential benefit to the public in general and, obviously, consumers of legal services in particular.
My Lords, I am most grateful to the noble Baroness for responding to both points I raised. I take the second first. I entirely accept that the Government have rightly identified two distinct areas in which competition law should operate, and have provided four distinct authorities. On one hand the LSB deals with anti-competitive practices by the individual authorised person; and on the other hand you have, as far as concerns the regulators, a triumvirate of the OFT, the Secretary of State and the Competition Commission.
I respectfully agree with the noble Baroness that the provisions in the Bill, although highly complex and potentially hugely expensive for this regime, make sense in principle. My concern is about how they will operate in practice; because if you identify anti-competitive behaviour, for example, between authorised persons, which you trace back to an anti-competitive provision in the rules of the regulator, how will you sort that out without some liaison between the LSB on one hand and the other three authorities on the other?
That question leads me to ask whether the noble Baroness believes there is sufficient provision in the Bill for guidance to be given on this issue so as to ensure that, operationally, the relative roles of these institutions are clearly understood. This regime is paid for by the authorised persons. Clauses 56 to 60 are intensely complicated and potentially hugely expensive. I believe that the authorised persons have a right to know exactly how the Government see this operating in practice. I recognise that that aspect of my intervention is probably new to the noble Baroness. I do not expect her to answer it today; but it would be extremely reassuring if at Third Reading she could look into the question of liaison a little more thoroughly.
As regards the first question, there are a number of issues on which we are at the moment inclined to seek a Division of your Lordships’ House. This is an important issue, but it is not of such over-riding importance that it falls into that category. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4: Clause 1, page 2, line 1, at end insert—
“( ) quality of legal services and the standing of the profession”
The noble Lord said: My Lords, I beg to move the amendment; I shall not take very long about it. Surely, it is common ground that it is of crucial consequence that the quality of legal services should be regarded and recorded as such in the regulatory objectives and that the standard be maintained in the interests of both the consumer and the legal profession, whose interests in this context interact and are interwoven, because it goes without saying that bad advice is very expensive and does no one a service.
Albeit—I concede this—that in other respects, regulatory objectives may compete and conflict, such is not the case with the quality of services. That stands on its own. In any decision under the three regulatory bodies set up by statute, quality of services must be taken into account on the balance of the regulatory objectives as a matter of prime importance and of principle.
As to the standing of the legal profession, similar but by no means identical considerations apply—albeit that £2 billion a year is the sum of the export services of our legal profession. That was spoken to at Second Reading by the noble Lords, Lord Neill of Bladen and Lord Brennan, and other noble Lords. I am informed in a letter from the Bar Council that the senior partners of leading City law firms, heads of commercial chambers at the Bar, have most serious concerns about this which they have made very clear. They have been passed to the Chancellor of the Exchequer. It is a matter of principle of generic application to the three regulatory bodies and it is also of importance—as I know the Minister accepts—that we must establish public confidence in the new regime. This is an aid to that. I beg to move.
My Lords, I declare my interest as a partner in the national commercial law firm, Beachcroft LLP, the holder of a current practising certificate from the Law Society as a solicitor and the other entries in the register.
I thank my noble friend for raising the very important issue of quality. Indeed, Sir David Clementi raised this factor right at the outset in his review of the legal profession when he said that the services must remain of the highest possible quality. I agree with my noble friend Lord Kingsland that Clause 1 is beginning to take shape. It is a considerable improvement on the original Clause 1, and I am very grateful to the Minister for the way in which she has accepted a number of suggestions made by the Joint Select Committee, which I had the honour to chair. However, there is still this nagging doubt about quality. We will, of course, deal with this issue when we discuss some of the later amendments, but we look to the Minister for some reassuring words about the quality of legal services and the standing of the legal profession, so I support the amendment in the name of my noble friend Lord Campbell of Alloway.
