Home About Jonathan News Parliament Campaigns Gallery Links Contact

Legal Services Bill: Consumer Panel and Legal Services Board


15th October 2007

Jonathan Djanogly argues the case for the Conservatives relating to the appointment of members and independence of the consumer panel and Legal Services Board.

Mr. Jonathan Djanogly (Huntingdon) (Con): First, I declare an interest as member of the Law Society and of the corporate finance faculty of the Institute of Chartered Accountants.

The group covers two distinct areas: first, the consumer panel, which will represent the interests of consumers of legal services-we are now almost in agreement with the Government's position-and secondly, the Legal Services Board, on which there are important outstanding issues. We appreciate the Government' acceptance of our position regarding the need for appointments to the consumer panel to be made objectively and to be seen to be made objectively. Such a need is fulfilled by the Lord Chancellor's approval of such appointments.

The Government's concession on the issue, through amendment. No. 78, is on the same terms as those suggested by my hon. Friends and me in Committee, and thus removes the need for our amendment No. 6. This is a welcome development.

Government amendments Nos. 78 and 79 provide for members of the consumer panel to be appointed for a fixed period and on other terms and conditions as determined by the board. They also provide for the removal of a member of the consumer panel in accordance with those terms and conditions that would require the approval of the Lord Chancellor. Again we are pleased to see the Government's movement, but I should like some minor clarification. The terms and conditions of appointment will be fixed and known to the Lord Chancellor before removal. Surely we only need to cater for the situation where a removal is carried out other than in accordance with what has been previously approved. If this is the intention, I suggest that the wording in clause 8 should be that a person may be removed from office otherwise than in accordance with those terms and conditions and only with the approval of the Lord Chancellor. In effect, I believe that these new provisions, while moving in the right direction, may require some further thought; perhaps the Minister might clarify the existing wording.

Our amendment No. 7 would mean that the chairman and other members of the consumer panel would not be appointed simply on terms and conditions determined by the board, but following public advertisement and selection by the pervading standards for selection of members of public bodies. This wording is to be added so that appointments to the consumer panel are made and seen to be made objectively. This will give all applicants a fair opportunity to apply for the panel. As a consumer panel, it needs to represent the public and therefore a public advertisement would be the best means of ensuring that that is the case.

Additionally, it is important that the current criterion for selecting members of a public body is employed so that all applicants are given and are seen to be given an equal opportunity to be selected. We see this as important, as the consumer panel is the voice of the public and ensures that consumers are given adequate representation. Also, it is necessary explicitly to set out in the Bill that the pervading standards for selection of members of public bodies must be followed. Given that the appointments are to be made by the board and not by Ministers, strictly speaking, there will be no compulsion to follow the Commissioner for Public Appointments' code of practice. The hon. Member for Somerton and Frome (Mr. Heath) made a valid intervention on that issue. Our amendment follows that line of thought and would plug the gap.

Our amendment No. 8 to clause 11 would ensure that the consumer panel has access to the information held by the board which it needs to carry out its functions, subject to appropriate restrictions. In the same way that a person needs the appropriate resources in order to do their work, the consumer panel will require access to certain information in order to carry out its work to the highest possible level.

However, amendment No. 8 also recognises that there might be some instances when it is inappropriate for the consumer panel to receive such information. Therefore, its proposed new subsection (5) gives the legal services board the discretion to decide whether that is the case. The Minister was previously unwilling to move on this issue, fearing, I believe, that it could lead to empire building by the consumer panel rather than consumer interests being represented, and we share that concern. However, she agreed that she would consider an amendment ensuring that the board provides the consumer panel with the necessary information for it to discharge its functions. This amendment does that; it would improve clause 11 as it would enable the consumer panel better to represent the consumers' interests. The Minister has considered this issue again, and we are sorry that there has not been a little movement in that direction.

