Legal Services Bill [HL]

– in the House of Lords at 11:40 am on 25th October 2007.

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Votes in this debate

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to Bill 108 as first printed for the Commons.]

Page 7, line 15, at end insert-

"(5A) Where P is an independent trade union, persons provided with relevant services do not constitute the public or a section of the public where-

(a) the persons are provided with the relevant services by virtue of their membership or former membership of P or of another person's membership or former membership of P, and(b) the services are excepted membership services.

(5B) Subject to subsection (5C), "excepted membership services" means relevant services which relate to or have a connection with-

(a) relevant activities of a member, or former member, of the independent trade union;(b) any other activities carried on for the purposes of or in connection with, or arising from, such relevant activities;(c) any event which has occurred (or is alleged to have occurred) in the course of or in connection with such relevant activities or activities within paragraph (b);(d) activities carried on by a person for the purposes of or in connection with, or arising from, the person's membership of the independent trade union;

and such other relevant services as the Lord Chancellor may by order specify.

(5C) The Lord Chancellor may by order make provision about the circumstances in which relevant services do or do not relate to, or have a connection with, the matters mentioned in paragraphs (a) to (d) of subsection (5B)."

Page 7, line 21, after "subsection" insert "(5B), (5C) or"

Page 7, line 24, at end insert-

"(9) In subsection (5B), "relevant activities", in relation to a person who is or was a member of an independent trade union, means any employment (including self-employment), trade, occupation or other activity to which the person's membership of the trade union relates or related."

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4B, 4C and 4D and do not insist on its Amendment No. 4A.

Noble Lords will recall that, although the Commons had agreed to the Government's amendments to Clause 15 that applied to trade unions, they were not accepted in your Lordships' House. Your Lordships disagreed with those amendments and substituted different words that limited the exemption that trade unions had from the need to be regulated as entities. In our original wording, unions were to have been exempted in respect of any reserved legal services provided by virtue of membership. In the Lords amendment, the exemption applied only to what we might call a limited range of employment-related services.

The Government looked very carefully at the tenor of the debate in this House and decided that we should accept, in spirit, this House's desire to narrow the exemption. We acknowledged the strength of feeling about the subject and the concerns about the possibility of a reduced level of protection for union members when unions engage in services wholly unrelated to a member's employment, trade, occupation or other membership-based activity.

I think it would be right to say that, alongside that, no one has wanted to prevent unions continuing to provide legal services to their members in areas connected to their employment, trade, occupation or other membership-based activity. We believe that the services that unions provide are vital for access to justice and for industrial relations, but we certainly see the force in the argument that preserving that position does not require an absolute exemption for all kinds of legal services.

On that basis, we have tabled amendments of our own which have a similar effect to those that were considered in the other place but which also ensure that services relating to trades, occupations or other activities that relate to a person's union membership are also included.

Moved, That the House do agree with the Commons in their Amendments Nos. 4B, 4C and 4D and do not insist on its Amendment No. 4A.—(Lord Hunt of Kings Heath.)

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, your Lordships will recall that this issue arose only at a very late stage in another place after the Bill had proceeded through your Lordships' House. The Government sought to exclude trade unions entirely from the scope of Part 5 of the Bill—that is, they would not have to seek a licence if they wished to establish themselves as an alternative business structure. As the Minister rightly drew to your Lordships' attention, we did not seek to oppose that proposal in its entirety; rather, we sought to cut down its scope to apply solely to activities ancillary to the primary trade union function.

The Bill duly went back to the Commons for reconsideration and, as the Minister rightly said, in the spirit of compromise the Government tabled their own amendment, which goes beyond ours but in no way seeks to reassert the original amendment. We are grateful to the Government for their approach.

