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Session 2006 - 07 Publications on the internet General Committee Debates Legal Services Bill [Lords] |
Legal Services Bill [Lords] |
The Committee consisted of the following Members:Hannah
Weston, John Benger, Committee
Clerks
†
attended the Committee
Public Bill CommitteeTuesday 12 June 2007(Afternoon)[Frank Cook in the Chair]Legal Services Bill [Lords]Schedule 1The
Legal Services
Board
Amendment
proposed [this day]: No. 30, in
schedule 1, page 121, line 6, leave
out ‘with the concurrence of the Lord Chief
Justice’.—[Bridget
Prentice.]
4
pm
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we are
taking Government amendments Nos. 31 to
39.
Mr.
Jonathan Djanogly (Huntingdon) (Con): The Government
argued that, by allowing the Lord Chancellor to appoint the Legal
Services Board alone, he would in some way be able to better protect
British consumers. However, that is merely speculative. The Lord Chief
Justice is no less able than the Lord Chancellor to give effect to the
intended statutory regulatory objective to protect the interests of
consumers. Indeed, give the standing of politicians in the public eye
at the moment, it is arguable that the Lord Chief Justice will be seen
as more important and a greater friend to the consumer than the Lord
Chancellor. By the way, contrary to what the Minister said earlier, the
Joint Committee’s Second Reading briefing, which called for the
Legal Services Board to be appointed by an independent
commission—as judicial appointments are made, for
example—rather than by the Secretary of State, also specifically
said that all appointments should be made at arm’s length from
Government. The Lord Chief Justice has a great interest in safeguarding
the independence of the profession, which exists to serve the justice
system that he is in charge
of.
We need to rethink
the appointments provisions generally. There are key three issues.
First, the legal services ombudsman and the Law Society Consumer
Complaints Board have limited scope for action, compared with the Legal
Services Board, because they do not deal with the mainstream
regulation, only with complaints. Secondly, as the hon. Member for
North Southwark and Bermondsey rightly said, the Lord Chancellor now
has a different role from the one he used to have. He is not the head
of the judiciary now and could be a much more political figure in the
House of Commons. Thirdly, this is a modernising Bill, which we
welcome. Just because Nolan worked 10 years ago in its current form,
that is no reason why we should not rethink it now in today’s
circumstances and in relation to the Bill.
Transparency
and impartiality are essential attributes of any public appointments
system, especially if it is to retain the confidence and respect of the
general public. The Legal Services Board does not pass this test if the
Lord Chancellor alone is to have sole power to appoint and terminate
it. If agreed to, the amendments could fatally undermine the LSB from
its inception. That is the view of the legal profession, the Law
Society, the Bar Council, other regulators, the Conservatives, the
Liberal Democrats and Cross-Bench peers who amended the Bill in the
House of Lords. This is also the view of certain foreign legal
regulators. The Minister and her colleagues should now open their eyes
to the evidence and ask leave to withdraw their
amendments.
Mr.
David Burrowes (Enfield, Southgate) (Con): I declare an
interest as a practising solicitor and a member of the Law Society. The
concern is, as my hon. Friend has said, not just about independence,
but about the perception of independence. There is concern that we
ensure that there is a balanced debate. It is all very well for the
Minister to talk about the consumer time and again, but she will note,
as I will mention shortly, that the regulatory objectives are not just
about the consumer. That objective must be properly balanced with other
objectives. It is important that we do not seek to make one compete
against the other at this early stage, before the regulatory objectives
have been properly implemented and worked through. Putting one
regulatory objective above another is not a good example for the
supervisory body or any other regulatory authority to follow, because
we have not succeeded in any amendment with regard to the hierarchy of
those objectives.
There has been a wealth of
evidence on the issue. To return to the Joint Committee evidence that
my hon. Friend the Member for Huntingdon prayed in aid and draw out
some of its conclusions, a number of professional bodies, such as the
Chartered Institute of Patent Attorneys, the Institute of Trade Mark
Attorneys and others, were four square behind the need for proper
independence, saying:
“the
Chair should therefore be wholly independent of the Executive to avoid
any perception of bias or influence and to ensure maximum confidence in
the regulatory system from consumers
and”
approved regulators.
Although any debate should focus on the need to bolster independence,
it should work in tandem on the importance of confidence for the
consumers.
Then there
were the consumers groups that gave evidence. I take issue with the
hon. Member for Bassetlaw saying that the Joint Committee was a
lawyers’ love-in, as such. It involved—and in a very
short period—a wealth of evidence from a range of consumer
bodies and individuals. It is to the Joint Committee’s credit
that it did such hard work and managed to get a balanced flavour of the
debate.
One of those
loud voices was the National Consumer Council, which said in oral
evidence that although it was
“fully in the consumer interest
that the professions are independent of the state...So long as we
have an open appointment process that ensures we have the right people
for the job, that is what really matters here.”
That is what matters to
consumers—getting the right people in the right job. In many
ways, the Minister overstates consumers’ concerns about the
current position in the Bill, whereby the appointment takes place with
the concurrence of the Lord Chief Justice. I would suggest that
consumers’ great concern is not so much about the formality of
the concurrence of the Lord Chief Justice, as about the fact that the
appointment, applied through the Nolan process, delivers a candidate
who is there by merit and is the right person in the right job. That is
what matters to
consumers.
Mr.
Adrian Bailey (West Bromwich, West) (Lab/Co-op): I have
heard the consumer perspective being prayed in aid of the Lord Chief
Justice having the veto on the chair of the Legal Services Board, but
in all my experience the public perception of the legal fraternity is
that it is a closed shop. The breakdown in confidence is to do with the
profession’s self-regulatory nature, as perceived by the public.
Indeed, members of public have come to me asking for Government
interference, in order that the legal fraternity does not regulate
itself. That totally contradicts the argument that both the hon.
Gentleman and the hon. Member for Huntingdon, the lead member of his
party, have made. I do not believe that there is a great concern among
the public about the interference of the Government. The concern is
about the self-regulatory nature of the
organisation.
Mr.
Burrowes:
As I said, the evidence that I heard in the
Joint Committee from the consumers’ voices was that the concern
was about the right person getting the job. The concern was not about
any move towards a concurrent process involving the Lord Chief
Justice.
Although
consumers, as well as clients whom I represent and others, are
concerned about regulation and about those lawyers who are bad and who
need to be properly brought, the primary day-to-day concern when
someone instructs a lawyer is that that lawyer should be independent
from the state. That is of primary importance. If that confidence is
knocked or broken, that will fundamentally affect not only individual
consumers’ confidence but, more widely, confidence in the system
and, even more widely, confidence in the rule of law.
I want to be as balanced as I
can about the different interests and evidence. During an intervention
on Second Reading, someone said, “Hey, you’ve got the
legal services ombudsman, what’s wrong with that?” As the
ombudsman herself said, “I am independent, impartial and very
clear. I do not work for the Government, I report through the Secretary
of State to Parliament. What’s wrong with the process of
appointing the legal services ombudsman?”
The important context, which we
are dealing with, is missing. We are dealing not just with any old
regulation or appointment, but with a supervisory role that is unique
to this country’s system, and with the unique regulation of
lawyers. Some would say that they are unique because they need robust
regulation; others in a balanced way would say that lawyers—love
them or loathe them—have a unique nature and a unique role in
society. I should like to draw those matters out.
The
Government’s rebuttal in evidence, in today’s sitting and
in the Joint Committee was that it is the
consumer interest that matters, and that the consumer interest is that
the Lord Chief Justice should not have a concurrent role. My concern is
that that rebuttal is not consistent with the regulatory objectives
that the Government sign up to. The objectives represent a balanced
approach in which consumer interest is accounted for in a
non-hierarchical way, the public interest is protected and promoted,
and the constitutional principle of the rule of law is
supported.
I have not
heard the Minister extol that principle or say that an appointment
process in concurrence with the Lord Chief Justice would in any way
undermine the constitutional principle of the rule of law. She would
not, because she knows very well that the concurrence of the Lord Chief
Justice would properly bolster and affirm those principles, which
include
“improving access
to justice;...promoting the interests of
consumers;...encouraging an independent, strong, diverse and
effective legal profession; increasing public understanding of the
citizen’s legal rights and duties;...maintaining adherence
to the professional
principles.”
They are all
balancing objectives, and any support of the Government amendment to
remove the concurrence of the Lord Chief Justice must be properly
justified. One cannot just say, generically, “It is not in the
consumer interest”; one must also justify why one does not
support the other regulatory objectives.