Amendment No. 75 was tabled by the hon. Member for North Durham (Mr. Jones), whose contribution to our deliberations on the Bill deserves recognition-even if it has not always won our agreement. It would result in the chairman of the legal services board always having to be a lay person. We remain unconvinced of the necessity for such an amendment. It is not sensible for lawyers to be unable to take on the chairmanship of the board and for the prohibition period to be extended indefinitely. Would people qualified as lawyers but who work in business and have not practised as a lawyer for a number of years be among those discriminated against? Such prejudice is unjust and nonsensical.

John Hemming: Does the hon. Gentleman not accept that there is an argument for the legal services board, and particularly its chair, to be seen to be independent of the legal profession?

Mr. Djanogly: That argument can certainly be made, but I am saying that it will not apply to all lawyers in all cases. It might apply to certain lawyers; in some circumstances, a lawyer's practice might negate their suitability for the position. That will not, however, be the case in all instances. The problem with this proposal is that it would create a non-adaptable set of circumstances. That would not be suitable. We have recently had a Prime Minister who was a lawyer, and lawyers can be chairmen of various sorts of organisations, from banks to voluntary agencies. There is no justification for excluding an entire profession from the role of chairman of the legal services board. It is in the public interest that the best person for the job is appointed as chairman, and I see no reason why the best person might not be, for instance, a qualified non-practising lawyer. We shall therefore seek to divide the House on amendment No. 75 at the appropriate time, which will be when we debate a later group of amendments.

Government amendment No. 103 would ensure that the chairman of the legal services board must be a lay person for the first five years. Again, we see no justification for that requirement and believe that the chairman should simply be the best person for the job. I note that the Government have withdrawn the amendment, so this point has in effect become irrelevant.

Government amendment No. 104 clarifies the fact that the chairman, and not simply "any subsequent" chairman, must not carry out reserved legal activities during the appointment. That simply follows on from other points.

Let me now turn to what in constitutional terms is the core of the proposed legislation: the appointment and removal of members of the legal services board. We appreciate the Minister accepting that her position in Committee-that the simple reliance on Nolan principles to ensure that appointments to the board are made independently of Government-was insufficient. Appointments to the board being made by the Lord Chancellor alone could have had serious implications. It would have meant that a senior member of the Executive would have had the ultimate responsibility for governing how the legal profession was regulated. Such a structure could have dramatically undermined the crucial principle of the independence of the legal services board from Government.

I am glad that the Minister has changed the Government's stance, adopted in Committee, of simply tabling amendments to wreck what we felt was the good work carried out in the other place, and that she has instead come back with the constructive suggestion, contained in Government amendments Nos. 102 and 106, that appointments and removals from the legal services board be made following consultation with the Lord Chief Justice.

I spoke at some length in Committee about the serious concerns of many groups about the potential effect on the legal profession's independence if the Lord Chancellor could make appointments to the LSB alone. The Government appear finally to have listened to the views of the legal profession, the Law Society, the Bar Council, other regulators-both national and, I have to say, international-Conservatives, Liberal Democrats and Cross-Bench peers, who amended the Bill in the House of Lords to ensure that a check exists on the Lord Chancellor's power to make appointments to the LSB. However, I still question whether the Government's amendments go far enough to protect the legal profession's independence. I still believe that ideally, the Lord Chief Justice's concurrence would be the most appropriate check on the Lord Chancellor's powers. It is for that reason that my hon. Friends and I tabled amendments Nos. 24 to 34.

The Law Society has expressed concerns about the position under the Government amendments, which provide only for "consultation" with the Lord Chief Justice. In a letter to Lord Kingsland of 10 September, the Law Society stated:

"We think it is important that the Government should make it clear that ‘consultation' will amount to much more than merely inviting the Lord Chief Justice to comment on a list of names of those the Lord Chancellor proposes to appoint. Consultation should cover all aspects of the appointment process. In particular, the Lord Chancellor should consult the Lord Chief Justice about the specification of the skills and experience required of the Chair and other members of the Legal Services Board, and also about the composition of the panel which will interview candidates."

