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Viscount Dilhorne: My Lords, I support the amendment of the noble Lord, Lord Goodhart. I can be very brief in this matter. The procedures contained in the Bill to implement these powers are said to be simpler than those presently in existence, which are contained in the 1990 Act. That seems superficially attractive. But the facts are, first, as the noble Lord, Lord Goodhart, said, that they contain no requirement for the designated judges to approve an application before it can succeed. Secondly, in the case of any application to become an authorised body, the Lord Chancellor has only to consult with the Legal Services Consultative Panel and the Director General of Fair Trading. Again, there is no requirement that he must follow their advice or opinion. Thirdly, in the case of an application to amend an authorised body's regulations, the Lord Chancellor will
We then come to the question of the power to revoke a body's authorisation--all of this concerns designated judges, who are the subject of this amendment--which has never been used. Under the present system, the Lord Chancellor may revoke a body's authorisation but he is required to seek the advice of his present Advisory Committee on Legal Education and Conduct, which has the power, until this Bill is passed, on its own initiative to recommend revocation under the present regime. Each of the approved designated judges must approve any proposed revocation before an order can be made. The proposals before the House remove that requirement.
Advice of the DGFT and the LSCP will be required to be obtained by the Lord Chancellor. Any revocation of a body's authorisation will continue to be subject to parliamentary approval. However, the noble and learned Lord the Lord Chancellor proposes to bestow on himself a new power to amend the qualification regulations and rules of conduct of an authorised body if he considers it desirable to do so. He is required to consult the Legal Service Consultative Panel, the DGFT and the designated judges before doing so. And his order will be subject to parliamentary approval. Accordingly, by this proposal, and entirely on his own initiative, the Lord Chancellor will be able to change any rules or regulations of any authorised professional body.
In this vital constitutional area, no proper reason or justification has been given as to why the Lord Chancellor needs these additional powers over a self-regulating profession which has been guilty of no transgression. Neither of the two legal professional bodies opposes the granting of audience rights to properly qualified and experienced persons. No proper reason or sufficient justification has been given as to why the Lord Chancellor is dissatisfied with any of the present rules of conduct or rights of audience that are presently operating, or as to why he needs such a general open-ended power as he presently proposes.
It seems strange that the Lord Chancellor--and it contradicts what he said earlier in the day--who was recently so successful and such a longstanding and reputable practitioner (he still is a reputable practitioner) should be so dissatisfied with his former profession that he has not mentioned that dissatisfaction to the Bar and given its members a chance to respond positively to the concerns that he raises.
The indisputable fact, as it seems to me, concerning Amendments Nos. 170 and 172 is that this proposed legislation will empower the Lord Chancellor, should he so choose--he may not so choose, but the power is there to be exercised by subsequent Lord Chancellors who may so choose--to reject all the advice that he may receive and to impose rule changes on the authorised bodies. All that the Bill does is to give the noble and learned Lord an option only to consult the Legal Services Consultative Panel, the DGFT and the designated judges.
It therefore seems to be the case that, in the face of the formulation of a new code, or the calling in of the rules, or of a revocation of the authority to grant rights of audience, or the enforcement of changes on a professional body, the only restraint that could be imposed in Parliament would be by affirmative resolution, and then only in respect of certain rules.
These procedures breach hallowed fundamental constitutional principles which safeguard against the concentration of power in the executive. That safeguard has been in existence since time immemorial. It separates the functions of the judiciary on the one hand and Parliament and the Government on the other. The proposed measures will cause that distinction to become blurred and will centralise power in the hands of that high office, the Lord Chancellor's office, if they become law. The concentration of power will, although not immediately, at some time be abused and misused whichever party is in power. Such power should therefore not be given solely to the Executive to be wielded by the noble and learned Lord, who will in effect be acting as a Minister and a judge, causing the role of the existing judges to be reduced to that of formal consultees whose advice may be ignored according to the whim of the executive.
I urge my noble friends and noble Lords on the Government Benches, the Cross-Benches, and the Liberal Democrat Benches to support the amendment proposed by the noble Lord, Lord Goodhart. It is important and fundamental. I believe that most of the parties here wish to see the Government's desire to reform and streamline the present system achieved; but they wish it to be done without breaching constitutional principles. Accordingly, the noble Lord, Lord Goodhart, has proposed that the four judicial heads should act as a body and that the majority, with the Lord Chancellor, should prevail. I support the amendment.
We have debated before what role the designated judges--the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor--ought to play in the arrangements set out in the new Schedule 4 to the Courts and Legal Services Act 1990 which will be substituted by Schedule 5 to this Bill. Part I of the new Schedule 4 governs the approval of new bodies authorised to grant rights of audience or rights to conduct litigation to their members; Part II relates to the approval of alterations in the rules of authorised bodies; Part III relates to the exercise of the new power to order alterations in the rules of authorised bodies; and Part IV governs the revocation of the designation of authorised bodies in certain circumstances. The powers to authorise new bodies, to order alterations in the rules of authorised bodies and to revoke the designation of authorised bodies can only be exercised with the approval of both Houses of Parliament, given under the affirmative procedure.
At present, decisions under the 1990 Act are taken by the Lord Chancellor jointly with the designated judges, each of whom has a veto over every decision. That system is not now defended by anyone, as far as I am aware. The effect of these two amendments would be that decisions in relation to Parts III and IV of the schedule would be subject to the requirement that the Lord Chancellor could only act if at least two of the designated judges agreed with him; that is, three designated judges would have a veto.
As I have explained, the Lord Chancellor's decision in these cases is already subject to the requirement of parliamentary approval. I do not consider it necessary or appropriate that his decision should also be subject to approval by two of the designated judges. Parliament is sovereign and the Lord Chancellor is responsible to Parliament as a Minister. In my view, no issue concerning the separation of powers arises. I believe that it is appropriate that Parliament should have the final say about rights of audience in the Queen's courts.
This view is not mine alone; it is shared by the Lord Chief Justice and the Master of the Rolls, as they indicated at Second Reading. We weigh, as well as count, our supporters. The provisions in the Bill will still require the Lord Chancellor to take the advice of the designated judges in every case, and any Lord Chancellor would give great weight to that advice. I certainly shall. But the long and unsuccessful history of that cumbersome body ACLEC has persuaded me that radical change is essential. In the end, the buck must stop somewhere, and that somewhere is not with the judiciary but with the Lord Chancellor and, ultimately, with Parliament. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Lord Goodhart: My Lords, I am most grateful to the noble Viscount, Lord Dilhorne, for the support which he gave to our amendments. As the Lord Chancellor will not be surprised to hear, I am disappointed by his reply. I believe that there is an important constitutional issue here. I believe that the settlement reached in 1990 was correct in principle, even if not in detail, and that the double key procedure set up in 1990 was the price that was properly paid for giving the Lord Chancellor power to do by secondary legislation what up until then could be done only by primary legislation.
However, it is now late at night. The supporters of the opposition parties have gone to find more entertaining ways of spending their evening. I notice the Government's duty squad sitting on the Government Benches. In those circumstances, I have no intention of pressing this matter. I beg leave to withdraw the amendment.