Clause 49 — The Board's policy statements
Legal Services Bill [ Lords] (Programme) (No. 3)
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
Hon. Members may recall that when we discussed the issue of the board's policy statements in Committee we were broadly in agreement with the amendments made in the other place, but we were not able to accept the requirement for a policy statement to ensure that the board would not act unless satisfied that the act or omission of the approved regulator was not an approach it could reasonably have taken, because that could have restricted the board from taking action in appropriate circumstances.
Lords amendment disagreed to.
Lords amendment: No. 74A.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I beg to move, That this House
does not insist on the Commons amendments to which the Lords have disagreed, and proposes Government amendments (a) to (l) in lieu.
Hon. Members will know that my noble Friend Lord Hunt of Kings Heath recognised in his opening speech that the issue is important and it has been the subject of a great deal of scrutiny and debate at almost every stage of the Bill's passage. Some will argue that we should go further in respect of concurrence. Reflecting on the points made in earlier debates, it is clear to me that there is genuine concern about what consultation with the Lord Chief Justice might involve. That is why my noble Friend was at pains to set out the detail of how it would work. He confirmed that I had written to the Lord Chief Justice to consult him on the process we are undertaking for the appointment of the chair of the board, and he said that I would write again shortly with respect to other members of the board, which is absolutely the case.
The consultation with the Lord Chief Justice focused on the criteria against which candidates for the position of chair are judged, and he was asked to look at the draft specifications for the chair. He was invited to comment on the process we are undertaking, including the composition of the appointments panel and how we will be carrying out the campaign in line with the Office of the Commissioner for Public Appointments guidance. He was also invited to suggest names of potential candidates that recruitment consultants may wish to contact. I understand that he will be discussing that with the Judicial Executive Board before writing back to me.
This detailed consultation is an important part of the appointment process, and I understand the strength of feeling behind setting out what we mean by consulting the Lord Chief Justice in the Bill. I sympathise with that view, which is why I have tabled amendments that would require the Lord Chancellor to consult the Lord Chief Justice on the appointments process as well as the final appointment. I hope that that gives assurance that consultation with the Lord Chief Justice will not only extend to the person to be appointed, but will embrace the arrangements for the process leading up to it. That process will apply to every appointment made, not just the first.
I can reassure the House that it is entirely a matter for the Lord Chief Justice to decide whether he makes public any disagreement he might have with the Lord Chancellor over the appointment of the chair and members of the board. Although I believe that the arrangements I have just set out will reassure hon. Members that consultation with the Lord Chief Justice, rather than concurrence, is the right approach, I want to mention some other reasons why we have adopted this approach.
First, the approach is consistent with the original recommendation of Sir David Clementi. Secondly, it is consistent with the recommendations of the Joint Committee on the draft Legal Services Bill. Thirdly, it ensures proper accountability over the appointments process because we continue to engage the oversight and regulation of the commissioner for public appointments. Importantly, we provide proper parliamentary accountability because the Lord Chancellor can be called to explain his actions to Parliament in a way in which the Lord Chief Justice cannot. Fourthly, we have transferred the function of making those appointments from the Secretary of State to the Lord Chancellor, in whom we have entrenched those functions. That is important because, under section 3 of the Constitutional Reform Act 2005, the Lord Chancellor has the specific duty to have regard to the need to defend judicial independence and
"the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters."
As I said when we last looked at this issue, those are very good reasons why we cannot accept concurrence; it conflicts with accepted best practice. Consultation does not. I hope that the amendments I have tabled ensure that the appointments do not conflict with best practice, but that the Lord Chief Justice is involved in not only appointments to the Board, but in the process of making those appointments.
Jonathan Djanogly (Shadow Minister, Business, Enterprise and Regulatory Reform; Huntingdon, Conservative)
Following past debates on the issue, we have moved to tackling the sort of role that the Lord Chief Justice should have.
