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I shall say a final word to the Minister, if I may. I agree with the noble Lord, Lord Brennan, about her desire to meet the interests of those who have a point to make when promoting a Bill to the House. I echo what has been said about a desire to conciliate and mediate; that is highly desirable. The spirit with which the concordat was negotiated should be borne in mind by Ministers, including the noble and learned Lord the Lord Chancellor, when they come to make their decisions on the amendment.

6 pm

Lord Kingsland: My Lords, all of us who tabled the amendment are extremely fortunate that it was introduced by the noble Lord, Lord Neill of Bladen. He brings to what he said the enormous prestige of his career. He has been chairman of the Bar and chairman of the Senate of the Inns of Court, and he has had a towering practice at the Bar for many years, as well as great experience of public life in different

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roles. The mere fact that the amendment was introduced by the noble Lord ought to take us to at least a 75 per cent chance of victory, even before the Minister stands up and speaks.

When the Minister does stand up and speak in the next few minutes, I anticipate that she will say three things. She will underline the point, made by the noble and learned Lord the Lord Chancellor, that the Lord Chief Justice is a lawyer, although she may not make that point quite as strongly as she would have done had the noble Lord, Lord Whitty, not spoken in the intervening period. Nevertheless, given the fate of the noble and learned Lord the Lord Chancellor over the past few years, it may well be just a matter of time before there is no requirement for the Lord Chief Justice to be a lawyer, either. I hope that it will not come to that.

Two other points that I know the Minister will make deserve more weight in my reply. First, we already have the guarantee of the Nolan procedure to select the chairman of the Legal Services Board. The noble Baroness is right: the rules will apply. But the advertisement and terms of reference for the appointment are drafted solely by the Government. The chairman of the selection committee is almost invariably a senior civil servant. Although I have enormous respect for the Civil Service, particularly for its senior branch, that is an insufficient guarantee of the independence that your Lordships’ House seeks.

Secondly, the Minister will say that the Legal Services Board is a regulatory authority and that the chairman will be like the chairman of any other regulatory authority, such as that for electricity, gas or communications—Ofcom, for example. In those circumstances, the Secretary of State always has the last word on who gets the post, so why should it be any different for legal services?

The Minister will say that legal services are just like those other public services. That argument is totally misleading. The noble and learned Lord, Lord Woolf, the former Lord Chief Justice, put his finger on the essential reason why: the intimate link between the independence of the judiciary and that of the Bar and the solicitor’s profession. The link is particularly close because of our adversarial system. When a judge listens to counsel arguing in front of him, he takes it for granted that they are people of probity, that all the evidence relevant to the case will be brought before him by those lawyers and that nothing will be hidden. If one or other of those lawyers knows something that is adverse to his case, he will put that evidence before the court. If you do not have an independent legal profession appearing in front of the judiciary, the judiciary cannot take independent decisions, because it does not have independent and dispassionate evidence on which to base them. You cannot have an independent judiciary without an independent legal profession appearing in front of it.

Why, on the one hand, were the Government so obsessed with ensuring that the selection of judges be done wholly separately from the government mechanism by the Judicial Appointments Commission, with another commission to select that, yet in this case they endorse a selection that is done solely by somebody who everybody now accepts is likely to be, in future, a person without

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a legal qualification? The independence of the judiciary and the profession are intimately linked. The approach of the Judicial Appointments Commission, and the manner in which it is appointed, is the correct one for the appointment of the chairman of the Legal Services Board. I urge the Minister to be influenced by what she has heard tonight and to change her position on the amendment.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Kingsland, got one out of three right. I have absolutely no intention of treading anywhere near referring to the Lord Chief Justice as a lawyer and I was not going to say that this is like any other regulatory body, because it is not. The noble Lord was right that I will talk about the process. I see the Benches filling up, so I already sense my fate. I want noble Lords to have information about the procedure as it would be, however, so that they can make their decisions at least with that in mind.

First, I have had the privilege—as a non-lawyer, of course—of knowing two Lord Chief Justices: the noble and learned Lord, Lord Woolf, and the present incumbent, the noble and learned Lord, Lord Phillips of Worth Matravers. They have both given me the benefit of their great wisdom and it has been an enormous privilege to know them. They are also great fun, as noble Lords will know. However, there is something to be said for the fact that, until I became a Minister, I did not really understand the role of the Lord Chief Justice or where he sits in the hierarchy. I am not trying to take anything away from that, but we must recognise that not everybody automatically understands what his function is or can differentiate it in quite the way that noble Lords obviously can. I did not. I do not consider myself either unintelligent or incapable of understanding how the courts work, but I would not have been able to describe it properly.