The Minister’s argument
for abolishing the Lord Chief Justice’s involvement in any
formal process is the pick-and-choose approach that we were concerned
about in our opening remarks. Our concern is about the way in which we
would deal with the regulatory objectives if the Bill did not ensure
that one interest or objective was not put above another.
The
Minister’s other rebuttal to the concurrence of the Lord Chief
Justice is that with the Commissioner for Public Appointments, there is
an already established process for appointing in the manner that is
being put forward. The argument is that it happens anyway, so why
should lawyers be a special case? Medics are a special case, however,
and the legal profession has a unique role and it should be dealt with
in a unique way. Its regulation is not similar to any other regulation.
The Government might say that the Financial Services Authority is
unique, but their argument would fail to recognise the special position
of legal services regulation. It should not have privileges as such,
but there should be proper regard for its role in society.
It is important for good public
administration that appointments to bodies such as the FSA are made on
merit, but it is not a matter of constitutional significance. One would
not find in any regulatory Bill about the FSA regulatory objectives
that also involve supporting the constitutional principle of the rule
of law. They would not be in there. That is why we need to deal with
the supervisory regulation of lawyers in a unique
way.
Let us examine the
FSA further. There is no constitutional reason why the Government
should not regulate financial services directly should they wish to do
so. However, the position of legal services is different. It is a
fundamental constitutional principle that the legal profession should
be independent of Government. That can be properly secured only if the
bodies that regulate it are themselves independent of
Government.
The
Minister’s other rebuttal is, “Well, just another lawyer
would be put in place by having the Lord Chief Justice there.”
In many ways, that does not give proper credence to and respect for the
Lord Chief Justice—
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice):
I do not remember saying
that.
Mr.
Burrowes:
It has been said in debate. Although the
Minister may not have said those words, it was put forward in the other
place as a rebuttal to the Bill. One must take account of the fact that
the independence of the profession is very much bound up in the
independence of the judiciary, which is a cornerstone of our
constitution and should be properly respected. It is not sufficient
just to say that the Lord Chief Justice may well be contacted or
consulted as part of the appointments process and that may happen in
the formal manner. There needs to be a formality to this situation, but
that would not be the case should the amendment be accepted.
It is also not adequate to pray
in aid Sir David Clementi. His report did not specifically say that he
wished to have the concurrence of the Lord Chief Justice. However, he
was arguing in a context. He
said:
“Given the
need for independence, and the objective of the rule of
law”.
Interestingly,
despite not being a lawyer, he makes particular reference to the rule
of the law. The Government have not mentioned the point much in
supporting this
amendment.
Sir David
Clementi continued:
“it
seems right that the judiciary should be involved in the appointment;
but that it should be solely their appointment would imply that they
had primary responsibility for the regulatory system and its
performance.”
He was
examining whether the judiciary should be solely responsible for the
appointment, and decided that that should not be the case and that
consultation with the Lord Chief Justice should take
place.
4.15
pm
Mr.
Kevan Jones (North Durham) (Lab): We have not got to the
bit in the report, but is that not contrary to what the hon. Member for
Huntingdon was arguing this morning? I am talking about whether this is
about consultation or direct involvement in these appointments. I can
sit happily with Clementi’s idea that consultation should take
place—the Minister allowed exactly that on Second
Reading.
Mr.
Burrowes:
One part of the wide-ranging debate is the fact
that different views exist. We heard that the consumer bodies have
different views about the particular details of the process, but Sir
David Clementi was not against the concurrence of the Lord Chief
Justice as a matter of principle. His primary concern was that this
should not be the sole responsibility of the Lord Chief Justice or the
like. He was also explicitly concerned that there needs to be an
involvement of, and recognition of the responsibility and importance
of, the Lord Chief Justice or the like to maintain the independence of
the profession. That not only needs to be done; it must be seen to be
done.
The concern,
heightened by all the Minister’s justification for the
amendment, is that the independence of the profession must be
guaranteed in the Bill. If one were to apply the process, the Nolan
principles and the Commissioner for Public Appointments would be
involved, there would be consultation with other groups—consumer
groups and the like—and the Lord Chief Justice would be involved
in a formal manner. The concerns of consumer groups would properly be
directed.
It is
important that the regulatory objectives, in all their ways, are
properly balanced. This amendment would not ensure that. I ask the
Minister to take proper account of Sir David Clementi’s remarks
that the LSB should not only be independent, but be seen as such. Will
the Minister give me a birthday present? It might not be my best or
most personally cherished one, and it would not be for lawyer
colleagues—
Mr.
Burrowes:
Indeed I am, and I have declared that interest.
However, my present would not be only for lawyers; it would be
important for the rule of law and the constitution of this
country.
John
Mann (Bassetlaw) (Lab): I have listened with increasing
incredulity to the vested interests. There is nothing wrong with anyone
having a vested interest, but two aspects are unique to the legal
profession. First, unlike any other professionals, lawyers can use
their profession to defend themselves. The Army is probably the only
comparable—
John
Mann:
Yes. One of the few things on which the hon.
Gentleman and I would ever agree is that there should be maximum
openness on all issues and in all ways when it comes to politicians.
However, at least we can be voted in and out.
When I raise issues on behalf of
my constituents, only one profession threatens me. The police do not,
although if a constituent of mine has a complaint against them, they
may not be happy. The medical profession does not issue threats,
although a complaint may end up removing a senior consultant and the
profession would not be happy about that. Insurance companies that have
refused to pay but are forced to pay significant amounts for mistakes
may not be happy, but they do not threaten.
No—the legal profession
issues threats; lawyers are the ones who write to me and my
constituents and threaten us. That is what is unique. Frankly, when I
get yet another threat of a writ, it is water off a duck’s back.
I used to frame them; there are so many now that they have to go in a
big box file—soon they will have to go in a big garden shed
because I get them so often. The lawyers have never managed to carry
out their threats,
because—
John
Mann:
Well, let me give the hon. Gentleman some facts. Let
me tell him about the 33,619 people who pursued a case for
miners’ compensation but died while their claim was ongoing.
Under the law of averages, some would have, but that number says to me
that there is a whole group of solicitors out there who are incompetent
at doing their job on behalf of the people whom they purport to
represent. Furthermore, in that case, they are over-generously paid for
doing so. Those 33,619 died while their claims were ongoing. That is
why there is a big
issue.
The majority of
lawyers are decent people doing a decent job. What is unique about the
legal profession is not that it includes a minority of bad solicitors,
although that is the case, or that there is a slightly larger minority
of incompetent or semi-competent ones, although that is also true, but
that if it is challenged, it can and does use the law to threaten.
Thousands of my constituents get threatening letters, and that is just
in my area. Why is that? It is because of the perception among lawyers
that they have access to justice and others have not, and that they
know the system and others do not. Others have to pay for someone to
represent them, but lawyers can do it themselves because they have
access to the courts. That is what is unique and why the system of
regulation needs to be robust.
I hear talk about the separation
of powers between the state and the judiciary. I would be happy to vote
for that, and I have done. I would get rid of the House of Lords. If it
cannot be got rid of, I would make it an entirely elected Chamber. We
might then have some separation. What is particularly unique is the
ability to use the House of Lords—there because of a
professional position—to determine legislation. I accept that
its rules of advocacy are significantly less weak than those for the
House of Commons, but with regard to fundamental democracy there is too
much access to not only the legal system, but the parliamentary system.
That is why I have been referring so robustly to the voice of the
consumer. There are 60 million people in this country, yet we
categorise their view into that of the Consumers Association or the
National Consumer Council. The people of Britain have a right to some
basic regulation.
I
would not criticise the Minister. I understand the pressures that she
is up against when the legal profession is so adamant at protecting its
vested interest at all stages from the judiciary to the lowest level.
However, if I have a criticism of the Government, it is that they could
be more robust and say, “No, that is not acceptable.” I
cite Government amendment No. 33 and wish to highlight
something to which no reference has yet been made. Perhaps someone
would volunteer me to be a member of the Legal Services Board. I am
willing to listen to all arguments. I am a strong supporter of decent
lawyers, barristers and judges. Indeed, I do everything that I can to
highlight the good and contrast them with the useless or the
bad.
However, I shall
not get through the necessary criteria because a member needs to have
knowledge of
“the
provision of legal
services”.
I do not know
whether I or the majority of my constituents can be so classified. A
member must have knowledge of
“legal education and legal
training...consumer
affairs”.
I suppose that I
could profess to having knowledge of consumer affairs. Members must
know about
“civil or
criminal proceedings and the working of the
courts”.
