House of Lords
Monday, 16 April 2007.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.
Health: Sexually Transmitted Diseases
My Lords, our policies to prevent HIV and other sexually transmitted infections are assessed through a number of measures. These include monitoring the local NHS delivery plans, including the national target on 48-hour access to GUM services, evaluation of mass media campaigns and data on new diagnoses from the Health Protection Agency.
My Lords, is it not a fact that the latest figures show that compared with 1998, new diagnoses of HIV have risen by 165 per cent and of chlamydia by 125 per cent, and that inside the health service, money intended for sexual health has been diverted away for other purposes? Is that not a totally unsatisfactory and unhappy position and is it not time that the Government mounted a concerted and properly financed campaign on sexual health in this country?
My Lords, I pay tribute to the noble Lord for his work on and involvement in the 1986 AIDS campaign programme. But the circumstances are different now—much less was known then, and the programme targeted the whole population. We now know that the main area of concern around HIV and AIDS is for gay men and those with contact with various parts of the world where the disease is prevalent, and the programme of action the department has enunciated is targeted at those at-risk groups.
The noble Lord is right to refer to some rises in instances of sexual illness. This is a priority for the Government and a great deal of progress is being made, particularly in developing enhanced GUM services.
My Lords, does the Minister agree that sex education is very important in combating sexually transmitted infections? If so, will he say how the Department of Health and the Department for Education and Skills are collaborating to improve the situation with regard to young people?
My Lords, I agree with my noble friend. I can reassure her that my department and the Department for Education and Skills work very closely together to promote sexual health through the healthy schools programme. It is worth reporting that there has been a reduction in teenage pregnancy rates: between 1998 and 2005, the under-18 conception rate fell by 11.8 per cent, evidence that the programmes that have been developed are proving effective.
My Lords, given that the AIDS Funders Group report showed that services, particularly those of prevention and support, are being stopped and then started again only because different commissioning streams come on stream at different times, does the Minister agree that there is something ineffective and wasteful about the way services are being commissioned by the NHS?
No, my Lords. Local primary care trusts have first responsibility for ensuring that services are commissioned appropriately and it is important that they should do so. Of course we want to see consistency in that approach, but the fact that PCTs have enhanced GUM services and that the target we set for people to receive an appointment within 48 hours has now been achieved—70 per cent as compared with 45 per cent in May 2005—shows that they are having a positive impact.
My Lords, I am referring to the provisional 2005 under-18 conception rate, which is 41.1 per thousand girls aged 15 to 17. That represents an overall decline of 11.8 per cent since 1998. The under-18 conception rate is at its lowest for 20 years, which is very encouraging.
My Lords, I am aware of the effect of the noble Lord’s leadership at the time, which I have already commended and I am happy to commend again. He will know that I was then director of the National Association of Health Authorities and there was close collaboration between him and his department and the National Health Service on those issues. At the time, very little was known about HIV/AIDS, which is why a campaign aimed at the general population was the most appropriate. However, we now understand that the groups at increased risk of HIV sexual transmission remain gay men and people who have had links to countries overseas where there is a high prevalence of HIV/AIDS, such as sub-Saharan Africa. The campaigns that the department is involved in funding are focused on those groups.
Of course, other sexual health campaigns are targeted at the general population, including encouraging the use of condoms and responsible sexual behaviour. Those, too, are very important in ensuring that we grip this issue.
My Lords, my understanding is that uptake of the first dose of hepatitis B vaccine should be 90 per cent by the end of 2006 and uptake of three doses of hepatitis B vaccine in those not previously immunised within one of the recommended regimens is targeted to be 70 per cent by the end of 2006. Clearly, we are working hard to meet those targets. The figures for 2005 are 89 per cent for the first dose of vaccine and 39 per cent for uptake of three courses of vaccine.
EU: Energy Policy
My Lords, since our 2005 presidency, the EU has made great progress in developing a common energy policy. Following the Commission's January strategic energy review, the European Council recently adopted an ambitious set of measures to address our common energy and climate change challenges.
My Lords, I thank the Minister for that Answer. He will recall that this specific common policy was requested strongly by member Governments. The Commission, too, is understandably preoccupied with common imperatives such as secure energy supplies, common technologies and new sources. However, will the Government also specifically suggest to the Commission that it should now start developing the ideal European-wide eco-dwelling as a target project for builders and estate developers throughout the single market, including in Germany, which was a pioneer, and in Britain?
My Lords, I thank the noble Lord for his question. He is very knowledgeable on European affairs, as he has displayed again this afternoon. He will be aware that the European Council came to the decision that the EU should reduce carbon greenhouse gas emissions by 20 per cent by 2020 unilaterally and up to 30 per cent if developed countries act together internationally. Eco-dwelling is an interesting idea, but the noble Lord will know that the UK Government are committed to having carbon-free dwellings by 2016 in the UK.
My Lords, should the Government’s priority not be in respect of our domestic energy policy and the requirement to ensure security of supply? Does that not mean committing to building nuclear power stations now on existing sites before the lights go off—because when the lights go off Governments get thrown out?
As you know!
My Lords, some noble Lords have said that the party opposite knows that full well. The Government are very aware of the issues that the noble Lord mentioned. The White Paper that we are producing on energy has two drivers: first, the issue of security of supply and, secondly, tackling climate change. He will be aware that the Government are producing the White Paper in May, which will contain the Government’s proposals and views on nuclear, subject to further consultation.
My Lords, could the Minister say that as part of the harmonisation process of energy with Europe, daylight saving is on the books, as that would save energy and lives on the road? If the Government are not thinking about this, could he go on record as saying that he is not for daylight saving in any form or kind?
My Lords, the Government at the European Council last month agreed a binding commitment with other EU member states of renewable energy becoming 20 per cent of total energy use by 2020. Given that at the moment the UK’s renewable percentage is 1.5 per cent, making us 26th equal out of 27 member states, how are we going to meet whatever our target becomes?
My Lords, clearly the 20 per cent target for renewable energy was stretching and visionary, but it is important because it will give a huge boost to the deployment of renewables, not only in the UK but throughout the European Union. Under this Government we have seen a doubling of renewable energy, with something like 100,000 microgeneration installations in the UK. We have invested something like £500 million in renewables between 2002 and 2008, and the renewables obligation will be worth something like £1 billion to the renewables industry by 2010. We are taking a lot of measures in this area and we will have to work with the Commission and other member states to ensure that the targets are met appropriately.
My Lords, given the very great difficulty that the Common Market has had in agreeing pricing arrangements for emissions trading across Europe, which is at least an attempt to arrive at an agreement, and given the widely differing national circumstances with regard to energy supply, does the Minister really think it very likely that in the foreseeable future there is any chance of an agreement on a common energy policy?
My Lords, that is exactly what the spring European Council agreed on—a common energy policy and an action plan for that policy. Of course, there is a lot of work to be done and the UK Government support the position of the European Commission that the Emissions Trading Scheme that the noble Lord mentioned should be strengthened, particularly in its third phase.
