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Noble Lords will find that recommendation 10 comes out of paragraph 142, which is part of chapter 4 of the committee’s two-volume report. It is one of the things which persuaded me, having for the first time been put on a pre-legislative committee, of the important role that a committee can perform once a draft Bill is in existence. It can then assemble evidence from all parts of the kingdom, reflecting all shades of opinion, as to what people think of a sharpened up proposal post-Clementi.

One of the main points in the evidence which struck me—noble Lords will find it in volume 1, chapter 4 of the report—is the degree of fear being expressed by very different people about the threat to the independence of the legal profession. It is very striking. When noble Lords get a chance to look at page 42 of volume 1 of the report, they will see a list in footnote 119 of all the people who expressed worry about this topic. I shall give the Committee a couple of examples of the wide spectrum of opinion on this issue. One comes from a source which the noble Lord, Lord Whitty, were he still with us today, might say is a typical example of lawyers feathering their own nest. The example comes from the evidence that we received from Clifford Chance, which was once upon a time in the City. It said:

From the other end of the spectrum—if I may put it that way—the Law Centres Federation said:

This is quoted in paragraph 134. People have seized on who will fill the key post of chairman of this newly created body, with its wide jurisdiction and powers to give direction to the front-line regulators. That is the breadth of the anxiety which is felt. Sir David Clementi used the first formula that we had in our report,

Noble Lords will find that quoted in paragraph 139.

Perhaps I may mention a point on which I touched at Second Reading and which we ought to keep in our minds as we look at the evidence as the Bill is debated and we hear more from overseas. We have received evidence, particularly from the president of the Law Society, of comments made in overseas legal centres and cities by those who, she suggested, were rather jealous of the big inroads which the English legal profession had made into the legal profession within the European Community. They were using this Bill as an argument for saying, “Well, you’re really ceasing to be independent in the UK. You’re having a government-dominated system”. I have not heard this said first hand, but I want to keep an eye on it. I hope that the Government, equally, will watch it to see how much reality there is in it.

Even if we set aside the overseas dimension and forget completely how we will be regarded from overseas, how will we be regarded internally? I think that I have said enough to show that we have received a lot of evidence from within this country of concerns about independence. This is number one in the list we made in the report of the points at which independence is seen as being under threat. The numerous powers vested in the Secretary of State is another point, but independence is number one in the list.

Why do we wish to insert the words, “with the concurrence of the Lord Chief Justice”? It is really very simple. I thought back on my career as a barrister and remembered cases in my experience where the relevant statutory requirement has stated that, “X must be consulted before such and such an act can be done by a Minister”. I have come across unfortunate examples of what has turned out to be perfunctory consultation. In other words, the Minister says, “Yes, I wrote him a letter saying, ‘This is what I propose to do, but I should like to hear within seven days any comments you have to make’”. So far as the law is concerned, provided the letter is written in good faith, that is “consultation”. I have become worried about it as being a fetter in any way.

If one can suppose that there could ever come a time in this country when the judiciary was not best of friends with the Executive, or when the Executive were

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to criticise the judiciary, one can imagine a situation in which consultation would not be enough. We therefore propose that the Lord Chief Justice’s involvement should be set at a higher level. The Lord Chief Justice would have to concur in the appointment and not merely to have been consulted.

Lord Lloyd of Berwick: I support the amendment. I agree with what the noble Lord, Lord Neill of Bladen, has just said, in particular, his reasons for preferring,

to “consultation”. I shall say no more on the importance of the independence of the legal profession, because it was so well covered by the noble Lord, Lord Thomas. The analogy of other regulatory bodies seems to be far removed from the importance of ensuring the independence of the legal profession.

