§ (1) Practice directions may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2004.
§ (2) Practice directions given otherwise than under subsection (1) may not be given without the approval of—
- (a) the Lord Chancellor, and
- (b) the Lord Chief Justice.
§ (3) Practice directions (whether given under subsection (1) or otherwise) may provide for any matter which, by virtue of paragraph 3 of Schedule 1, may be provided for by Civil Procedure Rules.
1609§ (4) The power to give practice directions under subsection (1) includes power—
- (a) to vary or revoke directions given by any person;
- (b) to give directions containing different provision for different cases (including different areas);
- (c) to give directions containing provision for a specific court, for specific proceedings or for a specific jurisdiction.
§ (5) Subsection (2)(a) does not apply to directions to the extent that they consist of guidance about any of the following—
- (a) the application or interpretation of the law;
- (b) the making of judicial decisions.""
§ Page 56, line 10, leave out from "than" to end of line 12 and insert "under subsection (1) may not be given without the approval of—
- (a) the Lord Chancellor, and
- (b) the Lord Chief Justice.""
§ Page 56, line 13, leave out sub-paragraphs (4) and (5) and insert—
§ "(4) In subsection (3)(a) for "by the Lord Chief Justice or any other person" substitute "under subsection (1) or otherwise".
§ (5) For subsection (4) substitute—
§ "(4) Subsection (2)(a) does not apply to directions to the extent that they consist of guidance about any of the following—
- (a) the application or interpretation of the law;
- (b) the making of judicial decisions.""
§ Page 56, line 25, leave out from "than" to end of line 27 and insert "under subsection (1) may not be given without the approval of—
- (a) the Lord Chancellor, and
- (b) the Lord Chief Justice.""
§ Page 56, line 28, leave out sub-paragraph (4) and insert—
§ "(4) In subsection (3)(a) for "by the President of the Family Division or any other person" substitute "under subsection (1) or otherwise".
§ (5) After subsection (3) insert—
§ "(4) Subsection (2)(a) does not apply to directions to the extent that they consist of guidance about any of the following—
- (a) the application or interpretation of the law;
- (b) the making of judicial decisions.""
§ On Question, amendments agreed to.
§ Schedule 4 [Other functions of the Lord Chancellor and organisation of the courts]:
§ Lord Falconer of Thoroton moved Amendment No. 91:
§
Page 90, line 14, at end insert—
Omit section 74A (practice directions).
§ On Question, amendment agreed to.
§ Lord Maclennan of Rogart moved Amendment No. 92:
§ Page 97, line 28, at end insert—
§ "180A (1) Schedule 4 (authorised bodies) is amended as follows.
1610§ (2) For "each of the designated judges" in each place substitute "the Lord Chief Justice".
§ (3) In paragraph (5) (advice of designated judges)—
- (a) in sub-paragraph (4), for "give such advice as he thinks fit" substitute "notify the Lord Chancellor whether he concurs with the application";
- (b) after sub-paragraph (4) insert—
(5) If the Lord Chief Justice does not concur the Lord Chancellor shall not grant the application.
§ (4) In paragraph (b) (decision by the Lord Chancellor)—
- (a) in sub-paragraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and";
- (b) in sub-paragraph (1), omit paragraph (c).
§ (5) In paragraph 10 (early advice of designated judges), in subparagraph (1)(b) for "each of them" substitute "him".
§ (6) In paragraph 22 (advice of designated judges)—
- (a) in sub-paragraph (4) for "give such advice to the Lord Chancellor as he thinks fit" substitute "notify the Lord Chancellor whether he concurs with the proposal to make the alterations";
- (b) after sub-paragraph (4) insert—
(5) If the Lord Chief Justice does not concur the Lord Chancellor shall not make the alterations.
§ (7) In paragraph 23 (decisions by the Lord Chancellor)—
- (a) in sub-paragraph (1) at beginning insert "If the Lord Chief Justice has concurred with the proposal and";
- (b) in sub-paragraph (1), omit paragraph (c).
§ (8) In paragraph 31 (advice of designated judges)—
- (a) in sub-paragraph (4) for "give such advice to the Lord Chancellor as he thinks fit" substitute "whether he concurs with the proposal to recommend the order";
- (b) after sub-paragraph (4) insert—
(5) If the Lord Chief Justice does not concur the Lord Chancellor shall not make the recommendation.
§ (9) In paragraph 32 (considerations by Lord Chancellor) omit "and the advice given by each of the designated judges".
§ The noble Lord said: My Lords, the amendment standing in the name of my noble friend Lord Goodhart, who alas is unable to be here, and in the name of the noble Lord, Lord Kingsland, and myself, attempts to address the serious issue of powers over professional bodies in the legal profession. It may be thought that since we last considered these issues the debate has moved on a little, with the publication of the Clementi report. However, nothing in the Clementi report runs counter to the purposes, or indeed the recommendations, contained in the amendment.
