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There should be no worry on that account among those whom the noble Lord, Lord Whitty, represents. If the Legal Services Board exercised power in a way
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In this probing amendment, as my noble friend Lord Campbell of Alloway—to whom I am greatly indebted for raising the matter—said at the outset, one is interested to hear how the Government and the Minister approach the matter. I would hope, as I say, that their approach fully recognised the principle of some form of effective appeal, and gave us some guidance on how they think that can best be dealt with, not just in the comparatively focused—and, to that extent, comparatively narrow—way that which to be covered by the Bill as presently drafted, but in terms of how we should end up.
Lord Whitty: I say to the noble Lord, Lord Campbell of Alloway, that I was not going to oppose this amendment, at least in its substance—although it may be in the wrong place and need redrafting. I recognise the importance of having a judicial review safeguard which can take wider issues into account, including different interpretations of the public interest in these matters. I will, however, be opposing Amendment No. 56. The Government need to make it clear that judicial review would, in certain circumstances at least, be available in this area, as they attempted to do earlier, but that detailed appeal structures, particularly in areas of relatively minor sanctions, would not be appropriate.
Lord Campbell of Alloway: With respect, I quite understand what the noble Lord, Lord Whitty, is saying. This issue arose with the use of the phrase “raising the threshold” on the Liberal Democrat Benches regarding when the LSB could intervene. That was in the context of the concept that the LSB’s function was to respond to a complaint, particularly from the institution of which the noble Lord is chairman, but not, so to speak, to intervene otherwise within the general province of the regulators. I think that the noble Lord objected to that limitation on the grounds he gave, which I hope he now understands were perhaps not well conceived.
Lord Whitty: I am not sure whether I should continue this dialogue for much longer, but I did object to the threshold being lowered. I object to a series of amendments that seem to be proposed in this Committee which would somehow hobble the Legal Services Board, leaving it a toothless tiger, if I can mix my minor veterinary operation metaphors.
I accept, however—I think that I made this clear last night—that the ideal position is that the Legal Services Board would be a light-touch regulator, intervening very rarely. But it is a supervisory board, and in any supervisory situation, whether in the workplace or in structures of institutions, the secret of being a good supervisor is to tread softly and carry a big stick which you occasionally show but, if possible, never use. It seems that the same relationship exists
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Lord Maclennan of Rogart: Surely the noble Lord will concede that it would be unacceptable to use a big stick to thrash an innocent person on the basis of inadequate information and that it would be reasonable to try to prevent it happening.
Lord Whitty: If the noble Lord heard me right, he will know that I said “carry” a big stick—that is, have sanctions available—show it occasionally as a threat, but, if possible, never use it. That seems a good metaphor for the Legal Services Board.
Baroness Ashton of Upholland: What an interesting start to our deliberations—
Lord Kingsland: It will be even more interesting.
I join all noble Lords who have congratulated my noble friend Lord Campbell of Alloway on introducing this intriguing probing amendment. In a way, the debate that my noble friend has engendered has anticipated about seven or eight detailed amendments which deal individually with Clauses 31 to 40. But I have concluded that it is helpful to try and grapple with the central issue that lies behind these amendments at this juncture.
Ideally, what the Government ought to have done for Clauses 31 to 40 and perhaps beyond, too, would have been to provide a general right of appeal to the High Court, making it clear that all the remedies available in a judicial review action would be available to a litigant seeking to exercise that right of appeal. What we have instead, as the noble Lord, Lord Maclennan of Rogart, said, is a limited number of clauses against which a right of appeal can be exercised. In addition, the right of appeal is qualified by what is traditionally described as an ouster clause. There is no mention whatever of judicial review in the Bill.
Naturally, that has led many of your Lordships to ask three questions. First, are all the remedies which would be available to somebody utilising judicial review available under the current rights of appeal? That is the first line of questioning. The second is: what is the intended reach of the ouster clause? The third is: in circumstances where there is no right of appeal, can judicial review be used?
This is perhaps a little unfair, because I know that the noble Baroness was going to deal with these issues incrementally, but it would be helpful to have some general guidance at this point.
3.45 pm
Baroness Ashton of Upholland: Before I failed to realise that the noble Lord, Lord Kingsland, had not spoken, I was about to say what an interesting start to our debate this has been. I, too, am grateful to the noble Lord, Lord Campbell of Alloway, for not only
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I intend to try and be the sensitive parliamentarian to whom the noble Lord referred. This fits in with the jigsaw he described to us yesterday that he wants us to put together. I will wait until the final day of Committee to ask whether he thinks that we have completed the jigsaw puzzle in taking forward all these issues.