In conclusion, I should remind your Lordships why this has been such an important issue for us. First, in so far as trade unions intend to give services under Part 5, it is not right that their members should receive services to a lower standard than that received by the generality of the consuming public. Secondly, we were and remain bewildered as to why, if trade unions are going to receive this exemption, other non-profit-making bodies ought not also to receive it—I am thinking of mutual societies and organisations such as Citizens Advice. The Government are familiar with this argument, and I shall not press it further. We do not intend to divide on this matter.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, we debated this in Committee. The government amendment before us meets the objections that I voiced. I was very concerned that the amendment we passed would undermine the services that unions rightfully provide to individual members. This amendment, which has been passed by the other place, deals with the concerns voiced by opponents of that situation. The Government have adequately met all the complaints that were voiced and I am satisfied with the wording.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, in my youth I appeared in many cases on behalf of trade union members, instructed by trade unions. In those cases, we were particularly concerned with personal injuries sustained in the course of work. I was acting not on behalf of a trade union organisation, but on behalf of an individual who had suffered a severe injury. What I could not understand about the Government's initial proposal was that it appeared to give some form of protection to the union organisation at the expense of the members. The debates in this House made clear to the Government that they were ignoring the members and looking after the interests of the trade unions. They have obviously shifted from that and we are grateful. We support the amendment.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, this is extremely important, and I am grateful to the Government for recognising the necessity to protect individual trade union members who make use of these services outside the limited scope of the original idea. These services that trade unions offer to their members are extremely valuable, and many members of the trade unions take them up. In the dim and distant past, I had a good deal of experience of litigation in connection with these services. I am happy that this has been resolved in this way, and I congratulate the Minister and all involved on the Government side in settling this so amicably.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I, too, shall say a word of gratitude to the Minister. I spoke against the proposal, he took the point and he has produced a wholly acceptable compromise. I am very grateful.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I thank noble Lords for their comments. There is no question that we have now reached an altogether satisfactory conclusion. I am grateful to all noble Lords who took part in the debates and in the discussions of the past 24 hours.

On Question, Motion agreed to.

Line 10, at end insert-

"and, in preparing that statement, the Board must have regard to the principle that the Board should not exercise any of those functions by reason of an act or omission of an approved regulator unless the act or omission was unreasonable."

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15B and do not insist on its Amendment No. 15A.

Noble Lords may recognise the substance of the amendment made in the other place. When we considered this important issue of the relationship between the overarching board and the individual regulators, the noble Lord, Lord Kingsland, tabled Amendment No. 15A that added to Commons Amendment No. 15 and would mean that policy statements published by the board must:

"ensure that the Board exercises its powers only where it considers that the action or inaction of an approved regulator is not an approach which the approved regulator could reasonably have taken".

I agree very much, as I said at the time, with what the noble Lord said in the debate about the role of the oversight regulator and the individual bodies, and making sure that the balance is right and that the individual regulators are not micromanaged by the board. The concerns that I raised were that an absolute reasonable success must be shown before taking any action that might fetter or restrict the board from taking action in appropriate circumstances.

Commons Amendment No. 15B, however, requires that the board's policy statements must have regard to the principle that the board should not exercise any of those functions by reason of an act or an omission of an approved regulator unless the act or omission was unreasonable. With the existence of any such policy statement, the board would clearly have to demonstrate how it had had regard to that principle when exercising its powers. I hope that noble Lords would agree that this amendment now satisfies concerns raised previously.

Moved, That this House do agree with the Commons in their Amendment No. 15B and do not insist on its Amendment No. 15A.—(Lord Hunt of Kings Heath.)

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Lord for the amendment he has placed before your Lordships today. The issue that lies behind it can be put very simply—in fact, as it was by the Minister in another place in a debate that took place on this Bill about a week ago. The Minister said that the Legal Services Board should not seek to second-guess the decision of the approved regulators. It is plain that if the approved regulators act reasonably in reaching their decisions, the Legal Services Board should not intervene. The only basis on which it should intervene would be irrationality. The amendment that the Minister has placed before your Lordships' House, while not 100 per cent meeting the text I would like, nevertheless has gone a long way to do so, and I am content.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I am very grateful. I should like to make it clear that whatever the debate over the wording, I do not think that there is anything between us in the constructive relationship that we want to see between the board and the individual regulators.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, the Minister has just made an extremely helpful addition.

On Question, Motion agreed to.

Page 121, line 6, leave out "with the concurrence of the Lord Chief Justice"

Page 121, line 10, leave out "with the concurrence of the Lord Chief Justice"

Page 121, line 12, at end insert-

"( ) 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."

Page 121, line 16, leave out "and Lord Chief Justice"

Page 122, line 17, leave out "and Lord Chief Justice"

Page 123, line 6, leave out "with the concurrence of the Lord Chief Justice"

Page 123, line 8, leave out "and Lord Chief Justice"

Page 123, line 11, leave out "and Lord Chief Justice are" and insert "is"

Page 123, line 21, leave out sub-paragraph (5)

Page 123, line 23, leave out "the Lord Chancellor and Lord Chief Justice remove" and insert "removing"

Page 123, line 24, leave out from "member" to end of line 25 and insert "under sub-paragraph (1)(b), the Lord Chancellor must consult-

(a) the Lord Chief Justice, and(b) if the ordinary member is not the chairman, the chairman."