My Lords, the noble Baroness will be aware that the Department for Communities and Local Government recently announced a consultation particularly on microgeneration, to ensure that those people who apply to install, for example, wind turbines or solar energy panels on their homes do not in all circumstances need to apply for planning permission. That will greatly encourage microgeneration installation in people’s homes. Individual homes are responsible for some 25 per cent of CO2 emissions in the UK. We anticipate up to 1.3 million of those types of microgeneration installations in coming years.
My Lords, I had the privilege of attending a House of Lords delegation to Russia and Siberia, from which I have just returned, where I looked at the security of energy supply that we can expect from Russia. I come back absolutely determined that we should try to sort it out in Europe. What discussions has the Minister had with his European counterparts about the essential liberalising and unbundling of the European market?
My Lords, we discussed the unbundling of the EU internal market at the previous Energy Council. This will be further discussed at the coming European Council. The Commission will bring forward proposals on unbundling this year. The UK Government firmly support its position on unbundling.
Prime Minister: Oversight
My Lords, Prime Ministers are, and will continue to be, accountable to Parliament for the vast majority of their decisions.
My Lords, the Minister’s Answer was not terribly helpful; nevertheless, I thank him most sincerely. Will he please comment on reports that Cabinet meetings under the present Prime Minister are much briefer than those under previous Prime Ministers and that often vital Cabinet papers are not circulated in advance to his Cabinet colleagues, so enabling him to adopt a presidential style rather than remembering that his power has been described as primus inter pares?
My Lords, there is absolutely no inconsistency between what I have said and collective responsibility: an efficient, effective Government, all agreeing on the sensible issues, discussing them beforehand, reaching agreements and then standing by them.
My Lords, is not the time ripe for Britain to complete the new constitutional settlement, apt for the 21st century, embodied in a written constitution, reflecting the will of the people, in which, furthermore—unlike the arrangements in the 18th century, which we have inherited—by virtue of the royal prerogative, in accordance with the enacted will of the people, the Government’s actions are subject to the advice and consent of Parliament in all circumstances?
My Lords, that was quite a contradictory question. I am not in favour of a written constitution because I believe that the will of the people is expressed through Parliament, as the question implied. If you have a written constitution in the true sense, you have a document that is superior to Parliament, which means that the judges, whom I admire in every single respect—I am looking around at the number of judges—could express views about whether particular Acts were lawful. Our system, with judges able to ensure that the law is properly applied but Parliament able to pass the law, is the right one. I have no problem with our values being expressed in a document, but not in one that is superior to parliamentary sovereignty.
My Lords, does the noble and learned Lord recollect that when the Prime Minister tried to abolish the post of Lord Chancellor, it was discovered that this House could not meet unless there was a Lord Chancellor? Was that discussion around the Cabinet table thorough and vigorous?
My Lords, happily, the Lords met very quickly thereafter. The announcement involved accepting that there would have to be a Lord Chancellor during the transition. I am still, as noble Lords can see, in a transitional phase. After detailed consideration by this House and another place, the essential policy changes that underlay that announcement were given effect to.
My Lords, the noble and learned Lord mentioned the judges and especially the Law Lords. The House will recall that in the discussion of Law Lords’ place here, which is to end, he delivered extended speeches, if not homilies, on the separation of powers. In other jurisdictions, the separation of powers is understood to mean some division between the Executive and the legislature. Does the noble and learned Lord think that attention need not be paid to that division, which is recognised elsewhere?
No, my Lords; our system, where the Executive are drawn primarily from the elected House of Commons, works extremely well. A separation that everyone would accept is that judges and legislators should not be in the same body. I apologise for the length of my speeches, and I apologise if they sounded like homilies, but that was the essential point in creating a Supreme Court.
My Lords, may I bring the noble and learned Lord back to the issue of the royal prerogative? In his stout defence, quite rightly, of accountability to Parliament, would he not agree that the fact that Parliament has no voice whatever on the treaties signed by Her Majesty’s Government is a very substantial problem in a modern democracy? Does he agree that it is high time that the two Chambers of our Parliament began to set up machinery to enable Parliament to be heard on the issue before the signing of significant treaties?
No, my Lords, I do not agree with that proposition. The noble Baroness is right to some extent, in that it is for the Executive to conduct the foreign policy of this country. If they conducted foreign policy that went beyond that which was acceptable to Parliament, they would quite quickly lose the confidence of the Commons. Secondly and separately, if after a treaty has been signed it is intended to make it part of the law of this country, Parliament needs to make that happen, and that requires parliamentary approval.
asked Her Majesty’s Government:
Whether, in view of the provisions of the Civil Service Code, the Code of Conduct for Special Advisers and the employment contract for special advisers, the Chancellor of the Exchequer will review the arrangements for the employment of HM Treasury’s special advisers in the light of criticisms made of Members of Parliament by a special adviser; and whether the arrangements for the state funding of political advisers will be reviewed.
My Lords, the employment of special advisers in Her Majesty’s Treasury is in accordance with the Code of Conduct for Special Advisers and the Model Contract for Special Advisers. The Government’s position on the funding of special advisers remains as set out in their response to the Session 2000-01 report of the Public Administration Select Committee on special advisers.
My Lords, was not the attack by the Chancellor of the Exchequer’s special adviser on the MPs for Darlington and North Tyneside totally in breach of paragraph 14 of the Code of Conduct for Special Advisers, paragraph 15c of the contract of employment of special advisers and paragraphs 12 and 13 of the Civil Service Code? Why, when 11 Written and Oral Questions have been asked over four and a half months, does the Treasury still refuse to respond on this issue? Does not the deafening silence of the Treasury on these breaches make a mockery of the solemn undertaking given to Parliament in 2004, which guaranteed the accountability of Ministers to Parliament for the actions of special advisers?
My Lords, the relevant Minister is responsible both for the appointment of special advisers in his or her department and for their conduct. My noble friend would not expect me to discuss a specific case at the Dispatch Box, but let us be absolutely clear that parliamentary accountability rests with the Minister who has appointed the special advisers. When there have been contributions and Questions, such as those that my noble friend has asked over a protracted period, lessons are learnt by special advisers about the dangers of communications with the press and the importance, as my noble friend has reiterated, of keeping out of public political controversy.
My Lords, given that the number of special advisers has more than doubled since this Government took office and given that their role in the public service was secretively enhanced by amendment to the Civil Service Order in Council in 2005, will the Government now enact a Civil Service Bill to remove the possibility of recruiting personnel into the Civil Service outside normal merit-based arrangements?
My Lords, this country glories in the fact that its Civil Service is non-political. Also, of course, we have 3,900 senior civil servants. It is important that political advisers who give political advice are separate from that apolitical—non-political—Civil Service. That is why we have special arrangements for them, both in their appointment and in accountability for their actions through the Minister.
My Lords, the codes are to ensure that political advisers know exactly what their responsibilities are. It is for the Minister to form a judgment on whether the code has been transgressed. Although my noble friend has contended that the code has been transgressed, the judgment of the Minister is different from that of my noble friend.
