Legal Services Bill [HL]

My Lords, like the noble Lord, Lord Neill, I am an old lag at this exercise. Along with the noble Lord, Lord Hunt of Wirral, who chaired the draft Bill committee so well, I have been more or less involved with the Bill since that time. In general I find it difficult to disagree with the noble Lord, Lord Neill of Bladen, because he speaks such good sense, but on this issue I hope I have the benefit of consistency of having always argued that what the Government have come up with now—in other words, the consulting of the Lord Chief Justice—is what was proposed by the draft Bill committee after a close vote and recommended by Clementi himself. It also now has the support of the Bar Council and the Law Society, as well as the support of the House of Commons. At Second Reading in this House—now almost 11 months ago—the noble Lord, Lord Hunt of Wirral, was kind when he said: "““The Legal Services Board must not only be independent, it must be seen to be independent. Sir David Clementi made this one of the key points in his excellent report. I have to say in support of the noble Lord, Lord Bach, that the Select Committee sought to ““Clementi-ise”” the Bill because we agreed with so much of Sir David’s report, particularly where the Government had departed from the original recommendations””—" which they had, at that time. The noble Lord continued: "““Sir David said: ‘Given the need for independence, and the objective of the rule of law, it seems right that the judiciary should be involved in the appointment ... The proposal of this Review is that the appointment of the Chairman and Chief Executive should be made by the Secretary of State in consultation with a senior member of the judiciary’. The noble Lord, Lord Bach, moved an amendment to the original report which stated that provision should be made for the Secretary of State to make the appointment in consultation with the Lord Chief Justice. That very much follows what Sir David recommended. I hope that the Government will think again on that issue””.—[Official Report, 6/12/06; col. 1180.]" They have thought again on the issue, hence the amendment my noble friend has just moved. The amendment makes a lot of sense, not least for the reason just stated by my noble friend and referred to in the speech of my noble friend Lady Henig at Second Reading, when she talked about the experience she had had in the way current Secretary of State appointments were handled according to Nolan rules and in strict accordance with the Office of the Commissioner for Public Appointments code of practice. That, she argued, should remove any apprehensions about the suitability, qualifications or independence of the chair or members of the new board. Under the proposal Nolan rules would apply, which is an important factor. These arguments have been well rehearsed, so I will not go into them all over again, but it is important that the House realise that the views of the Bar Council and the Law Society have changed on this issue. I am not arguing for a moment that they are brilliantly excited by the idea of consulting; they both say they would have preferred what this House agreed on Report. However, it is right that House should know their view, which, in the case of the Bar Council, is: "““The Bar Council … supports amendments which have been tabled by the Government for consideration by the Commons at Report stage as follows:""““(1) Schedule 1: Appointments to the Legal Services Board - to require the Lord Chancellor to consult the Lord Chief Justice about appointments to, and dismissals from, the Legal Services Board (LSB). We shared the preference of the House of Lords for a requirement for the concurrence of the Lord Chief Justice, but the Lords’ amendments were reversed in committee in the Commons. However, provided the views of the Lord Chief Justice are publishable, we believe that the Government’s amendments tabled for Commons’ Report will provide appropriate transparency and accountability in relation to these public appointments and address concerns which have been raised, especially by overseas lawyers … that the board is sufficiently independent of the Executive. Although we believe that consultation in a UK democracy should adequately preserve the independent regulation of the legal profession, we are looking for an assurance from the Government that the Lord Chief Justice’s views will be publicly available to underpin this consultation””." My noble friend was attempting in his amendment precisely to satisfy what the Bar Council had, after due thought, considered it wanted. Likewise, the Law Society makes it clear that it, "““preferred the requirement in the Bill as passed by the House of Lords … But we recognise that the Government has come a long way on this issue””." I stress how far I believe they have come. It continues: "““When the Bill was introduced to Parliament, the Lord Chief Justice had no statutory role at all, and appointments were to be made by the Secretary of State, rather than the Lord Chancellor. The Government’s agreement to transfer responsibility to the Lord Chancellor, with his particular responsibility for upholding the rule of law, and to entrench that in legislation was a welcome development. So too is the acceptance that the Lord Chief Justice should have a formal role, albeit only a consultative one””."