By the way, I am
referring to surveyed perception. I have not surveyed my constituents
about their view of the judiciary, as I have a good idea of what they
might come up with. However, in respect of legal services, they would
perceive that lawyers are people to whom they have to go if they get
into trouble and they want to be defended. If a family member is
arrested, their perception of the legal service is that they must get a
lawyer to defend that person. That view is quantified by the surveys
that I have
conducted.
I could
carry on, but members of the Committee can read the Bill. They do not
need me to take them through it clause by clause. In essence, the board
as proposed by the Government and backed by Opposition parties will be
packed to the rafters by members of the legal profession. It strikes me
that a better membership would be if the board were made up of more
than 50 per cent. of people who were not legal professionals. The
argument about who appoints the members and so on might then be more
tenable. If the board were made up entirely of people who were
independent of the legal profession, such points might have more
credibility.
Simon
Hughes:
I just have two quick things to say. First, I am
sure that the hon. Gentleman accepts that paragraph 3 of the schedule
states that the Lord Chancellor
“and Lord Chief Justice must have
regard to the desirability of securing that the Board includes members
who (between them) have experience in or knowledge
of”
such
matters. It does not stipulate that every member must have such
experience, but just that members of the board must have such talents
between them. Secondly, I assume that the hon. Gentleman believes that
it is still relevant, for example, to have somebody who knows about
medicine to consider medical disciplinary matters, or someone who knows
about policing to consider police complaints. All regulatory bodies
need to have somebody who has practised the service in question. Why?
Otherwise, such bodies would be made up of an entirely ignorant group
of people.
John
Mann:
Of course, that argument could be applied to the
jury system, but I accept the hon. Gentleman’s point. I did not
suggest that the board should be devoid of people who have a legal
background. My question to the Minister and the main Opposition is:
what percentage of the board, ideally, should be people who have had no
prior professional involvement in the legal service? The answer to that
question would help me to understand the Government amendments. The
hon. Member for North Southwark and Bermondsey made the point that one
or two people might be enough. What percentage of a board of, say, 10
should represent the great British public rather than the legal
profession?
My other
question is about whether regulators other than the legal services
ombudsman, such as the certification officer for trade unions, should
be subject to similar measures? Should the general secretary of
the TUC be consulted on who is appointed to regulate trade unions? There
should be consistency in the employment of the argument and it should
apply to other forms of regulation. Such consistency would strengthen
the point. Would Her Majesty’s Opposition agree that, on their
logic, the certification officer for trade unions ought to be appointed
by, or in conjunction with, the general secretary of the
TUC?
4.30
pm
John
Hemming (Birmingham, Yardley) (LD): The hon. Member for
Bassetlaw asked some interesting questions. The matter comes down to
the meaning of the word “independent”, and to what sort
of independence we should aspire. I too have been threatened by lawyers
this year—they have threatened to lock me up in Enfield because
of what I was doing regarding various cases in the area. I have never
made money from giving legal advice although, to declare an interest, I
used to write computer programs for lawyers about 15 years ago, so I
have made money out of the legal profession.
I recognise the problems of
access to justice within the system that the hon. Member for Bassetlaw
identified. The system can be over-complex, as can the statutes for
which we are responsible. Because of that, understanding the system
takes some doing. Unusually, I tend to go to courts in person as a
litigant and, without question, there are problems.
The question of independence is
crucial because, at the end of the day, we can have either the rule of
law or the rule of person—there is not much else to govern
systems. All systems strike a balance between the two and it is a
question of where we should strike that balance. With the rule of
person, as proposed by the Government, the Prime Minister appoints the
Lord Chancellor, who appoints the Legal Services Board, which can in
turn sack a firm of solicitors. That is the procedure and it is a
change from the current system, which allows the legal services
ombudsman to make a recommendation that can be ignored. It amounts to a
clear rule of person over individual practitioners.
I accept that there are both
good and bad people in the profession, and a lot of people in the
middle territory. The legal profession is different from others because
it can be a nuisance to Government on behalf of clients. According to
the rule of law, the Government are required to follow the law.
Judicial review procedures make the Government follow the rule of law.
A competent solicitor or barrister may force the judicial review
process. Some solicitors make particular efforts on particular cases,
such as those involving Sally Clark and Angela Canning. Those people
were defended against the false allegations that they had hurt their
children by single firms of solicitors. Such cases are a nuisance to
the system and to the Crown Prosecution Service. What the CPS thought
was a case was proven not to be, and that was embarrassing to the
Government. One of the difficulties is that if the Prime Minister is
given the power to sack a firm of solicitors, we move away from the
rule of law towards the rule of person. Government amendment No. 37 is
crucial. It includes the ability to fire the chairman of the Legal
Services Board.
Government amendments Nos. 35 and 36 raise the issue of getting rid of
Legal Services Board members.
Nolan principles can apply to
appointments even if the appointment is agreed between two people
because, at the end of the day, the Nolan interview process is still in
use. Therefore, Nolan is a red herring in that sense. Government
amendments Nos. 35, 36 and 37 explain how to get rid of people from the
board. Why is the Government so frightened of including something in
the Bill that is not within their gift?
I accept the perspective of the
hon. Member for Bassetlaw. My view is that if the Legal Services Board
comprises 10 people, three lawyers would be sufficient. I would
personally support a statutory change—I do not know whether my
hon. Friend the Member for North Southwark and Bermondsey
would—that requires that the majority of the board have not
worked in the legal profession.
The medical
profession has had difficulties with self-regulation. The General
Medical Council turns a blind eye to certain things because they are
embarrassing. The fact that the GMC is moving towards taking on a
majority of non-medical people is important. When we talk about
independence, there is often professional loyalty between people so
they, too, tend to move embarrassing things out of the way.
I would strongly support having
a majority of people on the Legal Services Board who have not at any
stage been practising lawyers. That would give an independence from the
profession, which is important. I do not think that the Minister was
right to talk about having a tyranny for the consumer run by the
Minister, which is what she said in the consideration of the draft
Legal Services Bill. In that case, we would be going back to the rule
of person and to the Government controlling the process.
We need to remember that clause
41 empowers the intervention directions to operate on individual
practitioners. As I said, when one looks at the detail of the difficult
cases, it is a small number of troublesome lawyers who are obtaining
justice for their clients and often for free—not even on legal
aid.
Allowing the
Government amendments through is a clear movement away from the rule of
law and towards the rule of person. Although I would strongly support
suggestions that we should maintain the independence of the Legal
Services Board from the legal profession by having a majority of
non-lawyers on the board, it is fundamentally wrong to allow a basic
principle of the British constitution to be undermined in that
way.
Mr.
Henry Bellingham (North-West Norfolk) (Con): It is a
pleasure to serve under your chairmanship, Mr. Cook. I would
also like to put on record and declare my own interest as a barrister
at law albeit non-practising, like the hon. Member for North Southwark
and Bermondsey.
The
point made by my hon. Friend the Member for Huntingdon was extremely
well put. He said that the amendments that were passed in the House of
Lords were passed by a substantial majority of 50. They had been very
well thought out and extremely well argued. A huge amount of expertise
was brought to bear. It was not as if it was a short debate at a
particular point of the Bill in the House of Lords. This measure was
discussed in Committee, on Report and then voted on. I have not counted
up the number of peers and peeresses who spoke in the debate, but we
are talking about a significant number. A lot of expertise was brought
to bear. I urge the Government to look again at the argument that the
Minister has advanced, because this is about checks and
balances.
The power of
patronage invested in the Government is significant. Let us consider
the constitutional changes that are being made at the moment. We have a
Lord Chancellor, who may soon be the Secretary of State for Justice,
sitting in the House of Commons. That may be a good move, but his role
will undergo further fundamental change as a consequence. In future, he
or she may be an ambitious Cabinet Minister who wants to move on in the
world. Having such a power of patronage in one person’s hands,
without the checks and balances, would be a grave
danger.
The key to this
discussion is building in checks and balances. It is about being on the
side of the consumer and trying to create confidence. The separation of
powers is about being on the side of the consumer. The Minister said
that the deletions and reversals that the Government are asking us to
vote through this afternoon will make the Bill more consumer friendly.
I would argue for the reverse because, surely, having checks and
balances built in to try to restore confidence makes the Bill more
consumer friendly and supports the wider
public.
As
my hon. Friend the Member for Huntingdon pointed out, third parties
have commented on this part of the Bill—not just the magic
circle that he mentioned, including the leading law firms, but the
eminent chairman of the Bar Council, for example. Indeed, my hon.
Friend called in aid a number of overseas organisations, including the
Deutscher Anwaltsverein, the German equivalent of our Law Society.