§ Under Schedule 4 to the Courts and Legal Services Act 1990, as amended by Schedule 5 to the Access to Justice Act 1999, the Lord Chancellor has important powers over professional bodies in the legal profession. I draw close attention to the rules in Part 1 of Schedule 4 relating to powers to designate bodies to have the right of audience and the rights to conduct litigation. Part 3 gives powers to impose rule changes on designated bodies and Part 4 powers to revoke designation. Those provisions are clearly important.
1611§ The schedule requires consultation with a consultative panel, the Director-General of Fair Trading in foreseeing a budget, but none has the power of veto. Under comparable provisions in the Courts and Legal Services Act 1990 in its original form, there was a veto power. The orders under Parts 1, 3 and 4 require the affirmative procedure.
§ The independence of the legal profession is of great constitutional importance. The provisions of the 1999 Act have not been regarded as wholly satisfactory, but this Bill does to some extent strengthen the concerns of the legal profession. Since the ending of the judicial function of the Lord Chancellor would mean that the Lord Chancellor was more of a political figure and less a judicial one, and in relation to discipline, which is recognised and dealt with by the concordat and the Bill, it does appear to make sense to make some transfer of power from the Lord Chancellor to the Lord Chief Justice, as proposed.
§ The concordat does not extend to the legal profession, but we believe that for the important powers in Parts 1, 3 and 4 of the schedule two keyholders are needed and that the second should be the Lord Chief Justice, who is now the head of the judiciary, and not, as before, the first among equals. Of course it is the case that Lord Chief Justices are not always progressive and forward-looking and can block sensible changes, unless the Government are prepared to pass primary legislation. We must also recognise that a future Lord Chancellor might wish to force undesirable changes on the legal profession. The "lock" proposal in the amendment is intended to deal with both those possibilities.
§ The Clementi report recommends that a legal services board should be set up and should take over powers currently confined under Schedule 4 to the Lord Chancellor. That appears to us at first blush to be a sensible proposal. That would, however, require primary legislation, if accepted by the Government. However, nothing in the report seems to us to offer a reason for not utilising the double key system pending the legislation which may be brought forward based upon the Clementi report. I hope that at this stage that is a sufficient explanation of the purposes that lie behind the amendment. I beg to move.
§ 7.30 p.m.
Lord RentonMy Lords, there are several places in this amendment where the Lord Chief Justice is virtually given jurisdiction over the Lord Chancellor. Incidentally, I think that one or two earlier amendments did the same. Will the noble and learned Lord the present Lord Chancellor say whether he is content with that situation? Of course, it may be that in dealing simply with the Court of Appeal the Lord Chief Justice is to be given a predominant position under this Bill. But surely the Lord Chief Justice is not the head of the judicial system even under the Bill. As 1612 I understand it, the Government having changed their mind, the Lord Chancellor is to be in that position in the years to come.
§ Lord KingslandMy Lords, on Report we supported the noble Lord, Lord Goodhart, on this amendment. Indeed, our name is on it at Third Reading. I do not intend to repeat the arguments I advanced at that stage. However, I should like to make an observation on one of the things the noble and learned Lord the Lord Chancellor said on Report in response to the speech of the noble Lord, Lord Goodhart.
The noble and learned Lord the Lord Chancellor said to the noble Lord, Lord Goodhart:
I suggest to the noble Lord, while understanding that the position of a new Lord Chancellor will be different from that of the old one, in the sense that the new Lord Chancellor would not be a judge as the old one was, that nevertheless it would be unwise to impose a judicial veto at this stage, when the issue of the regulation of the legal profession is under review by Sir David Clementi".—[Official Report, 7/12/04; col. 821.]Having seen a copy of the Clementi report in the past week, I submit that, as a result of what Sir David proposes, there is every reason to give the noble and learned Lord the Lord Chief Justice a veto over changes proposed by future Lord Chancellors. It is absolutely critical that, whatever business arrangements are put in place by future legislation for the legal profession, the professional standards of lawyers are protected. No one is in a better position to protect those standards than the Lord Chief Justice. Therefore, I believe that, since Report, we have added reasons to support the proposals by the noble Lords, Lord Goodhart and Lord Maclennan of Rogart.
§ Lord Falconer of ThorotonMy Lords, first, I shall deal with the point made by the noble Lord, Lord Renton. Throughout the Bill there are provisions which put the Lord Chancellor and the Lord Chief Justice together in determining what should happen in relation to various issues regarding the judiciary. It is also made clear in the Bill that once the reforms come into place, even though the office of Lord Chancellor survives, he or she will no longer be the head of the judiciary; it will be the Lord Chief Justice. Therefore, I do not regard it as an objection in principle to the amendments of the noble Lord, Lord Maclennan of Rogart, that they put the Lord Chief Justice and the Lord Chancellor in a double lock situation—to use the noble Lord's phrase—as that is reflected in a huge number of places throughout the Bill.
