Legal Services Bill [HL]

My name is also on this amendment and it is correct that its language was my suggestion. I communicated it to colleagues in this House some time before Christmas. I was a party to the recommendation of the Joint Committee, which used different language. It recommended that the appointment of the chairman should be made, "““after full consultation with the Lord Chief Justice””." I shall come in a moment to say why I have changed my mind and prefer the formula which noble Lords have before them now and which has been taken up by my noble friend. 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: "““The independence of the profession has attracted high calibre entrants to it and contributed to the success of UK law firms in overseas markets. Interference with this independence, or ""even with the perception of such interference, will only have a negative effect, both on success in recruiting high quality applicants and on the brand of ‘solicitor’ in overseas markets””." From the other end of the spectrum—if I may put it that way—the Law Centres Federation said: "““We share the concerns of others, about proposals for the appointments to the Legal Services Board to be made by the Secretary of State for Constitutional Affairs. In our view, this will not give sufficient confidence in the LSB’s independence from Government””." 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, "““after consultation with the senior judiciary””." 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 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.