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The guarantee of independence is part of the golden thread, as it has been called by others, of the British legal system. In this amendment, the noble Lord seeks to provide a little more strength to that golden thread.

Lord Slynn of Hadley: My Lords, there has been a tendency in recent years to say that judges must only judge and that they should do nothing outside the judicial function. We have heard that particularly from politicians and even from Ministers. We heard it when the Human Rights Act was proposed: “We must not have the Human Rights Act as part of British law because it will involve the judges in political decisions. Do not let the judges make statements about matters of public interest; they might verge on the political. Above all, do not have the Law Lords in the House of Lords; it muddies the somewhat obscure principle of the separation of powers”. The amendment does not muddy anything. On the contrary, it brings a very necessary element into the taking of decisions that would be covered in the provisions to which the amendment relates. I strongly support the amendment, because there is a special function to be performed here by a senior judge and in particular by the Lord Chief Justice. I very much hope that the amendment will be accepted.

Lord Whitty: My Lords, as anticipated by the noble Baroness, Lady Carnegy of Lour, I am strongly opposed to the amendment. Listening to most of these contributions, I feel that I live in an entirely different world from that of most of the people who have spoken today. I am particularly surprised at the noble Lord, Lord Neill of Bladen. We need to consider how this will look to the punters out there.

The noble Baroness has already declared my interest. I speak on behalf of consumers in one sense—in the strict sense that they are the clients of the legal profession—but also more widely on behalf of citizens who are concerned with the safeguard of the public interest, which was spoken about so much earlier this afternoon, when I say that this looks like a carve-up. It is subject to the concurrence—or the veto—of someone who people around the country see as the top lawyer. I know, and Members of this House know, that there is a difference between the judiciary and practising lawyers. Actually, practising lawyers appear before the courts; the courts are their arena. Many of them aspire to be members of the Bench,

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and many may aspire to be Lord Chief Justice. You cannot be Lord Chief Justice without being a lawyer. There is a difference in function, but there is not a difference in culture, and there is basically not a difference in interest.

This seems to me to be an occasion where the intuitive view of the general public would be very different from that which the noble Baroness was alluding to. It may be that judges are held in somewhat higher esteem in Edinburgh than they are in south London. Nevertheless, I do not think that this would be seen as anything but the lawyers attempting to pull back the regulation of their profession to their own. I see that the noble Lord, Lord Currie, is no longer here, but it is almost as if the chair of Ofcom were appointed subject to the concurrence of Rupert Murdoch, or the chair of the Competition Commission were appointed subject to the concurrence of the chair of Tesco. That is the public appearance. I am sorry, but legal services are, in that sense, no different from any other service to the public and to consumers.

I make this other point: that any appointment by a Secretary of State, whether it be the Lord Chancellor or anyone, is subject to the proceedings which the noble Lord, Lord Neill of Bladen, has greatly advanced, and they are transparent proceedings. They are understood in all these areas of regulation, but the idea that the chair of the regulatory authority should be subject to the concurrence of those who are being regulated seems to me to be a complete nonsense and undermines the intention of the Bill. The idea that the Bill alters the balance between the independence of the legal profession and the state is a complete misunderstanding of the intention, the content and the letter of the Bill. It attempts to change the balance of power between the legal profession and its clients, and we have been given enough examples during the Bill’s earlier stages of when that relationship has clearly broken down and where we need a regulatory authority that is truly independent of the profession. I do not think that this amendment would in any way advance that perception among the general public.

5.30 pm

Lord Campbell of Alloway: My Lords, the speech of the noble Lord, Lord Whitty, runs on to the rocks of logic. I understand what he is saying, but at one point he said, “It all depends on how the public look at it”. I think I am putting that fairly, but what would the public say about putting a professor of philosophy in charge of an organisation dealing with health, or vice versa? The noble Lord misjudges the public appreciation, and the public will not look at each profession or service in one way. They will be content with someone chosen as an expert—an acknowledged independent operator in that profession.

Baroness Butler-Sloss: My Lords, the noble Lord, Lord Whitty, clearly represents a considerable section of the punters. But others of us—and I, despite having been a judge, also meet the punters—do not entirely share his view of what the general perception of the amendment would be. We must remember that

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the Legal Services Board will be the linchpin—the absolutely essential part—of the whole Bill. Its chair will be the person who sets the tone. We have to remember that he is setting the tone for lawyers and that some input from the Lord Chief Justice, who is not just another lawyer, is essential. I respectfully endorse everything that the noble Lord, Lord Neill of Bladen, has said in moving the amendment.