Page 123, line 26, leave out "and Lord Chief Justice"

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 88B to 88M in lieu of Commons Amendments Nos. 74 to 77 and 81 to 88, to which this House disagreed.

We turn again to the important role of the Lord Chief Justice in appointments to and removals from the Legal Services Board. I am a late entry in the debates that your Lordships have undertaken on this matter, but I know that there has long been genuine concern about, first, the role of the Lord Chief Justice in consultation, and then, following the amendments made in the other place, what role the Lord Chief Justice might involve—is consultation to be real or not?

I confirmed in our last discussions that my honourable friend Bridget Prentice 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. The consultation with him focused on the criteria against which candidates for the position of chair are judged. He asked to look at the draft specifications for the chairman of the board, and was invited to comment on the process we are undertaking, including composition of the appointments panel and how the campaign will be carried out in line with guidance issued by the Commissioner for Public Appointments. He was also invited to suggest names of potential candidates whom the recruitment consultants may wish to contact. I confirm that my honourable friend will write again shortly with respect to the other members of the board.

The reason why the Lord Chief Justice has not yet been written to is that the chairman will sit on the appointments panel. Clearly, it is important that the process for appointing the chairman be concluded before consultation takes place on the appointment process for other members. Following that debate, we took away the points made about clarifying the role of the Lord Chief Justice and agreed that it would be helpful to set them out in the Bill, especially in the light of the discussions that your Lordships' House undertook only a few days ago. The amendments being brought forward from the other place are intended to do exactly that, requiring the Lord Chancellor to consult the Lord Chief Justice on both the appointment process and the final selection.

In clarifying that role, Amendments Nos. 88B to 88M meet the concerns raised previously in both Houses, while ensuring that the Bill is compatible with best practice in relation to public appointments.

Moved, That the House do agree with the Commons in their Amendments Nos. 88B to 88M in lieu of Commons Amendments Nos. 74 to 77 and 81 to 88, to which this House has disagreed.—(Lord Hunt of Kings Heath.)

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

rose to move, as an amendment to Motion C, leave out from "House" to end, and insert, "do insist on its disagreement to Commons Amendments Nos. 74 to 77 and 81 to 88, do disagree with the Commons in their Amendments Nos. 88B and 88C and 88E to 88M, do agree with the Commons in their Amendment No. 88D, and do propose Amendment No. 88N as an amendment thereto—

Leave out lines 3 and 4 and insert "obtain the concurrence of the Lord Chief Justice".

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, I begin with the declaration of interest that I have many times made in debates on the Bill: the first is that I am a member of the Bar; the second is that in the past I served for many years on the Bar Council; and the third is that I held the office of Chairman of the Bar. But I am not today a spokesman for the Bar Council and I have not been privy to the discussions which it has had with the Minister; I am an independent Cross-Bencher.

We have before us an important policy issue. There are a lot of words in the amendments, but they really boil down to the overriding importance of the Legal Services Board, because it will be an overarching board—overarching, among others, the professions of barrister and solicitor. The view that I advance is that, that being a body of such enormous and wide-ranging powers, it is appropriate that the appointments to and removal from the board should have the concurrence of the Lord Chief Justice.

I stated last time my understanding of the meaning of the word "consultation" and cited a case, or gave the details of a case, but there has been no comeback on that point. It is clear that consultation is weaker than concurrence. My primary point is to persuade this House to re-establish the position as we established it in many votes in the past and to insert the words,

"concurrence of the Lord Chief Justice", in all the appropriate positions.

I should like to say one thing about consultation. We are now faced with an extension in the legislative intent as regards consultation with the Lord Chief Justice. Under the language that I have seen, it will certainly cover the appointments process and may indeed go beyond that, if one has regard to the correspondence that has evidently been taking place between one of the Ministers and the Lord Chief Justice. I say nothing about that, because I have not seen the correspondence.