I very much hope that the Minister can provide such assurances to address the Law Society's concerns, which we share. However, requiring appointments to be made with the Lord Chief Justice's concurrence would ensure that his or her opinion was given sufficient sway, and that appointments were wholly independent of Government influence.

Indeed, we say that this requirement for concurrence is the best protection to bolster the independence of the legal profession from the Government. Simple consultation, with no clarification of what it will involve, does not go far enough on such an important issue. An independent legal profession provides the ultimate safeguard to the rights of the individual against abuse of power by the state. Lord Woolf, the former Lord Chief Justice, has wisely pointed out that

"the independence of our judiciary is dependent on the independence of our legal profession."-[ Official Report, House of Lords, 16 April 2007; Vol. 691, c. 52.]

Simply requiring consultation with the Lord Chief Justice may, in some circumstances, not be sufficient to ensure that any doubt about the independence of the legal profession is removed.

In discussions with the Minister, which were certainly helpful, the question was raised of using a parliamentary confirmation hearing for appointments to the LSB, along the lines announced by the Prime Minister in relation to senior appointments. The Minister stated that she would look into the possibility of using such hearings, and I should be pleased to hear her views on that in relation to all board appointments, or just chairman appointments. I point out, however, that even if such hearings were put in place, they might not go far enough to protect the legal profession's independence. The Lord Chancellor would not need to listen to any recommendations, and could be seen to be following unchecked some form of political agenda in relation to the appointment of the board. It does not matter how much consultation with the Lord Chief Justice or a parliamentary Committee takes place if it is simply ignored. For this reason, we still see the concurrence of the Lord Chief Justice as the ideal.

The position under the Government's amendments is that simple "consultation" would suffice. This issue must be addressed again if consultation is ever to be sufficient. At the very least, written guidelines on what that consultation will involve must be provided. For instance, is it agreed that the Lord Chief Justice's views on appointments to the legal services board should be publishable? We are not yet there on these vital provisions. The concurrence position was that agreed by all Opposition Members and passed in the other place. That is where it will go again, as would be the case in any event, because it is essentially the amendment from the other place that this House has turned down. The Government will have difficulties unless much more fat is placed on the bones of their concession. On that basis, I shall ask for a Division at the appropriate time in these proceedings to allow hon. Members to vote for concurrence on amendment No. 24.

5.45 pm

...

SUBSEQUENT INTERVENTIONS IN THE SAME DEBATE

6.15 pm

Mr. Djanogly: At least half of the organisations that the hon. Gentleman mentions as having accepted the Government's position have done so reluctantly on the basis that the Government have made a concession from the position that they actually want, which is concurrence. Recent missives from the Bar Council say that quite clearly.

Mr. Kidney: I am grateful to the hon. Gentleman for that intervention, because I have in front of me the briefings from those bodies, each of which says that it supports the Government amendment. I do not know about their motivations and how strongly they feel about supporting the Government, but they say in writing that they support the provision; only Opposition Members say that they do not support the provision.

...

Mr. Djanogly: With this issue going back to the Lords in the very near future and there not being much time, an early indication from the Government on confirmation hearings would be helpful.

Bridget Prentice: I can tell the House that, between now and the Bill going to the Lords, I will do my best to speak to my colleagues to find out whether we can discuss further the possibility of that type of appointment.

...

Mr. Djanogly: The Minister says, rightly, that we disagree. However, if we are to go down the consultation route, will she give the House some idea how the plans for consultation will be fleshed out? The Bill is shortly to return to the other place; I know that their lordships will want the meaning of consultation to be fleshed out. Will she do that before the Bill goes back to the other place?

Bridget Prentice: I have already engaged in correspondence with the Lord Chief Justice and in discussions on how consultation would take place. I shall try to ensure that that information is made available to both Houses before the debate continues in the other place.



Jonathan's Campaigns

Fair Votes for All Petition

A428 Petition

A14

Broadband Access

Cotton Farm Wind Farm

Hinchingbrooke Hospital

Local Post Offices

 

Search this site

Accessibility