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Legal Services Bill [HL]

I am very grateful to my noble friend Lord Campbell of Alloway not only for his tremendously hard work on the Joint Committee, but also for giving us an opportunity to look at what rights of appeal exist about decisions of the Legal Services Board. The amendment, to which I readily put my name, provides for one means of challenge, but the Joint Committee was greatly exercised by the fact that the Bill provides restricted rights of statutory appeal. Paragraph 186 of the Joint Committee’s report states: "““Other than in one case, the draft Bill provides no right of appeal against the decisions of the LSB ... In short, an approved regulator has a statutory route of appeal against the imposition of financial penalties, but no access to judicial review. If any other sanction is imposed, there is no statutory right of appeal, but the decision of the LSB may be subject to judicial review””." I find this very confusing. Many of the witnesses who gave evidence were concerned about the restricted rights of statutory appeal. The Government, in their response, rejected the recommendation at paragraph 191 of the report where the Joint Committee stated: "““We support the recommendation of the House of Lords Select Committee on the Constitution on this issue and we recommend that the draft Bill be amended to include a right of appeal to the High Court against regulatory decisions by the Legal Services Board. In line with existing practice, this right to appeal to the High Court should require the permission of a judge””." We will, of course, be debating this issue in other groups of amendments. Turning to judicial review, there have been a number of interesting cases—I see some very wise judicial minds present in the Chamber who have much more knowledge than I—and in the case of R v Ministry of Defence ex p Smith [1966] the then Master of the Rolls, Sir Thomas Bingham, referred to the courts seeking to fill a vacuum. He said: "““To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago. For myself, I am quite satisfied that this unprecedented judicial role has been greatly to the public benefit””." I find that fascinating. A little later in the same case he said: "““Absent a written constitution much sensitivity is required of the parliamentarian, administrator and judge if the delicate balance of the unwritten rules evolved (I believe successfully) in recent years is not to be disturbed, and all the recent advances undone … But the boundaries remain; they are of crucial significance to our private and public lives; and the courts should I believe make sure that they are not overstepped””." Do we believe that it is right to leave this ““dead ground”” dead? I think the Minister owes the Committee an explanation of the Government’s view of judicial review. The Government’s consultation paper Access to Justice with Conditional Fees, published in March 1998, was a disaster if ever there was one because no proper research was carried out into conditional fees; there were no pilot schemes or anything of that kind. However, it stated: "““The Government believes that the ability to challenge the acts or omissions of public authorities is a necessary check on the use of the power of the State and a positive encouragement to maintain high standards in public administration or by public bodies””." So, in a way, judicial review is where the judiciary has had to assume the constitutional responsibility of curbing power. Speaking on behalf of the Joint Committee and its unanimous recommendation, I would far prefer that the Bill clearly set out exactly what rights the approved regulator has so far as appeal is concerned. That is why I await with great interest what I hope will be a positive response to the amendment from the Minister.