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9 Jan 2007 : Column 157

I cannot resist going back to the 288 references, because I went through them on the back of what the noble Lord, Lord Hunt of Wirral, said at Second Reading. There were so many of them. A whole range of other clauses—45 clauses have been added over time—are actually about the Secretary of State being the conduit back to Parliament, so although it feels like a huge number, I ask Committee Members who are concerned about it to recognise that it is quite often the best and most effective way of making sure that, for example, we have affirmative action by the Government. Indeed, the Delegated Powers and Regulatory Reform Committee refers in a number of cases to that. Although it feels like a huge number, Committee Members should recognise that the vast majority are positive because they are ways in which Parliament is able to hold the Government to account about what is happening.

My right honourable friend the Chancellor of the Exchequer has been very careful never actually to say that he expects to be Prime Minister. He has said that decisions will be made by whoever leads the Labour Party and is therefore Prime Minister. For my part, I will be perfectly delighted if he becomes Prime Minister, but he has never said it and I should make that clear.

The noble Lord, Lord Neill of Bladen, and other noble Lords made interesting points. I am grateful to the chairman of the Law Society and indeed the chairman of the Bar Council, who have discussed the international perspective with me. I will spend a weekend in Dresden with the Justice and Home Affairs Council meeting of Ministers under the presidency of the German Justice Minister, and I have already planned to talk to her about the position. I know that the German Bar has often been raised as an issue. I have also talked to the European Commissioner for Competition, Neelie Kroes, in my capacity as the representative of the DCA on European Union matters. She is very keen and interested in what we are doing on legal services and has a positive perspective about the opportunities that there could be.

I have not received any representations of any kind from international bodies, and I do not believe that there have been any to the department about what this might do, but I will do my own research by talking to colleagues in other countries. If I find any information, I will put it to your Lordships’ House as well as to my colleagues in the department.

The noble Lord, Lord Neill of Bladen, also mentioned the value of pre-legislative scrutiny. I agree completely. The importance of that may be the only thing I agree with him completely about.

My noble and learned friend’s remarks have been referred to two or three times. He was not referring to his own view of either the office or the office holder of Lord Chief Justice, which both he and I would hold in the highest esteem, both as an individual and as an office. He was referring to the perception that exists—of which I have heard. I am not saying for a second that it is correct, but there is a perception that the Lord Chief Justice is an eminent lawyer, of the profession and therefore part of it. The noble and

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learned Lord, Lord Lloyd of Berwick, talked about perception in the context of the Constitutional Reform Act 2005. Inevitably, if you are trying to deal with consumer confidence, you have to be alive to the issue of perception. It is not the prime reason why I do not accept the amendment, but it is important. My noble and learned friend was referring to that. He would be the first to argue the eminence of the noble and learned Lord, Lord Phillips, and the first at the barricades to support the role of the Lord Chief Justice, so I hope that his words will be taken in that context. I am positive that that is what he meant, having looked at Hansard. We should not forget that perception is important, and think about it in this context.

There are lots of issues relating to the debate about concurrence or consultation. I understand what the noble Lord, Lord Hunt, is saying and agree with the differences that my noble friend made between the two. The noble Lord argued that you could not actually appoint somebody if you were doing it in consultation with anybody else and they disagreed with you. But other organisations would feel strongly that they should also be consulted, not least perhaps some of the more eminent consumer organisations that have worked closely on this Bill and feel passionately about the importance of the issue, and there may be others. We are not saying under any circumstances that the Lord Chancellor would not consult people; we are saying that we do not want that specified in the Bill. If an amendment were proposed to make a change about consultation, I fear that the Government would reject that too. We do not think that it is right to have one individual as the only person who would be consulted. There would be opportunities—indeed necessities—when the Secretary of State concerned would be keen to consult people about the right appointment.

