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The noble Lord said: These amendments grouped together give the Minister the opportunity to address a central issue of our previous discussions—why the Secretary of State and not the Lord Chancellor. Amendments Nos. 9, 11 and 17 deal with appointments to the board by the Secretary of State. Amendments Nos. 20 to 23, 25 and 26 deal with the removal from office of members of the board by a Secretary of State. Amendments Nos. 27 to 30 deal with borrowing and accounting, and Amendment No. 36, in the name of the noble Lord, Lord Kingsland, primarily deals with reports to Parliament.

There are two possibilities why the term “Secretary of State” is introduced. The first is that the Lord Chancellor is now to be regarded as a title of an honorary kind and that his office within the Government is now to be known as Secretary of State for Constitutional Affairs, in which case we should cease thinking of the Lord Chancellor as anything other than a title with little power. The second explanation is that the Government envisage that control over the Legal Services Board should pass from the Secretary of State for Constitutional Affairs or the Lord Chancellor to another department of government. That is the point at which we all become particularly concerned.

The position of Lord Chancellor is at the apex of the legal profession. Anybody who has achieved that office is devoid of further ambition because there is nowhere higher to go. It is the absolute pinnacle. Consequently, a person holding the office of Lord Chancellor has been able to hold it without concern for his own personal future or the future of anything else. He fulfils the duties of that office. The office of Secretary of State, on the other hand, may—particularly if the Secretary of State is in the other place—be held by a person with departmental or non-departmental responsibilities. It may be held by an ambitious person, who wishes to make their way and is therefore anxious to please those in power within his or her particular party at a given time. The Secretary of State is a very nebulous concept.

We believe that appointing members of the board—and, in particular, removing them from office—should remain in the hands of the Lord Chancellor. We still wish to uphold that office, not as a title to be handed around within the Government as a bauble, but as representing a person who, as hitherto, has reached the very top and has no further ambition. The purpose of tabling these amendments is to enable the Government to give us a full explanation of the use of the expression “Secretary of State”. I look forward with interest to what the Minister will have to say. I beg to move.

Lord Kingsland: I have already, to some extent, spoken to the substance of this amendment, when I indicated the dangers of a Secretary of State, such as the Home Secretary or the Secretary of State for Trade and Industry, taking over responsibility for the Legal Services Board. It would be tempting in those circumstances for one or other of those Secretaries of State to rank other considerations higher than the rule of law. The Lord Chancellor, by contrast, would be

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obliged to place the rule of law at the head of his considerations in making decisions about the Legal Services Board. For that reason alone, I wholly support the amendments of the noble Lord, Lord Thomas of Gresford.

Lord Hunt of Wirral: So do I. I also strongly support the words of my noble friend. I know that we have debated this already and that reference has been made to the positions of the Lord Chancellor and the Secretary of State under this Bill. We are in something of a quandary, because when we have a Lord Chancellor, who is responsible for the operation of the legal system and is required, under his oath of office, to respect the rule of law, we have confidence that the occupant of that post will follow the example of his learned predecessors and maintain the independence of the legal profession and all the other values that we have talked about in today’s debates.

The transition from a Lord Chancellor to a Secretary of State is an uncomfortable one. This Bill refers only to a Secretary of State, who could be any of the Secretaries of State. We are filled with nervousness about the transitional period. That is why I am very grateful to the noble Lords for tabling this series of amendments and to my noble friend for his amendment—Amendment No. 36, I believe. Responsibilities could be transferred to a Minister whose other departmental responsibilities would cause him or her to give less weight to the importance of maintaining an independent, strong, diverse and effective legal profession. That is where we are all coming from. These are not great party-political issues—far from it. We are united in wanting to see reform of the legal profession that maintains all the very high standards that we have been so proud of. We want to continue being proud of the international standing of the legal profession of England and Wales.