I shall explore the themes of trust and independence. On trust, the noble Baroness, Lady Carnegy of Lour, quite reasonably said that perhaps the Lord Chief Justice and the senior judiciary would have greater standing than politicians. The noble Baroness is right. I was looking at some polling evidence on whom people trust, because I do that kind of thing. Politicians do not do very well. We do better than tabloid journalists and people like that, but we do not do anything like as well as the judiciary, which has gone up in people’s standing in the past 12 months. As a member of the Department for Constitutional Affairs, I am proud of that. It is important that the respect and admiration for our judiciary continue to be promoted, pushed and supported by the department. It is also incredibly important for our democracy and society. Trust is an important part of this. When we think about the trust in the system, it is important that we recognise what we are trying to do with this legislation.

Noble Lords are concerned about independence. Partly, their worries concern what might happen in the Ministry of Justice. When we were in Committee, I did not know that it was to be announced; I heard about it probably only several hours before your Lordships did. The idea has been in the air for as long as I can remember. On occasion, I joke that, because I work in

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the European Union, I do not often talk about the Department for Constitutional Affairs because nobody understands what it is. I tend to shorthand it to “Ministry of Justice” or something like that. For me, the changes will simply be a continuation of that. I do not yet know the detail of what the changes will mean, not least for my own role in your Lordships’ House, which I suspect will expand rather than contract in terms of the amount of work—I cannot wait. However, I understand that there is an important aspect about where eventually accountability for the Ministry of Justice may sit, whether in your Lordships’ House or in another place.

The responsibilities laid out for the Lord Chancellor remain. They are set out clearly in the Constitutional Reform Act. The fact that someone is not a lawyer, or indeed not a Lord, does not mean that they would not take those responsibilities seriously. I say that as a non-lawyer because I hope that noble Lords recognise that I take my responsibilities very seriously. In another place, there are people of extremely high calibre on all Benches who I think would be suitable. However, I am rooting for the current Lord Chancellor, as noble Lords would expect.

I take what the noble and learned Lord, Lord Woolf, said about the concordat. It does not form part of legislation; it is a separate document. He is right to refer to the spirit of the concordat. It is not in the Bill, but it is taken very seriously by my noble and learned friend the Lord Chancellor. In making the appointments, we have always made clear the need to consult different people, including, I am quite sure, the Lord Chief Justice, as part and parcel of what may happen.

The argument rests on what should be in the Bill and what we are trying to achieve. The critical issue raised in all the contributions—and they were very powerful—was to ensure that the process is independent. The Commissioner for Public Appointments, appointed by Her Majesty the Queen, is independent of government. We should be very proud of OCPA because it sets the standards for recruiting. It regulates the recruitment process for appointment to public bodies wherever Ministers are involved. I have witnessed and experienced that process and I know that it is very rigorous. There is no question of independence being relegated. Codes of practice have to be maintained. It is critical that there is equality of opportunity, probity, openness, transparency and proportionality. Those are essential elements in making sure that appointments are made properly and appropriately.

We believe that we have an independent process that is absolutely clear and has worked extremely well. We believe that it is recognised as being of an extremely high standard and that it will not affect the independence of the legal profession, or indeed of the judiciary. We believe that it will stand us in good stead. In no circumstances does it prevent the Lord Chancellor from talking to and consulting the Lord Chief Justice or, indeed, anybody else. Noble Lords will remember that the board will have a majority of lay people sitting on it. Initially, for the first appointment, it will have a lay chair. There may well be other people whom the Lord Chancellor would wish to consult in the

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process of appointments. Indeed, one of the arguments made—in Committee, we discussed whether to put this in the Bill—is that there are other bodies that noble Lords would be comfortable with the Lord Chancellor consulting, perhaps concurrently.

I have discussed this matter at great length with my noble and learned friend and with the Minister with policy responsibility. We have considered it carefully. I am aware of the strength of feeling in your Lordships’ House, but we believe that questions of trust and independence are satisfied by the process, which has held us in good stead for a series of key appointments that have already been made. I say that on the basis that I yield to no one in my respect for the Lord Chief Justice—both the present and the previous ones—and for the critical importance of the independence of the legal profession.