I shall say a brief word in support of what the noble Lord said about perception. As many of your Lordships will remember, perception was a key feature in the argument which the Government used during the passing of the Constitutional Reform Act. It was said over and again that the Law Lords, for example, must be removed from this building to the Middlesex Guildhall because they were not perceived to be independent so long as they were sitting here. If perception is important from that point of view, surely it is equally, perhaps even more, important from the point of view of the establishment of this body. If the chairman of the Legal Services Board is appointed by a Minister, it will be perceived by people—perhaps not by people with as much knowledge of these things as we have, but by ordinary people—as making the profession less independent of the Government than it should be. If that is true of the appointment of the chairman and members of the LSB, it is surely even more true of their removal from office, which, again, can be done by the Secretary of State. That point was not greatly emphasised by the noble Lord, but it does arise under Amendment No. 24. The provision to which it relates must be amended for the very same reasons. The dismissal of the chairman and members of the LSB seems to be absolutely contrary to any idea that the body is independent of the Government. I hope that the amendment will be approved in due course, as well as Amendment No. 24.

Lord Wedderburn of Charlton: I wish to make a small point, without any notes. It may be thought that these arguments are advanced merely by great luminaries of the law, of whom there are many in your Lordships’ House, such as those who have spoken—those at the top of the profession. My plea is for those at the bottom of the profession. I more or less abandoned my limited practice to remain in academic life and to take part in the proceedings of your Lordships’ House in the 1970s. But I well know from my own case and that of students, whom I regularly saw go to the Bar, that the most important thing that is said to you, sometimes by people with whose outlook you violently disagree, is that you must say what you think is right. That belief, inculcated

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into a profession, is at the centre of what noble Lords have come to term “independence”. It may be thought that independence is being talked of as some great luxury, but it is not a luxury; young barristers come to observe it as integral to their role.

I am not saying, and I do not take other noble Lords who have spoken as saying, that the Government intend to interfere with that. But I can say with total conviction that if young students of mine were going from my seminars into a profession regulated by a board—I emphasise heavily the word “regulated”—they would think twice about whether they still intended to occupy their position as they rose through the ranks of their chosen branch.

It is therefore essential that young students, who have no direct voice in your Lordships’ House, know and can see in legislation that a new regulatory power introduced by the Government over the profession that they intend to enter is appointed and exercises its powers with the maximum number of conditions imposed. They must be able to see that those whom they recognise as reasonably independent of government have a place in such matters. I believe that the Government will come to accept that that must be made clear in the Bill because I believe that they intend that the profession should remain independent. However, the profession must be made clearly to appear, from a student’s point of view, to be still in that condition.

Baroness Carnegy of Lour: I see sitting in the Chamber no fewer than five noble and learned Lords from Scotland, so I hesitate to rise. But I have to point out that the Law Society of Scotland, somewhat surprisingly, feels very strongly about these amendments; it is strongly in favour of them. This part of the Bill applies entirely to England and Wales, but the Law Society of Scotland believes that, should it be enacted as it stands, a politically appointed regulatory body over Scotland’s regulatory bodies may be established or at least proposed.

The Scots Parliament has just legislated for legal services, having passed the Legal Profession and Legal Aid (Scotland) Bill before Christmas. The Bill does not contain provisions for a regulatory board but provides for a complaints commission. During the passage of that part of the Bill, the Parliament inserted a provision that the senior judge in Scotland, the Lord President of the Court of Session, should play a part both in the appointment to the commission and in the provisions for dismissal. That was felt strongly in Scotland. The Law Society of Scotland very much hopes that Parliament here will ensure that such arrangements exist for the regulatory board.

I was somewhat surprised to hear the Minister keep suggesting that the regulatory board is just like any other regulatory board and that there does not have to be any difference in the way appointments are made. But to regulate the regulators of an independent legal profession is a very different thing. My view is that in Scotland, a much smaller country where people see one another all the time and know one another very well, it would be even more

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important than in England and Wales to have an independent regulatory board. I make that point because it is interesting that the implications of this Bill go further than England and Wales.

5.45 pm

Lord Lyell of Markyate: I strongly support almost everything that has been said. I am sure that it is right that the concurrence of the Lord Chief Justice be required, for exactly the reasons given by the noble Lord, Lord Neill of Bladen. I also agree with the noble Viscount, Lord Bledisloe, that it is not a question of one thing or the other; these amendments tie in together and there is strength in that. A triangle is much stronger than a single limb. We need at least a triangle, or all the strength you can get, to maintain a free society.