Other interests have commented on this part of the Bill and stated
clearly that having too much power in the hands of one person without
checks and balances would be a grave mistake. It is about public
perception.
Incidentally,
I pay tribute to the Minister for the work she has done on the Bill
from the word go. She has put a huge amount of effort, time and work
into it, has worked hard to bring the different organisations and
vested interests together and has got them to speak to each other,
co-operate fully and reach a broad consensus. I applaud her for that,
but I also urge her to listen carefully to the debate in the other
place, which was long and highly involved and had a huge amount of
technical
input.
On
the points made by the hon. Member for Bassetlaw, who always speaks
with a great deal of passion, I have been following from a distance the
saga of the miners’ compensation claims and the scandal
involved; those law firms have completely abused their position and
taken their clients for a ride in the most horrific circumstances. The
work that he has done to expose that is honourable and he deserves
credit for it. I can see where he is coming from in terms of hon.
Members’ interests, but as you rightly said, Mr.
Cook, when we declare our interests we do so as honourable Members and
those are on the record. If one took to its logical conclusion his idea
that a barrister or solicitor should not speak or vote on matters to do
with legal services, the same could apply to members of trade unions,
who
would not be able to speak on employment matters, and to
journalists—hon. Members of all parties make money as
journalists—who would not be able to speak on freedom of
information.
John
Mann:
Would the hon. Gentleman care to read the
introductory speech by the chairman of the Standards and Privileges
Committee on 14 May 2002, which specifies exactly what the situation is
with hon. Members of this
House?
Mr.
Bellingham:
I am grateful to the hon. Gentleman. He has
obviously been following this issue carefully. He would not have made
the comments that he made at the start unless they were backed up by
fact and experience. However, I should like to put on the record my own
view, which is that the House is the richer and Committees are the
richer and more varied because people can bring their expertise to
bear. I think that most of us take that
view.
My hon. Friend
the Member for Enfield, Southgate sat on the Joint Committee and his
comments on Clementi were helpful and valuable. He was involved with
the whole process running up to the Bill and with all the reports that
went into it. He made the point time and again that this is about
confidence. It is about trying to ensure the maximum confidence in the
consumer, and there is a risk that the consumer will not have
confidence in the new system. After all, we are talking about a
framework that will serve not only one generation, we hope, but many.
This is a once-in-100-years opportunity to reform completely the way in
which the whole legal system is regulated and its framework. Obviously,
the pinnacle is the Legal Services Board.
The point about dismissals is
relevant. We have talked a lot about appointments and the need for
concurrence, but as the hon. Member for Birmingham, Yardley pointed
out, we are considering dismissals, too. Many of us can think of
examples of where Ministers have dismissed people. I will not go into
all the examples, but there have been famous cases of heads of quangos
and different organisations being sacked by senior Cabinet Ministers.
It is important to have checks and balances in place, because we are
talking about trying to ensure the progress of the Bill, which has not
divided the parties—we did not vote against it on Third
Reading—and carries a huge amount of goodwill. I urge the
Minister to take on board some of the points that were made in the
House of Lords.
Obviously,
there are points, such as those to do with the delegation of complaints
procedure, that will be far more controversial than this one. We are
considering something very modest compared with the amendments in the
House of Lords, and that fits in well with the Government’s
pro-consumer agenda, so they should listen and should take on board
what has been said this afternoon. I hope that the Minister will give
my hon. Friend the Member for Enfield, Southgate a birthday present and
withdraw her amendments.
4.45
pm
Simon
Hughes:
Once upon a time there was a Lord Chancellor who
was one of the most powerful people in the country. We have had some
famous Lord
Chancellors—people like Thomas More. Many people have heard of
him even though they may not remember that he was a Lord Chancellor,
and he came to a sorry end not far from here, as I remember. The Lord
Chancellor had three jobs: he was Speaker of the House of Lords; he was
a member of the Government once Governments were formed in the way that
we know, having previously been the right-hand adviser to the monarch;
and he was the senior judge.
The Lord Chancellor appeared in
the House of Lords in his full attire, he wore a wig and he was a sort
of Lord high everything else, but, to their credit, when the Labour
Government came to office in 1997 they realised that that was
constitutional nonsense. They realised that it was important to
separate the functions of Parliament, Government and judiciary. At
least, that was what they said that they realised. They introduced
legislation in the House of Lords, and it was controversial: to change
the role of the Lord Chancellor. The Liberal Democrats supported it in
both Houses. There were great debates about what the name should be,
and whether the title of Lord Chancellor should stay.
The outcome, as we all know, was
that we still have a Lord Chancellor. However, although the role has a
link with its historic antiquity, it is the official name—the
constitutional name—for the Secretary of State for Justice, a
Government Minister appointed by the Prime Minister of the day as a
supporter of the Government, sitting in the Cabinet and looking after a
Department with increased status and power, which is important. That is
the Department in which the Minister here serves as one of the Lord
Chancellor’s junior Ministers.
We have given another
person the job of the Speaker of the House of Lords, and that House now
elects its Speaker. The Lords Speaker in office is the first person to
hold that post. It was made clear in the legislation a couple of years
ago that the senior judge would no longer be the Lord Chancellor but
would be the Lord Chief Justice. That was part of the important
constitutional division of powers referred to my hon. Friend the Member
for Birmingham, Yardley that tried to deal with one historic
anomaly.
This week has
seen elections in France for the AssemblÃ(c)e Nationale. France has
a clear separation between the powers of the Government and those of
the Parliament. If an MP is appointed Prime Minister, he or she stops
being an MP. I think that that is a bad idea, but it is what happens.
The President is elected separately and Cabinet members have to give up
being members of the AssemblÃ(c)e Nationale for as long as they are
Cabinet members. We do not have that, but we have a fusion instead. We
have government in Parliament, but it is important that we have a
separate and independent judiciary. I put my first proposition to the
Minister in a question. I think that she is seeking in her amendment to
take away one of the safeguards in the Lords amendment: to provide that
in the appointment process for the authority that will regulate the
legal profession the appointees are absolutely and clearly unconnected
with Government.
I have
no doubt that when the Justice Minister of the day appoints people to
the Legal Services Board the Ministry will take advice, place adverts
and receive
applications, and that people will be suggested and will apply, and will
be appointed from that list. I have no doubt that the proper checks and
balances, and the Nolan principles will apply, but we have had 10 years
of Labour Government and the great British public have not decided that
there is less nepotism or less placing of politicians’ friends.
The public are suspicious. The Prime Minister came to office with great
intentions of being whiter than white, but is leaving office, sadly for
him—I do not rejoice in this because we all suffer—with
the reputation of having often put his own people in jobs and used his
own people to do his dirty work. Even the House of Lords, which had an
independent commission, is not yet perceived as being entirely
independent. There is a real crisis of confidence, and we must ensure
that the judiciary is not only seen to be independent, but is respected
for its
independence.
I
remember intervening in a debate when some of the other proposals were
going through Parliament to ask whether Ministry of Justice Ministers
would make a promise—a self-denying ordinance—that from
the moment they took over in the new Ministry at the beginning of May
none of them, including the Under-Secretary of State for Justice, the
hon. and learned Member for Redcar (Vera Baird), would ever again
criticise judges. It is completely unacceptable that independent judges
are slagged off by Ministers. They may be slagged off by The Sun
and other papers, but to be slagged off by Ministers is completely
unacceptable.
The
profession is still too male, too old and too white. Judicial diversity
is fundamental, and we must do more to achieve that. Only one Lord of
Appeal in Ordinary is a woman, and there has been little change. None
the less, judges generally have a good reputation, despite some of the
attacks that they have suffered from the press, which should be free to
attack them because that is what our free press is
for.
I hope that the
Minister realises that the Government amendment risks making it look as
if the legal profession—it does not have the best reputation in
the world, for reasons that we have often discussed—will have
its regulators appointed by the Minister in charge of the legal
profession, who is a
politician.
My next
point is that it is now entirely possible and, if the rumours are
believed, very likely that the incoming Prime Minister will appoint the
new Secretary of State for Justice from the House of Commons. I would
welcome that, and have argued for that for a long time. The Secretary
of State for Justice should be accountable to the elected Members of
Parliament, not unelected people, but we must wait and see what happens
in the next few weeks. If that happens, it will look even more as if
the appointment is political. It is currently made by the Secretary of
State for Justice, which is a political appointment, and who is still
called the Lord Chancellor and sits in the House of Lords wearing a wig
and breeches, although less often than he used to. The reality is that
he is not perceived as being quite as party political as Ministers in
the House of Commons. When we have a Secretary of State for Justice in
the Commons they will be perceived as being party
political.