As I understand it, responsibility for these issues currently rests with the Secretary of State for Constitutional Affairs, rather than with the noble and learned Lord the Lord Chancellor, as a result of a transfer of functions order, made shortly after that initial decision to abolish the post of Lord Chancellor, which was then reversed. At the time—and I am not criticising anybody in this House—the issues raised by that transfer of responsibility were not properly considered, either publicly or in Parliament. Ensuring that the functions rest with the Lord Chancellor would help significantly to demonstrate to sophisticated international audiences that the new structure for regulation of legal services does not open the legal profession to political control. That, in essence, is what we are talking about: political control from a government Minister. The fact that the Lord Chancellor is required, under his oath of office, to respect the rule of law, would reinforce that.

If the Bill were to be amended along the lines suggested, it would also be desirable to ensure that the position could not subsequently be changed by a transfer of functions order. This could be done by excluding the functions concerned from the permitted scope of orders under the Ministers of the Crown

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Act 1975, in much the same way as was done in respect of the Lord Chancellor’s functions relating to the judiciary in the Constitutional Reform Act. I very much hope that the Minister might reflect on that. I note that the Tribunals, Courts and Enforcement Bill refers only to the Lord Chancellor. It would be very helpful if the noble Baroness could explain why that Bill differs so fundamentally from this Bill, which refers to the Secretary of State.

Lord Lyell of Markyate: The noble Baroness has already very kindly said that she will explain the difference between the use of “Secretary of State” and “Lord Chancellor”; I very much look forward to what she has to say on that subject. When the noble and learned Lords, Lord Irvine of Lairg and Lord Mackay of Clashfern, were Lord Chancellor—and, indeed, for the whole of my legal and parliamentary life—it was absolutely axiomatic that if the Government or a member of the Government sought to stray from the law, which sometimes happens, it would be made clear that, if the matter were not immediately corrected, the Lord Chancellor and the law officers would resign. There would be a constitutional crisis of massive proportions. I would like to think that that still applies. I shall listen very carefully to what the noble Baroness says in her explanation.

Baroness Ashton of Upholland: I have listened with great interest not only to the comments that have been made in the debate on this amendment, but those made in our wide-ranging discussion on questions of independence. Although I do not accept, as noble Lords would expect, that other Secretaries of State would not carry out their role fully, I understand completely what noble Lords are saying about the role of the noble and learned Lord the Lord Chancellor. When the Constitutional Reform Act was completed—noble Lords will remember the concordat in that—certain elements were classified. The noble Lord, Lord Hunt of Wirral, referred to the example of the transfer of functions order, which sat in the remit of the two positions embodied in a single person. The legal professions rested with the Secretary of State. That is a very simple explanation of why it ended up there.

I have listened with great care, and I have said in all these debates that I am keen that we reflect as a Government on the issues where noble Lords are rightly and reasonably saying, “We hear what you say, we do not necessarily agree with you, but we think that you need to think about independence”. I know that a number of noble Lords, including the noble Viscount, Lord Bledisloe, who is not in his place, and the noble Lord, Lord Kingsland, referred to the fact that my case is weaker because I do not look at this amendment properly and fully. Noble Lords will notice that I am not speaking from notes. Therefore, I am going to accept the amendment. We will have to make consequential amendments to the Bill because I do not think, with the best will in the world, that noble Lords have captured all the references. I am prepared to accept the amendment, but I am not prepared to go as far as the noble Lord, Lord Hunt of Wirral, is asking me to at this point, which is to put something in the Bill that says that you cannot

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transfer functions. I know, because I have checked, that we do not need another transfer of functions order if I accept the amendment, which goes a long way to doing that. If I accept the amendment, we do not need to do anything else. I hope that noble Lords will recognise the good will in that acceptance towards what they seek to achieve.

Lord Lyell of Markyate: The noble Baroness was going to explain the difference between the Lord Chancellor and the Secretary of State. I was listening very carefully, and if that was the only explanation, I was hoping there might have been some more.

