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Lord Goodhart: My Lords, I am most grateful to the noble and learned Lord, Lord Falconer, who at times during the course of his speech appeared to have become the noble and learned Lord the Lord Chancellor. I wondered whether that was the purpose of the rather brief discussion on the Front Bench a minute or two ago; namely, that the Lord Chancellor was handing over his duties. But be that as it may, in whatever capacity the noble and learned Lord, Lord Falconer, was speaking, I am most grateful for the amendments which have been made. I am glad that the additional transparency will be provided for.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 164 and 165:
The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move Amendments Nos. 164 and 165 en bloc.
On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 166:
The noble and learned Lord said: My Lords, the purpose of Amendment No. 166, which stands in my name, and of Amendment No. 167, which stands in the names of the noble Lords, Lord Kingsland and Lord Goodhart, is to clarify which rules of conduct and qualification regulations of the authorised bodies may be subject to the use of the call-in procedure, set out in Part 3 of Schedule 5 to the Bill.
As my the noble and learned friend Lord Falconer of Thoroton indicated in Committee, in response to a previous amendment on this point by the noble Lord, Lord Kingsland, the Government agree that the call-in procedure should only apply to qualification regulations and rules of conduct which relate to rights of audience. But my noble and learned friend Lord Falconer of Thoroton--and there is no confusion of roles here--continued:
Amendment No. 166, which stands in my name, is the Government's response. It will ensure that the call-in power may only be invoked if the Lord Chancellor considers:
There is one crucial difference between my Amendment No. 166 and the noble Lords' Amendment No. 167. My amendment will make it clear that the Lord Chancellor may only invoke the call-in procedure if he considers that the appropriate rules or regulations (defined, of course, in relation to rights of audience and rights to conduct litigation) "may unduly restrict" those rights. In this respect it goes much further than the noble Lords' amendment. I note in passing that the noble Lords are content to give the Lord Chancellor a wider power. For my part, I think that it is right that the call-in power should be limited in the manner I have indicated.
Apart from that, I think the intention behind the noble Lords' Amendment No. 167 is very much the same as mine. However, with respect, I think that my amendment, as drafted, better accords with the terminology of the 1990 Act, into which Schedule 5 will be inserted as new Schedule 4. To take one small example, the amendment refers to
But the drafting points are small compared to my fundamental objection, which is that the noble Lords' amendment does not go far enough in restricting me. Amendment No. 166, standing in my name, meets the commitment made by my noble and learned friend Lord Falconer of Thoroton in Committee. I therefore beg to move the amendment.
I understand that if the House accepts my Amendment No. 166, the noble Lords will not be able to move their Amendment No. 167. But I hope, for the reasons I have given, that they will be able to support the amendment standing in my name.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I have to inform your Lordships that if Amendment No. 166 is agreed to, I cannot call Amendment No. 167.
Lord Kingsland: My Lords, the noble Lord, Lord Goodhart, and I would be foolish not to take full advantage of the noble and learned Lord's enlightened generosity. In those circumstances, we shall not be pressing our amendment.
On Question, amendment agreed to.
[Amendment No. 167 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 168 and 169:
On Question, amendments agreed to.
Lord Goodhart moved Amendment No. 170:
The noble Lord said: My Lords, in moving Amendment No. 170, I wish to speak also to Amendment No. 172. With these amendments we come to what I believe are the last controversial amendments on the Marshalled List. They are, nevertheless, amendments of very considerable importance. Therefore, despite the lateness of the hour, I feel that I should speak to them, I hope fairly briefly.
The background will be familiar and I can outline it very shortly. Schedule 4 to the Courts and Legal Services Act 1990 conferred three powers on the Lord Chancellor; first, the power to confer rights of audience and rights to conduct litigation on members of bodies other than the Bar Council or the Law Society; secondly, to veto proposed rule changes by the authorised bodies--that is, the Bar Council, the Law Society and other bodies authorised under the previous power--and, thirdly, to revoke designation as an authorised body of any body designated under the first power. However, the first and third of those powers could be exercised only by Order in Council adopted by the affirmative resolution procedure and, as matters now stand, all three powers can be exercised only with the agreement of each of the four designated judges who are the holders of the four senior judicial offices other than that of Lord Chancellor.