We are discussing the concurrence of the Lord Chief Justice, but I hope that we will return to and accept the position of the Lord Chancellor within the constitution. I question what the noble Lord, Lord Neill of Bladen, said only in the sense that I think he was using irony during a portion of his speech, and I learnt when I was quite young in politics that irony is no good because the ironic point is missed.

I do not want to put my next point too strongly, but it is difficult not to. The past few years have seen some absolutely lamentable criticism of the judiciary by those in high ministerial office, which ought never, ever to have taken place, and which fortunately has been slapped down recently by the noble and learned Lord the Lord Chancellor. But it did happen, and it is very important to fight against it.

As the noble Lord, Lord Thomas of Gresford, pointed out, a legal profession that will support the judiciary in its independence and a free press that will report what is argued in court so that the whole country can read it are bulwarks of our free society. I am sure that the noble Baroness and the Government agree in principle with all those sentiments. I hope that they will help us to reflect them in the proper construction of this Bill.

Lord Bach: What the Joint Committee said on this cannot be taken as gospel or as binding what this Committee decides to do. But it is worth repeating the majority view of the Joint Committee—the noble Lord, Lord Neill of Bladen, has already referred to it—in paragraphs 142 and 144 of volume 1 of its report. The committee concluded that the Secretary of State should do the appointing but only after full consultation with the Lord Chief Justice. I argue that it reached that view because Sir David Clementi came to the same conclusion. Sir David was quoted by the noble Lord, Lord Hunt of Wirral, who so ably chaired the committee, as saying:

He continued:

The Committee should consider carefully that view when deciding on this Bill. It is worth emphasising that Sir David Clementi did not support the conclusion that the appointment had to be made with the “approval” of the Lord Chief Justice, or with his “concurrence”—if there is any difference in the meaning of those two words.

Lord Hunt of Wirral: I am grateful to the noble Lord, Lord Bach, for reminding us of, I think, the only division that we had in the Joint Committee. No, there were two divisions, but this division was initiated by the noble Lord himself, in relation to the words that he has just referred to. This is in no way critical of the noble Lord, Lord Neill of Bladen, as he was absent for very good reasons, but, had he been present, the vote would have been tied. I say that only because there were differing views within the Joint Committee. Therefore, I would not disagree with a word that the noble Lord, Lord Bach, has just said—that was our conclusion.

But even that conclusion does not meet with the approval of the Government and it is right to remind ourselves that, until this moment, the Government have not given ground on anything in this area, whether on “in full consultation with”, or “with the concurrence of”, the Lord Chief Justice. Of course, as the noble Lord, Lord Bach, will know, my preference in that division was for the word to be “concurrence” rather than “consultation”. It was an amendment at the time—

Lord Bach: With the approval of the Lord Chief Justice.

Lord Hunt of Wirral: If I can just finish the sentence. I prefer that the Lord Chief Justice should have to give his imprimatur—he should concur with, or approve of, the appointment. There were differing views, which I acknowledge, but as I was the chairman of the Joint Committee, I would want to go with the report of the committee and that is to what I now speak.

What has the response of the Government been? I quote from the speech of the noble and learned Lord the Lord Chancellor. At Second Reading, he dismissed our recommendation in these terms:

he continued with words that I am sure, or I hope, he now regrets—

I wanted to emphasise the importance of knocking that down. The Lord Chief Justice is not just another lawyer in the process; he is a judge. He is not only a judge; he is the most senior judge. He is a judge of independence and integrity who is seen as having that independence and as being full of integrity. He is in a special position. That is why the noble Lord, Lord Neill of Bladen, is right to single out the Lord Chief

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Justice—although there are differing views as to whether the wording should be “approval”, “concurrence”, or “in full consultation with”. This is really the whole point of the debate—to try to persuade the Government that there should be something in the Bill that makes it clear that the Lord Chief Justice has to be involved in the appointment.

