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As for the suggestion, which I had not really heard on the Floor of the House until today, that the Lord Chief Justice might publicly comment on the rejection of his advice, I find that a most extraordinary situation. You can just imagine that the Lord Chief Justice might happen to have information known to him personally about the character of a person proposed to be elected. Is it seriously supposed that he could write a public document saying, “My reasons for objecting were as follows”? It cannot be done in that way.
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Lord Hunt of Kings Heath: My Lords, I believe this matter was raised in another place. The question was asked whether the Lord Chief Justice could make it known that the Lord Chancellor had decided not to accept his advice. The assurance was given that it would be a matter for the Lord Chief Justice’s own judgment. That is all that is meant by that.
Lord Neill of Bladen: My Lords, I have said sufficient on that point. I move that we restore the text in Amendment No. 74 and in the other 10 or 12 passages where the very same point arises, and that we require the concurrence of the Lord Chief Justice in these various appointments and removals from office. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendments Nos. 74 to 77, leave out “agree” and insert “disagree”.—(Lord Neill of Bladen.)
Lord Bach: My Lords, like the noble Lord, Lord Neill, I am an old lag at this exercise. Along with the noble Lord, Lord Hunt of Wirral, who chaired the draft Bill committee so well, I have been more or less involved with the Bill since that time. In general I find it difficult to disagree with the noble Lord, Lord Neill of Bladen, because he speaks such good sense, but on this issue I hope I have the benefit of consistency of having always argued that what the Government have come up with now—in other words, the consulting of the Lord Chief Justice—is what was proposed by the draft Bill committee after a close vote and recommended by Clementi himself. It also now has the support of the Bar Council and the Law Society, as well as the support of the House of Commons.
At Second Reading in this House—now almost 11 months ago—the noble Lord, Lord Hunt of Wirral, was kind when he said:
“The Legal Services Board must not only be independent, it must be seen to be independent. Sir David Clementi made this one of the key points in his excellent report. I have to say in support of the noble Lord, Lord Bach, that the Select Committee sought to ‘Clementi-ise’ the Bill because we agreed with so much of Sir David’s report, particularly where the Government had departed from the original recommendations”—
which they had, at that time. The noble Lord continued:
“Sir David said: ‘Given the need for independence, and the objective of the rule of law, it seems right that the judiciary should be involved in the appointment ... The proposal of this Review is that the appointment of the Chairman and Chief Executive should be made by the Secretary of State in consultation with a senior member of the judiciary’. The noble Lord, Lord Bach, moved an amendment to the original report which stated that provision should be made for the Secretary of State to make the appointment in consultation with the Lord Chief Justice. That very much follows what Sir David recommended. I hope that the Government will think again on that issue”.—[Official Report, 6/12/06; col. 1180.]
They have thought again on the issue, hence the amendment my noble friend has just moved. The amendment makes a lot of sense, not least for the reason just stated by my noble friend and referred to in the speech of my noble friend Lady Henig at Second Reading, when she talked about the experience she had had in the way current Secretary
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These arguments have been well rehearsed, so I will not go into them all over again, but it is important that the House realise that the views of the Bar Council and the Law Society have changed on this issue. I am not arguing for a moment that they are brilliantly excited by the idea of consulting; they both say they would have preferred what this House agreed on Report. However, it is right that the House should know their view, which, in the case of the Bar Council, is:
“The Bar Council ... supports amendments which have been tabled by the Government for consideration by the Commons at Report stage as follows:
“(1) - to require the Lord Chancellor to consult the Lord Chief Justice about appointments to, and dismissals from, the Legal Services Board (LSB). We shared the preference of the House of Lords for a requirement for the concurrence of the Lord Chief Justice, but the Lords’ amendments were reversed in committee in the Commons. However, provided the views of the Lord Chief Justice are publishable, we believe that the Government’s amendments tabled for Commons’ Report will provide appropriate transparency and accountability in relation to these public appointments and address concerns which have been raised, especially by overseas lawyers ... that the board is sufficiently independent of the Executive. Although we believe that consultation in a UK democracy should adequately preserve the independent regulation of the legal profession, we are looking for an assurance from the Government that the Lord Chief Justice’s views will be publicly available to underpin this consultation”.
My noble friend was attempting in his amendment precisely to satisfy what the Bar Council had, after due thought, considered it wanted.
Likewise, the Law Society makes it clear that it,
- “preferred the requirement in the Bill as passed by the House of Lords ... But we recognise that the Government has come a long way on this issue”.