My Lords, as I learnt from my experience as a member of an earlier and much smaller brood of special adviser, the less one said outside Whitehall, the more one could discover inside Whitehall and, therefore, the more use one could be to Ministers. Does the Minister agree?
My Lords, I hesitate to suggest that that is the basis of the code, but I certainly think that special advisers are all too well aware, first, of the basis of the code to which they are obliged to subscribe and, secondly, as the noble Lord has indicated, that their public role is circumscribed by that code. If they err in any respect—and I am not saying that they ever do—it is to be anticipated that there will be a public reaction.
My Lords, would the Minister confirm that some special advisers have gone on to live worthwhile and productive lives? Does not any fault of the current pack of special advisers to the Treasury pale into insignificance compared with that of the special adviser who stood at the shoulder of Mr Norman Lamont while we lost billions across the exchanges on Black Wednesday? If noble Lords cannot remember his name, I can tell them that it was Cameron—David Cameron.
My Lords, in order to save the noble Lord’s blushes, perhaps we should constrain ourselves to the past decade and a half and not go any further back as far as special advisers are concerned. I cannot recall anyone who has made a more noble contribution to the nation than that made by those in the role of special adviser properly discharged. Special advisers do a proper job, which is highly valued. That is why successive Governments have been concerned to ensure the continuation of the role within the framework of clearly prescribed codes.
Economic Affairs Committee
My Lords, I beg to move the two Motions standing in my name on the Order Paper.
Moved, That Lord Baker of Dorking be appointed a member of the Select Committee in the place of Lord Renfrew of Kaimsthorn, resigned.
Moved, That Lord Griffiths of Fforestfach be appointed a member of the Select Committee in the place of Lord MacLaurin of Knebworth, resigned.—(The Chairman of Committees.)
On Question, Motions agreed to.
Parliament (Joint Departments) Bill [HL]
Legal Services Bill [HL]
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.
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Defence Secretary. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement about operational events during the Recess. Before I start, I know that the whole House will join me in expressing my condolences to the families and friends of the nine service men and women who have lost their lives since the House last sat.
“On 1 April, Kingsman Danny Wilson and, on 2 April, Rifleman Aaron Lincoln were killed by small arms fire while on patrol in Basra City. On 5 April, Second Lieutenant Joanna Yorke Dyer, Corporal Kris O’Neill, Private Eleanor Dlugosz, Kingsman Adam Smith and their interpreter were killed when their Warrior vehicle was hit by a massive bomb west of Basra City. On 13 April, Private Chris Gray was killed in Afghanistan in a firefight with the Taliban and, on Saturday night, two servicemen were killed when two UK helicopters collided north of Baghdad. An investigation is ongoing, but all the evidence so far indicates that this was an accident, not an attack. Several personnel were seriously injured during this period in these and other incidents in Iraq and Afghanistan, and they too are in our thoughts.
“This is a reminder of the risks faced every day by our forces on our behalf. I offer our gratitude and profound respect for those who have died and those who have been injured in the service of their country.
“Members will understand that there is a strict time limit on this Statement. I intend to focus on the incident which has attracted the most public and parliamentary attention during the recess; namely, the incident in which 15 of our personnel were captured and detained by the Iranians and the events that followed.
“I will describe, first, the incident itself; secondly, how it was handled diplomatically; and thirdly, how it was handled in media terms, including the decision to allow serving personnel to talk to the media individually and to accept payment for so doing—decisions for which, as I have already made clear, I accept responsibility. Finally, I will set out how we intend to learn the lessons for the future.
“I turn first to the incident itself. On 23 March, HMS ‘Cornwall’ was operating as part of the coalition taskforce in the northern Arabian Gulf under the authority of a UN resolution. The taskforce is responsible for a range of maritime security operations, including protecting the Iraqi oil infrastructure and undertaking boardings to disrupt weapons smuggling.
“At 0753, ‘Cornwall’ launched two boats, with a Lynx helicopter in support, with the intention to board MV ‘Tarawa’, a merchant vessel that had evaded a boarding the day before. En route, the Lynx flew over a different vessel, MV ‘Al Hanin’, and reported a suspect cargo. A decision was made to board the ‘Al Hanin’. The position was well inside Iraqi waters.
“The boarding team boarded the vessel and, at 0846, the Royal Marine boarding officer reported the ship secure. The Lynx was tasked to return to the ‘Cornwall’. By 0900, the helicopter was back on board and put at 30 minutes’ notice to fly.
“At 0904, one of the two Royal Navy boats reported Iranian Revolutionary Guard Navy activity nearby. Very soon afterwards, one of the boats reported that the Iranians were beside them. By 0906, voice communications with the boats were lost and, shortly after, all communications were lost.
“At 0928, the Lynx was launched again and returned to the position of the ‘Al Hanin’. Initially, it was unable to find the UK boats, but at 1005 one was spotted being escorted by Iranian vessels.
“That concludes what I can say today about the operational details. I am happy to answer questions, but there is not much more to say at this stage until investigations are complete. I will say two final things. First, the Royal Navy is not currently conducting boarding operations, although coalition partners are, and the Navy continues to fulfil its other tasks. Secondly, I support the decision of the Royal Marine captain to order his boarding party to lower their readied weapons. As he put it, he judged that if they had resisted,
‘there would have been a major fight, one we could not have won, with consequences that would have had major strategic impact’.
“Let me turn now to the diplomatic handling of the incident. The Iranians detained our personnel illegally and took them first to an Iranian Revolutionary Guard naval base and from there to Tehran. We made clear both directly to the Iranians and in public statements that their detention was unacceptable and that they should be released immediately.
“We made intense diplomatic efforts to establish direct lines of communication with Iranian leaders to prevent the situation escalating and to resolve it quickly. It became clear that this alone would not be enough, not least because of the internal struggles within Iran as to who had control of the situation.
“We therefore galvanised the international community to put pressure on the Iranian regime. The Prime Minister has rightly paid tribute to those friends in the EU, in the UN and in the region who supported us and who condemned the illegal detention. I am in no doubt that this focused minds at the top of the Iranian regime.
“Our personnel were released on Wednesday 4 April, after a predictable attempt by the Iranian president to turn it into a propaganda victory. But this should fool no one. Serious observers do not believe that Iran has emerged from this in a stronger position. We should remember that our main objective, the peaceful resolution of the incident and the safe return of our people, was achieved earlier than many predicted. Let me be clear: there was no apology, and no deal.
“Let me turn now to the media handling of this incident. On Thursday 5 April, the 15 personnel arrived in the UK and were debriefed and reunited with their families. The next day, six of the 15 held a collective press conference, organised by the MoD, which was uncontroversial. The controversy surrounds the relations between individual personnel and the media. The media had approached the families of the detainees while they were still being held in Iran. There were many offers of payment. These approaches intensified as soon as the 15 were released and it was clear that the pressure would soon be transferred from the families to the individuals themselves. They were already aware of the criticism of their behaviour while detained and some were intent on setting the record straight.
