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Lord Donaldson of Lymington: I shall not repeat what I said earlier. I am passionately in favour of the amendment. I rise only because I thought that something that my noble and learned friend Lord Lloyd of Berwick said might mislead non-lawyers in the Chamber. He said that judicial review is not a suitable vehicle for fine-tuning ministerial decisions. That is not the distinction. The real distinction is that it is not a vehicle for considering the merits of decisions, and unless one can show on Wednesbury grounds, which is most unlikely, that the proposal of the successor Lord Chancellor--let me stress that--was so lunatic that it bordered on the irrational and therefore was ultra vires it is difficult to see what power the courts would have.

Lord Goodhart: I rise also to support this amendment, to which I have put my name. As has been pointed out, Parts I, II and IV of the new Schedule 4 cover the same ground as Parts I, II and III of the old schedule. Part I relates to the designation of authorised bodies, Part II to the approval of rule changes made by authorised bodies, and Part IV to the power to revoke designation of authorised bodies. The new Part III contains an entirely new power for the Lord Chancellor to impose rule changes on various bodies. That deserves an entirely separate debate because it raises the question whether that part should exist at all. That issue is raised by a separate and subsequent amendment which is not part of this group.

The most significant difference between the new schedule and the old schedule in relation to the three parts which appear in both of them is, as has been pointed out, that the veto of the designated judges is entirely removed even if they are unanimously opposed to the proposal of the Lord Chancellor. The purpose of the amendments in this group is to restore a modified judicial veto in Part I of Schedule 3. The subsequent parts are dealt with in subsequent groups of amendments. The 1990 Act was undoubtedly too rigid in allowing only one of the four designated judges to veto an application for designation as an authorised body. That is certainly now widely recognised. The amendments in this group modify that by requiring the Lord Chancellor to get only two judges on his side, not all four of them, in order to allow the proposal to go through. Why is a judicial veto needed at all? There are, after all, two other safeguards: first, judicial review; and, secondly, the need for an Order in Council by affirmative procedure in relation to Parts I and IV.

Judicial review, I believe, is not an adequate safeguard, for the reasons just pointed out by the noble and learned Lord, Lord Donaldson of Lymington. It requires judges to find that the Lord Chancellor has been acting irrationally; what is known in the trade as Wednesbury unreasonableness. As the noble and learned

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Lord pointed out, that is a very high border to surmount. Secondly, the affirmative procedure for Orders in Council is itself of limited value. A Government with a large majority in the other place can carry a vote there and in your Lordships' Chamber. The convention of not rejecting secondary legislation makes it difficult to resist any such Order in Council. It is possible that if a future Lord Chancellor introduced an order over the objection of all four of the designated judges, your Lordships' House might think that the constitutional significance of the Order in Council was sufficient to enable the House to override the convention. But that is unlikely and at best speculative.

There are major constitutional reasons why the modified judicial veto should be retained. The independence of the judiciary and the separation of powers is of the highest constitutional importance and is becoming rapidly more so because of the powers of the judiciary to decide devolution issues and issues that come under the Human Rights Act. Historically, of course, judges have always had control over rights of audience. Solicitors have been given rights of audience in the lower courts by various statutes. Rights of audience are now codified in the 1990 Act. Control over who has rights to conduct litigation and rights of audience is, to a considerable extent, control over the legal process itself.

The doctrine of the separation of powers as recognised in England and Wales does not lead to immunity from parliamentary legislation; but if the Lord Chancellor proposes to extend rights of audience and to litigate to members of new authorised bodies--that is the power under Part I--over the objection of three out of the four most senior judges, then only primary legislation will be the proper way to do that.

7.30 p.m.

Lord Clinton-Davis: With the greatest respect to the extraordinarily distinguished legal personalities who have spoken in this debate--I am certainly not one of them; I was a humble high street solicitor--too much is being made of this.

It is argued by my noble and learned friend that present procedures are too complex, too difficult and lead to unnecessary delay. I am persuaded that those points have not been taken into account sufficiently or at all by those who have argued in favour of this amendment. We have to be practical about this. It is not as though my noble and learned friend will go into the arena refusing to consult--it does not matter whether it is he or his successors--and acting in a totally arbitrary way. What has been the case in the past is that these procedures have been extremely arcane and we ought to avoid that situation in the future.

It was incumbent on those who sought to support the amendment to give some credit to the arguments set out in the Notes on Clauses, which I hope they read; I hope they are worthy of some mention. But unless I misheard the situation in the enthralling atmosphere affecting this debate, which imposes certain rest periods for some of us, I did not hear the arguments being adduced address those matters at all.

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The proposal made by my noble and learned friend is worthy of more profound consideration. Of course I shall listen carefully to what he has to say in response to this debate. I do not know whether or not he supports me; I suspect he might. At all events, while I listen with great care to legal luminaries who have spoken so far, I am not persuaded to support the amendment.