Baroness Ashton of Upholland: The explanation that I gave was that, in the concordats with the Constitutional Reform Act, decisions were made about how the different functions would be divided, and that was the way the functions were divided. I am sorry if the noble and learned Lord wanted more, but there is no more. That is it.

On Question, amendment agreed to.

[Amendment No. 10 not moved.]

Lord Thomas of Gresford moved Amendment No. 11:

On Question, amendment agreed to.

[Amendments Nos. 12 and 13 not moved.]

Lord Lofthouse of Pontefract had given notice of his intention to move Amendment No. 13A:

The noble Lord said: It has not been my habit, in the 10 years that I have been in this place, to attend legal debates. I have been attracted to do so arising out of the activities of some—I repeat “some”—members of the legal profession who, I believe, have been cheating mine workers. I will not go any further down that lane; my feelings are well documented in debates in this House. Since I have been coming to these debates, I have enjoyed some of them, and I have been bored some of the time. I acknowledge the skills of the senior lawyers and the rest of the lawyer fraternity in this House. Since I have been attending these debates, I feel better informed.

As the Committee is aware, the Bill states that only the first chair of the LSB will be a non-lawyer. To demonstrate its independence from the profession, and to give confidence to consumers, the non-lawyer criterion should also apply to all future chairs. For the life of me, I cannot understand why the first chair should be a lawyer. What is the reason? My amendment is to leave out “first”. I am being looked at from down there; I do not know whether I am confusing someone.

Baroness Ashton of Upholland: I beg my noble friend’s pardon, but I thought he asked why the first chairman should be a lawyer. Maybe I misheard him. He is saying the opposite, which is that the first should be and the rest should be.



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6.45 pm

Lord Lofthouse of Pontefract: I am saying that he should not be a lawyer. I am not saying that because I have fallen out with some members of the profession in recent times. I really believe that to give confidence to all concerned, it would be better to have a non-lawyer in this position. I cannot understand why the first chairman is to be a lawyer. Stop me if I am wrong. Is it possible that in fact the first chairman could be a lawyer?

Baroness Ashton of Upholland: I need to clarify this so I am clear that it is not me who is getting this wrong. The Bill says that the first one is not a lawyer. Noble Lords will agree with me on that. The first chairman should positively be a non-lawyer. Subsequently, we leave it open for the normal rules to apply, because there may be someone with appropriate experience who happens to have been qualified as a lawyer and who we would wish to see appointed, and we do not want to rule that out for ever. The first appointment of the chairman has to be a non-lawyer.

Lord Lofthouse of Pontefract: I thank the Minister very much for that assurance.

[Amendment No. 13A not moved.]

Lord Kingsland moved Amendment No. 14:

The noble Lord said: Amendment No. 14 concerns the definition of a “lay person”. Paragraph 2(4) of Schedule 1 contains the definition of a lay person, which prohibits, in all circumstances, anyone who has been,

In other words, it prohibits anyone qualifying as a lay person who at any stage of their career has been a professionally qualified lawyer. In our submission, this prohibition is too severe. I am sure that the noble Baroness can think of a number of examples, as I can, of individuals who, at a very early stage of their lives, qualified as a solicitor or a barrister, and might or might not have practised for a few years, and then went on to do something entirely different, perhaps for as many as 20 years. It seems to me to be unnecessarily limiting the field for selection to exclude people of that sort. Indeed, one might well argue that they were particularly well qualified because they had knowledge of the profession and yet had sufficiently wide experience outside it to put their knowledge in perspective.

In sum, we believe that the definition in the schedule is too absolutist and that the Government should qualify it in the way that we have set out in the amendment, or find some other way of including that class of people who have had an early experience of the profession and who have moved on to other activities which would otherwise qualify them as lay people, had it not been for the fact that they became professionally qualified and briefly practised early in their career. I beg to move.