“This left us with a dilemma. We had a duty of care to the individuals and their families, who were under intense pressure. On the Thursday, all those involved took the view that we should allow the individuals to talk to the media and that we should support them through that process. I believe that all those involved in this decision acted in good faith and out of a desire to protect the individuals, to protect the service and to protect operational security against the risks inherent in unofficial dialogue with the media. These were real risks, which have materialised in the past.
“Once the decision had been taken to allow the individuals to talk to the media, this raised a second question: how to handle the fact that the media were competing for these individuals by offering substantial sums of money. This second question was considered by the Navy over the same short period. The Navy concluded that payments were ‘permissible’ under Queen’s Regulations, and that in this particular situation it was,
‘impractical to attempt to prevent’,
them. This was the position presented to me in a note sent from the Navy’s HQ in Portsmouth to my office on Thursday afternoon, and which was put to me on Good Friday.
“I accept that in retrospect I should have rejected the note and over-ruled the decision. The circumstances were exceptional and the pressure on the families was intense. The Navy’s decision was taken in good faith, and so was its interpretation of the regulations. But I should have foreseen that this attempt by the Navy in good faith to handle an exceptional situation would be interpreted as indicating a new departure in the way the Armed Forces deal with the media.
“Over the weekend I discussed the issue further, and on Monday I asked for further advice from naval chiefs and the Chief of the Defence Staff. I decided that we must immediately review the rules and stop any further media payments to serving personnel until this review was complete. I informed the Prime Minister—which, as he has made clear, was his only involvement in this matter—and announced the decision in a statement.
“Let me be clear with the House: I made a mistake. I have been completely open about that. And to the extent that what happened between Friday and Monday has caused people to question the hard-won reputation of the Armed Forces, that is something I profoundly regret; but I remind people that precisely because this reputation is hard won, it is not easily undermined. These are the facts as I know them.
“Let me turn to what happens now. I made clear on Monday the implications for the specific issue of serving personnel receiving payment—that this must not happen again. But clearly there are other lessons to be learned from this whole incident.
“The first aspect is the operational circumstances and factors leading to the capture of the 15 personnel. This was an unusual situation with wide and far-reaching consequences; and to reflect this, I can announce that the Chief of the Defence Staff has appointed Lieutenant-General Sir Robert Fulton, Royal Marines, currently the Governor-General of Gibraltar, to lead an inquiry. As a retired former commander of UK amphibious taskforces, he will bring both expertise and objectivity to the inquiry. It will cover all operational aspects, including risk and threat assessment, strategic and operational planning, tactical decisions, rules of engagement, training, equipment and resources. I expect this to take around six weeks. Clearly it will consider operationally sensitive material and, as such, it will not be possible to publish all the conclusions, but they will be presented to the House of Commons Defence Select Committee in full. I am committed to ensuring that Parliament and the public have the full facts but, just as importantly, to ensuring that the MoD and the services learn from these events and do not let this happen again.
“In a similar spirit, and on the same timeframe, I can also announce that I will be asking a small team to take over the review of the media handling which I started last week. The team will consist of a senior officer and a senior MoD official, both unconnected with these events, and will be led by an independent figure with wide media experience. The review will draw on all relevant experience—not just of this incident but of other high-profile incidents involving personnel on operations.
“I want to make it clear that this review is not a witch hunt. As I have already said, I take responsibility for this particular case. Rather, the review will seek to identify lessons and make recommendations on how to manage the complex issues at play in this area: how to balance our duty to support our people, our duty of transparency, our duty to protect the reputation of the services and, most important, our duty to protect the security of our personnel in a demanding media environment.
“I take responsibility for what happened over last weekend. I have acted to put it right. I have acted to make sure we learn the lessons of the whole episode in a manner that allows for full parliamentary scrutiny. But, as we go through this process, we should remember the most important point in all this, which is that we got our people back safe and on our terms”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement and I join him in sending our condolences to the families of those who died in the Puma helicopters and to the families of the other members of the Armed Forces killed during the Recess. Our thoughts are also with those personnel who were seriously injured. While we have been enjoying our Easter holidays, our Armed Forces have been serving on our behalf, sometimes paying the ultimate price.
I am sure that it gave the Minister no pleasure to have to make this humiliating Statement any more than it has given any of us pleasure to hear it. I say nothing at this stage about the victims of these events—the 15 British sailors and marines who were seized, detained and exhibited by the Iranians. Some people may be willing to regard the whole thing as a chapter of accidents, but that, I fear, is not the truth of the matter. The truth is that they were seized, clearly unlawfully, while engaged on operations for which they were inadequately equipped, inadequately briefed and inadequately supported.
The inadequacies have not arisen from this operation; they have been long-standing, as noble and gallant Lords and many other noble Lords from all sides of this House have warned time and time again. The inadequacies are thus the direct fault of Her Majesty’s Government and of the Prime Minister and the Chancellor of the Exchequer in particular, together with their successive Secretaries of State for Defence, due to their persistent determination to take unfair advantage of the can-do attitude of our Armed Forces and to task those forces spread over-thinly on the ground, on the water and in the air—in short, to do as much as possible with as little as possible.
So we welcome the announcement of the setting up of an inquiry. My right honourable friend David Cameron made it clear that the Opposition, speaking for the country as a whole, require there to be a prompt and full inquiry, examining and reporting on the fundamental causes as well as the incidental events. Those who are fortunate to know Sir Rob Fulton will immediately agree that he is exactly the right person to undertake this task. We hear what was said in the Statement about not publishing the full conclusions of the Fulton report and about disclosing the whole to the Defence Committee in the other place. I believe that I will have the support of all sides of the House when I say that it is essential that the report’s findings should be disclosed equally fully to a representative body of noble Lords. I must therefore ask the Minister whether he will take steps to consult the usual channels as soon as possible on how such a body can best be established.
In the mean time, there are some outstanding questions to which the public are entitled to an immediate answer. Is it usual for mother ships to stand off at large distances—10 nautical miles in this case—from ongoing boarding operations? It is well known that because of atmospheric conditions in the area, radio communications often fail, as appears to have happened in this case. Why, if it is standard practice and necessary to maintain continuous air cover during such operations, did the Lynx return to HMS “Cornwall” and why was it then at only 30 minutes notice to fly? Is it a correct decision that all our naval boarding operations should now be halted while, as we are told in the Statement, they are continued by our allies, or is this another example of a hasty and unconsidered decision by the Secretary of State?
Will the Fulton report also cover the number of personnel who should be involved in boarding operations, their armaments and additional support that should always be on hand? Why was the incursion by the Iranians not picked up by HMS “Cornwall”? It is only three years since other members of our Armed Forces were illegally seized by the Iranians. What procedures were put in place after discussions with the Iranians after that seizure? Are they still valid?
The main role of HMS “Cornwall” has been to protect the Iraqi oil infrastructure. Who will be responsible for that when HMS “Cornwall” is paid off? Is the Minister satisfied that naval personnel receive adequate conduct-after-capture training to cope with likely increased efforts to take them hostage?