The Bill adds a fourth power, the power to impose rule changes on authorised bodies, and that also requires an order approved by the affirmative resolution procedure. However, the Bill also removes the power of veto of the designated judges, giving them no more than a power to advise. It is now generally accepted that giving each of the four designated judges an independent veto was a recipe for deadlock, but removing the veto altogether is another matter.
At the Committee stage amendments were moved to retain the judicial veto where at least three of the designated judges were opposed to the Lord Chancellor's proposals. Those amendments applied to all three of the powers that now exist under the 1990 Act and to the new one introduced by this Bill. The amendment is now being brought back in relation to only two of those powers; that is, Part III of the new schedule, which contains the power to order rule changes, and Part IV, which contains the power to revoke designation. I accept that the power to designate new authorised bodies raises constitutional issues of less importance and that the Lord Chancellor's veto over the rule changes means, at worst, that the rules remain unchanged. But issues do arise over the power to impose rule changes and over the power to revoke the status of a body as an authorised body.
On the power to impose rule changes, I accept gladly that Amendment No. 166, which has just been adopted by the House, constitutes a great improvement on the original draft. The unamended Bill gives power to the Lord Chancellor to alter the rules of conduct of an authorised body wherever he thinks it appropriate to do
Transferring control from primary to secondary legislation involves a substantial transfer of power from Parliament to the Executive. The noble and learned Lord the Lord Chancellor well knows that. Secondary legislation cannot be amended; it is debated briefly even in the case of the affirmative procedure and by convention is not rejected by your Lordships' House. The Courts and Legal Services Act created a right to alter rights of audience and rights to conduct legislation by secondary legislation. But, in doing so, it applied a double key system. The judiciary, through designated judges, retained a right to block secondary legislation--not primary legislation, of course--which affected its control over its own courts. It is that second key which is being removed by this Bill. I do not believe that that is right, either in the case of imposed rule changes or in the case of revocation of statute.
The power to say that members of a body are to remove rights of audience is indeed draconian. I accept that the rules of the Bar Council or the Law Society would require primary legislation, but, even so, if the Lord Chancellor proposed to remove, let us say, the rights of ILEX, and three of the four designated judges thought that those rights should be retained, I would strongly suggest that primary legislation was needed and should be required. I ask the Lord Chancellor to accept that there is an important constitutional point here and that, even after Amendment No. 166, a modified right of judicial veto should be retained for Parts III and IV of Schedule 5. I beg to move.
Page 68, line 36, at end insert--
("( ) The Lord Chancellor may not refuse the application unless he has received advice from the Consultative Panel.").
Page 68, leave out line 39 and insert ("If the Lord Chancellor has decided to refuse the application he shall also").
9.45 p.m.
Page 69, line 4, leave out from ("Chancellor") to ("he") in line 6 and insert ("considers--
(a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or
(b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right,").
"the Lord Chancellor would go further than the amendment [tabled by the noble Lord, Lord Kingsland]. He has already said that he will look further at how the call-in power may be restricted, not to rules and regulations related to rights of audience ... but to those which are "unreasonably" restrictive of rights of audience and rights to conduct litigation".--[Official Report, 28/1/99; col. 1212.]
He noted that this was a point raised by the Select Committee on Delegated Powers and Deregulation.
"(a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or
(b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right,".
As my noble and learned friend Lord Falconer emphasised in Committee on 28th January at col. 1213 of Hansard, provisions in the Courts and Legal Services Act 1990 restrict the definition of Rules of Conduct and Qualification regulations, for these purposes, to rules and regulations which relate to rights of audience or rights to conduct litigation.
"a requirement as to the education and training",
whereas the amendment standing in my name refers to "qualification regulations". The rest of the schedule makes reference to "qualification regulations", which are defined in the 1990 Act as regulations as to the education and training which the members of the body must receive in order to be entitled to any right of audience or right to conduct litigation granted by the body. I therefore think that the first reference in the schedule should be to the generic term.
Page 69, line 35, leave out ("may") and insert ("shall").
Page 69, line 44, leave out ("may") and insert ("shall").
Page 70, line 28, at end insert--
("( ) The Lord Chancellor shall not decide to make the alterations unless at least two of the designated judges have advised him that the alterations should be made.").
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