Viscount Bledisloe: My Lords, I venture to take part in this debate because a large part of my practice for the past 25 years has taken place abroad—from practising in foreign countries and from receiving work from foreign countries. That, I am told, contributes something like £2 billion a year to our balance of payments—not personally, I am sorry to say.

One of the reasons why the English legal profession gets work from abroad is that we are seen to be independent. My main country of practice is one where the standard of lawyers is extremely high and there is no need to consult the English Bar—particularly me—for greater legal knowledge. But what that country values is that the English legal profession is totally free from government pressure, interference or influence. That is not true of most of the countries from which work comes to the English Bar. There is a very serious risk that that trade will be damaged if it is thought that the English legal profession has lost that independence from government. I am not saying that that will have happened, but we are talking about perceptions and, frankly, the clients that I am talking about are punters of considerable importance who fully understand what is going on. They do not think that the Lord Chief Justice is just another lawyer—they know well what he is; they have seen him; they have Lord Chief Justices themselves.

There is a great risk that that trade—for which I no longer receive much benefit, so I am not defending my own income—will very seriously be damaged unless it is made abundantly plain on the face of the Bill that this system of regulation is totally independent of government.

That is what I intended to say principally, but I cannot let pass the outrageous words of the noble Lord, Lord Whitty, without some comment. To suggest that the Lord Chief Justice is the same as a press tycoon is outrageous, unfair and totally inaccurate. After all, he is not the customer with whom the board will be dealing; he is an independent person who will receive the product of its work. It is in his interest to see that the board works well and produces good lawyers. It is not the judges who will receive the disbenefit of errors if the board gets it wrong. I really think, first, that the noble Lord, Lord Whitty, on reflection, should apologise and, secondly, that we should ignore his remarks.

Lord Whitty: My Lords, the House can ignore my remarks if it likes, but the point I was making was that the regulated should not appoint the regulator.

Baroness Butler-Sloss: My Lords, he is not the regulated.

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Lord Whitty: Well, my Lords, he is part of the legal structure of this country. As far as the vast majority of the people in this country are concerned, and if you went out into the street and asked 100 people, “Does the Lord Chief Justice represent the legal profession?”, that must be the answer. We are trying to establish a system of regulation that has the confidence of the people.

Noble Lords: Order!

Lord Carlile of Berriew: My Lords, if the noble Lord is making another speech, perhaps he should answer the question directly. How on earth can he say that the Lord Chief Justice is one of the regulated? Surely that is a remark born of crass ignorance, if I may respectfully say so.

Lord Whitty: My Lords, whether that was respectful or not, I am not entirely clear; compared with some noble Lords’ remarks, that no doubt is the case. I am trying to reflect here how this will be seen by the general public. I am not saying, in the words of the noble and learned Baroness, Lady Butler-Sloss, that there should be no influence brought to bear by the legal profession or by the Lord Chief Justice; I am saying that the appointment should not be subject to the veto that “with the concurrence of” actually means—that I am opposed to that.

Lord Campbell of Alloway: My Lords, this is contrary to the rules—well, not rules, but contrary to the Companion. This is Report and it is totally out of—I cannot say “out of order”, because we do not have order, but it is contrary to the Companion.

Lord Mackay of Clashfern: My Lords, since I have not spoken thus far, I am probably in order—even at Report stage. I do not practise in England and, therefore, can exclude myself completely from the battalions of those who will be regulated by the Legal Services Board. It is a mistake on the part of the noble Lord, Lord Whitty—and I understand perfectly why he said it—to say that the Lord Chief Justice is part of the regulated. He is not; the judiciary is not subject to the regulation of the Legal Services Board. The board, among others, will regulate the practices of those who have rights of audience in the courts, and the Lord Chief Justice is now, by virtue of the actions of this Government with the support of Parliament, the head of the judiciary. Therefore, the Legal Services Board will operate in an important way within the precincts of the courts by regulating those who have rights of audience there. Surely it is fundamental that those who have rights of audience in the courts should, in connection with the regulation, have an input from the head of the judiciary—the Lord Chief Justice.

When confronted with that point at Second Reading, the noble and learned Lord the Lord Chancellor said, in a phrase which I was astonished to hear, that the Lord Chief Justice is “rightly regarded” by consumers as just another lawyer. That does not say much for the Lord Chancellor’s input into the appointment of the Lord Chief Justice. The Lord Chief Justice is selected by Her Majesty the Queen

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on advice that she receives from Her Majesty’s Government, and under the new system there will be intermediate stages before that advice is given.

