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Lord Kingsland: I am grateful to the noble and learned Lord for a full reply upon which I shall reflect. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

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Schedule 5 [Authorised bodies: designation and regulations and rules]:

Lord Lloyd of Berwick moved Amendment No. 244:

Page 63, line 10, at end insert--
("(2) Every person exercising functions in connection with that Schedule shall act compatibly with the principle that a strong, independent and self-regulating legal profession should be preserved."").

The noble and learned Lord said: I can be brief in moving the amendment because most of the ground was covered as long ago as the first day of Committee stage in respect of Amendment No. 1. On that occasion the noble and learned Lord the Lord Chancellor said, and has said on many occasions during Committee, that he was in favour of a strong, independent and self-regulating legal profession. I hope, therefore, that the amendment will prove completely uncontroversial.

On the previous occasion, the noble and learned Lord pointed out that while the amendment was an admirable statement of an admirable principle, it was not particularly relevant in the context of Part I of the Bill. On reflection, I respectfully agree with his view on that.

It is all the more important that it should be included in Part III of the Bill, especially in relation to Schedule 5 where it could be highly relevant in relation to, for example, the powers to be exercised in giving advice to the consultative panel, to paragraph 2 of the amended Schedule 4, and in many other places. That is why the amendment covers every person exercising functions in connection with the amended Schedule 4 and not just the Lord Chancellor.

The only objection to the amendment may be that it is so obvious that it does not need stating. However, as the Committee will remember, that was not the view of the Lord Chief Justice on Second Reading. History is full of examples, as we all know, of matters which seem obvious today but which somehow seem to be overlooked, forgotten or eroded by tomorrow. In the view of the Lord Chief Justice, with which I respectfully agree, certain fundamental principles should be stated on the face of the Bill; and this is one of them. Indeed, the substance of the amendment is taken from the very language which the Lord Chief Justice used at Second Reading. I hope that the amendment will be accepted. I beg to move.

The Lord Chancellor: I am grateful to the noble and learned Lord for moving the amendment. As I have often said, I believe--and believe passionately--in a strong, independent and self-regulating legal profession. The noble and learned Lord the Lord Chief Justice, Lord Bingham of Cornhill, in our Second Reading debate suggested that an amendment such as this, stating a general principle, would prove reassuring to some noble Lords. The noble and learned Lord, Lord Lloyd, moved a similar amendment to Part I of the Bill earlier in our proceedings in Committee.

I said then that I would consider whether a suitable amendment could be made to Clause 36 of the Bill, to emphasise the obligation which binds all advocates and litigators to act with proper independence. I continue to hope to be able to move such an amendment on Report.

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I am more hesitant about this particular amendment. It could not, for example, prevent a Lord Chancellor from ever exercising the power to call in and alter professional rules, subject to parliamentary approval, since that is an explicit statutory power conferred by the Bill. Any Lord Chancellor's exercise of that power would be reviewable by the courts. Therefore I do not see how the amendment would help a judge to decide such a case.

I should also point out that in exercising any functions under the provisions of Schedule 5 to the Bill or, more exactly, under the new Schedule 4 which it will insert into the Courts and Legal Services Act 1990, all those concerned are already subject to the statutory objective and the general principle set out in Section 17 of the 1990 Act which I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, well recalls. The statutory objective is,

    "the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice".

The general principle is that the question of whether a person should be granted a right of audience, or be granted a right to conduct litigation, should be determined only by reference to four factors. Those are set out in Section 17(3) of the 1990 Act. They are whether he is qualified appropriately for the court or proceedings concerned; whether he belongs to a professional or other body with effective rules of conduct; whether, in the case of advocacy, those rules require an advocate not to withhold his services on the grounds that the nature of the case is objectionable, or that the conduct, opinions or beliefs of the prospective client are unacceptable, or because of the source of any financial support which may properly be given to the client; and, finally, whether the rules of conduct concerned are appropriate in the interests of the proper and efficient administration of justice.

On revisiting these provisions, they appear to me to be both well founded and comprehensive. I am committed to the maintenance of high standards that we have come to expect from our legal profession and the maintenance of the independence of the legal profession from improper pressures from whatever quarter, including, most particularly, the Executive. The powers given to the Lord Chancellor by the Bill are strictly circumscribed. I have made it absolutely plain that the more controversial of them are subject to parliamentary scrutiny and approval.

I hope that the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by those assurances and by the changes I propose to make on Report to Clause 36 and on that basis that he will agree to withdraw the amendment.

7 p.m.

Lord Donaldson of Lymington: I would have preferred to have spoken before the noble and learned

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Lord the Lord Chancellor, but he bounced to his feet with that joie de vivre for which he is so noted and I am not. Therefore, I rise to speak now.