I have a point of principle on consultation. That is that the more that the Lord Chief Justice becomes involved in the process of setting up the board and the criteria for selection, the closer that we get to risking a conflict between separate powers of the state. Your Lordships will recall very well that we set up a Supreme Court in order to protect the principle that the judiciary and the legislative role were in no way in conflict. Similarly, in a scene that can be conjured up in one's mind's eye, the Lord Chief Justice could, by this route—which includes one of the amendments made in the Commons—be drawn into the consultation process and become, as it were, part of the machinery of government. No doubt that will be hotly denied, but it is a risk that it is possible to envisage.

My primary point is about who makes the ultimate decision on who holds these jobs and how they can be removed. My view is that it should be the Lord Chief Justice. There has been some reference in the past to a code of practice under some other legislation, in which it is made clear that the Minister is, as it were, the top man, and has the ultimate responsibility for appointing the various offices. The short answer to that is that we are discussing not a code but primary legislation, and it is your Lordships who are taking a view on the correct decision. Should the Bill provide for the concurrence of the Lord Chief Justice, so that he can prevent an election of which he disapproves, or will mere consultation be good enough? That is the issue. I beg to move.

Moved, as an amendment to Motion C, leave out from "House" to end, and insert "do insist on its disagreement to Commons Amendments Nos. 74 to 77 and 81 to 88, do disagree with the Commons in their Amendments Nos. 88B and 88C and 88E to 88M, do agree with the Commons in their Amendment No. 88D, and do propose Amendment No. 88N as an amendment thereto.—(Lord Neill of Bladen.)

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 12:00 pm, 25th October 2007

My Lords, we have from these Benches supported the noble Lord, Lord Neill of Bladen, in his amendment on two occasions. The matter has now come back to us for a third time.

I have no doubt that when the Minister comes to speak, he will draw our attention to the fact that both the Joint Committee and the original report drafted by Sir David Clementi were content with consultation and did not require concurrence. However, between then and now, there has been one very important constitutional change: that is, the sending of the Chancellor from your Lordships' House to another place. The Lord Chancellor is now an elected politician, subject to party discipline, and may one day—I make no adverse observations about the present incumbent—find the influence of politics stronger than the influence of justice. Indeed, there are important questions to be asked about the suitability of a policy ministry, such as the Ministry of Justice, having responsibility for judicial matters. However, that is a debate for another day.

As a result of this important constitutional change, we became more enamoured of the terms of the amendment of the noble Lord, Lord Neill of Bladen. Originally, the Government were simply not prepared to accept even consultation; the decision was to be made by the Lord Chancellor alone. But their position shifted in another place, and the Government began to spell out what they meant by consultation. The matter came back to your Lordships' House and we sent it back, robustly, again. The Minister in another place, Bridget Prentice, has now been a great deal more explicit about what is meant by consultation. Many view the inclusion under Schedule 1 of the requirement for the Lord Chief Justice to be consulted on the process as well as the name of the members of the Legal Services Board as very helpful.

The noble Lord, Lord Neill of Bladen, by contrast, has drawn to our attention the fact that, in a sense, concurrence respects much more what the Government told us they were aiming at in their judicial reforms two years ago than consultation. This is because the process of consultation enmeshes the Lord Chief Justice in the political process. I take that to be the point made by the noble Lord, Lord Neill of Bladen. That should give us cause for hesitation if we are going to vote for the Government on this matter today. However, for my part, the Government have responded in the direction to which they have been drawn by those who have contributed to debates both in another place and here.

I still prefer the drafting of the noble Lord, Lord Neill of Bladen. I believe that there are great dangers in establishing, on the one hand, an independent judiciary with a process that is plainly separate from the political process but not taking the same approach to the membership of the organisation that will oversee the legal profession. It is constitutionally dangerous because, as I have had the opportunity to say on a number of occasions, one cannot have an independent judiciary unless one has an independent legal profession: and, indeed, vice versa. I hope that the Government will bear that in mind under their new procedures. I assure them that we will watch them very carefully.

I would like to have voted for the noble Lord, Lord Neill, again; but the constitutional position of your Lordships' House in relation to the Commons on this is clear. There are times when we will go right to the end in exercising our rights in the parliamentary procedure; but I say, to some extent with a heavy heart, that this is not one of those occasions.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, I am sorry that the Conservative Party is taking a different view and is resiling from very important principles. The noble Lord, Lord Kingsland, was right to emphasise that the independence of the judiciary demands an independent Bar and an independent Law Society. Solicitors must be as independent in the advice that they give to their clients as members of the Bar are.