Lord Hunt of Wirral: I am disappointed to hear what the Minister has just said, as will be all the members of the Joint Committee. The noble and learned Lord the Lord Chancellor used “rightly”. It is all well and good to say that consumers may see the Lord Chief Justice,

but he said that they,

I do not see how any other interpretation can be drawn. The Minister said that, having read it all, she is sure that the noble and learned Lord the Lord Chancellor did not really mean what we say he meant, but he did say “rightly”. I hope that he will participate in our debates at some stage and take the opportunity to put the record straight. I also hope that the Minister is not closing the door as she appeared to indicate, but is prepared to reflect on the considerable body of opinion that has been expressed in this Committee. Many more could have participated but we have already had 45 minutes and that is long enough. I hope that she will still think about the points that have been made.

Baroness Ashton of Upholland: My noble and learned friend was indicating the views of consumer organisations and groups and not his particular views.

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I cannot do anything about the interpretation that the Committee chooses to put on the remarks, but they know my noble and learned friend well and it is known that he holds in high regard the importance of the office of the Lord Chief Justice and would not consider him in any way, shape or form as just another lawyer—far from it. However, it is clear that there is a perception that organisations do not differentiate, and why should they? Until I was involved in your Lordships' House I did not know the background, history and role of the Lord Chief Justice, so many organisations and individuals, equally, would not know and would see it as part of the same profession.

There is a concern in any form of regulation—we had this in discussions about the then Compensation Bill—that those who are looking to be part of this should be independent. It is the essence of the debate we are having.

I am closing the door on this amendment, which would not be acceptable to my noble and learned friend. As I have indicated, I am not closing the door on the question of independence and ensuring that there are ways that we can look carefully at that. I would not wish to suggest to your Lordships, were this amendment to be voted on this evening or returned to, that the Government could change their mind. I am sorry to disappoint all noble Lords on that basis—it is not my desire to. I am not closing the door to thinking carefully about the independence point, but I do not believe that we address it successfully via this amendment, not least because we believe that the rules by which we appoint people and the safeguards built into them work well. Noble Lords may disagree with that, but we as a Government believe they have worked well and—

Lord Wedderburn of Charlton: I—

Baroness Ashton of Upholland: May I finish my point? Also, there is a perception, wrong though it may be, about the Lord Chief Justice in that context. Putting those two things together leads me to the view that I could not accept the amendment.

Lord Wedderburn of Charlton: Can I just get clear what the noble Baroness is saying? For all the distance between us, I put the question as if I were her noble friend, as I still feel I am. This is important: is she saying that the Government will carefully think again about reinforcing the clear appearance of independence on the face of the Bill?

Baroness Ashton of Upholland: I will certainly consider how we might address any further concerns about independence. Whether that would be on the face of the Bill I could not commit to, not least because I am not the policy Minister. That would be for my colleague Bridget Prentice to consider carefully, and anyway it might not be necessary. I am not suggesting that noble Lords think it is not necessary, but there are a number of routes that one might go down. I am not going to say definitively one thing or another.



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I tried to be clear that I could not accept this amendment, but that I get the point about independence and will explore that, not least with noble Lords who have raised it with me.

Lord Maclennan of Rogart: I just want this clarified a little further. In saying that she does not intend to consider this amendment further, is the Minister setting her face against the concurrence point, or against the involvement of the Lord Chief Justice—which, after all, was a recommendation of the Clementi report, and was supposed to lie at the base of the Government’s Bill?

Baroness Ashton of Upholland: The Government’s position is that we set our face against the involvement of the Lord Chief Justice being on the face of the Bill. I think I said at Second Reading, and say again now categorically, that there may well be circumstances where the Secretary of State or Lord Chancellor would wish to consult the Lord Chief Justice and others. It may happen. That does not satisfy the noble Lord and I do not expect it to, but I am not—

Lord Neill of Bladen: Can the Minister clarify what she has just now said twice, about independence not being on the face of the Bill but somewhere else? The place where you would expect to find independence being protected, with this new framework being created, is in the Bill itself, so that readers could see it was there. Anything that is not in the Bill does not carry the will of Parliament.