However, I hope that I can persuade the noble Lords, Lord Maclennan and Lord Kingsland, that these would not be appropriate amendments. Currently the determinative role in relation to deciding whether or not people have rights of audience or rights to conduct litigation is put with the Lord Chancellor as a Minister. He has to consult not just the Lord Chief Justice but also a number of other policy driven bodies such as the Office of Fair Trading, the legal services consultative committee and each of the four designated senior judges. What the Minister is doing 1613 there is consulting all the appropriate bodies and making an appropriate policy decision. That is an appropriate way to deal with the matter so long as he is compelled to consult the relevant judges, which he is under the arrangements.
Sir David Clementi proposes that instead of the judges being involved in a direct way in the regulation of the profession, as they are—for example, the Master of the Rolls is responsible for regulating solicitors—they should in effect be taken out of the picture and a legal services board be put into the picture so that it is much more outward looking. We have welcomed that proposal: we think it is the right way forward. We think it is the wrong way forward at the moment to transfer part of the key to the Lord Chief Justice. I respectfully submit that the right course is to leave things as they are with me giving an assurance which I gave previously. I repeat it and I hope that it influences the noble Lords' consideration of what to do. I made it absolutely clear that,
in exercising my powers under the 1999 arrangements, I shall exercise them with a view to ensuring that neither the independence of the judiciary nor access to justice is adversely affected".—[Official Report, 7/12/04; col. 822.]I very much hope that assurance will set at rest the legitimate concerns of the noble Lords, Lord Maclennan and Lord Kingsland, because it would be a grave mistake at this stage to make the change that they propose. I certainly do not intend to exercise my powers in a different way from that of Lord Chancellors in the past. There has only been one such Lord Chancellor as the relevant arrangements were put in place only in 1999. However, I would envisage doing it in that way pending the changes suggested by Sir David Clementi. I hope that in the light of the assurance I gave on Report and just now that will ease the understandable concerns of the noble Lord, Lord Maclennan. His concerns are understandable but I do not think that his solution is the correct one.
§ Lord Evans of Temple GuitingMy Lords, we are at Third Reading. Once the Minister has sat down, I am afraid that there is no opportunity to make further points.
Lord RentonMy Lords, I understood that it was perfectly in order for me to thank the noble and learned Lord the Lord Chancellor for clarifying and confirming what the Government intend should be the future responsibilities of the Lord Chancellor and of the Lord Chief Justice. He has clarified that and I am glad he has.
§ Lord Maclennan of RogartMy Lords, the noble and learned Lord the Lord Chancellor helpfully repeated the assurance that he gave on an earlier occasion. Since that occasion, of course, the Clementi report has intervened. That does to some extent change the situation as it anticipates that there will be further primary legislation. That may be quite some time 1614 away. My concerns are that even the existing arrangements under the 1999 Act have given rise to some criticism and concern which this amendment is intended to address.
I confess to being not entirely clear why the association of the Lord Chief Justice with this measure to protect the independence of the professions should arouse such emphatic rejection by the noble and learned Lord the Lord Chancellor. Of course, his personal assertions carry a great deal of weight. Like myself, he has been in political life long enough to know how unexpectedly brief political office may be. We hoped that the resonant words that he expressed tonight would reflect the office holder's intention and not just his personal intention.
In the light of what the noble and learned Lord the Lord Chancellor has said, I feel that I must leave the resolution of the issue until a later date. The deeper reaction to the Clementi report will of course give us much greater understanding of how to augment the protection of the independence of the judiciary. This was admittedly seen as an interim arrangement in any event. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Falconer of Thoroton moved Amendments Nos. 93 and 94:
§
Page 103, line 8, leave out sub-paragraph (3) and insert—
( ) In subsection (1)(c) for the words from "joint" to "State" substitute "recommendation of the Lord Chancellor".
( ) In subsection (2) omit "and the Secretary of State".
§ Page 125, line 28, at end insert—
§ "(1) Section 81 (practice directions relating to family proceedings) is amended as follows.
§ (2) In subsection (1), before paragraph (a) insert—
- "(za) the civil division of the Court of Appeal,
- (zb) the High Court,"."
§ (3) After subsection (2) insert—
§ "(2A) Directions as to the practice and procedure of any relevant court in family proceedings (whether given under subsection (1) or otherwise) may provide for any matter which, by virtue of paragraph 3 of Schedule 1 to the Civil Procedure Act 1997, may be provided for by Civil Procedure Rules."
§ (4) In subsection (3) for "magistrates' courts and county courts (or any of them)" substitute "any relevant court".
§ (5) After subsection (4) (inserted by paragraph 9(5) of Schedule 2 to this Act) insert—
§
"(5) In this section—
Civil Procedure Rules" has the same meaning as in the Civil Procedure Act 1997;
relevant court" means a court listed in subsection (1)."
§ On Question, amendments agreed to.
§ Schedule 5 [Speakership of the House of Lords]:
§ [Amendment No. 95 not moved.]
1615§ Lord Falconer of Thoroton moved Amendment No. 96:
§ After Schedule 5, insert the following new schedule—