Schedule 1
Legal Services Bill [Lords]
4:00 pm
David Burrowes (Enfield, Southgate, Conservative)
As I said, the evidence that I heard in the Joint Committee from the consumers’ voices was that the concern was about the right person getting the job. The concern was not about any move towards a concurrent process involving the Lord Chief Justice.
Although consumers, as well as clients whom I represent and others, are concerned about regulation and about those lawyers who are bad and who need to be properly brought, the primary day-to-day concern when someone instructs a lawyer is that that lawyer should be independent from the state. That is of primary importance. If that confidence is knocked or broken, that will fundamentally affect not only individual consumers’ confidence but, more widely, confidence in the system and, even more widely, confidence in the rule of law.
I want to be as balanced as I can about the different interests and evidence. During an intervention on Second Reading, someone said, “Hey, you’ve got the legal services ombudsman, what’s wrong with that?” As the ombudsman herself said, “I am independent, impartial and very clear. I do not work for the Government, I report through the Secretary of State to Parliament. What’s wrong with the process of appointing the legal services ombudsman?”
The important context, which we are dealing with, is missing. We are dealing not just with any old regulation or appointment, but with a supervisory role that is unique to this country’s system, and with the unique regulation of lawyers. Some would say that they are unique because they need robust regulation; others in a balanced way would say that lawyers—love them or loathe them—have a unique nature and a unique role in society. I should like to draw those matters out.
The Government’s rebuttal in evidence, in today’s sitting and in the Joint Committee was that it is the consumer interest that matters, and that the consumer interest is that the Lord Chief Justice should not have a concurrent role. My concern is that that rebuttal is not consistent with the regulatory objectives that the Government sign up to. The objectives represent a balanced approach in which consumer interest is accounted for in a non-hierarchical way, the public interest is protected and promoted, and the constitutional principle of the rule of law is supported.
I have not heard the Minister extol that principle or say that an appointment process in concurrence with the Lord Chief Justice would in any way undermine the constitutional principle of the rule of law. She would not, because she knows very well that the concurrence of the Lord Chief Justice would properly bolster and affirm those principles, which include
“improving access to justice;...promoting the interests of consumers;...encouraging an independent, strong, diverse and effective legal profession; increasing public understanding of the citizen’s legal rights and duties;...maintaining adherence to the professional principles.”
They are all balancing objectives, and any support of the Government amendment to remove the concurrence of the Lord Chief Justice must be properly justified. One cannot just say, generically, “It is not in the consumer interest”; one must also justify why one does not support the other regulatory objectives.
The Minister’s argument for abolishing the Lord Chief Justice’s involvement in any formal process is the pick-and-choose approach that we were concerned about in our opening remarks. Our concern is about the way in which we would deal with the regulatory objectives if the Bill did not ensure that one interest or objective was not put above another.
The Minister’s other rebuttal to the concurrence of the Lord Chief Justice is that with the Commissioner for Public Appointments, there is an already established process for appointing in the manner that is being put forward. The argument is that it happens anyway, so why should lawyers be a special case? Medics are a special case, however, and the legal profession has a unique role and it should be dealt with in a unique way. Its regulation is not similar to any other regulation. The Government might say that the Financial Services Authority is unique, but their argument would fail to recognise the special position of legal services regulation. It should not have privileges as such, but there should be proper regard for its role in society.
It is important for good public administration that appointments to bodies such as the FSA are made on merit, but it is not a matter of constitutional significance. One would not find in any regulatory Bill about the FSA regulatory objectives that also involve supporting the constitutional principle of the rule of law. They would not be in there. That is why we need to deal with the supervisory regulation of lawyers in a unique way.
Let us examine the FSA further. There is no constitutional reason why the Government should not regulate financial services directly should they wish to do so. However, the position of legal services is different. It is a fundamental constitutional principle that the legal profession should be independent of Government. That can be properly secured only if the bodies that regulate it are themselves independent of Government.
The Minister’s other rebuttal is, “Well, just another lawyer would be put in place by having the Lord Chief Justice there.” In many ways, that does not give proper credence to and respect for the Lord Chief Justice—