I read in The Times on Monday that the noble and learned Lord the Lord Chancellor had defused a potential conflict with senior judges over the powers which the Bill would confer upon him. The basis of that happy forecast was a leak that he would give a fair wind in principle to an earlier amendment which reflects the wording of this amendment. He has taken it back to redraft and one cannot know what the tenor will be until we see it. However, I wish briefly to outline the basis for my continuing anxieties, whatever may be in the redraft.

I agree with the noble and learned Lord that any change in the general terms of the clause suggested by the amendment would have no effect whatever on the powers to force changes in the rules of the profession which are expressly dealt with elsewhere. However, I wish to take the Committee back to first principles. Our unwritten constitution provides for three branches of government: the legislative branch, which consists of the two Houses of Parliament; the executive branch, which consists of the Government of the day; and the judicial branch, which consists not only of the judges but also the members of the legal profession.

I say that because in the context of the administration of justice the solicitors expressly, and barristers and legal executives impliedly, are officers of the court who are as much involved in the administration of justice as are the judges themselves. Any changes in the qualifications of those three professions, or in the rules of professional conduct, have the potential for affecting that status as officers of the court. It may be improved; but its effectiveness may also be reduced.

The authority of the legislative branch is supreme. There is no problem about that. However, it is generally accepted that it is of cardinal constitutional importance that the powers of the three branches should be kept separate and distinct. That creates a problem for the Lord Chancellor who is not only a very senior member of the executive branch but is the titular head of the judicial branch.

At a press conference on 25th June, the noble and learned Lord the Lord Chancellor appeared to deny that the arrangements contained in Schedule 5 created any problem. He said that as, traditionally, questions as to the rights of audience have been for the judiciary, he saw nothing wrong in he himself, acting as head of the judiciary, deciding in consultation with the designated judges. Of course, the operative word is "consultation", which has a chameleon-like character, as we all know. Any transfer of power from the Lord Chancellor and the designated judges, that power being exercised jointly by the five of them, to the Lord Chancellor alone is, in my view, a major constitutional change.

In that context, we must never forget that some future holders of the office may bear little resemblance in their attitudes and actions to the present holder or his recent predecessors. It must be remembered that there are no formal qualifications for appointment to the office of Lord Chancellor. The appointee need have no judicial experience. He does not have to be even eligible for

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judicial appointment. He need have no legal knowledge whatever. Indeed, as regards formal qualifications, he could be the hereditary plumber of whom we heard a lot in a different context earlier in the Session.

What matters above all is that he does not have the independence of the rest of the judiciary, which is based upon political impartiality and security of tenure. By contrast, he is necessarily political, politically powerful, and holds office only for so long as he enjoys the Prime Minister's confidence. Let me stress again that I am not talking about the present Lord Chancellor. But any constitutional change must look to the future and to the extent to which there could be abuses of power.

No doubt it will be said that to some extent the Lord Chancellor's freedom of action will be restrained by the purpose clause in whatever form it may emerge. But, as I have said, I agree with the noble and learned Lord the Lord Chancellor that in this particular context of professional conduct and qualifications it would not operate. He says that there will be control by Parliament and by the courts. I agree that those are the only two candidates.

However, in the context of secondary legislation, which is what would be involved as regards Parliament, the powers of this House are somewhat limited. We must look to the future. We do not know what the powers of this House will be in, say, five years' time and in relation to such legislation. And the judiciary themselves would have considerable problems if a complaint were made to them about an abuse of power in this context by the Lord Chancellor. I say that because I assume that the challenge would come, possibly from the Bar Council or the Law Society, in the form of an application for judicial review. No doubt there would be a good deal of political steam in both directions and it would be impossible to get the great British public, or even the non-legal chattering classes, to understand that judicial review in this context was concerned solely with vires and not with the merits of the proposed change.

There would be an even further difficulty from the point of view of the courts--of course, they would try to get over it--in that it would be said, whether or not on behalf of the Lord Chancellor, by those who wished to uphold the Lord Chancellor's decision that the judges had already advised against it, as I assume would have been the case, and that therefore they were being judges in their own cause.

I accept that Schedule 4 in its procedural detail is clumsy, slow and far too wide-ranging. When I was Master of the Rolls I suggested, but not in detail, that there ought to be a fast-track procedure so that the more detailed changes to rules and so forth which did not involve public interest went straight through. I agree that there needs to be an extensive reforming, but major changes in the professional qualifications and rules of conduct should require not only the compliance of the Lord Chancellor but that of at least two of the designated judges. If the Lord Chancellor and two of the four designated judges agree, there is a majority. While I might disagree with the decision, I would accept it with content. But unless we keep that safeguard--we do

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not keep it because at the moment it requires unanimity, which I think probably is a mistake--and the situation in which the Lord Chancellor cannot make such changes without the concurrence of at least two of the designated judges, I believe that we are making a very dangerous change in the constitutional arrangements.

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