My Lords, we completely agree about the principle: the question is whether doing what the noble Lord, Lord Campbell of Alloway, has asked would achieve it or enhance what we believe is already in the Bill. However, let me begin with the principle. I agree completely with what the noble Lords, Lord Campbell of Alloway and Lord Hunt of Wirral, said about the standing of the legal profession and the quality of legal services. I have the good fortune, as noble Lords know, of doing work for the department on trade. Indeed, I hope to be in India next week to talk to lawyers all over India about the opportunities that we see between us for the legal professions. I have also had the benefit of receiving delegations from other countries. As noble Lords know, I sit again on the European Union’s Justice and Home Affairs Council in Luxembourg on Thursday. I am therefore absolutely alive to the standing of the legal profession across Europe and the world, and I yield to no one in my recognition, support and promotion of it; so I am absolutely at one with noble Lords—the warm glow is absolutely between us. It is critical that the public, the consumer and the legal profession have a confidence in this new regime that is enhanced all the time and that we set up the new regime properly and appropriately. That has been a key part of all the amendments moved by noble Lords, who have sought at least reassurance if not changes to the legislation; so there is nothing between us on that.
I have considered very carefully what the amendments of the noble Lord, Lord Campbell of Alloway, would do. My difficulty is that we think that our objectives already cover what they propose. We have support for the constitutional principle of the rule of law, the encouragement of an independent, strong, diverse and effective legal profession, and promoting and maintaining adherence to the professional principles, which include acting with independence and integrity and maintaining proper standards of work. Clause 4 also states:
“The Board must assist in the maintenance and development of standards in relation to … the regulation … education and training of persons so authorised”.
That captures, perhaps in more detail, how we can achieve what the noble Lord, Lord Campbell of Alloway, seeks to do. I therefore hope that he feels reassured that I recognise the objective of his amendment, that I have looked carefully to see that we have achieved it, and that I completely and publicly endorse all the statements that have been made about the critical nature of the standing and quality of legal services. Indeed, I pay tribute to all those who currently deliver them.
My Lords, I am, as always, grateful to the Minister, who speaks with an open mind. I address her with an open mind, and I shall look very carefully at what she has said. However, this is a question of principle of generic application to all three regulatory bodies set up by statute, not just to the board. The Minister may reject that point if she does not like it, but I ask her to consider it. I also ask her with respect to consider whether, from a practical point of view, this should be in Part 1, Clause 1 and not tucked away in a series of provisions that are complex and not so readily understood. This principle should apply generically and, as I see it, should be in Clause 1. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5: Clause 1, page 2, line 1, at end insert—
“( ) In implementation of this Act the balance as between each and all regulatory objectives shall be determined by reasoned decision: notice of which shall have been given to afford objection by those to whom it would have been addressed.”
The noble Lord said: My Lords, Amendment No. 5 is not a matter of substantive law. Again, it is a procedural provision of generic application to the decisions of all three regulatory bodies set up by statute in implementation of this Act. I pay tribute to the contribution of the noble Viscount, Lord Bledisloe, who dealt with a disparity in a speech which no one sought to contradict.
This is an overarching provision of principle. The object is to safeguard due and fair administration in accordance with the balance of the regulatory objectives. As a procedural provision, compliance with the amendment would be subject to judicial review. There is no doubt about that. This was established in the landmark decision of the Court of Appeal in the Queen and the Asylum and Immigration Tribunal. It was a complex decision, the official transcript of which exceeds 40 pages, which I have read and is available in the Library. However, the reasoning of the decision that judicial review remains in these circumstances under the aegis of the High Court is well presented in a very short and readable Times law report on 11 April.
There are three aspects of this amendment. Put simply, the first aspect is the balance of regulatory objectives when making a decision, which I picked up from my noble friend Lord Kingsland who convinced me that that was the right approach. This is the right approach because regulatory objectives compete and conflict. The second aspect is a reasoned decision. It is absolutely essential that the decision, not just of the board but of all regulatory bodies set up by statute, should be reasoned. The third aspect is the giving of notice of a decision to afford objection, which has arisen in other aspects recently; notably, on the defence bill.
Provision for this, which is a reflection of a rudimentary requirement of natural justice, is made only in Schedule 7 and is solely related to directions of the board under Clause 31. However, it is not treated anywhere in the Bill as a principle of general application. These are predominantly lay regulatory bodies. There is nothing unusual in that, but inevitably they will have to deal with matters of law, and this amendment would in all events narrow the scope of contention and judicial review which now retains jurisdiction over the proportionality of a decision. As a matter of general principle, this should be included in Clause 1.