Baroness Ashton of Upholland: Yes indeed, and the noble Lord’s position is absolutely clear. I was indicating that the principle that Members of the Committee are looking for is to ensure that we have fully considered the issue of independence and whether further steps could be taken. Noble Lords are clearly suggesting that they would not be satisfied unless those steps were on the face of the Bill. I take that away, and I listen with great care. I was not committing to the noble Lord, Lord Wedderburn, that there would be something on the face of the Bill that I might return to, because I simply do not know. I will not make a commitment that I cannot guarantee I could honour.

I understand the points being made. Noble Lords may decide that they want to vote at this juncture and do whatever is the will of the Committee. It is entirely up to your Lordships, of course. I will not commit further than that because I cannot. We are absolutely not willing to accept this amendment, or an amendment on consultation.

6.15 pm

Lord Kingsland: I had almost forgotten that I introduced this amendment, there having been so many eloquent speeches made on all sides in support of it. I am not going to attempt to sum them up; your Lordships have all spoken so perceptively about these issues that nothing further needs to be added. I will just draw out

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two matters which I think are particularly germane to the way the noble Baroness has responded on the issue of independence.

First, the noble and learned Lord, Lord Lloyd of Berwick, rightly reminded us that the Constitutional Reform Act 2005 was driven wholly by perceptions. The Government were at pains to emphasise that there was absolutely no evidence whatever that any judge had ever been suborned; and the only reason why the Appellate Committee was being physically removed from your Lordships’ House and renamed was because there might be a perception that it was not independent. It is a mystery to me why that should have been the over-riding consideration for the 2005 Act yet not a consideration at all when it comes to this Bill. As all your Lordships have emphasised, the perception of independence is almost as important as the fact of independence.

The second issue has already to some extent been rehearsed in the earlier amendments introduced by the noble Lord, Lord Thomas of Gresford—the link between the independence of the judiciary and that of the legal profession. For liberty to be entrenched in our society, it is vital that both are independent. You cannot have an independent judiciary if you do not have an independent profession. With great respect to the noble Baroness, this is the real flaw in her argument. In responding earlier to the noble Lord, Lord Maclennan of Rogart, when he advocated the Judicial Appointments Board as the appropriate model for selecting the Legal Services Board, she said, “We do not see it like that at all. This is a regulatory authority like any other regulatory authority”. I suppose she means the authorities that regulate gas or telecommunication. Yet it is because of the link between the independence of the judiciary and that of the profession that this approach by the Government is deeply flawed.

This is not a regulatory authority like any other. It goes to the heart of the liberties of this country and it cannot be treated like any other regulatory authority. The model of the Judicial Appointments Board, advocated by the noble Lord, Lord Maclennan of Rogart, is a much more appropriate model with which to approach appointments to the Legal Services Board than is, for example, the telecommunications regulator.

That, in my respectful submission, is the crucial point that I hope the noble Baroness will take away and reflect on between now and Report. She must know that there are strong feelings in the House about this issue. She will know that unless the Government play a different tune when this comes back, this House will vote and we will defeat her. She can be in no doubt about the strength of feeling on this issue. There will have to be movement on the Government’s side if we are to find some solution other than one of direct confrontation. We all regard this issue as absolutely central to producing a good Bill. I can see her nodding, but characteristically smiling at the same time. I do not think she is in any doubt about the direction in which we are all heading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 and 7 not moved.]



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The Deputy Chairman of Committees (Baroness Turner of Camden): I remind noble Lords that if Amendment No. 8 is agreed to, I cannot call Amendment No. 9 because of pre-emption.

