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Finally, the Minister has evaded to a considerable extent questions about why these personnel were not properly trained in the techniques of resisting interrogation. As a young officer in 1949, I was trained in such techniques, and the training was a bit rough at times. However, it is now clearly inadequate.

Lord Drayson: My Lords, I am afraid that I disagree with the noble Lord. The incident that took place in 2004 on the Shatt al-Arab waterway was quite different from this case. It occurred within the waterway and the circumstances were completely different. A review of the events in 2004 relating to the taking of boats was undertaken by the Ministry of Defence and its conclusions were implemented. We have to make sure that the conclusions reached by the review into this incident are similarly implemented. However, these operations were different in nature and cannot be compared with each other. The noble Lord shakes his head, but we shall have to disagree on that point. There is quite a difference between patrolling a waterway as in the operation in 2004 and carrying out lawful boarding operations to combat smuggling under a UN mandate in Iraqi territorial waters.

The noble Lord has much more experience than I on the history of training to resist interrogation and I bow to his knowledge. The point is well made. We have taken it on board and we have made changes. But until now it was not regarded as necessary.

Lord Corbett of Castle Vale: My Lords, is not one of the main lessons of this premeditated seizure of our personnel by the Iranians that firmness towards this rotten regime succeeds while floundering and appeasement fails to encourage the fundamentalists to come clean about their nuclear ambitions? Will the Government now match the firmness they demonstrated on this occasion by removing the ban on the Iranian resistance to signal our support for those who have had their freedom and human rights stolen from them?

Lord Drayson: My Lords, I agree with my noble friend that in this case firmness has succeeded, and I will consider his point relating to the wider application of such firmness.

Lord Inge: My Lords, first, I share with other noble Lords our thanks that the marines have been returned safe and sound, but some hard lessons have to be learnt from this which have been mentioned by a number of speakers. My anger is directed at two areas. The first is training and preparation, issues touched on by the noble Lord, Lord Tebbit. On military operations you plan for the worst case, but as far as I can see there was smugness, a lack of training and a lack of grip in the preparation of those sailors for the role they were undertaking. I find that quite amazing, given that they were next door to Iraq where we are deeply involved in operations. Secondly, my anger is directed at officials, both non-uniformed and military, in the advice they gave the Secretary of State. It is extraordinary that that advice was given. I have always had a great belief in the importance not only of the military but also of the Civil Service in these

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issues. The fact is that they gave what I thought was third-rate advice, and I cannot believe that some of the great permanent under-secretaries I have known in the Ministry of Defence would have allowed it to happen. It is a big issue.

I want the Secretary of State to remain in office, as I know do the Chiefs of Staff. My trade test for the Secretary of State would not be this, but to make sure that the services are funded in the way they need to be. If they are not, that is when he should resign.

Lord Drayson: My Lords, I take on board the comments of the noble and gallant Lord, given his experience. Equally, we have taken on board the points relating to training and preparation made by him and the noble Lord, Lord Tebbit. As I have said, action has been taken in this regard. However, I do not believe that we should criticise the 15 individuals who had to withstand a frankly awful experience and did so in a way that I really do believe is to their great credit.

With regard to the point that the noble and gallant Lord made about advice within the Ministry of Defence, we recognise, as my right honourable friend has said and as was described in the Statement, that a mistake was made, and we have moved to put that right. We need to learn the lessons from this experience to ensure that it does not happen again.

Lord Inge: My Lords, the Minister misunderstood me. I was not pointing my finger at the 15 sailors and marines, but at those who prepared them for those operations.

Lord Drayson: My Lords, I note the noble and gallant Lord’s point.

Legal Services Bill [HL]

5 pm

Consideration of amendments on Report resumed on Schedule 1.

Lord Neill of Bladen moved Amendment No. 7:

The noble Lord said: My Lords, I am not tongue-tied—I thought it better to allow a short period for Members of the House to withdraw. In moving the amendment, I make the normal declarations of interest I have made on previous occasions. I am a practising member of the Bar, in my time I served on the Bar Council and I was chairman of the Bar. I also served on the Joint Committee that looked at the Bill, and I owe it to that period of service that I have at any rate some sort of working knowledge of some of the main provisions of the Bill.