To suggest that the Lord Chief Justice is just another lawyer is to undermine the whole system of judicial determination. If our consumers have a dispute, ultimately they will have to go to the courts. The courts regulate the rights of consumers against those whose products they consume or whose services they take, and if their clients, the consumers, do not have confidence in the courts of law, our system will be in the gravest possible danger. I believe that the Lord Chief Justice enjoys in the community, not only because of his position but also because of the way in which he fulfils that position, a confidence which is unlikely to be shared by any Minister of the Crown.

It is perfectly proper that Ministers of the Crown should have responsibility for selecting and appointing those who take part in the Legal Services Board, which is a creation of Parliament with nominations by the Executive. But I believe it is right that, where the board has a function in relation to the rights of audience in the courts, of which the Lord Chief Justice is the head by the determination of Parliament, the Lord Chief Justice should have a say in who is to be ultimately responsible for managing the control system which is to be put in place. Therefore, I very strongly resent the idea that the Lord Chief Justice is “rightly regarded” as just another lawyer, compared by the noble Lord, Lord Whitty, with an official of Tesco, which I regard as a very high and important position, and also with Mr Rupert Murdoch, with whom I have not had much acquaintance. The Lord Chief Justice is well known.

The noble Lord, Lord Whitty, pointed out that my noble friend Lady Carnegy of Lour might be familiar with the situation in Edinburgh. I am reasonably familiar with the situation there but I also have a certain familiarity with the situation in this part of the world. In so far as we have a United Kingdom, it is important that the judiciary is regarded as having high status in all parts of that kingdom. I strongly support the amendment proposed by the noble Lord, Lord Neill of Bladen.

Baroness Howe of Idlicote: My Lords, I am probably better known as a supporter of the citizens and consumers out there than almost anything else. It was therefore with a somewhat divided mind that I initially approached this whole subject. However, I no longer believe that consumers and citizens will be offended by what is proposed in the amendment—far from it. I say that because of the changes that have already been made concerning the departments and the beginnings of doubt about the separation of powers between the Executive and the judiciary. It is crucial that in future they are seen as separate and independent, and surely, for the sake of confidence in the whole legal profession, it is not too much to ask for the Lord Chief Justice to have this minor but important role of concurring with an appointment. I am a huge admirer of Which?; indeed, I think that I sponsor one of its people who help your Lordships’ House. However, in this case, I am afraid that I take the opposite view.

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5.45 pm

Lord Brennan: My Lords, I declare an interest in that I was chairman of the Bar in 1999 during the passage of the Access to Justice Bill. That experience honed my capacity for objective thinking about my professional status in society and in its service. In the eight years that have passed since then, I suspect that this is the next major Bill to deal with the way that our legal services operate in this country. It is exceptionally important.

The noble Lords, Lord Neill of Bladen and Lord Carlile of Berriew, mentioned the importance of principle in relation to the way in which the Legal Services Board should operate and be seen to operate. To principle, I want to ally practice. Lawyers such as myself who travel abroad to work are often privileged to hear people saying, “How lucky you are in the legal system that you have with its independence, its integrity and its service of democratic value”. And we take it for granted. They do not. When I go abroad, people say, “How is it you get so much work in London from around the world?”. From a group of lawyers who probably number a couple of thousand at most comes £2 billion-plus a year in foreign earnings. That has gone up by 10 or 15 per cent over the past 10 years and is climbing. Adopting the pungent example of my noble friend Lord Whitty, do we seriously think that the financial punters in New York, Frankfurt and the other major legal cities in the world are not looking, as they always do, with the greatest care at the changes that we are making to our profession, waiting to seize, as they will, on any argument that will undermine our tradition of independence so that they can get the work? It is competition; it is the way the world works. That is practical.

The members of senior firms and senior barristers’ chambers who wrote to my noble and learned friend the Lord Chancellor and the Chancellor of the Exchequer about this issue were not oblivious to the needs of consumers. They were of the view—rightly, in my opinion—that this particular point had no adverse impact on the rights of consumers but, rather, that it sought to protect the foreign earnings made by the British legal profession. If you were in business out there, which we are reminded to think of, making £2 billion a year—a business where all the people in it perceived a serious risk—and you measured the risk with a perception of the vagueness that we have heard described, there would be no contest: trade would win every time. If it is to win, what will most accommodate maintaining our independence without in any way impinging on the objective of the Bill? The answer is to use the Lord Chief Justice. The House will forgive me if I remind your Lordships that only two years ago we passed the Constitutional Reform Act in which we legislated for the Lord Chief Justice of this country to be head of the judiciary, to be in charge of the administration of justice. It was called a concordat. He was given the right to report to Parliament—and is he just another lawyer? Please!