While welcoming the setting up of a review of media handling, why were proper plans not in place for the return of the captives, particularly in light of the PCC’s warning to the MoD of the possible media circus and its offer of help.
Finally, is it not a disturbing reflection on the operation of the offices of the Secretary of State and those of the Prime Minister that the Prime Minister did not learn of this major international crisis until he heard them through the media on Sunday? Despite the almost inconceivable incompetence of the media handling in this matter, and—as the Statement admits—other high-profile incidents, we must not lose sight of the fundamental point, which is the catalogue of problems that led to the capture of our personnel. Are the Government confident that they are taking action that will ensure that this does not simply become another high-profile incident in a future Statement?
My Lords, I start by expressing from these Benches our relief over the safe return of the 15 sailors and Royal Marines who were taken captive. That feeling is of course tempered by our sadness over the nine personnel who have been killed in operations since we last met, and our sympathy goes out to the families who have suffered losses and to those further personnel who have been injured.
I thank the Minister for relaying the Statement, which spends just one page out of the six on operational matters. But I do not intend to focus my questions on media handling and who made the decision that cheque-book journalism was the new way for the Ministry of Defence. I say simply that, along with both serving and former military colleagues to whom I have spoken in the past week, we were all astonished by the naivety of those who appear to have been involved in the decision and surprised that the Defence Secretary failed to use his political nous when needed. However, in the end, he made the right decision. The Westminster and Wapping frenzy over who knew what about payment for stories must not obscure the much more serious question of how such a catastrophe occurred in the first place, and what has happened to the reputation of our Armed Forces as a result.
When the noble Lord, Lord Triesman, made a Statement on 28 March, I deferred asking any questions about the circumstances. In a time of delicate diplomacy, the last thing needed was a row about how we got into this mess. However, now that the sailors and marines have all returned safely, we need a full examination of how Britain found itself outwitted by the Iranians. In the Statement, the Minister has announced the inquiry to be headed by Sir Rob Fulton, who I know well. I join others in saying that he is an excellent choice; I have the highest regard for him.
The Royal Navy is well practised in boarding and searching operations in many parts of the world. However, there are few areas as sensitive as the Shatt al-Arab waterway border between Iran and Iraq. It seems clear that the UK was operating within Iraqi waters and that the Iranian action was illegal. However, can the Minister explain today—not at the end of the inquiry—why the taskforce failed to foresee the risk? As the noble Lord, Lord Astor of Hever, has said, in June 2004, six British marines and two sailors were seized by Iran in nearby waters. Although they were released unharmed after three days, their boats have never been returned, so even a casual observer knows that it is a possibility. What intelligence assessments has the Minister sat and listened to at the MoD which would have said this? Are there not procedures to take into account another threat in that area: potential terrorists in boats attacking our navy? Was there nothing to stop that, and would it not have stopped the Iranians? We could have those answers today, rather than waiting for the end of the inquiry.
So far, what we know about the tactical position seems to suggest complacency was the order of the day. While the lead ship, HMS “Cornwall”, may have been unsuitable for close in-shore operations, this was a multi-national taskforce. What were the other nations doing? Where were the support vessels, the helicopters and fixed-wing air reconnaissance to give the information?
The sense that the problems were not anticipated is compounded by the apparent lack of training in conduct after capture for the hapless hostages. In the past, that was normal procedure. Has that stopped? Can the Minister tell us whether all personnel in the area get conduct-after-capture training? Again, the Royal Navy and the Royal Marines have seen themselves end up on Iranian television. As a result of their admissions of guilt, the reputation of the United Kingdom has sunk further in that part of the world.
A major military blunder was salvaged by diplomacy, and then ruined by a bizarre public relations exercise organised by the Royal Navy and initially allowed by the Defence Secretary. It looks as though the Ministry of Defence is joining the Home Office as “not fit for purpose”. The Statement offers a separate review about future press relations, in which there is to be an independent component. Will there be an independent figure in the Fulton review? Perhaps there will be a distinguished defence academic such as Sir Lawrence Freedman, who wrote the Falklands official history; somebody who can look from outside of the closet of the Ministry of Defence.
Will the Minister assure us that he will provide the House with a copy of the terms of reference for the Fulton inquiry, so that we know what it is going to look at? I support the call of the noble Lord, Lord Astor of Hever, for a parallel to the House of Commons Defence Select Committee having access to the final, full report for your Lordships’ House.
Will the Minister tell us the current situation in that region for maritime border security operations? I understood that we were in the lead; if we are not doing it, who is in the lead? Who is doing it? Are the Iraqi Government content that we have now withdrawn? How long are we withdrawn for? Until the inquiry is over? For ever? What are we doing with our forces out there? Finally, will the Minister assure the House that the lessons from this shambles will be learnt by the Ministry of Defence, the Permanent Joint Headquarters and the Royal Navy, and that they will not take the Prime Minister’s advice that it is time to move on?
My Lords, I am genuinely grateful for the tone taken by noble Lords opposite in expressing their relief at the release of 15 Royal Marines and sailors. However, I completely disagree with some aspects of what the noble Lords said.
Given how this House generally reviews defence matters, and the cross-party support which our Armed Forces enjoy, I am sure that Members of this House appreciate the non-partisan way in which these important matters are addressed. I say that because the history of our Armed Forces is that we learn the lessons when things go wrong. Clearly, things have gone wrong in this case. My right honourable friend has implemented these two open inquiries not only into the very important operational questions to which we need to have answers but also into the media issues which have had such prominence of late. That reflects the style of my right honourable friend. In the time I have worked for him, I have seen his real commitment to the welfare of our Armed Forces and how he goes about making sure that things get done within the Ministry of Defence. Therefore, I cannot accept any statements which say that the Ministry of Defence is not fit for purpose. That is not the Ministry of Defence of my experience.
I do not believe that this is a humiliating Statement. When a Minister has recognised that a mistake has been made, it is right openly to say so, to put that situation right and then to implement the necessary reviews to make sure that such a thing never happens again. I believe that the media frenzy is a media storm in a teacup. It has completely overpowered the central issue, which, as set out in the Statement—which I am grateful to noble Lords opposite for mentioning—is that we got our people back. Our greatest concern was to make sure that they were well and fit, and to get them back to their families. As we saw during that process, my right honourable friends the Secretary of State, the Foreign Secretary and the Prime Minister worked extremely hard and—I think the evidence shows—extremely effectively to return these people. A number of statements were made by them during this process. So it is not correct to say, as the noble Lord said, that there is a surprising lack of involvement by the Prime Minister during this process. He was plainly fully involved in the process of the release of our people.
I do not believe and I hope—and we shall see by the tone of the House—that this House will not make the same mistake that some people have by focusing so much on these media issues to allow them to overshadow the very important operational aspects which need to be focused on.