My amendment raises a key issue about the mode of appointment of the leading figures who will be operating under the Legal Services Act. We are talking today about probably the most important of the offices: the chairman of the Legal Services Board.

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I want to link back. It is fortuitous that the noble Lord, Lord Kingsland, should have mentioned that there are certain aspects of what we are debating that to my mind have no flavour at all of party politics. The issue we are talking about now is how the chairman of the Legal Services Board should be appointed, and whether it is sufficient that his appointment should be in the hands solely now of the Lord Chancellor. It would have been the Secretary of State, but now, as I read the amendments, it will be the Lord Chancellor who makes the appointment. As we know, however, the role of the Lord Chancellor has been transformed. The august office whose former holder is present today is now scarcely recognisable under the title of Lord Chancellor. These issues have nothing to do with party politics, but everything to do with trying to move forward on this new legal services territory—which, it is quite honest to admit, is experimental—and doing so on the basis of consensus so that you carry people with you. It is therefore important not to ignore perfectly valid points.

The basic submission I will be making with this amendment is that it is valid to argue that the top player on the scene—that is, the chairman of the Legal Services Board; I put him top—should get there by being appointed by the Lord Chancellor but with the concurrence of the senior judge, the Lord Chief Justice. Why is that important? It is really too obvious to state: because the legal profession must be brought on board and go along with what is happening.

One thing came out clearly in the evidence to the Joint Committee, and we referred to it in our report. The impression had been created by various provisions in the Bill—I will mention two in a moment—that in some way the legal profession of this country would lose its independence and be manipulated by party politics and by government. One ground for that perception was itemised in detail by the noble Lord, Lord Hunt of Wirral. On two occasions he drew attention to the number of places in the Bill where there is a reference to the Secretary of State—perhaps it is now the Lord Chancellor—being in a position to order this, that or the other thing to happen, or to give directions. There are numerous examples. The other place where it was picked up was the territory we are now in—that is, who appoints the key players? Is it simply done by the Lord Chancellor or should it be done with the full support of the legal profession, evidenced by the judgment and verdict of the Lord Chief Justice, as there can be no more suitable officer to do that?

Wading through the Bill to look at the provisions we are repealing shows many examples of appointments and like matters being done by a Minister but with the concurrence of the Lord Chief Justice. Sometimes more than one judge is mentioned; sometimes two or three office-holders are mentioned. The concept of acting with the concurrence of a high legal officer of the judiciary is very familiar.

I am happy to see that the amendment has the backing of others. To repeat a point that I touched on at Second Reading but certainly made in Committee, if the Government accept the amendment, it would be

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a major step in harmonising or bringing on board the good feeling of members of the legal profession who, in some quarters, feel isolated. How can one resist the proposal that the Lord Chief Justice should concur in such an important appointment?

The noble and learned Lord the Lord Chancellor said—I am sure that these are not words he is very proud of—something along the lines that consumers tend to think of the Lord Chief Justice as just another lawyer. Even if there were any empirical evidence to establish that, which I very much doubt, consumers come in all shapes and sizes—some will know perfectly well who the Lord Chief Justice is. They will know his reputation and if they do not know the man, they will know the office. The office of Lord Chief Justice has been there for centuries as one of the branches of the courts. There were two or three at one time but for the past 100 or 150 years, there has been one Lord Chief Justice. It is no answer to the argument to say that people regard the Lord Chief Justice as another lawyer. That is saying that to associate a lawyer with the appointment somehow contaminates it. What is the validity of saying that people will look on him as just another lawyer? So that is not an answer.

With the greatest respect to the noble Baroness, Lady Ashton, I think it is fair to say that although she displayed her usual courtesy and charm earlier, we got no further than her indicating that this was not on the agenda or the menu so she was not in a position to give any of the body language that we have had on other occasions with regard to this amendment.

On the terminology of the amendment, the Joint Committee’s report contained language such as “after consultation with the Lord Chief Justice”. On reflection, I am a party to that report, so I could be said to be departing from what we recommended. However, in the light of my experience in public law, where sometimes a perfunctory consultation has been held to amount to consultation, I came to think that it would be much better to use the old language that I found in the old precedents and talk about “the concurrence” of the Lord Chief Justice. You could also refer to “the approval” of the Lord Chief Justice. An amendment on removal to be debated later refers to approval.