The noble Lord, Lord Kingsland, is right that we have before us a number of amendments that deal with the specifics on appeal. Let me answer the specific amendments, as I would find it helpful to put that on the record, and deal as well with the particular questions that were so succinctly put by the noble Lord.
I agree with the noble Lord, Lord Campbell of Alloway, and other noble Lords that judicial review will be the appropriate remedy in instances where approved regulators want to challenge the lawfulness of the board’s regulatory decisions. As it is a public body, the board’s decisions are already subject to judicial review. We have drafted the Bill to allow for this; we do not think that it has to be stated in the Bill because that is the way that it will work.
We do not want to set out in the Bill what the judiciary may consider when reviewing the legality of the board’s regulatory decisions. For example, compliance with the European Convention on Human Rights is already a matter for consideration on judicial review. The noble Lord, Lord Campbell of Alloway, knows that well, not least from his distinguished work on the Joint Committee on Human Rights, before which, as Minister responsible for human rights, I have had the privilege to appear. We do not see the need to remind the judiciary of what should be considered in the exercise of their supervisory jurisdiction. We are concerned that putting things in the Bill might inadvertently restrict the ambit of any such review or suggest that other grounds are less valid or are to be accorded less weight. We would not wish to do that accidentally, so we are not drawn to putting such provisions in the Bill.
The noble Lord has drawn to our attention a number of important points which he believes may require consideration in judicial review proceedings. I should like to speak briefly about each of those. On proportionality and independence, the board is already under a duty to be proportionate—we discussed this at great length yesterday under Clause 3(3)—and to act in a way that is compatible with the regulatory objectives, which includes encouraging an independent profession. If the board has not complied with these requirements, that would of course form part of a review.
I have already dealt with the point about the European Court of Human Rights. Suffice to say, this has already been taken into account and does not need a specific mention in the Bill.
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I agree with the noble Lord’s sentiment that the quality of legal advice should be kept at the highest standard. When taken together, my view is that the regulatory objectives ensure that the quality of the legal profession and its services, including advice to consumers, is maintained. But we do not think it should be given special consideration over and above other issues.
In Amendment No. 139F, the same concerns apply, but to a greater extent, given that it sets out the grounds on which judicial review can be applied for rather than considerations that may be considered. Again, I am not drawn to putting the conditions in the Bill because I do not want to narrow or limit the breadth of judicial review. That would not be beneficial for consumers or for the approved regulators.
I do not want to reopen the debate on public interest—we have already debated that at length. Suffice to say, the board has a duty in this regard, and its failure to comply with it could be a ground for judicial review. Similarly, an approved regulator could and should apply to the court for judicial review if the board’s decision fails to comply with the European Court of Human Rights or the tenets of natural justice, however inconceivable that is.
I hope that when the noble Lord reflects on the detailed response I have given to the points in his amendments, he will feel that I have covered them.
Lord Hunt of Wirral: I am fascinated by some of the Minister’s comments. The procedure of judicial review has arisen—this was borne out by the quotations that I utilised—out of the fact that the Government left no other course. As Michael Fordham put it very well in his Judicial Review Handbook,
“By judicial review, the judiciary assumes the constitutional responsibility of curbing executive power”.
For the Government now to encourage judicial review, when it was only spawned as the sole real method of curbing executive power, is fascinating.
I believe the Minister said that she did not want to limit the extent of judicial review. I well remember the words of former Home Secretary David Blunkett about the result of one or two such reviews, but it is strange for the Government to be contemplating that it is the right remedy. We will come to that matter later, but surely it is better to include in the Bill clear appeal procedures rather than leave it to a procedure that has evolved as the only means of curbing executive power.
Baroness Ashton of Upholland: I take the view that public bodies operate in a way that means that there is a right of judicial review. I was seeking to deal with the detail of the points made by the noble Lord, Lord Campbell of Alloway, by going through them line by line and addressing where judicial review would apply. The noble Lord, Lord Hunt, is a lawyer and I am not, but one thing I know for sure about legislation is that it is always difficult to set out all the circumstances that might apply when one makes application to the court. Indeed, in other parts of our legislative duty, the noble Lord and I would probably argue in
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The noble Lord, Lord Kingsland, very reasonably said that you can lodge an appeal later. Although we will come to the detail of that, it is reasonable for him to ask a general question. We have established that judicial review is available. However, the fining power within the Bill is, we believe, a stronger power. Noble Lords and those who are being regulated may also feel that it is stronger, more definitive and has potentially greater and far-reaching consequences. We therefore wanted to add the ability to go to appeal specifically around that power. So we did so, by saying that there would be leave to go to the High Court to appeal on that power.