I have been asked a number of questions. I shall ensure that all questions asked by noble Lords opposite and any points raised by noble Lords this afternoon are passed on to the inquiry. I note the points of confidence made with regard to Lieutenant General Sir Robert Fulton. I will make sure that he addresses those questions.
There are some issues to which I can attempt to give a direct answer today. As regards foreseeing the risks, we recognise absolutely the risks inherent in carrying out these operations, as we do many of the operations which we ask our Armed Forces to carry out every day. We had operating procedures for carrying them out. Boardings by the Royal Navy, as noble Lords have said, are something which the Navy undertakes virtually every day of the week. We have to ask ourselves whether those operating procedures were adequate. In the terms of the inquiry, we will make sure that we do so. We will need to make sure that any improvements that we can make from the lessons we have learnt are implemented. We have set out the timescale for the outcome of this inquiry. I am sure that the usual channels will make sure that this House, like the other House, has a full opportunity to review the outcome of the inquiry.
The noble Lord, Lord Garden, asked whether all members of the Royal Navy receive training to deal with hostage-taking situations. They do not. But we have implemented action to ensure that all personnel in an operational theatre from now on will receive such training.
I will take back to the Ministry of Defence the point on the terms of reference for the Fulton inquiry. But, I can absolutely assure this House that a full inquiry will be undertaken into the events by which our personnel were captured. That will be shared with the House in the way I have described.
My Lords, in reply to the shadow Defence Secretary in the other place, Mr Browne implied that he had the support of the Chiefs of Staff. I think that that is a sensible and pragmatic view for the chiefs to take. This is not the time to be changing a Secretary of State. Extremely serious strategic issues face this country. Both CDS and CGS have commented in public about the serious overcommitment faced by our forces on two operational fronts. The situation must be strongly represented in Cabinet and the incumbent must be familiar with what is going on. A new Secretary of State would take time to get up to speed. With a change of Prime Minister, there is a possibility that a further Cabinet shuffle could take place very soon.
For those reasons, it would be wrong for the Secretary of State to resign or to be fired. I take it that he has the full support of his ministerial colleagues and I hope that that view will be represented to the Secretary of State.
My Lords, I add my voice to that of my noble friend and of the whole House in his sympathy and condolence for those who have died in the past few weeks, their families, their friends—and those who have died in Iraq and Afghanistan during the past three years. In the light of their sacrifice and their families' agonies, is there not a danger of us scalding ourselves in cold water by focusing obsessively on the press coverage of some of the experiences of those involved?
None of us who have served as Secretary of State for Defence—six Members of this House have held that position—can have not wanted to have the perfect wisdom of hindsight when we took decisions, especially in relation to the press coverage of the vast department for which we had stewardship and responsibility.
Decisions have been taken in the past that were benign at the time but dramatic in their consequences. There was the decision to allow Mr John Nichol, the captured pilot in the first Gulf War, to talk to the media; the decision taken to allow General Sir Peter de Billière to publish his memoirs, especially about his time in the Special Forces; and the decision, regretted as it was, when Michael Portillo mentioned the Special Air Service at the Conservative Party conference. All of those were done in a benign context but had repercussions and I think that everyone connected with them might have wished for the wisdom of hindsight. Such things happen in the circumstances and it is right, appropriate and in the spirit of the man that Des Browne has come to make such a significant apology for his misjudgment—his temporary misjudgment—in the situation.
I very much welcome my noble friend's announcement that General Sir Robert Fulton will head the inquiry, because there are serious issues to be examined here and the Government are as interested in the answers as anyone else. Sir Robert Fulton, who served as Captain-General of the Royal Marines while I was Defence Secretary, is ideally suited to giving judgments on that, too. Throughout all this, we really must underscore the fact that our hostages got out safely and without price. That is of huge significance, which we should in no way underestimate.
The noble and gallant Lord, Lord Craig, has made the point that the Chiefs of Staff today have made a statement about their confidence in Des Browne as the Secretary of State for Defence. That is an important and relevant thing for them to have done, which they will have done in good faith. This is no time for changing the political leadership at the top. It would be a grave disservice to those who continue to serve our country in areas of danger if that were to be the outcome.
My Lords, in the Statement, which the Minister repeated, the Secretary of State in the other place used the phrase “in good faith” several times, as, I think, did the Minister. That is not in question: most political blunders are made in good faith. They must, however, be recognised. The Secretary of State has recognised them in his Statement, as has the Minister today, but it is a mistake to deal with this aspect simply as if it were a “storm in a teacup”, to use his phrase. As the reports and the reactions from all over the world come in, we can see what harm this episode, and particularly the media aspect of it, has done and is doing to the profound respect which the Secretary of State mentioned that he felt for the Armed Forces and which we all feel. It is part of the job of the political leadership of the Armed Forces to avoid mistakes that lead to the undermining of that respect. Most of us who have had political responsibility felt, the moment we heard of this dilemma, that it was a political mistake. It is not a question of hindsight; it was clear to most people at the time that this was a bad error.
Another point is the training for captivity; when servicemen have fallen into the hands of a foreign power. I understand that it has been said that some of the 15 had such training and that others did not. Is that the position? What is the nature of that training? This is a question of fact now, not a question for a future inquiry. What questions are servicemen in that position expected to answer? What questions are they expected not to answer? And to what extent is it accepted as normal practice that they might, in certain circumstances, put their names to statements which they know or believe to be untrue? This is only part of the problem. We need a little more light on this aspect, quite independently from any decisions taken on future policy.
My Lords, on the noble Lord’s first point, we need to recognise that there was always going to be huge media attention on this issue. I do not underplay the importance of media issues, but this is a question of how, in the current modern media world, the Ministry of Defence can best act in these very difficult circumstances, in which there are clearly lessons to be learnt.
The noble Lord also asked about training. My understanding is that certain members of the crew had been trained in those aspects, but certain members had not. It would not be appropriate, right or helpful for me to go into the details of what type of questions and questioning our people are expected to cope with. We do, however, recognise that this is an area in which we have to make improvements and make a change, and we have done that, so we have already taken the action that I have described in the House this afternoon; henceforth, all members of our Armed Forces who are in such operational theatres will receive such pre-deployment training.
My Lords, we are confident that our sailors were captured in Iraqi waters. The Iranians justified their action by saying that the sailors were in Iranian waters. Surely, that fact could be ascertained by experts looking at all the relevant evidence. Does my noble friend believe that all action at the United Nations by us has now been abandoned, particularly because our sailors were acting under a UN mandate, or that there may be some mileage in asking the Security Council to set up a small panel of experts to look at all the available evidence? The conclusions of that panel of experts may allow us to regain some of the ground we have lost over that sorry incident.
My Lords, if I have understood my noble friend correctly, I do not believe that he is right. I do not believe that we have lost ground internationally with regard to whether we were in the right or the wrong relating to the location of our personnel. We have been able to establish very clearly the location of our personnel. They were 1.7 miles within Iraqi waters and we have been able to show that evidence. That we were able to pursue these points with the international community when it was clear that quiet diplomacy would not be effective and were able to secure the release of our people in the timescale we did shows that this process had an effect.