I stress how far I believe they have come. It continues:
“When the Bill was introduced to Parliament, the Lord Chief Justice had no statutory role at all, and appointments were to be made by the Secretary of State, rather than the Lord Chancellor. The Government’s agreement to transfer responsibility to the Lord Chancellor, with his particular responsibility for upholding the rule of law, and to entrench that in legislation was a welcome development. So too is the acceptance that the Lord Chief Justice should have a formal role, albeit only a consultative one”.
Viscount Bledisloe: My Lords, will the noble Lord enlighten me—I am genuinely seeking information? He speaks as though, throughout the new system proposed by the other place, the Lord Chief Justice should be consulted. As I read the Marshalled List, the only amendment that would have him consulted is Amendment No. 76, which relates only to the appointment of an ordinary member. Is the noble Lord saying that it states somewhere that he has to be consulted about everything—in which case, I have not seen it—or are the Government saying merely, “Oh, well, of course, we would mean to consult him”?
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Lord Hunt of Kings Heath: My Lords, perhaps I may help the House, because the amendment states:
That is in Schedule 1, which states:
“In this Schedule a reference to an ‘ordinary member’ is a reference to a member of the Board other than the Chief Executive”.
It would therefore cover the chair.
Viscount Bledisloe: My Lords, in all the other places where the concurrence of, or some participation by, the Lord Chief Justice has been taken out, he is out completely. The only mention of him in the Bill is in connection with his having to be consulted before an ordinary member is appointed. From all the other places where he had been put in previously, he has been taken out completely. Is that not so?
Lord Hunt of Kings Heath: Not entirely, my Lords, because the amendment to paragraph 7(6) to the schedule states:
“Before removing any ordinary member ... under sub-paragraph (1)(b), the Lord Chancellor must consult the Lord Chief Justice”.
I hope that the amendment covers that point.
Viscount Bledisloe: My Lords, so he is involved only in two small places, but nowhere else.
Lord Bach: My Lords, I am delighted that the noble Viscount interrupted me, because I had been going on much too long. The Law Society and the Bar Council have both come round to the same view as the Government, which is that, in this instance, consultation is appropriate. The House should bear that in mind when it decides whether to go against the vote of the House of Commons on this issue.
6.45 pm
Lord Kingsland: My Lords, the House has debated this matter on many occasions and very fully. I shall try to be telegraphic in my observations. It seems to me, as it has to many other of your Lordships, that the key to this issue is the relationship between the judiciary and the legal profession.
The independence of the judiciary can be maintained only if the legal profession that appears before it is itself independent. That is true, particularly, in our adversarial system. Judges rely on lawyers being completely honest about the state of the case as they know it. If they did not, the decisions of judges would not be independent. It is equally true that the independence of the legal profession is protected by the judges. Advocates know that they can speak freely in front of judges. Judges protect advocates from Ministers. Many Ministers have attacked members of the legal profession during the past two years—I do not think that the Minister can be in any doubt of that. The legal profession can continue confidently and independently because it has the support of the judiciary.
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There is no conflict between the consumer and an independent legal profession. It must be in the interests of the client of a lawyer that that lawyer is independent of the Executive. What is wrong with the Bill is that the person who decides who is to become a member of the Legal Services Board is an elected Minister in another place, subject to the party Whip, who does not need even to be a lawyer—in saying that, I do not cast any aspersions on the right honourable gentleman the Secretary of State for Justice. However, that is a fact. Even on the assumption that he will take his decisions fearlessly, will he be perceived as doing so? That is just as important as the fact on the ground.
Why were the Government so assiduous in making sure that there was a Judicial Appointments Commission to choose judges, which had nothing whatever to do with the Executive, but have taken quite the opposite approach to the selection of members of the Legal Services Board? Surely the logic of the independence of the legal profession and the judiciary must lead one to conclude that one needs a system of selection for members of the Legal Services Board that is equally as objective as that for members of the judiciary.
I am grateful to the Minister for having moved in our direction; but I do not find the detail of what he said about consultation sufficiently convincing to change my view about the way I shall vote tonight if the noble Lord, Lord Neill of Bladen, presses his amendment.
Viscount Bledisloe: My Lords, we are considering an amendment to paragraph 1(1)(a) of Schedule 1, which states,
The amendment removes the concurrence of the Lord Chief Justice completely and there is no provision even for consultation on the topic. The chairman will be appointed without the Lord Chief Justice having any right to be consulted at all. I see the Minister shaking his head. Have I got it wrong?