This amendment is in the interests not only of the customer, but also the legal profession in establishing confidence. It would afford due and fair administration and is wholly consistent with the soft touch of the Clementi approach. The need for it became apparent during the debate in Committee. I think I even suggested that we were in a bit of a muddle and that there might be a trigger in the statute to introduce a code of practice, which was not a good idea, but no one had any conclusive suggestions. So an amendment such as this is requisite. I doubt whether it is in the right form because I am not an expert draftsman, but nonetheless in principle I commend it to your Lordships. I beg to move.
My Lords, my noble friend Lord Campbell has been extremely thorough in explaining his amendment so I can be very brief in supporting it. My noble friend has drawn your Lordships’ attention to an important issue. Perhaps the best way to view the amendment is in the context of Clause 3, headed:
“The Board’s duty to promote the regulatory objectives etc”.
Noble Lords will see that some but not all of what my noble friend has drawn to our attention is there.
What is important in what he has said is his reference to the reasoned decision. It should be absolutely clear to all authorised persons likely to be affected by a decision that the basis for any decision made by the LSB in promoting the regulatory objectives is clearly set out in a circulated document which, as a consequence, gives any authorised person the right, if he feels he needs it, to have that decision judicially reviewed. Under the amendment, there is an obligation for the board to produce a reasoned decision, and what is perhaps more important, an obligation for that decision to be circulated in time for an authorised person, if necessary, to take legal advice and, in the last resort, to engage in litigation.
My Lords, I rise to support my noble friend Lord Campbell and to thank him for drawing to my attention the important decision of the Court of Appeal made on 21 February last. Having looked through the decision, I hope that the noble Baroness might also read it because my noble friend has highlighted an important point, one that has been reinforced by my noble friend Lord Kingsland. We hope that we shall be given some reassurance on how the Government intend to take this forward.
My Lords, I thank the noble Lord, Lord Campbell of Alloway, for his amendment. I commend what he and others have said in this short debate about the importance of giving notice to those to whom the decisions on regulatory objectives should have been addressed. That is almost a principle of natural justice and it should be spelled out clearly. I have no doubt that the Government may consider the first part of the amendment to be implicit in what has been said about weighing the different regulatory objectives, but I do not think that it is implicit that notice should be given. For that reason alone, I hope that the amendment will commend itself to the Government.
My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for spelling out so succinctly the issues that he has raised in his amendment. I am not familiar enough with the Court of Appeal decision. I will look with interest at what he has said and I hope that I will get more information on that.
I will try to deal with the points that the noble Lord raised, which were supported by other noble Lords. I agree completely that the board, the approved regulators and the OLC should take a reasoned approach in balancing any impact on the regulatory objectives. It is also important that these bodies operate transparently and are properly accountable. We think that the Bill already achieves what the noble Lord primarily seeks to do with this amendment. In Clause 3, which has been referred to, and Clause 27, the board and the approved regulators must have regard to,
“the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed”.
In Clause 113, the OLC must have regard to,
“any principles appearing to it to represent the best practice of those who administer ombudsman schemes”.
Those principles apply to all regulatory activities wherever these bodies balance those regulatory objectives.
We believe that the principle behind what the noble Lord is seeking is well founded in the Bill. The Bill gives good grounds to those who would wish to challenge the decisions that have been made, because it is laid out extremely clearly. We have added that the board has to produce an annual report. Among other things, the report will deal with the question of how far the board has met the regulatory objectives that were set for it. The Bill also sets out a number of provisions dealing with accountability, in particular the extent to which the regulatory bodies have complied with the regulatory objectives.
The noble Lord, Lord Maclennan of Rogart, said, echoing the words of the noble Lord, Lord Campbell of Alloway, that it is a rudimentary requirement of natural justice that the board should give reasons for its administrative decisions. I agree; it should and it must. We do not need to set that out in the Bill, but it will be important, for two reasons. First, as the noble Lord reasonably says, people have to know the basis for the decisions—the reasons why they have been made—in order, if they so wish, to challenge them. Secondly, when decisions have been made, it is important that those affected by them know exactly what they are. I agree with that. It is a principle of natural justice; it is also good practice in regulatory regimes and in the administration of organisations.