What are the
options? I reflected earlier on Committees that go on for a long time,
and there is a cricket analogy and a tennis one. In cricket there are
long periods with not much happening, but now and
again an important innings occurs. This amendment is one of seven that
the Government are proposing to reverse what has happened in the Lords.
The tennis analogy is better as there are long rallies and lots of
sets, like in the French final the other day, but occasionally there is
a crucial game. This is a crucial game in the midst of the
Committee’s proceedings
because—
Simon
Hughes:
A keen Conservative behind me says that they are
all crucial, but I am not sure about that. Many amendments, whether or
not they are passed, do not make a fundamental
difference.
Simon
Hughes:
Oh yes, the tennis is very important; I
accept that. This amendment makes a lot of difference and relates to a
small point. The options are for an appointment to be made by the
Minister after consultation with the Lord Chief Justice and other
people, or for a joint appointment to be made by the Minister in
concurrence with the Lord Chief Justice. My hon. Friend the Member for
Birmingham, Yardley and my hon. Friends downstairs stand by the
decision made by the Lords that it should be a joint appointment. The
compromise that might be discussed at the end of six rounds of going up
and down the corridor between the two Houses is a consultation that
guarantees a consultation; but, we are not there yet.
A good reason
for a joint appointment is that it would be a political appointment
with Nolan rules of somebody entirely independent of politics. To
answer the point made by the hon. Member for North Durham, it would be
someone who is not accountable or under political pressure, and
therefore would not get tainted by the fact that politicians have
appointed them. Yes, for the foreseeable future, such a person is
likely to be a lawyer. In fact, by definition the Lord Chief Justice
will probably always be a lawyer. Some countries appoint people who are
academic lawyers as opposed to practising lawyers and some appoint
judges who are not lawyers and who have come up through the lay
magistracy. The person appointed is likely to be a lawyer, but they
would not be a politician and the present Lord Chief Justice and his
successors are likely to have more credibility with the public than
politicians.
Mr.
Jones:
Well, I shall be listening carefully in months and
years to come when the more vocal Liberal Democrats react to newspaper
articles and condemn judges. I am sorry, but I do not accept the hon.
Gentleman’s view of a saintly figure that comes down from on
high and has wisdom that we mere mortals do not. In reality, that is
not the perception that most of the public have. Will the hon.
Gentleman answer a question that is taxing me? If the decision is taken
concurrently what happens if the two individuals—the Lord Chief
Justice and the Lord Chancellor—do not agree? Who has the most
weight in terms of deciding who should be
appointed?
Simon
Hughes:
Let me deal with both points. First, I have never
argued that judges are saintly; in fact I am
probably accused of arguing the opposite. Judges are entitled to be and
are criticised by people who participate in the court process and by
the press, but now mercifully not by Government. The constitution
requires that we have Government, Parliament and the judiciary. Once
the judiciary has been appointed, it must be perceived to be above
politics and be respected by Government—just as judges must
respect the Government. I am clear that members of any
Government—Scottish Government, Welsh Executive Government or
the Northern Ireland Assembly—should never publicly criticise
the judiciary. If people think that judges have been too lenient, there
is a process for referring cases for reconsideration that can go
higher. If people think that judges have been too severe, there can be
appeals and the process can go higher. If people think that judges are
incompetent, there are processes for removing them and for dealing with
judges at all levels. Disciplinary procedures are better than they have
ever been. Let me be clear, I am not saying that judges cannot be
criticised—they are criticised—but that they should not
be criticised by Government and that it does nobody any good, neither
the Government nor the judiciary, if they
are.
In answer to the
second question, there is no greater weight given. If it is a joint
decision, it is a joint decision. It takes two to tango and both have
to agree; it is very simple. Many appointments in life require more
than one or more than one representative in an organisation to
agree—for example, appointments to local government or to boards
that have to be made jointly by the local authority and the health
authority. All sorts of bodies are jointly appointed and the Lords
proposal states that both individuals need to agree. If the Lord Chief
Justice proposes somebody and the Secretary of State for Justice says,
“No,” that is the end of it. If the Secretary of State
for Justice proposed somebody and the Lord Chief Justice said,
“No,” that would be the end of it too. The good thing
about that is that the person to emerge would be someone who by
definition would command the confidence of both parts of the
process—the political process and the independent
judiciary—so that there would be a double level of confidence.
That would be much better and safer, and the person appointed would
have much more authority as a result.
Mr.
Jones:
That is an interesting reply. To follow the logic
of the Liberal Democrat and Conservative Members this afternoon, the
Lord Chief Justice is being put forward as some type of super-human
independent individual. Are we therefore saying that the Lord Chief
Justice’s views have no more weight than the Lord
Chancellor’s views as a “mere
politician”?
5
pm
Simon
Hughes:
I cannot believe that the hon. Gentleman does not
understand. The Lord Chancellor is the senior Government member in the
Ministry of Justice and is the responsible Cabinet member. He or she
will have the future responsibility for what we are discussing. Let us
not deceive ourselves that he or she will not rely on civil service
people for help, or that there is not administrative back-up, or that
there are no support systems. At the end of the day, there is the
senior person in the Ministry of Justice on the one side—the
senior politician responsible for justice in
England and Wales—and on the other side is the senior person
responsible for the courts in England and Wales. It is simple; they
have parallel
roles.
Let us not
deceive ourselves either that the Lord Chief Justice does not also have
administrative back-up and civil servants, because he does. He would
take advice and he would have administrative processes. We would
therefore have two people, each with the benefit of advice, coming
together to discuss things, and one might seek to persuade the other,
or vice versa. When they agreed, the decision would proceed. The
safeguards for the public would therefore be far better than if one
person made the decision and took the
responsibility.
John
Mann:
I follow the hon. Gentleman’s logic, but does
it not also follow that a legal professional would automatically fill
the position, as I fear? The proposal would have to be combined with
the proposal that divides him from the Conservative party, whereby the
chair must be a lay chair, so that the role is not automatically
occupied by a legal professional. Does not his logic require both
proposals to be adopted together, or
neither?
Simon
Hughes:
I do not think that that necessarily follows.
However, I accept the other part of the argument; I accept that it is a
good idea that the chair of the Legal Services Board should be a lay
person. I also share the view of my hon. Friend the Member for
Birmingham, Yardley that the majority of board members should be lay
people—that is exactly right. I have always taken a similar view
in relation to the medical profession: the General Medical Council
should have a majority of non-medics to stand in judgment on the
medical profession—not exclusively non-medics, but a majority.
Likewise, I have always been of the view that the Independent Police
Complaints Commission should consist of a majority of non-police
officers—although, again, there should be some police officers
in the commission. I hope that I have been consistent in such views
throughout my political
career.
The answer to
the hon. Gentleman’s question is that one does not have to
implement both proposals, but it would be better if we did. He might
say that, if the other two safeguards of a lay chair and a lay majority
were built in, he would be less troubled by the joint appointment. I
hope that that is the logic of his
position.
My answer to
the point made by the hon. Member for North Durham is absolutely no.
The Lord Chief Justice would be just as competent to appoint lay people
as lawyers; he would not be lobbying for lawyers. However, he or she
would bring some knowledge about some of the lawyers who might be
mentioned, because he or she would have seen them practise and know
whether they were good or no good, competent or incompetent, and
whether they had the confidence of the public. That knowledge could be
brought to the table, and the Lord Chief Justice would be able to draw
on the pool of all the experience of all the judges in England and
Wales, whom he is there to
represent—he and his future successor. His input would be of
benefit; it would be a joint lock.
My final point is that a new
structure is being created. The Minister knows that in general terms
the structures that the Government are proposing have been welcomed by
my party. However, we must begin with maximum public confidence, and I
think that that will be governed by whether we have a lay chair, which
would help with that confidence, as would having a lay majority.
However, I am also clear that not keeping the appointments solely in
the hands of a party politician—this year Labour, next year
Conservative and in two years possibly Liberal Democrat, or whatever
the sequence
is—
Simon
Hughes:
Well, after the next election, when we are all
wondering who will form the Government, we will have a little cup of
tea—or a couple of glasses of something else—to discuss
whether or not that is fantasy. Wales and Scotland showed that things
might not be that easy after the next election, and that is even
without proportional
representation.
Mr.
Bellingham:
I just wanted to check one point. It has been
stated that, in the unlikely event of a Lib-Lab coalition, the hon.
Gentleman would get the post of Lord
Chancellor.