The view of the Opposition parties in this place and the decision of the other place was that the formal role of the Lord Chief Justice should be clearly set out through the requirement that appointments to the board were to be made through the Lord Chancellor with the "concurrence" of the Lord Chief Justice. We supported that in Committee and on Report, and it remains our ideal position. However, the Government have now moved away from a simple reference to "consultation" and provided some clarification of what consultation with the Lord Chief Justice must involve. Specific reference has also been made to the fact that
"before appointing an ordinary member, the Lord Chancellor must consult the Lord Chief Justice about the process for appointment of the member and about the person selected for appointment".
We have maintained throughout that at no stage should the independent legal profession in this country be undermined. For that reason, we have pushed to ensure that the independence of the Legal Services Board from Government is protected through the role of the Lord Chief Justice in the appointments procedure. I believe that we were right to push that issue instead of simply accepting that a reference to "consultation" alone was sufficient. The statement of Lord Hunt, the Minister in the other place, on
"I think it will be helpful if at this stage I outline how the Lord Chief Justice is to be consulted. My ministerial colleague"—
"has written to the Lord Chief Justice to consult him on the process we are undertaking for the appointment of the chair of the board."
I am slightly concerned that, given that we have been considering the Bill for roughly 11 months, consultation with the Lord Chief Justice has involved only a single letter. Consultation on the appointment of other members of the board does not appear to have even reached the letter-writing stage. Lord Hunt also pointed out last week that the Under-Secretary
"will write again shortly with respect to other members of the board."—[ Hansard, House of Lords, 17 October 2007; Vol. 695, c. 747-8.]
Perhaps she could advise the House on the outcome of the consultations. I would also be grateful if she confirmed whether she has considered the use of parliamentary confirmation hearings for appointments, as suggested by hon. Members of all parties on Report.
However, the Government have come a long way on the issue. I accept that Government amendments highlight moves towards the crucial recognition of the need to involve the Lord Chief Justice in not only the method of appointment but the decisions. Although we still maintain that they could go further we accept that we have reached a clearer and more transparent position. On that basis, we will not request the House to divide on the matter.
David Heath (Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice; Somerton and Frome, Liberal Democrat)
Mr. Djanogly differs from the Liberal Democrats on dividing on the matter. We still believe that the principle is important. I accept that the Under-Secretary has travelled a great distance on all sorts of matters—she knows that I appreciate that. Indeed, even on the issue that we are considering, the proposal is much better than what the Government previously suggested. The process that has been outlined is clearly better than what was previously described. I simply want her to take that last little step because it will convey an important signal about what we hope to achieve in the Bill.
I do not believe that there is a huge practical difference between the amount of consultation that has been offered and concurrence, which we believe to be so important. It is inconceivable that the Lord Chancellor would make a political appointment that did not have the support or at least the acceptance of the Lord Chief Justice. The stakes have been raised too high in terms of public and professional acceptability if the Lord Chief Justice were to make a report or simply make public his or her lack of confidence in the person appointed to the post of chairman.
Our acceptance of the principle that the chairman should be a lay member is important to the board's independence. I am pleased that we included that in the Bill because it means that we have a guarantee of independence from the legal profession. That also guarantees credibility among the wider public. However, credibility must also be shared by the judiciary and the legal profession. In the context that we considering, I do not perceive the Lord Chief Justice as head of the profession—that would be wrong. If it were suggested that the president of the Bar Council or of the Law Society should have any sort of handle on the final appointment, that would be wrong, because it would mean accepting a legal closed shop, which, I hope, we are busting wide open in the process.
However, as head of the judiciary and in a specific context in our constitutional arrangements, the position of Lord Chief Justice has changed. It is one of the great offices of state. The seal of approval from an independent judiciary as well as Ministers and the House is to be encouraged. I therefore hold to the view that concurrence is a more satisfactory arrangement and that the House should insist on it. I shall advise my hon. Friends to vote against the Government amendments.
Kevan Jones (North Durham, Labour)
It is like Groundhog day because we have gone over the arguments on numerous occasions. The Under-Secretary has ably conducted proceedings on the Bill and the Government have taken on not only constructive amendments and representations from Back Benchers but even some suggestions from Mr. Djanogly.
I do not understand why Liberal Democrats want to divide the House—
It being one hour after the commencement of proceedings, Mr. Deputy Speaker forthwith the Question already proposed from the Chair, pursuant to Order [this day].