My Lords, I hesitate to intervene in the middle of what the Minister is saying but, on this point about notice, there seems to be a difference between getting reasons for a decision ex post facto, which may allow challenge, and notice being given to the parties, or to those to whom the regulatory ruling is being offered, prior to the handing down of the decision. Maybe there is ambiguity in the wording of the amendment, but I think that it is important that the prioritisation of the objectives should be made clear to enable any objections to be taken into account before the decision is given.
My Lords, the noble Lord has pre-empted me. I was going to come back with a third and final point about making sure that notice is given. The amendment does not quite work; it does not quite do what the noble Lord, Lord Campbell of Alloway, said that he intended it to do. It would mean that there would have to be notice of all decisions, at all times and in all circumstances. These are very particular concerns.
Given the principles behind how regulatory bodies must work, it is right that they should in general give notice that they will be making the decisions and identify the issues that are being raised. As we have discussed many times, there must be dialogue—we have used the word “partnership” before—between the bodies to get the best possible decision. It is our ambition that this be done appropriately. I do not think that we need to spell it out in the Bill.
I hope that what I have said reassures noble Lords and makes it clear that we expect the LSB and the other bodies to behave like good regulatory bodies. They should give notice of the decisions that they are about to make; they should give reasons for their decisions and publicise them as appropriate to those directly affected and those who may be affected in the future; and they should balance and consider the objectives properly. I hope that I have given enough reassurance for the noble Lord to withdraw his amendment on the basis that what I have said will carry weight.
My Lords, I thank my noble friends Lord Kingsland and Lord Hunt, and the noble Lord, Lord Maclennan of Rogart, and I thank the noble Baroness for her response. It has become apparent that the amendment, although right in principle, may have to be redrafted. That comes as no surprise to me, and I shall need a little help. It has had three goes already, and it is very difficult to get it right—I cannot do much better. I shall withdraw it and bring it back at Third Reading.
I would like to make a point for the noble Baroness’s consideration. I am delighted to hear that she accepts the principle of everything that I said. However, I am not in agreement with her confident assertion that it is already reflected in this complex Bill or that, if it is reflected, it is done so in any manner that anybody is likely to be able to find and, if they do, understand. This is a most important matter of principle and, although the amendment may have to be redrafted, it should retain its pride of precedence in Clause 1 as a generic application throughout the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [The Legal Services Board]:
6: Schedule 1, page 112, line 6, leave out “Secretary of State” and insert “Lord Chancellor”
The noble Lord said: This large group of amendments contains necessary technical amendments to the Bill to bring other legislation into line with it, correct certain anomalies and give effect to undertakings made in Committee. The majority give effect to undertakings made by my noble friend in Committee to transfer functions relating to the Secretary of State to the Lord Chancellor.
Amendments Nos. 28 and 330, which relate to Schedules 1 and 15, place the responsibility for laying before Parliament the audited annual accounts of the Legal Services Board and the Office for Legal Complaints on the Lord Chancellor. They bring the Legal Services Bill into line with similar legislation that has been introduced since 2000. Further, they ensure that the Government follow usual practice in the commercial sector, where companies rather than auditors file the accounts.
Of the other amendments in this group, some, such as Amendments Nos. 47, 602 and 656, are included to ensure that the terminology throughout the Bill is consistent and to remedy minor drafting and typographical anomalies. These include, for example, replacing “trade mark attorney” with “trade mark agency”, ensuring that the definition of manager in Clauses 176 and 177 is consistent with the definition in Clause 197 and correcting a minor drafting anomaly in Schedule 2.
We have made a number of amendments to make it clear that the restrictions on providing immigration services and immigration advice currently contained in the Immigration and Asylum Act 1999 still apply. The amendments also ensure that qualified solicitors, registered foreign lawyers, legal partnerships and recognised bodies are afforded the same transitional protection as individual solicitors.
We have also amended the Public Notaries Acts of 1801 and 1843 to bring that profession into line with the new legal framework. Amendments made here preserve the existing exemption from a requirement to be authorised to conduct notarial activities that certain ecclesiastical appointees and government officials currently rely on, ensure that entitlement to carry out a notarial activity is determined in accordance with the Bill rather than the 1801 or 1843 Acts, give transitional protection to entities that conduct notarial activities and remove the offence of practising as a notary without authorisation, which is now covered by the Bill.