My Lords, as regards previous questions on the action of our forces in captivity, I hope that we will not let the Iranians get away with what they did. It has been disclosed that they used threats and they cannot be allowed to get away with that. What do the Government propose to do about that?
My Lords, our policy remains the same. We will pursue diplomatic relations on a multilateral basis with the international community to put pressure on Iran. We will continue to keep this pressure up and believe that recent events show the effect of this multilateral effort.
My Lords, I welcome the fact that the Secretary of State has accepted that it was his mistake and has said he is sorry, for which he should be commended. I also welcome the fact that he has set up two wide-ranging inquiries on the two pertinent issues. In a fast-moving situation, what ministerial cover was there in the Ministry of Defence on that Thursday afternoon and Good Friday morning? Who made the decision that the submission should go to the Secretary of State only “to note” and through which Ministers or senior civil servants did that submission go?
My Lords, I am grateful for the points that my noble and learned friend has made in support of my right honourable friend. All Defence Ministers, as Members of this House who were formerly Ministers in the Ministry of Defence will know, are available at all times to be contacted on defence matters. In the modern world of communications and so forth, it is not necessary to be physically in the Ministry of Defence to be available as a Defence Minister.
As regards the chain of command and the way in which this decision was taken, I have nothing to add to what I said in repeating the Statement. It is important that this does not turn into a witch-hunt as to who said what to whom relating to the submission to the Secretary of State. That is not appropriate or the purpose of the review.
My Lords, first, on the media shambles, the Minister said that it will not be allowed to happen again. But if it can be prevented from happening again, why was it not prevented from happening on this occasion? Secondly, he said that we are very good at learning the lessons from these things. But British boats have been captured before in similar circumstances. Why did we not learn any lessons from that experience? Why did we have to leave it to make the same errors again?
Finally, the Minister has evaded to a considerable extent questions about why these personnel were not properly trained in the techniques of resisting interrogation. As a young officer in 1949, I was trained in such techniques, and the training was a bit rough at times. However, it is now clearly inadequate.
My Lords, I am afraid that I disagree with the noble Lord. The incident that took place in 2004 on the Shatt al-Arab waterway was quite different from this case. It occurred within the waterway and the circumstances were completely different. A review of the events in 2004 relating to the taking of boats was undertaken by the Ministry of Defence and its conclusions were implemented. We have to make sure that the conclusions reached by the review into this incident are similarly implemented. However, these operations were different in nature and cannot be compared with each other. The noble Lord shakes his head, but we shall have to disagree on that point. There is quite a difference between patrolling a waterway as in the operation in 2004 and carrying out lawful boarding operations to combat smuggling under a UN mandate in Iraqi territorial waters.
The noble Lord has much more experience than I on the history of training to resist interrogation and I bow to his knowledge. The point is well made. We have taken it on board and we have made changes. But until now it was not regarded as necessary.
My Lords, is not one of the main lessons of this premeditated seizure of our personnel by the Iranians that firmness towards this rotten regime succeeds while floundering and appeasement fails to encourage the fundamentalists to come clean about their nuclear ambitions? Will the Government now match the firmness they demonstrated on this occasion by removing the ban on the Iranian resistance to signal our support for those who have had their freedom and human rights stolen from them?
My Lords, first, I share with other noble Lords our thanks that the marines have been returned safe and sound, but some hard lessons have to be learnt from this which have been mentioned by a number of speakers. My anger is directed at two areas. The first is training and preparation, issues touched on by the noble Lord, Lord Tebbit. On military operations you plan for the worst case, but as far as I can see there was smugness, a lack of training and a lack of grip in the preparation of those sailors for the role they were undertaking. I find that quite amazing, given that they were next door to Iraq where we are deeply involved in operations. Secondly, my anger is directed at officials, both non-uniformed and military, in the advice they gave the Secretary of State. It is extraordinary that that advice was given. I have always had a great belief in the importance not only of the military but also of the Civil Service in these issues. The fact is that they gave what I thought was third-rate advice, and I cannot believe that some of the great permanent under-secretaries I have known in the Ministry of Defence would have allowed it to happen. It is a big issue.
I want the Secretary of State to remain in office, as I know do the Chiefs of Staff. My trade test for the Secretary of State would not be this, but to make sure that the services are funded in the way they need to be. If they are not, that is when he should resign.
My Lords, I take on board the comments of the noble and gallant Lord, given his experience. Equally, we have taken on board the points relating to training and preparation made by him and the noble Lord, Lord Tebbit. As I have said, action has been taken in this regard. However, I do not believe that we should criticise the 15 individuals who had to withstand a frankly awful experience and did so in a way that I really do believe is to their great credit.
With regard to the point that the noble and gallant Lord made about advice within the Ministry of Defence, we recognise, as my right honourable friend has said and as was described in the Statement, that a mistake was made, and we have moved to put that right. We need to learn the lessons from this experience to ensure that it does not happen again.
Legal Services Bill [HL]
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.
rose to ask Her Majesty’s Government what policies they are adopting regarding the situation in Zimbabwe.
The noble Lord said: My Lords, I pay tribute to all noble Lords who have come here to make a two-minute speech. Those who are going to speak should not thank me or congratulate me on this debate because that just takes time.
A few weeks ago we had reason to be optimistic about Zimbabwe. The two leading figures in ZANU-PF under Mugabe appeared to be agreed, in spite of their mutual rivalry, on denying Mugabe the opportunity of extending his presidency for six or more years. The International Crisis Group believed that a realistic chance had at last begun to appear to resolve the Zimbabwe crisis. That prospect has disappeared in blood and brutality and through the feebleness of SADC.
We have seen the full horror of Mugabe's regime reflected in the battered faces of leaders of the opposition taking part in a peaceful prayer meeting. We have seen young men, no doubt trained in violence in the green bomber brigades, being issued with police uniforms to give them a semblance of authority to conduct violence against the innocent.
The courage of those at that meeting, completely unarmed, was remarkable. Random assaults by the police have been reported to continue for days. A woman member of the British Embassy, who had been visiting the injured in hospital, was told in the government-owned newspaper:
“It will be a pity for her family to welcome her at Heathrow Airport in a body bag".
So alarmed were the SADC governments by the violence, that a summit meeting was called in Dar es Salaam. These are some of the extracts from the communiqué of the meeting.
“The… Summit recalled that free fair and democratic Presidential elections were held in 2002 in Zimbabwe… The … Summit appealed for the lifting of all forms of sanctions against Zimbabwe… The… Summit mandated Thabo Mbeki to come to facilitate dialogue between the Opposition and the Government and report back on the progress”.
Not surprisingly after that, Mugabe returned home in triumph. He proceeded to get agreement from ZANU-PF to increase the number of Members of Parliament from 150 to 210, with the bulk of the new constituencies in the rural areas where ZANU-PF is strong. Voting in the senate will be altered to the advantage of ZANU-PF. The constitution will be changed so that when an elected president dies or retires his successor will be chosen by Parliament and not by direct elections as at present.