Only those of us who have practised in jurisdictions where there is no independence know just how devastating it can be to appear, knowing that the result is foretold. The independence of the judiciary is under attack in a number of places in the world. The most senior chief justice in Pakistan is supported by independent lawyers, who have taken to the streets to defend this principle. It is so important that I regret that those on the Benches next to me are resiling from it. We have supported the noble Lord, Lord Neill, throughout, and we shall continue to do so.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I, too, regret this, but we have come to the stage where we should no longer insist. Therefore, I follow the line that my noble friend Lord Kingsland has taken.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I, like the noble Lord, Lord Neill, believe that this is a very important matter. Equally, he was right to emphasise the importance of the Legal Services Board. I have already set out the reasons why the Government have clarified in statute what the consultation with the Lord Chief Justice will entail. I will come to the point made by the noble Lord, Lord Neill, about the degree of involvement by the Lord Chief Justice in consultation. The noble Lord is really suggesting that the involvement is too great, which interferes with the separation of powers. I will return to that point in a moment. We should remember—the noble Lord, Lord Kingsland, kindly reminded us—that the Commons amendments before your Lordships' House are consistent with the original recommendation of Sir David Clementi's report and with the recommendations of the Joint Committee on the draft Legal Services Bill.

The noble Lord, Lord Neill, referred to the code of practice in the making of public appointments and said, quite rightly, that we can override that code today through primary legislation. However, the code arose because of concerns, over many years, about the way in which public appointments were made. The adoption of the code has led to a much more rigorous approach to public service appointments, and when we come to the Legal Services Board, it is important that the spirit of the code is adopted in this way.

I know that the noble Lord, Lord Neill, is concerned, and I read out the detail of the involvement of the Lord Chief Justice in the consultation process. I assure the noble Lord that the Lord Chief Justice is content with that process, and although I do not agree, I understand the noble Lord's point about the involvement of the Lord Chief Justice. However, I would argue that "concurrence", which essentially gives a veto to the Lord Chief Justice, gives him much more ownership of that appointment. I suspect that we will not agree on that matter.

I say to the noble Lords, Lord Kingsland, and Lord Thomas of Gresford, that of course the independence of the judiciary is critically important. I know that noble Lords are disappointed that the office of Lord Chancellor is now held by a Minister in the House of Commons—I draw that distinction before the noble Lord, Lord Kingsland, corrects me. However, I point to the Constitutional Reform Act 2005, which lays a clear responsibility on:

"The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary".

One cannot say fairer than that. We are determined to uphold the independence of the judiciary.

The Legal Services Board is an important board: the noble Lord, Lord Neill, is right to suggest that. In view of its importance it is right that, at the end of the day, the Lord Chancellor, as a Cabinet Minister, is accountable to Parliament for that judgment, but it should be made in consultation with the Lord Chief Justice. We have discussed this on a number of occasions. I know that there is not agreement on all sides of the House, but the Government have listened and moved considerably. I hope that we will be able to take this through the House today.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, I will say just a few words in reply. I listened to the speech of the noble Lord, Lord Kingsland. The opening few paragraphs seemed to be rather good, but unfortunately the quality was not maintained and he ended with a view about how he and his cohorts intended to proceed which I did not hear with any pleasure.

I am very grateful to the noble Lord, Lord Thomas of Gresford, who believes in the principle that I am contending.

As for the Minister, I thank him for the graciousness with which he dealt with my position, and his courtesy—I suppose you would call it that. However, he is wildly optimistic if he thinks that any court will construe the words,

"must consult with the Lord Chief Justice", even if accompanied by a "consultation on process", as being stronger than the words,

"concurrence of the Lord Chief Justice".

I see that he is shaking his head; perhaps I do him an injustice.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I do not disagree with the noble Lord. Clearly, concurrence that gives a veto to the Lord Chief Justice is a degree more weighty than consultation. My argument is that consultation is the appropriate mechanism.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, it is not being suggested that the Lord Chief Justice is in a more powerful position through the language which will go into the Bill if the Commons view prevails. I shall not add any more words. We all know the issue. I wish to test the opinion of the House.

On Question, Whether the said Motion (No. C1) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 111.

Division number 1 Private Parking: Ports and Trading Estates — Legal Services Bill [HL]

Aye: 68 Members of the House of Lords

No: 109 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and Motion disagreed to accordingly.

On Question, Motion C agreed to.