Lord Maclennan of Rogart: I support this amendment. I have to confess that I feel a very subjective involvement

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in its terms since it is at least 10 years since I practised law myself and I have certainly forgotten more law than I ever learnt. But I think that there are still quite a number of people who obtain legal qualifications, practise briefly and go into other lines of business or other professions whom the Government would have no reason to wish to exclude from serving in the way that this Bill provides. It might even be considered an oversight to have been so restrictive in this respect.

Lord Swinfen: I hesitate to intervene in this debate. I do so only because I was rather disappointed that the noble Lord, Lord Lofthouse, failed to move the last amendment. Perhaps the Minister can help me. If the first chairman is to be a lay person, but not any subsequent chairman, could not subsequent chairmen bring with them the baggage of the legal profession and use their position as chairman to lay down the basis for an improved legal career thereafter and therefore rather misuse their post? It is just a point that occurred to me and I think that the noble Lord, Lord Lofthouse, may well have been right in the amendment that he did not move.

Lord Lyell of Markyate: I see this really as a probing amendment, giving the Minister an opportunity for reflection. I can see the good sense of the first chairman not being a lawyer in practical terms and I am sure the word “perception” may emanate from the Ministerial Bench at some point in the reply. But if I had done more homework, I think I could have produced a rather surprising number of people of enormous independence who just happen 35 years before to have qualified as a solicitor or something of that nature, or possibly to have passed the Bar exams and done a pupilage but nothing more, who would be excluded. All I would commend to the Minister is that she might, with the assistance of her department, go away and think about it and see if a sufficiently clear form of words could be found which did not exclude quite a lot of the field.

Baroness Ashton of Upholland: I am grateful for the contribution of the noble and learned Lord, Lord Lyell, on this issue. Indeed, when this amendment was tabled we all started to think about eminent people we know who begin their careers in the law and then become experts, advocates or campaigners in a whole range of things, leading on from their early legal career.

I think noble Lords know what we are trying to do here. It is very important for there to be a huge statement of confidence in the first chairman bringing in the transition, and we think it right that that should be a lay person. We have said subsequently that that should not be a criterion that is overarching. A number of criteria will be considered. I do not really think I have to say to the noble Lord that someone who is quite clearly coming in to enhance their own career would be spotted through the process along the way. Lots of discussion goes on about the people who put their names forward, so I am less worried about someone doing that than he perhaps is. I am not sure about 10 years, either. I think 10 years is quite recent, particularly in your Lordships’ world. But I do take

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the point about people briefly practising 25 or 30 years ago and then moving on as not being a suggestion that they are linked to the profession. I am very nervous about linking anybody to the profession in that way.

What I would like to do is take this away. I have had one brief discussion with my noble and learned friend about this today. We wanted to do two things: have a think about what we might do, and talk to the consumer groups that feel very strongly about this to explain our thinking so that we keep that balance right. I will come back with a suggestion perhaps for the next stage. But the point that is being made is that somebody who a very long time ago qualified and practised briefly in law and is the eminent person may be debarred. I had rather hoped that this would be in secondary legislation. This is a classic case of where being able to amend something because you have moved on would be better, but it is in primary legislation so we need to think about how we make sure we do not exclude eminent people of the future. I take the point.

Lord Kingsland: I am most grateful to the noble Baroness. I think she has said enough to give me hope that on Report she will come up with either an amendment or at least a proposal which will meet the concerns that have been expressed. It must make sense to make provision for this category of people, as the noble and learned Lord, Lord Lyell, said. He can think of a number of people who fall into this category and it would be quite wrong to exclude them from being appointed to the board. I think the noble Baroness has got the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Lord Thomas of Gresford moved Amendment No. 17:

On Question, amendment agreed to.

[Amendment No. 18 not moved.]

Lord Hunt of Wirral moved Amendment No. 19:

The noble Lord said: This amendment stands in my name and that of my noble friend Lord Kingsland. Its purpose is to insert in paragraph 3 of Schedule 1, dealing with the Legal Services Board, that, in appointing persons to be ordinary members, the Secretary of State must,

then the clause continues—


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