Lord Kingsland moved Amendment No. 8:

The noble Lord said: Amendment No. 8 refers to a line in Volume II of the Bill, on page 112, where it refers to the powers of the Secretary of State to determine the size of the Legal Services Board. Paragraph 1(3) of Schedule 1 states:

On the face of it, this is a quite extraordinary provision, because it suggests that, by what I understand to be a negative order, the Secretary of State can expand or contract the size of the board. It must be perfectly clear to the Minister as to the scope that that might give to a Secretary of State for manipulating the size of the board and therefore producing decisions from the board that would be different from those produced by a board differently constituted. The Minister may have a benign explanation for this measure; I cannot anticipate what she is going to say. But if the power is unconstrained, as it appears to be, I suggest that it is wholly inappropriate. We would certainly, on Report, in the absence of any explanation or offer to constrain the power in some way, want to remove it from the Bill. I beg to move.

Lord Hunt of Wirral: I strongly support my noble friend. We were treated to a very helpful report from the Delegated Powers and Regulatory Reform Committee, which spent quite a bit of time going through the Bill. Indeed, I recommend to noble Lords that we should spend time going through the instances that the committee set out. The Minister started off by saying that the Government would bring forward amendments to meet the concerns and recommendations of that committee, including, presumably, on this amendment and power. It might well short-circuit a number of debates if the Minister could give us greater detail about how she proposes to amend the Bill in line with the committee’s recommendations. I recognise that she may not be able to do that immediately, but in the little while before the next day in Committee it would be helpful if she could give some indication of what she intends to do.

Baroness Ashton of Upholland: I thank the noble Lord for that opportunity. It will not surprise him to hear that I do not want to go into detail on everything now. The position that I hold is that we accept the recommendations on specific points that the Delegated Powers and Regulatory Reform Committee asked us to consider. There are a number of areas on which it has asked the Government and this Chamber to think further, and we will listen with interest to what is said on those matters.

I shall give what I hope is the benign explanation of these provisions. We set out in the framework of the Legal Services Board that it should have a lay majority,

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but we have also been very clear that, as there is regulation of different bodies, expertise and experience is needed on the board as well. In future, the Legal Services Board may take on two or three new areas of regulation that are not currently covered. I shall not speculate on what they might be; they may not exist, but they might. Indeed, there are amendments to the Bill that we shall come to later that suggest at least one area in which that might be the case in future. If that were to happen, the board might reasonably wish to add on someone with expertise in those professions, which would lead to the lay members becoming a minority. So the power is specifically to enable the Lord Chancellor or Secretary of State to come in and, by order, improve the numbers so that the lay members remain the majority. It is reasonable to ask whether, if that is the only circumstance, it should not simply be put in the Bill—but, as always, those are simply the circumstances that we can think of at the moment. I cannot think of any others, but there might be some.

The issue that the noble Lord, Lord Kingsland, raises is that the Lord Chancellor may be able to sneak something under the wire by negative procedure. One way in which to address his concerns would be for me to take the matter away to allow us to make it an affirmative rather than negative resolution. That would mean that, if the numbers were to be expanded, it would have to come through a debate in this Chamber and another place, so nothing could be done that would suggest that the Secretary of State was trying to increase the numbers for other reasons. The noble Lord also has the knowledge of my remarks, which are in Hansard, about the purposes to which the provision will be put. If there were other purposes, the Minister—whether it was me or another Minister—would have to explain in full detail to this Chamber and in another place precisely what was being done and why. I hope that that addresses the noble Lord’s concern. He may not wish to answer that directly now, but I put the offer on the table.

Lord Kingsland: I am grateful to the Minister. I am certainly not going to reject the offer of an affirmative resolution, which seems to me a step in the right direction. On the face of it, the explanation that she gave, if not falling wholly into the benign category, is certainly a plausible one. I hope that she will consider, between now and Report, trying to find an alternative form of words to those that appear in the Bill, which might reflect the purposes for which the provision was inserted in the first place, as she describes them. I still take the view that the measure is too widely cast; but she is now on record in Hansard as saying what she is saying. Perhaps, in the intervening time between now and Report, the Minister might consider the drafting of that sub-paragraph to see whether she could make it reflect more accurately the purpose that she set out in her speech. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30pm

Lord Thomas of Gresford moved Amendment No. 9:



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