Legal Services Bill [HL]

My Lords, we Lord Hunts are very reasonable people but I am not sure that I can go as far as the noble Lord, Lord Hunt of Wirral, suggested. Of course, I very much understand the importance of this discussion. I cannot disagree with the comments of the noble Lord, Lord Kingsland, on a small oversight body and the other changes that are taking place: the separation of professionals from the disciplinary procedures; the involvement of more lay members; and the Nolan procedures. I agree with all of that and his general philosophy on the relationship between the board and the individual regulators. I have dealt with regulation in the health service, particularly as it affects doctors, and very much understand the arguments around the role of the overarching regulator and the individual bodies, and about making sure that the balance is right. However, I say to the noble Lord, Lord Kingsland, that our advice is that his amendment would require the board to ensure that before it takes any decision whether to exercise its powers it should apply the Wednesbury test of unreasonableness—the test that gives the decision maker a very wide margin of appreciation; in effect, any decision may validly be taken so long as no error of law or process is made and a reasonable decision maker could have taken it. The problem is that were the board required to pass this test before being able to take any action, it would have to be satisfied that a judicial review against the acts or omissions of the approved would succeed on the grounds that no reasonable approved regulator could have thought that action or inaction appropriate. The problem with that is that it would place a very great inhibitor on action by the board unless and until an approved regulator was in near collapse or was brazenly flouting principles of good regulation, by which time serious damage might have been done to the regulatory objectives. That is the point that my noble friend Lord Borrie made. I do not accept that without a ““reasonable”” test the board would seek to or be able to second guess approved regulators or impose its own policies where it does not agree with the decisions of approved regulators. I say to the noble Lord, Lord Hunt, that the board will be required—