Incidentally, it is obvious that the point that I am now making about the appointment of the high officers who will run the service will hold equally good for their removal. Amendments later today deal with that. I think that I have said enough to indicate why this is a desirable amendment and why the House ought to adopt it. I beg to move.

Baroness Carnegy of Lour: My Lords, perhaps an innocent bystander—a member of the public and consumer—might join in at this point. I see that the noble Lord, Lord Whitty, as chairman of the National Consumer Council, is here as a top consumer, sitting and listening to this debate. I rather thought that he was disagreeing with the noble Lord who moved the amendment. From listening to what people say about these things, I think that the public would trust a judge or lawyer far more than a Minister, politician or

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political Peer, which I suppose I am. The noble Lord’s point is a good one. It would give the public confidence. They would not think, “This is just another lawyer”. They do not think that judges are like that. When reading reports of cases and what judges have decided, the public very seldom criticise what the judge has done. They may criticise the lawyers, but not the judge.

The noble Lord has a good point and I rather hope that the head of all consumers—the noble Lord, Lord Whitty—will answer me on that point, because I do not think that what the public thinks is against this amendment.

Lord Borrie: My Lords, I should like to question the purposes of the amendment moved by the noble Lord, Lord Neill of Bladen. I agree that just because the Lord Chief Justice is a lawyer is no valid reason for not wanting his concurrence in the appointment of a person such as the chairman of the Legal Services Board—not at all. I raise more of a constitutional issue related to some of the constitutional changes to which the noble Lord, Lord Neill of Bladen, referred; namely, the change in the past couple of years whereby the Lord Chancellor no longer straddles the legislative, executive and judicial roles of government. That was an anomaly, but he did so to the delight of law students over the decades if not centuries. As a former teacher of law, I am one of those who regrets that that anomaly has disappeared.

One of the consequences of the disappearance is that the head of the judiciary is now the Lord Chief Justice. He or she is exclusively in the judicial arm of government and not involved with the Executive. In a short while, when the Supreme Court is set up, he or she will not be part of the legislature. I am one of those who regrets that he or she will not be part of this House because I remember Lord Chief Justices in the recent past, such as the late Lord Taylor, intervening in criminal justice Bills and so forth—intervening rarely but gently and persuasively on many matters. I regret that, but that has been the change. My constitutional point is simply that it is no longer appropriate in the present constitution, when the Lord Chief Justice is purely head of the judiciary and not part of the Executive or the legislature, that he should have and be given by a Bill such as this a role in appointments—albeit a concurrent role but none the less intended by the noble Lord, Lord Neill of Bladen, in his amendment to be an important role, not a minor one. I question the appropriateness of it in light of the changes recently made.

Lord Wedderburn of Charlton: My Lords, is the noble Lord aware of the fact that the Lord Chief Justice has many administrative tasks in running the whole system of the courts and as the head of the judiciary has plainly enormous space for confidence from the profession? Since the Lord Chancellor in future may not be a lawyer but a junior Minister who knows relatively little about the whole process, what is the objection to extending the administrative tasks of the Lord Chief Justice so that he is consulted in this matter? We do not have a written constitution that makes it forbidden; to say that it is unconstitutional is to make up some new rule. Surely the noble Lord

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would not want the whole process to be downgraded by not having the Lord Chief Justice consulted.

Lord Borrie: My Lords, I am not sure whether my noble friend, or former noble friend, is asking me a question or making his own speech. My own view is that, certainly, the Lord Chief Justice has many administrative duties in running the courts, but that is not a case for giving him the appointment role or concurrence in appointment role of the chairmanship of the Legal Services Board. My former noble friend Lord Wedderburn has not answered my main constitutional point.

5.15 pm

Lord Carlile of Berriew: My Lords, I start by making a declaration of interest, as I am a practising member of the Bar and head of a set of barristers’ chambers with more than 80 barristers in it. We on these Benches support the amendment moved by the noble Lord, Lord Neill of Bladen. He moved it with great clarity and I shall try to restrict my remarks to a relative minimum.

As the noble Lord said, the appointment of the chairman of the board is not merely an important appointment but the appointment of a person who will have great influence over standards exercised by advocates and in the courts. One needs only to look at the professional principles set out in Clause 1 to see the very great jurisdiction that the chairman of the board will have as he directs his board.