Simon
Hughes:
The hon. Gentleman is having fantasy fictions all
his own. As far as I am concerned, the coalitions that might occur have
not been discussed and are not resolved. We will remain completely
neutral about that until the great British public have decided whom
they will elect into office. Then we will form a view, in the light of
the facts of the
case.
I am going to
appeal to the Minister. I know that she starts from a position of
resistance, but I ask her to reflect across Government. Not all posts
are single ministerial appointments, even post-Nolan. There are still
lots of joint appointments, in central Government, regional government
and local government. The proposal would bring benefits. It would add
credibility and strength, and depoliticise appointments. I hope that
she will realise on reflection that if she does not concede
now—although I do not expect her to concede today—we may,
I fear, come back to the issue several times to come. In the end, there
might have to be a Government concession. It might therefore be easier
for us all if the concession came earlier, because we would have to
spend less time on the Bill between now and
October.
Bridget
Prentice:
Where do I begin? As I expected, this has been a
passionate debate and has, unsurprisingly, divided the Committee almost
on party political lines.
I want to deal with a couple of
the individual issues raised first. I reassure my hon. Friend the
Member for Bassetlaw that the legal services board will have a lay
majority, as set out in paragraph 2(1) of schedule 1. However, the
experience that he referred to under paragraph 3 refers to the board as
a whole, so it will not be packed with lawyers.
The hon. Member for Birmingham,
Yardley was concerned about the direction power being used against
individuals. Clause 41 allows the LSB to direct the approved regulator,
but after only ensuring that none of the powers under clauses 31 to 40
have been used to correct the failure. That power cannot be used
directly, over individual lawyers. I hope that that gives the hon.
Gentleman some
reassurance.
John
Hemming:
The Bill implies that any power can be directed,
so will the Minister explain where it says that that power cannot be
used on individuals? I accept that clause 30 cannot be used on
individual disciplinary cases, but clause 41 does not say
that.
“The Board
may give an approved regulator an intervention direction in relation to
any of the approved regulator’s regulatory functions if the
Board is satisfied”
by the
conditions set out in paragraphs (a) and (b). The power therefore
cannot be used, except in those circumstances. I do not want to go into
double negatives, but that is where we
are.
The hon. Gentleman
was also concerned about the Lord Chancellor firing people. Again, he
or she could not remove an ordinary member of the board, unless
satisfied that one of the criteria in paragraph 7(3) of schedule 1
applied. Those criteria are clear, and are that the
member
“has failed without
reasonable excuse to discharge the functions of the office for a
continuous period of at least 6 months...has been convicted of an
offence...is an undischarged bankrupt, or...is otherwise
unfit to hold the office or unable to discharge its
functions.”
Before the
Lord Chancellor can remove an ordinary member other than the chairman,
he or she must also consult the chairman of the board. That is a fairly
transparent procedure for removing an ordinary member other than the
chairman.
Bridget
Prentice:
The term “otherwise unfit” would
include medical reasons why a person may not be able to continue to do
the job. There might be other reasons why they cannot do the job, but I
would not want to define them in absolute terms. In general terms, we
are talking about someone who clearly is not able to fulfil the
functions that we would expect a member of the board to carry out. Such
an approach is taken in legislation generally to cover such
instances.
Bridget
Prentice:
I shall give way once more to the hon. Gentleman
but I then want to move on, because we have had a long
debate.
Bridget
Prentice:
One of the most obvious examples would be the
chairman of the board. The chairman
might tell the Lord Chancellor, “I feel that one of my
members is not able to continue to carry out the board’s
functions, and I want you to consider their
removal.”
I move
on to the main thrust of the debate about concurrence. My hon. Friend
the Member for Bassetlaw got to the nub of the question: who decides
what will happen if the Lord Chancellor and the Lord Chief Justice
disagree about the appointment? If it is not the Lord Chancellor who
decides, we would be handing over all the accountability to the Lord
Chief Justice. I have not heard a single argument from the Opposition
that could justify our doing so.
Let us examine some of the
issues that have been raised—for example, the magic
circle’s letter to the Economic Secretary, which
said:
“Overseas
legal professions and commercial consumers of legal services have
expressed concern”.
The
only example given was that of German lawyers. I believe that the hon.
Member for Huntingdon said that he had received an e-mail from the Bar
Council saying that I had been wrong about the BRAK. The BRAK is a
representative body of the German federal Bar, although it may deal
with both regulation and representation, as the Law Society and the Bar
Council did recently until they split those
things.
Mr.
Djanogly:
As I recall it, the email also stated the
concerns of France and Portugal. More importantly, will the Minister
say what discussions she has had with her foreign counterparts on the
international aspect that clearly exists?
Bridget
Prentice:
My right hon. and noble Friend, Baroness Ashton,
who took this Bill through the House of Lords in an excellent
fashion—how well she conducted the debates should be put on the
record—has had regular meetings with our colleagues in Europe,
because that is also part of her remit. One of the things that is
interesting to note about the German Bar is that it is coming under
increasing pressure from its own monopolies commission to get it to
allow increased competition.
I believe that I said something
on Second Reading about using the BRAK as the example of foreign legal
firms being concerned about this measure. The BRAK might want to
protect its own vested interests, and it is not our job to protect the
vested interests of legal firms abroad.
To follow up the point, I turn
to the comments made to the Joint Committee. To be fair, the Law
Society has fairly regularly said that it is concerned about the
international effect. However, Sir David Clementi himself told the
Joint
Committee—
Mr.
Djanogly:
Will the Minister discount the opinion of the
chairman of the Bar Council and of the five largest firms in this
country, as she just has, without considering the problems that they
have raised and deciding what she will do about them—or at least
giving some idea of where the Government are coming from on the issue?
Will she just say that it is Baroness Ashton’s
responsibility?
Bridget
Prentice:
I did not say that it was Baroness
Ashton’s responsibility. The hon. Gentleman asked whether we had
had discussions with our foreign counterparts and the answer is yes.
Baroness Ashton has had such discussions, and others with the European
Commissioner, about the issues. There is a great deal of interest in
the development of the Bill among quite a number of people, because
some are thinking about whether to follow suit. Once again, Britain is
leading the way in Europe, and I am pleased about
that.
5.15
pm
According to the
report, Sir David Clementi himself said that
“none of the senior partners of the
major international law firms, whom he consulted in the course of his
review, had ‘expressed concern’ that reform would
‘somehow prejudice their ability to win business
overseas’”.
Those
are Sir David Clementi’s own words in quotes in the Joint
Committee
report.
Mr.
Djanogly:
I read out a letter, which was copied to the
Minister among others only last week. It set out the express concerns
that the Minister has just denied. Is she saying that that letter does
not
exist?
Bridget
Prentice:
I am well aware that the letter exists; I am
trying to tell the hon. Gentleman that when Sir David Clementi
specifically asked the major international law firms about the issue,
they expressed no concerns about their ability to win overseas
business. Sir David also said that Secretaries of State
have
“quite large
oversight powers at
present”
and that the
proposed system
“would be
a good deal more independent of oversight by Secretaries of State than
currently.”
I shall come
back to that point in a
moment.
Sir David
thought that it might be appropriate for the Lord Chancellor to consult
the Master of the Rolls. I shall come back to the words
“consult” and “concurrence”; if necessary,
we will get dictionary definitions so that everybody understands the
difference. The Lord Chief Justice and the Master of the Rolls said
that
“provided that the
LSB was ‘truly independent’, they did not consider that
the international reputation of the legal professions would be
affected.”
So we can put
that particular myth to bed.
The hon. Gentleman was also
concerned about the fact that the Secretary of State, the Lord
Chancellor, would have that oversight of the legal profession.
Obviously, he has forgotten that under the Courts and Legal Services
Act 1990 the Secretary of State approves the key rules of the legal
professions and can alter those rules by order. Under this Bill, all
that will transfer to the legal services board. That will be a much
more independent, open and transparent
system.
I shall go
through some of the other bodies to which ministerial appointment
applies, but before that I want to talk a little about the office of
the Commissioner for Public Appointments. By being blinkered or blind,
the Opposition have simply ignored the role of the Office of the
Commissioner for Public Appointments—established under a Tory
Government after the Nolan committee’s
recommendations.
The commissioner is appointed by
the Queen, and he is independent of the Government and the civil
service. He regulates, monitors and reports on all ministerial
appointments, and selection processes are monitored by independent
scrutiny, annual audit and the commissioner’s annual report. If
there was concurrence with the Lord Chief Justice, there would be no
formal reason why the Office of the Commissioner for Public
Appointments should apply, and the appointment might not automatically
come under the commissioner’s oversight. Surely that would be a
far less open and transparent system than that which we
suggest.