To some extent we are in the dark, as came out in the previous debate. We do not know who is going to be the Secretary of State. At the moment we are in abeyance. We do not know who is going to be the Prime Minister later this year, although we have our suspicions. We are told by Mr Brown that it will probably be him. I do not know whether it will be. What I know is that this House sadly failed to persuade the Government that the Lord Chancellor should be a Member of this House. It also failed to persuade the Government in a number of other respects—that he should be a lawyer and so on. Therefore, later this year when Royal Assent is looming for the Legal Services Bill, we may be faced with a Secretary of State who is not in this House, who is not a lawyer and who is first and foremost a party person. Indeed, there are some who are clearly seen as party people, while others are seen as more statesmanlike. I do not know. The Minister indicates that it may be her, in which case a lot of my fears are removed. But it may be anybody.

When we are dealing with the appointment of a quasi non-governmental organisation—a quango—that is going to regulate an independent legal profession, a signal needs to be sent. As the president of the Law Society and chairman of the Bar have constantly reminded us, there are foreign, protectionist jurisdictions that would love to have the opportunity of pointing the finger at the legal profession in England and Wales, saying that it is controlled by government and giving examples.

The Minister will recall that our Joint Committee was concerned that there were a number of references to the Secretary of State—in fact, there were 111. When I revealed at Second Reading that the number of references to the Secretary of State had increased from 111 to 288, I placed somebody’s health in jeopardy; it is the only time that I have ever been interrupted in Hansard—it is at col. 1180—by a noble Lord saying, “Good gracious!”. But the Minister has sought to reassure me by saying that,

Fine, but still the number has gone up and it was calculated on exactly the same basis—not the number of functions but the number of references. The number has still gone up from 111 to 288. The Bill grows and so does the role of the Secretary of State.

In that context, it becomes increasingly important that the power of appointment and indeed the power of removal should be seen as a power exercised by a non-political Minister. We would have far preferred it to be a Lord Chancellor in the mould of predecessors in that office. Nevertheless, if the power is to be exercised, it must be done at least in consultation with

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and, as the noble Lord’s amendment says, with the concurrence of the Lord Chief Justice, which in practical effect would be more or less the same thing, but we can debate that. Certainly the Lord Chief Justice should be named in the Bill as not just another lawyer and not just as a representative of a consumer organisation, but as the symbol of an independent legal profession of the greatest integrity respected across the world. That is why the Minister must start to give ground and begin to explain to us what she would accept and what the noble and learned Lord the Lord Chancellor would accept, which would communicate right across the world that nothing is going to change and that the English and Welsh legal system will still be the independent legal profession that is widely respected globally.

6 pm

Lord Bach: I have listened with great interest to what the noble Lord has had to say on this amendment. However, can he explain to the Committee how “full consultation with” is somehow the same as or the equivalent of “concurrence” or “approval”? I do not see that they are the same at all.

Lord Hunt of Wirral: If the noble and learned Lord the Lord Chief Justice were consulted about a person and he said, “No, you can't possibly have that individual chairing the Legal Services Board”, or whatever, I may be wrong but I cannot believe that the Secretary of State would ignore that. I suppose that is what gives rise to this issue. I look forward to the noble Lord’s support if we ever propose an amendment that includes the Lord Chief Justice in the Bill as being an individual with whom the Secretary of State should consult. Although I have probably not persuaded the noble Lord, I hope that I have explained that, in practical terms, the phrases would be more or less the same.

Baroness Ashton of Upholland: This has been a debate of great passion and I will think very carefully about all that has been said. I am grateful to the noble Baroness, Lady Carnegy of Lour. I knew when I saw her in the Chamber that I needed to have the Scottish information in front of me. Indeed, she is absolutely right. The Scottish Parliament has taken a view on the Scottish Legal Complaints Commission and the role of the Lord President of the Court of Session exactly as she identified. I do not accept her briefing about the potential for some kind of superstructure. I have not received a copy myself, but I will look carefully at what the Law Society of Scotland is saying.

I was trying to say in our previous debates, clearly not as effectively as I would wish, that the model of regulation is one from which I begin. It is not an attempt to say that I do not recognise the importance and value of the independence of the legal professions at all. It is to say that the model of regulation—because this is a regulatory regime—is the one from which we begin. But I take the points that have been made about independence. I hope that Committee Members will realise that although I will not agree to the amendments, I none the less understand the point that has been made and I am thinking carefully about these issues and listening very carefully to what has been said.

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