South Africa is now in the UN Security Council, and was last month its president. Its record in that body is interesting. On a mild motion criticising Myanmar, alias Burma, calling for national reconciliation and release of political prisoners, and other measures not even including sanctions, South Africa cast a no vote—it voted against that mild resolution. It also used its position in the presidency to block debate on violent repression of the opposition in Zimbabwe. Archbishop Tutu, who with Vaclav Havel had taken part in reporting on conditions in Burma, said:
“I am deeply disappointed by our vote. It is a betrayal of our noble past”.
He is, as we know, a Nobel Prize winner. He has also criticised the Government of South Africa on their stand in the Security Council on Zimbabwe.
President Mbeki, as we all know, has had extraordinary views, which defied modern medical knowledge, on the question of HIV and AIDS. He is clearly capable of major misjudgments or self-deception and his record casts grave doubt on his suitability, to use the words of the Dar es Salaam communiqué, to facilitate dialogue between the opposition and the Government of Zimbabwe. It is not surprising that his so-called quiet diplomacy between ZANU-PF and the opposition in Zimbabwe was not successful. It looked more like quiet protection for Mugabe.
An interesting new light has been cast on the role of President Mbeki in relation to Zimbabwe by the remarks of Moeletsi Mbeki in a BBC Radio 4 “Today” programme a couple of weeks ago. He is a South African business man, brother of the president, who worked as a journalist in Zimbabwe. Asked by Edward Stourton what we should make of what happened at the SADC meeting in Dar es Salaam he replied as follows:
“There is something which is overlooked. Mugabe has the same adversaries that many African Governments in Southern Africa have. These are the trade unions and the non-governmental organisations who are pressing for policies that favour the majority of the people whereas the Governments are following policies in general that favour the elite. It is never going to happen for African Governments to pressurise Mugabe but a large number of the African people are opposed to Mugabe”.
Those words cast the most illuminating light on President Mbeki’s behaviour that I can remember. They do the same for the behaviour of SADC heads of Government in Dar es Salaam. I doubt that we should put much hope on success for President Mbeki in the role given to him by the SADC summit.
What should be our policy towards Zimbabwe now, in a situation which is worse than any other since Mugabe set out on his regime of terror seven years ago? There is one course that could succeed that has not been followed—that is, firm action by the G8. The Prime Minister, in a speech on 2 October 2001, called for,
“a partnership for Africa between the developed and the developing world based around a new African initiative. It’s there to be done if we find the will. On our side provide more aid untied to trade, write off debt, help with good governance and infrastructure”—
and other suggestions. He continued by saying that,
“it is a partnership. On the African side: true democracy, no more excuses for dictatorship, abuses of human rights, no tolerance of bad governments from the endemic corruption of some states to the activities of Mr Mugabe’s henchmen in Zimbabwe… the state of Africa is a scar on the conscience of the world”.
I say Zimbabwe is a scar on the conscience of Africa. Some countries in Africa are not living up to their part in the partnership. Early in this decade, President Mbeki seemed to cast doubt on the validity of the partnership, declaring that the problems of Africa should be left to Africans to resolve. But the present situation in Zimbabwe is so grave that it calls for a new and bold approach.
Almost all the African countries have joined the African Union, which replaced the OAU, which was wound up in failure a few years ago. The AU treaty committed its members to observe good governance, human rights and the rule of law and to use peer pressure to achieve them. The treaty for the SADC contained very similar obligations; Mugabe is in major breach of both treaties.
In two months’ time the next meeting of the G8 will take place in Germany under the chairmanship of Chancellor Merkel, who has been displaying considerable skill and determination. I have suggested in each of the past two years that the annual G8 meeting, which is attended regularly by President Mbeki, who will also attend the next one, and other world leaders, should be used by the G8 to persuade him and any other African leaders who may be present that the Zimbabwe problem must be resolved. The eight most economically powerful countries in the world should be able to persuade the countries of southern Africa, through President Mbeki, of the great importance of living up to their solemn obligations in the AU and SADC, as well as NePAD. It would be very much to the advantage of both sides in the partnership.
Mugabe is turning Zimbabwe into a failed state. It is time that we made it clear to the members of SADC, the AU and NePAD that the time has come to stop the rot.
My Lords, South Africa speaks with a voice that thunders throughout southern Africa, yet President Mbeki will not speak out against President Mugabe. The thunder is silent. The finest words from South Africa on the silence over President Mugabe’s conduct came on 16 March from Archbishop Tutu, who said:
“We Africans should hang our heads in shame”.
On 26 March in another place, the Minister for Trade, Mr Ian McCartney, said that the most reverend Primate the Archbishop of York and others had increasingly been,
“demanding of South Africa and cajoling South Africa to take a more proactive role. That is exactly what has been happening in the past few days. That is why we must maintain and develop a relationship. That is why the Prime Minister has written to President Mbeki”.—[Official Report, Commons, 26/3/07; col. 1174.]
I should be grateful if my noble friend the Minister would confirm that British policy is to request of President Mbeki that South Africa takes a more proactive role and in particular that British policy is to exert pressure on President Mbeki to use that voice of thunder. I trust that that is indeed the case, for if it is not people in Britain will increasingly adopt the attitude of Archbishop Tutu and hang their heads in shame.
My Lords, your Lordships may know that my diocese is twinned with three of the dioceses in Zimbabwe and over the years there have been frequent visits of church leaders and others in both directions. In fact, there is a party of two dozen people led by the Bishop of Croydon visiting at present. Through these visits and communications we are very well aware of the contribution that local churches in Zimbabwe are making to ease the lot of their neighbours and the extremely delicate and sometimes dangerous situation in which they find themselves. It has not always been easy to judge how the church in England can best support them because any criticism of the Zimbabwean Government coming from us is swiftly denounced as the predictable opposition of an ex-colonialist church, and Anglicans in Zimbabwe can then be disregarded as being the lackeys of colonialism. In spite of this, several of the bishops, particularly the Roman Catholic bishops, have been courageous in seeking to resist the excesses of oppression which they and their people experience. I say “several” because Anglicans here are also embarrassed by the part being played by the Bishop of Harare, Dr Nolbert Kunonga, who is very close to the Mugabe regime.
All this is happening at a time when SADC decided to commission a team to develop a paper on possible solutions to the crisis. It would be good if the Minister could tell us what is the strategy of Her Majesty’s Government and the EU in working with this. It would also be good to know how the British Government will continue to support food aid and the World Food Programme without seeming to be propping up the regime.
It is difficult not to be pessimistic about the situation but the network of community care represented by local churches in Zimbabwe will still be there when the Mugabe regime has disappeared and it will be part of the basis for nation building. We in the church will do all we can to support them.
My Lords, Robert Mugabe’s cruel, corrupt misrule has cumulatively caused the economic and social decomposition of his country. The beginning of the answer to the tragedy of Zimbabwe must be his departure, but that answer can be applied only by the leaders of southern Africa. Realistically, no other group has the politic