Mr.
Burrowes:
If those were the Minister’s genuine
concerns, would not the appropriate response have been for her to table
amendments to establish in the Bill that appointments process? If the
concerns are that the Commissioner for Public Appointments process
would not properly apply and there would not be any proper
accountability, would not it be an appropriate response to table an
amendment establishing in the Bill the appointments process according
to the Nolan principles or the relevant applicable rules at the time?
That issue was raised in the other place, and it led to the Minister
undertaking that the measure might be subject to the affirmative
procedure.
Bridget
Prentice:
I could have done that, but it would have meant
that I accepted the idea that there should be concurrence with the Lord
Chief Justice. I do not fundamentally accept that
case.
Mr.
Djanogly:
Assuming that the Minister does not like the
idea of concurrence, which she has made quite plain, it would be
incorrect to say that we ignored the Nolan principles, because I spoke
about them at some length. The point that my hon. Friend the Member for
Enfield, Southgate makes is important. How will the appointments
process work on the basis of what the Government propose? If
concurrence is removed, what will the Government put in to replace it?
One cannot just say “Nolan”. How will the Government
adapt Nolan? Will they put out a paper about it? How will they take it
forward?
Bridget
Prentice:
The appointment will be made in the way that all
public appointments are made: they must follow the Nolan principles as
set out under the Office of the Commissioner for Public
Appointments.
For the
record, on the number of appointments that are made to the board in
that way, people are appointed to the Financial Services Authority by
the Treasury, which can remove the chairman and the members of the
governing body. The Secretary of State for Trade and Industry appoints
and can remove the chairman and non-executive members of Ofcom; the
Home Secretary appoints the immigration services commissioner after
consulting the Lord Chancellor, and he can dismiss the commissioner on
specified grounds; the Home Secretary also appoints commissioners to
the Commission for Racial Equality; the Secretary of State for
Communities and Local Government appoints the members and chairman of
the Audit Commission; and the Secretary of State for
Culture, Media and Sport appoints the chairman and commissioners of the
Gambling Commission.
Why should appointments to the
legal services board be any different from proper public appointments
that are made under the scrutiny of the Commissioner for Public
Appointments, with the Minister accountable to Parliament? I find it
incredible that we have spent so long debating the matter when it is
such obvious and common practice. We should have slightly more faith in
our system of public
appointments.
Simon
Hughes:
The reason why the appointment should be different
is that the board will regulate an entirely different part of public
life: the system that holds the scales, not a bit of a DCMS quango. The
Minister will not be able to give me an answer to the following
question now, but it is cheaper than tabling a written question. Will
she let us have a list of all the joint appointments? She has given us
some of the single appointments. Can she tell us why the answer to the
question that has been bouncing around is that the person appointed
jointly cannot go through the same process of being drawn from the
Commissioner for Public Appointments’ pool as easily as anybody
else, which guarantees that there will not be a single party political
appointment? That has all the benefits and none of the
disbenefits?
Bridget
Prentice:
I will do my best to find a list of all the
joint appointments and all those made in consultation with other
people. On the position of lawyers, however, the legal services
complaints commissioner, who is appointed fully by the Secretary of
State under the Courts and Legal Services Act 1990, can fine regulators
when their complaints system has been
failing.
Good practice
has been carried on throughout. It is astonishing for Committee members
to be trying to make this a party political issue. As I have said on
Second Reading and in conversations with Committee members, the idea
that the Lord Chancellor would make an appointment without consulting
the appropriate people, among whom I would include the eminence that is
the Lord Chief Justice, is beyond
me.
Let me end by
reading from a letter sent in response to the letter from the magic
circle. It
states:
“Claims
by the five ‘magic circle’ leading solicitors’
firms that ministerial appointment of the new legal services regulator
would endanger lawyers’ independence amounts to a clever sleight
of hand...Ensuring the independence of the legal professions from
government is important for lawyers’ clients too. But the
original proposals safeguard this principle, since the process will be
run by the independent Office of the Commissioner for Public
Appointments—the standard convention for appointments to public
bodies.
In fact, what
matters most to consumers is the regulator's independence. The lord
chief justice is a qualified lawyer and head of the judiciary in
England and Wales. Giving him a veto over who should regulate the legal
professions will undermine public confidence that the legal profession
will be properly
policed.”
That comes from
the chief executive of the National Consumer Council. He expresses
clearly the points that I made in my opening
remarks.
The Bill
provides for an independent board. I believe absolutely that the Lord
Chancellor, whether as a
Minister in the House of Commons or the House of
Lords—he or she could be in either House—will make that
appointment in the way that all public appointments are made under the
Office of the Commissioner for Public Appointments and the rules and
codes of practice therein. I see no reason why we need to have a veto
from one member—even the most senior member—of the
judiciary, when that consultation will make it transparent to both
lawyers and consumers that the appointment is made
properly.
Mr.
Djanogly:
The arguments have been made and we are not
happy with the Government’s position. I therefore ask that this
matter is put to the vote. I seek your guidance, Mr. Cook,
because we are unhappy with all the amendments other than
amendment No.
37.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 9, Noes
7.
Division
No.
2
]
AYESNOES
Question
accordingly agreed
to.
5.30
pm
Amendment
proposed: No. 31, in schedule 1, page 121, line 10, leave
out
‘with the concurrence
of the Lord Chief Justice’.—[Bridget
Prentice.]
The
Committee divided: Ayes 9, Noes
7.
Division
No.
3
]
AYESNOES
Question
accordingly agreed to.
Amendment proposed: No.
32, in schedule 1, page 121, line 16, leave out ‘and
Lord Chief Justice’.—[Bridget
Prentice.]
The
Committee divided: Ayes 9, Noes
7.
Division No.
4
]
AYESNOES
Question
accordingly agreed to.
Simon
Hughes:
On a point of order, Mr. Cook. For the
convenience of the Committee, I do not know whether it is acceptable to
take all the amendments together, with the exception of the amendment
that the hon. Member for Huntingdon tabled, but those on the Liberal
Democrat Benches would be happy to do
that.
The
Chairman:
Procedurally, that is not possible if Divisions
are requested. In any case, we have now reached amendment No.
264.
No. 263, in
clause 30, page 15, line 8, at
end insert—
‘( ) that the
majority of the ordinary members of a committee that an approved
regulator authorises to exercise its regulatory functions are lay
persons.’.
Mr.
Jones:
When I arrived this morning and saw the amendment
paper, I was a little disturbed when I saw that the hon. Member for
North Southwark and Bermondsey had added his name to
it.
We have discussed
several issues today, one of which was about the perception that the
new regulatory body should not only be independent, but seen to be
independent. The hon. Member for North Southwark and
Bermondsey—
The
Chairman:
Order. I ask the hon. Gentleman to speak up a
little for two reasons. First, I am partially deaf and, secondly, there
is a lot of chuntering on the Opposition Benches, so I wish to play one
down and the other
up.
Mr.
Jones:
I have been accused of a few things, but never of
being quiet. I cannot excuse chuntering on the Opposition
Benches.
The hon.
Member for North Southwark and Bermondsey said earlier that we need to
maximise public confidence in the Bill. Having lay people in the senior
position of the chair and elsewhere on the board is a way of
demonstrating to the public that we intend the bodies to be
independent.
It is
strange that the Bill stipulates that the
“first chairman must be a lay
person”.
Why only the
first? The legal services ombudsman is appointed by the Lord Chancellor
in accordance with section 21 of the Courts and Legal Services Act
1990. The 1990 Act stipulates that the ombudsman is not a qualified
lawyer and is independent of the legal profession. It is important that
the individual who chairs the board is a lay person. That would give
the confidence to which the hon. Gentleman has
referred.
I
believe that the legal profession needs regulating not with a light
touch, but with a heavy hand, because of the appalling way in which it
has dealt with many of my poor and vulnerable constituents who applied
for compensation through the mineworkers’ compensation scheme.
It is clear that the Law Society has fundamentally failed those
individuals and that there is a culture of denial, whereby it is
believed that it can put its own house in order. My hon. Friend the
Member for West Bromwich, West referred on Second Reading to a closed
shop. The Law Society is the best example of a closed shop still in
existence. When trade union closed shops were regulated by the last
Conservative Government, the trade union of the legal profession was
not regulated.
As my
hon. Friend the Member for Bassetlaw has mentioned, no one would
suggest that the certification officer who regulates trade unions
should be a trade union official. People would quite rightly complain
about such a situation.
Mr.