Lord Hunt of Kings Heath: My Lords, I can only repeat what I said earlier. The amendment to the schedule states:
An “ordinary member” refers to all the members, including the chair, other than the paid professional chief executive.
Viscount Bledisloe: My Lords, it does not include the selection of the chairman.
Lord Hunt of Kings Heath: My Lords, it does, it really does.
Viscount Bledisloe: My Lords, I do not think that is right. He may well be an ordinary member, but you can appoint an ordinary member and then appoint him as a chairman. It does not require the state of
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Lord Davies of Oldham: My Lords, we seem to have staggered into an interrogative stage of the Bill, which I cannot recognise. We are dealing with Commons amendments. Speeches are in order but series of questions to which various Members of the House including the Minister might feel obliged to answer are not in order. So can we get on with speeches and the Minister replying?
Lord Thomas of Gresford: My Lords, I therefore on behalf of these Benches say that we fully support the amendment. I entirely accept everything that the noble Lords, Lord Neill and Lord Kingsland, have said. The noble Lord, Lord Bach, referred to the Bar Council’s position. The Bar Council supports the Government’s consultation provision only if what the Lord Chief Justice says is publishable, but I cannot imagine the circumstances in which it could be publishable. Let us say that the Lord Chief Justice on consultation has said that X should not be appointed and the Government disagree. In those circumstances, the reasons why the Lord Chief Justice came to his conclusion would surely not in the public interest be put into the public domain. I think that the Bar Council has overlooked that point. We give the noble Lord’s amendment the fullest support.
Lord Whitty: My Lords, I was not intending to intervene in this debate because, as veterans of the debate will know, it got a bit heated the last time. I do not intend to raise the temperature too much but, having seen the support for the amendment tabled by the noble Lord, Lord Neill, I am a bit surprised. I had assumed that the amendment carried in the Commons was a reasonable and workable compromise, as my noble friend Lord Bach explained. If it is not an acceptable compromise, I have to register an alternative point of view. I opposed any specific reference to the Lord Chief Justice on the grounds that to the consumer of legal services that would appear not to be independent. In other words, the independence of the board is at stake here, rather than the independence of the profession. I do not think that any method of appointment is a threat to the independence of the profession.
Therefore, with some unease, I have been prepared to accept the Commons amendment that specifically refers to the Lord Chief Justice being consulted—and I am grateful to the Minister for explaining how that works. If you substitute concurrence, as the Minister implied, you automatically raise the possibility of a veto, which undermines the credibility of the board to the general public and the consumers of the services of the legal profession. If I did not do so at the beginning, I declare my interest as chair of the National Consumer Council.
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I am surprised at the noble Lord, Lord Neill, who has done so much to establish the public appointments system as a credible, defensible and independent way in which to get public appointments. In this context—in the one situation in which he and other noble Lords who supported his amendment suggest that the regulation of the legal profession does not apply—we institute a special equivalent role giving concurrence to the Lord Chief Justice. That is not defensible; it would not give any credibility to this approach and it might well undermine credibility in the eyes of those people who want to see the Bill as a way in which to improve legal services and the performance of the profession.
I am sorry to introduce a slightly discordant note on this but, if the Minister is going to reply, he needs to understand that there are those of us who recognise that this is a compromise. It is a compromise from my position and I hope that those who took the equivalent opposite view would recognise that the Commons has presented us with a compromise position, which I believe to be workable.
Lord Neill of Bladen: My Lords, I wish to test the opinion of the House.
6.55 pm
On Question, Whether the said amendments (Nos. 74A to 77A) shall be agreed to?
Their Lordships divided: Contents, 142; Not-Contents, 119.
Addington, L.
Anelay of St Johns, B.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Avebury, L.
Barker, B.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Cathcart, E.
Chidgey, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Dixon-Smith, L.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkner of Margravine, B.
Feldman, L.
Fookes, B.
Geddes, L.
Glentoran, L.
Goodlad, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
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Lucas, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Marland, L.
Marlesford, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Morris of Bolton, B.
Naseby, L.
Neill of Bladen, L. [Teller]
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patel of Bradford, L.
Patten, L.
Platt of Writtle, B.
Plumb, L.
Quinton, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stewartby, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Wilcox, B.
Williamson of Horton, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bilston, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
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Lofthouse of Pontefract, L.
Low of Dalston, L.
Macaulay of Bragar, L.
McDonagh, B.
Macdonald of Tradeston, L.
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