Lord Maclennan of Rogart: My Lords, before the Minister sits down, in underlining the independence of the Lord Chief Justice she has not produced a single argument against the amendment. She seems to be resting her case on the public perception of the independence of the means of appointment introduced by Nolan. I put it to her that the Nolan procedures are far less well known and far less well understood than is the independence of the highest member of our judiciary.

Baroness Ashton of Upholland: My Lords, I was not for one second suggesting that public perception was involved in this. I agree with the noble Lord, Lord Maclennan of Rogart, that if you asked 100 people in the street you would find that they would be able to tell you much more about the Lord Chief Justice and his independent role than about OCPA, because who has heard of OCPA unless they are involved in it? That is not the point that I am making. My point is that, when you are trying to set up a body, you look at the process that is most appropriate, bearing in mind the issues of independence, which I completely accept and agree with. Here we have a body that will have a majority of lay people on it, with a lay chair to begin with. It has a particular and important function, and we have in government a process that is well regarded for providing independent, high-quality appointments.

Alongside that, it is completely reasonable for my noble and learned friend the Lord Chancellor to decide that he wishes to consult various people. The noble Lord does not agree with me, which is absolutely fine, but I just want to make sure that he understands that I am not making the point that he thought I was making. The approach is completely reasonable and is in the spirit of the concordat. Noble Lords will disagree with me but it is important that I make the point clear. This is not, for me, so much about public perception. It is about the fact that we have a process that works and which we believe we should use. We think that that is the right way to proceed.

6.15 pm

Lord Wedderburn of Charlton: My Lords, I have a question for the Minister. I was about to say “my noble friend”, but in spirit I feel that I can still put the

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question in that form. I am sure that it would be of great importance to noble Lords, if their opinion is to be sought on this matter, to know whether—I do not ask for a commitment while the Minister is on her feet—it would be possible to consider such an amendment if it had not been framed in quite the terms that it was. In view of all the points that have been made about the independence of the Bar, with which I agree, and about other matters relating to the Lord Chief Justice’s special position in our constitution, might consideration be given at a later stage to the appointment being made after consultation with the Lord Chief Justice?

Baroness Ashton of Upholland: My Lords, the debate has been extremely interesting, passionate and important, but it is at the end of a process. I have been in discussion with a number of noble Lords for some time about this issue, so this debate is a conclusion in a sense. Noble Lords have to decide what they want to do. I cannot make any commitments at this stage. I will of course look later at what noble Lords have told me that they want me to do and we will no doubt continue our discussions thereafter.

Lord Neill of Bladen: My Lords, one thing that I learnt at the Bar was to keep your reply short, otherwise your case usually gets worse. I am almost embarrassed, and I am certainly humbled, by the cloud of witnesses who have appeared on my side. A former Law Lord, a former Lord Chancellor, a former Lord Chief Justice and many colleagues at the Bar have rallied to my cause. The noble Lord, Lord Whitty, was an exception to those speaking in my favour, but I think that he has received a magisterial answer from the noble and learned Lord, Lord Mackay of Clashfern, and it would be otiose for me to add a syllable to what he said.

The noble Lord, Lord Borrie, raises the interesting constitutional question of whether we would in some way tamper with the office of Lord Chief Justice if we were to pass the amendment. For my part, I do not think so. The Lord Chief Justice carries a huge administrative burden today. Lord Chief Justices have done likewise over the past 20 or 30 years, and it has killed some of them. I think that the speeches were so eloquent and that the expression of opinion was such that it is right for me to invite the House to divide on this issue.

6.18 pm

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 175; Not-Contents, 134.

Division No. 1


Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Brennan, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.

16 Apr 2007 : Column 58

Brookeborough, V.
Bruce-Lockhart, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Cathcart, E.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howard of Rising, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Laing of Dunphail, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Lucas, L.
Luce, L.
Luke, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maginnis of Drumglass, L.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Morris of Bolton, B.
Neill of Bladen, L. [Teller]
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Rowe-Beddoe, L.
St. John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Slynn of Hadley, L.
Smith of Clifton, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thatcher, B.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Trefgarne, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walpole, L.
Watson of Richmond, L.
Wedderburn of Charlton, L.

16 Apr 2007 : Column 59

Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Varley, L.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

16 Apr 2007 : Column 60

6.31 pm

Lord Hunt of Wirral moved Amendment No. 8:

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