We are talking about the constitutional state of our country when we talk about the Lord Chief Justice. His role in this area is of limited effect, but it is to

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establish his concurrence that the chairman of the Legal Services Board is the kind of person who, in the opinion of the Lord Chief Justice, will meet the regulatory objectives. Under our constitutional concordat, the Lord Chief Justice is in charge of the good administration of justice. The amendment seeks no more than that. Is there anybody who would speak against it? I must confess to my noble friend Lord Whitty that the two organisations representing consumers to which I have spoken in the past few days have no particular interest in this point.

Has it been done elsewhere? Yes, in Scotland, where the Lord President has this function. It is not party politics; nor is it consumer rhetoric. It is an important trading aspect of our country with limited protection sought by using the person we regard as essential to our constitutional legal system. If it is not to be concurrence, why not consultation, as the Joint Committee suggested? I hope that the Government will give serious thought to that. Of course, they can limit consultation to the Lord Chief Justice because of his constitutional role. I would much prefer that to “concurrence”. My noble friend, with great charm and ability, has conducted the Bill so far most effectively. The only test I shall ask of her is that at this time she seeks a way towards consultation rather than concurrence; if we are told that it is not consultation, we are left with concurrence. I am sure that, on reflection, the Lord Chancellor either now or at Third Reading, will not risk £2 billion a year for some consumer perception.

Lord Woolf: My Lords, it is with some hesitation that I intervene at this stage of the debate on this amendment. In view of some of the things I have heard since I re-entered the Chamber, perhaps I should disclose an interest as a former Lord Chief Justice.

I apologise for not being here, but the reason may have some relevance. Tomorrow a new commercial court will be opened for Dubai’s financial centre. The chief justice of that court is Sir Anthony Evans, who is a distinguished judge and arbitrator, and a former member of the Court of Appeal. The court will apply the common law. It is being established in such a way because of the belief in the qualities of the legal system of which this country is the mother, and of the standards of judicial behaviour pertaining in this jurisdiction. I was about to engage in preparing a greeting to that court because I am now the president of a similar, sister court in the Gulf state of Qatar. Again, that court will apply common-law standards. I thought that it might be relevant to explain my absence; I was preparing that statement, which must go off tonight, as the arrangements for me to appear on video, as originally intended, have gone awry.

Even though I do not vote in this House because I also sit here as a judge, I want, if I may, to take the opportunity to make two more points. First—this should appeal to Ministers—I suggest that this amendment accords with the concordat that I was responsible for negotiating with the noble and learned Lord the Lord Chancellor to become a Minister of Justice. We saw the importance of a partnership between

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the role of the Lord Chancellor and the new role of the chief justice, particularly in relation to situations where it was important that it should appear that the roles of the Lord Chancellor and the Lord Chief Justice should be seen to be independent, but where they both had a legitimate interest to protect.

As to that legitimate interest in the present situation, the independence of our judiciary is dependent on the independence of our legal profession. We could not have an independent judiciary were it not for the independence of the legal profession from which our judges are selected. They become judges with that independence as part of their natural instinct. It is not something that they have to relearn when becoming a judge; it is the independence that they have practised throughout their professional life. It is so important that we take what steps we can to ensure that that independence survives and flourishes.

The board will be only one factor in the future of the legal profession that can have an impact on the independence to which I have just referred. Looking into the future, because of the constitutional changes that we have passed into law, we have to recognise that the role of the Lord Chancellor will evolve and change. We have to recognise that his involvement in the court system will be diminished not because of any wish on his part, but because of his other commitments. The very heavy responsibilities that he will have as Minister of Justice, with which no Lord Chancellor has ever been saddled, mean that he will not be so closely involved with the judiciary or with the legal profession, no matter what his personal inclination may be. He will be able to delegate to other Ministers many of his responsibilities. But a Lord Chief Justice does not and cannot do that to the same extent, if at all. The important matter to be borne in mind is that in requiring his concurrence, there will at least be a conversation of the sort that the concordat again and again envisaged between the Lord Chancellor and the Lord Chief Justice of the day, where one can be assured that the members of the board will be of the quality necessary to ensure the quality of the legal profession. I support the amendment, although, for the reasons I have given, I will not vote.

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