Amendments Nos. 71, 84, 91 and 658 will allow the Association of Law Costs Draftsmen to be added to the list of approved regulators in Schedule 4 to the Bill. They will also ensure that those members of the ALCD who are currently authorised to exercise rights of audience and rights to conduct litigation will be able to continue to do so under the new arrangements. They also provide that, for a transitional period, such persons will be deemed to be authorised to administer oaths. The Association of Law Costs Draftsmen became an authorised body under the current regulatory provisions—Schedule 4 to the Courts and Legal Services Act 1990—following an affirmative resolution order which came into effect on 1 January 2007. These amendments simply update the provisions of Schedules 4, 5 and 22 to that Bill to reflect that.
These amendments bring the Bill into line with the commitment made in Committee to transfer functions from the Secretary of State to the Lord Chancellor. In addition, this group includes technical amendments to take into account the provision of immigration services and advice under the new regime, to bring the Public Notaries Acts of 1801 and 1843 in line with the Bill, to add the Association of Law Costs Draftsmen to the table of approved regulators in Schedule 4 and to make the terminology within the Bill consistent.
One of the key aims of the new arrangements that we want to put in place is to ensure a greater degree of independence and consistency in regulation, with a single independent oversight regulator—as opposed to many—with clear objectives, setting clear standards across the sector. Each of these individual amendments plays a small but important part in that process and helps to address Sir David Clementi’s concerns about an overcomplex and inconsistent system of regulation. I beg to move.
My Lords, the group of amendments that we are considering was foreshadowed in the debate that we had in Committee to which the Minister referred; the reasoning for the amendments was endorsed, indeed, presaged by me in that debate.
It is important that the new regulatory system should so far as possible ensure greater independence of the legal professions from government; the substitution in the Bill of “Lord Chancellor” for “Secretary of State” was designed to bring that about. Since that debate, however, major changes have been announced in the structuring of government with regard to the role of the Lord Chancellor. It would be helpful if before this debate was concluded the Government could give some indication of how the establishment of a Ministry of Justice may have to be reflected in their thinking about the purposes that they have supported in introducing these amendments.
The office of Minister of Justice, which will no doubt—or perhaps I should say “probably”—still attract the title of Lord Chancellor, may be held by a Member of the House of Commons. That seems highly probable. It may be held by someone who is not a lawyer and who, in this new role as Minister of Justice with its very wide responsibilities, will not necessarily carry the conventional views on how the office should be discharged. The role in the Cabinet of the new Secretary of State/Minister of Justice/Lord Chancellor may be quite different from that historically discharged by the Lord Chancellor.
The change announced by the noble and learned Lord the Lord Chancellor was strongly supported on these Benches, but we equally strongly support the intention that the regulation of the legal professions and services should be so far as possible at arm’s length from government. The independence of that system is very important if public confidence is to be retained. We shall certainly have to give further thought to the consequences of that announcement on this Bill and possibly return to the matter at a later stage.
My Lords, I am most grateful to the Minister for his observations on amendments that he described as technical. By my calculations, there are 550 government amendments on Report, of which 230 concern, exclusively, the change between the role of the Secretary of State and that of the Lord Chancellor. I applaud the Government for making that change. Whatever the future fate of the office, there is no doubt that the responsibilities of someone who is described as Lord Chancellor under Section 1 of the Constitutional Reform Act 2005 are materially different from those of the Secretaries of State. I trust that, as a result of amendments that no doubt the Government will accept from us today, the independence of the legal profession will enormously strengthen the constitutional guarantees of the independence of the judiciary.
The Minister described the remaining amendments as technical, and I entirely agree with him. The sadness is that, despite many of the hopes that the noble Baroness, Lady Ashton, engendered in our hearts and minds in Committee, the Report stage amendments are little more than technical, with the changes to the status of the Secretary of State and the insertion of “public interest” in Clause 1 being remarkable and welcome exceptions.
On behalf of the Opposition, I express great disappointment. These are not party-political matters that lie between us. We all have a common interest in ensuring that legal services are provided properly, effectively and at a reasonable cost, and that the independence of the profession is preserved.
The noble Baroness expressed broad agreement on almost all the amendments that we tabled. Yet, on Report, we find nothing of substance from the Government. I hope that during what is likely to be a long Report stage, when we try again to change the noble Baroness’s mind, she will respond more positively, even if only a shade.
On Question, amendment agreed to.