Lord Goodhart: Before the noble Lord sits down, since he raised the issue of increased complexity and delay, can he say why there should be any more complexity and delay in requiring the designated judges to consent to the proposal when under the new schedule the Lord Chancellor has to seek their advice?

Lord Clinton-Davis: While I understand that point, it does not fully address what I was saying. I shall listen to my noble and learned friend whom I am sure will offer some wise words on this issue.

Lord Hacking: There is another reason why my noble and learned friend should resist this amendment. He is answerable to Parliament. Whether it is primary or secondary legislation, he is still answerable to Parliament. It is for Parliament to decide such basic issues as the freedom to have rights of audience and whether or not a monopoly is exercised by certain bodies. This is a parliamentary matter; it is not simply a judicial matter.

The Lord Chancellor: These amendments would not restore the individual vetoes of each judge but would require the decisions to be taken jointly by them and the Lord Chancellor and, in the event of a difference of opinion, by a majority. That would mean that the Lord Chancellor could act only if at least two of the four judges agreed with him.

I want to start with a proposition of principle; that is, the principle that rights of audience in the Queen's courts are not ultimately to be decided upon by the designated judges or even by a majority of them, but by Parliament. The notion that it is appropriate for the judiciary, by any means, to be empowered to grant work licences to advocates is outmoded and out of place in a modern Britain. In our democracy the framework of rights of audience in Her Majesty's courts should be settled by Parliament, not the judges.

Much has been made of the proposition that on judicial review of the decision of a Lord Chancellor in this regard, the court would not substitute its view of the merits for that of the Lord Chancellor. That is correct of course unless the court was of the view, having regard to the objectives of the Bill, that the decision of the Lord Chancellor was irrational. But the merits of rights of audience issues are for Parliament where the real issue is whether what are prima facie restrictive practices are nonetheless justifiable in the public interest. What is justifiable in the public interest is for decision by Parliament, not by the judges.

Under the Bill's proposals the designated judges will retain a powerful role in advising me on the exercise of the powers in the new Schedule 4 to the 1990 Act. Judging by my experience thus far, it is in the highest degree unlikely that we will disagree about applications under the

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Act and it is by far the most probable that we would agree about all. But ultimately I agree with the noble and learned Lord the Lord Chief Justice--the most senior of the designated judges, whether or not he be in a minority so far of the judges as a whole--when he said at Second Reading,


    "the final power of decision in these matters should rest with the Lord Chancellor. In the last analysis, it is he alone who is answerable to Parliament and to the public for the exercise of these powers".--[Official Report, 14/12/98; col. 1126.]
That was a point made by the noble Lord, Lord Hacking, but I have made it absolutely plain that under this Bill I would make any exercise of these powers by the Lord Chancellor subject to the approval of Parliament.

I am fortified in that view by the knowledge that my noble and learned friend the Master of the Rolls, who is in his place--the second most senior of the designated judges--also agrees with the noble and learned Lord the Lord Chief Justice. He made this quite clear at Second Reading when he said:


    "it is part of the responsibility of the Lord Chancellor in our constitutional framework and he must take that responsibility".--[Official Report, 14/12/98; cols. 1153-1154.]

In my first Mansion House speech on 23rd July 1997, I said that I wanted to address, first,


    "the separation of powers upon which our constitution rests; and what exactly that in my view entails for the relationship between Government and the judiciary".
I continued:


    "It was widely perceived by the public that, under the last Government, relations between the higher judiciary and the Government had sunk to an all time low.


    The public know, or sense, what the separation of powers is about. They are unhappy if the Government are attacking the judiciary and if the judiciary seem to be hitting back in return. They then feel that all is not well with the state of the nation. I am clear that the Lord Chancellor is at a critical cusp in the separation of powers. I personally regard it as of the first importance that the judges' views whether proposed changes by the Government to the law will work, or any views the judiciary may have of damage they, the judiciary, apprehend to the system from legislative proposals that the Government are minded to bring forward, should be able to be made known effectively to government at a stage when policy is still being formulated and not settled.


    It is essential that Government be able to speak to the judiciary and the judiciary to Government. I regard the Lord Chancellor as the primary medium for that interchange".
I believe that that would be the credo of any Lord Chancellor.

Those of your Lordships who are concerned that a Lord Chancellor might wield his powers in an attempt to damage the freedom and independence of the legal profession should bear in mind that he would be able to exercise his power to alter the rules of an authorised body, or to revoke the designation of an authorised body, only with the express sanction of both Houses of Parliament. Ultimately, it is Parliament that is the guardian of our liberties--and without Parliament, we are all lost.

Parliament will be well placed to fulfil this role in relation to Part I of the schedule, as no Order in Council may be made in this regard unless approved by both Houses. I trust, therefore, that noble Lords who have proposed the amendment will agree to withdraw it.


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