Burrowes:
The hon. Gentleman mentioned closed shops. Would
he suggest that the provisions in the Bill should also apply to
Government lawyers?
Mr.
Jones:
I am sceptical about lawyers. My experience is that
irrespective of the form that they take, they are good at protecting
their own interests. It was interesting to see the gutting of the Bill
in the Lords by the vested interests, which we have seen in operation
today. No fewer than four out of the five Members present on the
Opposition Benches are lawyers or barristers. There would quite rightly
be a hoo-hah if a committee set up to consider trade union legislation
was made up entirely of trade union officials or
members.
The
important thing is get public confidence back. Ensuring that lay people
have key roles would do that. I do not accept the arrant nonsense that
the only people who are fit to sit on the kinds of bodies that we are
discussing are people who understand procedure and the law in detail.
People who do not have a legal background are clearly capable of
filling such roles. The incumbent of the office of the legal services
ombudsman, for example, is not legally qualified, yet she has done an
excellent job of championing the rights of the consumer and of people
who need protection. Amending the Bill would go a long way to
protecting the vulnerable from the section of the legal profession that
feels that it is above the law and that uses the law to advance not
only its own case, but that of the whole group.
I do not accept the idea that was
put forward on Second Reading and again today that a legal
qualification bestows some kind of sainthood on a person and makes them
the font of all knowledge and propriety. Clearly, some of the lawyers
that my hon. Friend the Member for Bassetlaw and I have been
dealing with will not go to heaven. In fact, they
are destined for eternal damnation, if there is any justice in this
world.
If we are
going to strengthen the Bill and, as the Minister has said on more than
one occasion, put the consumer at its heart, it is important that the
first chair of the board is a lay person and that lay people are in the
majority on the committees and can argue the case for the consumer
against the vested interest that we have seen not only in the other
place but in this Committee today.
Simon
Hughes:
The hon. Gentleman mentions that my name
appears on his amendment. I am now going to say something in support of
the amendment. May I say to the hon. Gentleman that he should be much
more worried about the people who oppose him rather than the people who
support him? Sometimes coalitions of the just and the unjust, the
righteous and non-righteous can get the deed
done
Simon
Hughes:
That is true, but we have got to try to win
the argument. We hope that we can sway the Government. I hope that the
Government will be bold. I can see why they are where they are at the
moment. They want to give the right impression and create a good start.
After that, they think that they can settle down and leave the options
open. There is a perfectly reasonable argument for that. There are good
lawyers who could become members of the board and even the chair in the
future.
May I say in
passing that there are some fantastic lawyers, as the Minister and the
Government know? I have been working with lots of people who are
unhappy with the Government’s legal aid proposals. Many of them
are lifelong committed lawyers in the public service working in the
most difficult parts of Britain with the most difficult clients. There
are also good lawyers in other sectors, such as people who deal with
the entertainment and record industry, commercial transactions and the
most complicated global commercial deals. There is no question that
there are some fantastic lawyers.
The question is, what is the
reality and what is the perception? We need to be bold about this. If
we establish a principle that says, “start with a lay chair and
continue with a lay chair”, we will put down a marker.
Mercifully, the majority of adults in Britain are not lawyers. When I
travel around the country and ask people what they want to do, I get
the sense that more and more are giving one of two answers—and I
say this as somebody who is a lawyer—namely accountancy or law.
They are both honourable professions, but I sense that the world is
suffering rather than benefiting from having too many lawyers and
accountants. We probably could do with more roofers, tilers, joiners
and people who do the more functional
things.
Therefore,
there is a majority of non-lawyers. The Bill is about regulating the
profession. It is better that it is led by someone who comes from
outside and sees it as others see it. There will be no shortage of
people to give legal advice—staff, board members and many other
people. With the best will in the world, I am sure that the great legal
professions will occasionally drop a line to the Legal Services Board
saying how they feel.
I hope that the Minister will be
bold, take the amendment and then we can go home with one decision that
makes it obvious to the world outside that these processes are
wonderfully all worth while.
Mr.
Djanogly:
I was slightly open minded about the amendment.
However, I have to say that both hon. Members have failed to convince
me. How far should the prohibition extend? The hon. Member for North
Southwark and Bermondsey asked whether those who are qualified as
lawyers but who have worked in business and have not practised as a
lawyer for a number of years should be able to apply. As I read it,
such a person would not come within the definition of a lay person
under paragraph 2(4), and so they would presumably be discriminated
against.
There is a
layer of prejudice that would be unjust and nonsensical. As I said
earlier, the Prime Minister is a lawyer and so is the Leader of the
House. Lawyers run large private sector corporations and undertake a
variety of public appointments. The head of the judiciary, the Lord
Chief Justice, is a lawyer, and that was put into legislation recently.
The remarks made by the hon. Member for Bassetlaw suggest that he
believes that lawyers should not even be in this Committee. There is an
element of nonsense. Why do we need to be quite so aggressive to
lawyers? Has the hon. Member for North Durham—or, indeed, the
Minister—taken advice on the human rights implications of the
amendment? I would pleased to hear
that.
5.45
pm
I am not quite
so open-minded on amendment No. 264. The suggested amendment
seeks to ensure that the majority of ordinary members of a committee
that an approved regulator authorises to exercise its regulatory
functions are lay persons. Under the proposals, the Legal Services
Board is, of course, to have a majority of lay members. It is important
to remember that the role of the Legal Services Board is to monitor the
regulators to whom it has delegated power. The proposal would therefore
go against the Bill’s intention that the Legal Services Board
should be a light-touch supervisor of the regulators, who can come out
of the professions. In effect, the amendment would rip the heart out of
the Clementi proposals.
Mr.
Burrowes:
It is not only the Clementi proposals that cause
some concern. I see some rationale or logic to the amendment, and
perhaps it would have some merit if it were part of a package involving
the concurrence of the Lord Chief Justice together with the
chairmanship. That might persuade me. Without that package, the
scepticism is raised by the fact that what the public surely want and
what is in the public interest is that the best person for the job
should be appointed. The amendment could, in many ways, get in the way
of the process of following the Nolan principles in an open and
transparent way. To deal with the matter in such a manner, merely
because of the concerns about perception, is a step too
far.
Mr.
Djanogly:
My hon. Friend makes a common-sense remark, and
offers an intriguing possibility for a Bill later. In the meantime, I
should mention that we would not support amendment No.
264.
John
Mann:
I have certainly no objection to having the odd
lawyer on this Committee. The Nolan principles are clear as outlined in
the House in May 2002 and I am sure that all hon. Members will be
reading them tonight. The issue is about vested interests and
advocating on behalf of those interests, not about whether people
should be able to participate. The real issue is about the
balance.
What would
happen if the initial lay chair were unfortunately to drop dead during
that person’s first year in office, perhaps due to the pressures
of the job? Would that mean that the replacement would automatically be
a lay chair during that initial period? The reason that I think that an
independent chair is important has nothing to do with solicitors. The
Law Society has shown robustness in the past 12 months in looking after
its profession and recognising that the names of all solicitors were
being sullied by the actions of a minority. Indeed, in my
area—the hon. Member for North Southwark and Bermondsey will be
surprised to know this—there has been a reduction in the number
of practising solicitors. Those who have sought to battle publicly have
gone out of business. That may or may not be because I called on the
general public to boycott their services, but a major
building—the largest, I believe, in my constituency—is
now vacant and up for commercial letting to another profession, which
might indicate some correlation. That does not necessarily benefit my
constituents, because it presumes that the other people to whom they
can go are competent.
What I want to
say to the Minister, however, is that more than anything I do not want
in post someone with wide knowledge, who is a retired ex-judge, who is
well known to one of the appointees—or both, depending on how
the Bill is enacted—and who will look after the vested interests
of the profession that has served him well for 50 years. The general
public do not need that, and I am more concerned about that than about
whether the person in the post is a professional who is deemed to be
professional without a vested
interest.
There
should be a safeguard, and in that regard I was interested in the
comments of the hon. Member for North Southwark and Bermondsey. I
disagree with him, but the Liberal Democrat position is at least
consistent; if we are to have a twin-track appointment, it logically
has to be the appointment of a lay person. That means that the
Minister’s position is consistent too, but if she has any
further deliberations with the other House it is critical that that
consistency should
remain.
The
option always to have a lay person in charge would be a good safeguard;
it would not just give a veneer of propriety but would send a message
to the outside world that the legal profession has the confidence to
deal with anyone in the profession who is behaving badly. That
confidence is what needs to be reasserted; if the majority of good
professionals have the confidence to deal with the minority of either
bad or incompetent ones, that will boost the profession
overall.
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