Legal Services Bill [HL]

My Lords, I start by making a declaration of interest, as I am a practising member of the Bar and head of a set of barristers’ chambers with more than 80 barristers in it. We on these Benches support the amendment moved by the noble Lord, Lord Neill of Bladen. He moved it with great clarity and I shall try to restrict my remarks to a relative minimum. As the noble Lord said, the appointment of the chairman of the board is not merely an important appointment but the appointment of a person who will have great influence over standards exercised by advocates and in the courts. One needs only to look at the professional principles set out in Clause 1 to see the very great jurisdiction that the chairman of the board will have as he directs his board. The clear message of the amendment is that those at the Bar, solicitors, possibly the judiciary—for whom I do not dare to speak—and certainly a large swathe of the public wish to be assured that the legal system in this country will remain independent of the Executive. I do not want to be seen as grudging or ungrateful for Amendment No. 6, which was conceded by the noble Baroness, Lady Ashton, but that amendment is meaningless in the current environment. I think that the concession was made before the announcement that there would be a Ministry of Justice, or certainly the Minister did not seem to know that there was going to be an announcement of such a ministry—and I see that she is assenting to that proposition. The effect of the amendment is actually nil when it comes to an assessment of the independence of the legal system. We now know that the Lord Chancellor is likely to be an elected Member of the other place, a party appointee, an instrument of government and quite possibly from time to time someone with no knowledge whatever in any depth of the legal system. Any theory of the independence of the office of the Lord Chancellor, to which the noble Lord, Lord Borrie, alluded, is now gone for ever. The Lord Chancellor no longer sits astride the constitution in part as a Cabinet Minister and in part as an entirely independent person—the sort of role that was carried out so ably by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place this afternoon. How do we assure the profession, the public and the judges of that crucial independence of the legal system without something like this amendment, which seems to me to provide a simple answer? As we started this debate, I was reminded of my noble friend Lord Hooson, who in one of his most celebrated cases during an illustrious and distinguished career at the Bar, defended Ian Brady on charges of murder. A role of advocates is sometimes to do what is deeply unpopular with the public at large and to show a quintessential independence which is not motivated by being reasonably rewarded for the case, but rather by a tradition that somebody has to appear in that unpopular cause. If instructed, we do it because we have the confidence that, provided we act within professional ethics, we will be regarded at all times as independent. Every young barrister who has made his or her first appearance in the Lord Chief Justice’s court in the Court of Appeal Criminal Division learns very quickly what that means—that if you step outside the line of proper preparation and presentation, and if you say too much or too little, you will be given a clear lesson by the Lord Chief Justices and their Lordships before whom you appear. There are one or two here before whom I have appeared, but in the fairly distant past, I am bound to confess. The recent Sullivan case is a very good example of my next point. If a member of the Bar or other advocate goes to the Court of Appeal and criticises a member of the judiciary for discourtesy, bias or laziness—as happens from time to time—they know that, as long as they act within the professional standards set out in Clause 1, the Court of Appeal and the senior judiciary as a whole will upholdtheir right to represent the interests in the case independently. From time to time barristers have to appear on behalf of Secretaries of State to defend indefensible decisions by Ministers. We should consider the huge number of cases that successive Home Secretaries have lost in the Administrative Court. I am not making a party-political point, because they are all as good or as bad as each other in this context. What we have is a profession that understands that if it behaves properly its independence will be protected. But who protects its independence? It is certainly not Ministers. If we ask independent advocates how much they feel that their independence is protected by Ministers, they will laugh because they know that that is not where their protection comes from. If we ask them whether their independence is protected by chairmen of non-governmental organisations, committees, the Bar Standards Board or any other independently appointed committee, they will guffaw because they know that is often far distant from what they do every day. The answer they will give in the end, when you press them, is, ““We are protected by the judges. We may not like some of the judges before whom we appear. They may treat us roughly or they may treat us kindly, but at the end of the day they are the guarantors of our protection as advocates””. But we are not just talking about the advocates. When judges protect advocates, whom are they really protecting? They are protecting our lay clients—citizens who often constitute extremely unpopular causes, such as the examples I have given. To provide that assurance to the public, the amendment takes a small but important step. Our constitution is not written. The noble Lord, Lord Borrie, spoke, if I may say so, with respect, as though it was immutable. What the noble Lord, Lord Neill of Bladen, I and others seek to do today is to put into our mobile, changing constitution an important and surely rather uncontroversial piece of independence. Indeed, I suspect that the Minister agrees with the principle of everything that I have said so far. I suspect she is really concerned about the mechanics. If that is right, I urge her to put aside the mechanics and to recognise that absolutely no harm, and certainly a lot of perceptual good, could be done by this change. The guarantee of independence is part of the golden thread, as it has been called by others, of the British legal system. In this amendment, the noble Lord seeks to provide a little more strength to that golden thread.