The clear message of the amendment is that those at the Bar, solicitors, possibly the judiciary—for whom I do not dare to speak—and certainly a large swathe of the public wish to be assured that the legal system in this country will remain independent of the Executive. I do not want to be seen as grudging or ungrateful for Amendment No. 6, which was conceded by the noble Baroness, Lady Ashton, but that amendment is meaningless in the current environment. I think that the concession was made before the announcement that there would be a Ministry of Justice, or certainly the Minister did not seem to know that there was going to be an announcement of such a ministry—and I see that she is assenting to that proposition. The effect of the amendment is actually nil when it comes to an assessment of the independence of the legal system.

We now know that the Lord Chancellor is likely to be an elected Member of the other place, a party appointee, an instrument of government and quite possibly from time to time someone with no knowledge whatever in any depth of the legal system. Any theory of the independence of the office of the Lord Chancellor, to which the noble Lord, Lord Borrie, alluded, is now gone for ever. The Lord Chancellor no longer sits astride the constitution in part as a Cabinet Minister and in part as an entirely independent person—the sort of role that was carried out so ably by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place this afternoon. How do we assure the profession, the public and the judges of that crucial independence of the legal system without something like this amendment, which seems to me to provide a simple answer?

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As we started this debate, I was reminded of my noble friend Lord Hooson, who in one of his most celebrated cases during an illustrious and distinguished career at the Bar, defended Ian Brady on charges of murder. A role of advocates is sometimes to do what is deeply unpopular with the public at large and to show a quintessential independence which is not motivated by being reasonably rewarded for the case, but rather by a tradition that somebody has to appear in that unpopular cause. If instructed, we do it because we have the confidence that, provided we act within professional ethics, we will be regarded at all times as independent.

Every young barrister who has made his or her first appearance in the Lord Chief Justice’s court in the Court of Appeal Criminal Division learns very quickly what that means—that if you step outside the line of proper preparation and presentation, and if you say too much or too little, you will be given a clear lesson by the Lord Chief Justices and their Lordships before whom you appear. There are one or two here before whom I have appeared, but in the fairly distant past, I am bound to confess.

The recent Sullivan case is a very good example of my next point. If a member of the Bar or other advocate goes to the Court of Appeal and criticises a member of the judiciary for discourtesy, bias or laziness—as happens from time to time—they know that, as long as they act within the professional standards set out in Clause 1, the Court of Appeal and the senior judiciary as a whole will uphold their right to represent the interests in the case independently.

From time to time barristers have to appear on behalf of Secretaries of State to defend indefensible decisions by Ministers. We should consider the huge number of cases that successive Home Secretaries have lost in the Administrative Court. I am not making a party-political point, because they are all as good or as bad as each other in this context. What we have is a profession that understands that if it behaves properly its independence will be protected. But who protects its independence? It is certainly not Ministers. If we ask independent advocates how much they feel that their independence is protected by Ministers, they will laugh because they know that that is not where their protection comes from. If we ask them whether their independence is protected by chairmen of non-governmental organisations, committees, the Bar Standards Board or any other independently appointed committee, they will guffaw because they know that is often far distant from what they do every day. The answer they will give in the end, when you press them, is, “We are protected by the judges. We may not like some of the judges before whom we appear. They may treat us roughly or they may treat us kindly, but at the end of the day they are the guarantors of our protection as advocates”. But we are not just talking about the advocates. When judges protect advocates, whom are they really protecting? They are protecting our lay clients—citizens who often constitute extremely unpopular causes, such as the examples I have given.

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To provide that assurance to the public, the amendment takes a small but important step. Our constitution is not written. The noble Lord, Lord Borrie, spoke, if I may say so, with respect, as though it was immutable. What the noble Lord, Lord Neill of Bladen, I and others seek to do today is to put into our mobile, changing constitution an important and surely rather uncontroversial piece of independence. Indeed, I suspect that the Minister agrees with the principle of everything that I have said so far. I suspect she is really concerned about the mechanics. If that is right, I urge her to put aside the mechanics and to recognise that absolutely no harm, and certainly a lot of perceptual good, could be done by this change.

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