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Lord Goodhart: My Lords, I believe that there is a serious constitutional issue here. It is of the utmost importance that neither the courts nor the legal profession should be under the control of the executive. That is because there is a potential conflict of interest between the judiciary and the executive. The courts may have to rule on the validity of executive action. That is likely to become increasingly the case with the enactment of the Human Rights Act. In principle it is wrong that the executive should have power to decide who can or cannot appear in court or to alter the rules that govern the conduct of advocates or litigators when they do so.
The regulation of the legal profession by the executive is open to much more objection than, for example, the regulation of the health profession which is included in the Health Bill now before your Lordships' House. Historically, it has been for the judiciary as a collective body to regulate its own proceedings and to decide who can appear as advocates. That was recognised by a decision of the Court of Appeal, a panel presided over by the noble and learned Lord, Lord Donaldson of Lymington, in the case of Abse v. Smith in 1986.
The noble and learned Lord the Lord Chancellor pointed out in Committee that Parliament has several times conferred statutory rights of audience in certain specific courts and tribunals. Indeed, it did so in 1990 in the Courts and Legal Services Act. But until the 1990 Act it is my understanding that it had always done so by primary legislation. Giving powers to the Lord Chancellor in 1990 to designate new authorised bodies and to revoke their designation by secondary legislation, by Order in Council, was very controversial. As I understand it, a compromise was reached on the basis of the role of the designated judges. That created what I described previously as a double-key procedure. The
However, I believe that it is still appropriate to have a double-key procedure before changes to the rights of professional bodies or of their rules can be made by secondary legislation. Secondary legislation does not give the same degree of parliamentary control as primary legislation even with the affirmative procedure. Secondary legislation cannot be amended or delayed and, under the conventions of your Lordships' House, it is not rejected. It is dealt with always in a short debate.
I suggest that if three out of the four designated judges were to object to any future proposals of the Lord Chancellor, those proposals should require primary legislation if they are to take effect. It is a serious issue and I would ask the noble and learned Lord the Lord Chancellor to reconsider.
Lord Donaldson of Lymington: My Lords, I was of course one of the holders of the office which became a designated judge judicial office under the 1990 Act. I had always been brought up to believe that it was the duty of the judiciary to maintain the separation of powers for good constitutional reasons. In 1990 the noble and learned Lord the Lord Chancellor, Lord Mackay of Clashfern, proposed to do precisely what the present Lord Chancellor is proposing to do; namely, to transfer the separation from being a separation between the Lord Chancellor and the judiciary to being one between the Lord Chancellor and his Cabinet colleagues. That is a major change. It is a major narrowing--possibly an abolition--of the separation of powers.
I expressed my grave disquiet in the debates on the Act. It may be--it has been said, certainly--that the then Lord Chief Justice used language of undue vividness. If I did the same, I apologise. But the point remains that neither I nor any of my judicial colleagues had the least qualms about what my noble and learned friend Lord Mackay might do with those powers. We can say the same for the present Lord Chancellor. But this constitutional principle does not exist to deal with specific Lord Chancellors. It is a constitutional safeguard against future Lord Chancellors who may for one reason or another wish to subordinate the administration of justice to the needs of the Executive.
I have pointed out before in this House and I mention it en passant that, while it is the tradition that the Lord Chancellor is legally qualified, and highly qualified, and while some Lord Chancellors such as the noble and learned Lord, Lord Mackay, served in a judicial capacity, there is no statutory qualification for a Lord Chancellor. He need have no knowledge of the traditions that govern the administration of justice; he may have no sympathy with them. Indeed, he may be strongly sympathetic to the views of Cabinet colleagues, in particular those of the Prime Minister of the time.
I could perhaps express some slight disquiet at the suggestion that the support of two designated judges for the Lord Chancellor's proposal would be sufficient. We are in the curious position that two of the present designated judges evidently do not share the disquiet of the rest of the judiciary. But just as one cannot tailor a constitutional provision to faith in the present Lord Chancellor or the previous one, nor can we tailor it to the views, misguided though some of us may think they are, of two of the present designated judges. I very much hope that this amendment will be supported by a majority of this House, though in view of the hour I am not sure that I expect that.
Lord Hacking: My Lords, having participated throughout the passage of the Courts and Legal Services Act and throughout the passage of this Bill, I thought that I was past the point of being amazed. But I have been totally amazed by the arguments presented by the noble Lord, Lord Kingsland, about draconian powers and political preference. I have even been amazed that the noble and learned Lords, Lord Ackner and Lord Donaldson, are still clinging to the argument about breaches of the doctrine of separation of powers and, in the case of the noble and learned Lord, Lord Ackner, adding that the noble and learned Lord the Lord Chancellor does not even understand the doctrine at all.
It should be stated firmly that it is Parliament which makes the laws relating to restrictive practices, monopolies and competition law; and Parliament makes the laws on rights of audience, which go right into restrictive practices, monopolies and competition law. Those noble Lords who were present when my noble and learned friend Lord Falconer replied at Second Reading will recall that he traced the statutory history of Parliament's role in the rights of audience. I have not had time to research that statutory history, but I know that my own profession has always been governed by Parliament under a succession of solicitor Acts.
Unfortunately, there was great opposition from the judiciary and others during the passage of the Courts and Legal Services Act 1990. In the result, the noble and learned Lord agreed to the provision under which there was effectively a right of veto by any of the designated judges on the issue of rights of audience. During the passage of that Bill, I tried to give all the support that I could through the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern.
We have seen that opposition arise again in this and other debates during the passage of this Bill. We have unfortunately lost, at least for the moment, Clause 32 from the Bill, in which the noble and learned Lord, with the support of my party, proposed that employed lawyers should have rights of audience. I have therefore tried to support the noble and learned Lord, the Lord Chancellor. Perhaps I may confess and take your Lordships into my confidence: it has been necessary for me to cross over the Floor of the House out of my devotion and loyalty to Lord Chancellors and the office that they hold. As I intimated just now, the result of the pressure that was put on the noble and learned Lord, Lord Mackay of Clashfern, was the inclusion in Schedule 4 of the power that the Lord Chancellor or any designated judge had the right to refuse an application.
Under the provisions set out in this Bill, the noble and learned Lord rightly listens to the advice of the consultative panel and of the Director-General of Fair Trading, and to the advice given by each--I emphasise that--of the designated judges, and then makes his decision. Over the issue of primary or secondary legislation, the matter comes before your Lordships under the affirmative procedure. There is full power for your Lordships. In the unlikely event that the noble and learned Lord, taking a different position to the advice of any of the designated judges, seeks to move an affirmative order in this House, I have no doubt that the views of this House will be freely and clearly made known to him.
As I said at the beginning of my remarks, the central point is that it is for Parliament to decide the rights of audience. That is a tougher application of the separation of powers. In no way is it, as described by noble and learned Lords, a breach of that doctrine. I say with as much force as I can that I hope the noble and learned Lord will not back down and will hold his ground completely on this issue.
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