In order to ensure that we did not end up in a situation where someone could appeal on that and have a judicial review, the ouster clause simply says, “If you're doing that, you can't have the judicial review as well because you already have the right to appeal”. That is what it is for. The purpose of the measure is to provide a judicial review in general and an appeal specifically around fining, but if there is an appeal around fining there is no need for a judicial review as well. The ouster clause therefore says that you cannot do both. That is what this part of the Bill seeks to do.
Lord Campbell of Alloway: I sincerely thank all noble Lords who have spoken. One has to accept that it is inevitable that some decisions of the LSB are bound to be flawed for the reasons given as grounds in the two amendments to which I have spoken. Perhaps I should accept, having reread the Official Report after I tore up my notes, that I got it wrong when I referred to assembling pieces in a jigsaw to make a pattern. I had it in mind that perhaps—and I think that my noble and learned friend Lord Lyell of Markyate got near the point—there should be one or two amendments to the Bill to cover matters of principle. But so much of a change in structure, to which my noble friend Lord Hunt of Wirral referred, really should not be like pieces of a jigsaw. These are procedural provisions that should really be introduced by secondary legislation or a code of practice, to which Lord Denning and Lord Elwyn-Jones spoke, to relieve the structure of the Bill from erosion and being over-burdened with detail.
We have reached the stage when nothing more can be said of any constructive value until consultation has ensued with the Minister and my noble friends, to whom I defer—although I do not necessarily defer to the Minister. I should be most interested to hear about the consultations—and perhaps I shall be allowed to attend them—and what the noble Lord, Lord Thomas of Gresford, who has made a great
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I hope that the noble Lord, Lord Whitty, will have time—although he will disagree—at least to attend the consultation, so that he knows what is going on and realises that it is certainly not my purpose to put hurdles in the way of the LSB to prevent it fulfilling its proper function. On that basis, thanking all noble Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 to 55 not moved.]
4 pm
Lord Kingsland moved Amendment No. 56:
(1) An approved regulator in respect of whom the Board decides to publish a statement under section 34 may appeal to the court on one or more of the appeal grounds.
(3) An appeal under subsection (1) must be made within the period of 42 days beginning with the day on which the notice under section 35(4A) was given to the approved regulator.
(4) Where an appeal is made before expiry of the 7-day period mentioned in section 35(4A), the Board must not (unless the court otherwise orders) publish the statement until the appeal has been withdrawn or dismissed.
(5) On an appeal under subsection (1), where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the appeal grounds, the court may—
The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 57 in the same group.
These amendments allow for an approved regulator to have a right of appeal against public censure under Clause 34. Your Lordships may recall
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In evidence to the Joint Committee, several witnesses complained about the limited rights of statutory appeal against regulatory decisions by the board. In contrast, the Government considered that the rights were adequate. It is especially striking to the Opposition that the Bill provides no opportunity for an approved regulator to appeal against public censure by the Legal Services Board under Clause 34. It is that lacuna that Amendment No. 56 seeks to address. It is plain to us that the safeguards under the Bill—notification and consultation—provide insufficient protection and, therefore, we seek to incorporate a new clause that will provide an approved regulator with a right of appeal to the High Court against censure.
Amendment No. 57 ensures that that new appeal mechanism will operate effectively by providing a short suspensory period between notification of the final terms in which a statement censuring an approved regulator is to be published and actual publication. That will give time for the approved regulator to launch an appeal before the board’s censure is made public. The Government surely could not argue that seven days was an unreasonable period. I beg to move.
Lord Thomas of Gresford: We support the amendment in principle, but it is encapsulated in my Amendment No. 65, which we shall reach later, where I seek an assurance from the Minister that judicial review is available, not just for the question of public censure, but for the imposition of directions, performance targets and financial penalties. This amendment only restates what is available by way of judicial review, because the grounds of appeal are that the decision was either unlawful, ultra vires, or manifestly unreasonable. Any of those grounds would give rise to a successful application for judicial review.
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