Lords Sitting of 7 March 2003

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

High Hedges Bill [H.L.]
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the High Hedges Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time; an amendment (privilege) made.
Baroness Gardner of Parkes: My Lords, I beg to move that the Bill do now pass. In doing so, I reiterate my thanks to everyone whom I thanked at the last stage. I mention in particular the noble Lord, Lord Graham of Edmonton, who has worked tirelessly for a long time on this subject. I am also delighted to see the noble Baroness, Lady Farrington, in the Chamber. She did so much when we had high hopes for the Bill, which we hope will now be realised.
Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)
On Question, Bill passed, and sent to the Commons.

Immigration: EUC Report
11.7 a.m.
Baroness Harris of Richmondrose to move, That this House takes note of the report of the European Union Committee, A Common Policy on Illegal Immigration (37th Report, HL Paper 187, Session 2001–02).
The noble Baroness said: My Lords, I am very glad to have the opportunity to open this debate on an important and topical subject. I welcome the fact that it has been possible to schedule it promptly, albeit on a Friday, within a month of the Government's response to the committee's report. I thank them for that. It is important that our reports are debated promptly, particularly in a fast-moving area of policy like immigration.
Before I address the substance of the report's conclusions, I should like to thank those who contributed to it. I thank first the members of my committee, all of whom I made sure worked very hard; our witnesses, who gave a great deal of helpful evidence; those who assisted us on our very informative visits; and not least our distinguished specialist adviser, Professor Jorg Monar, co-director of the Sussex European Institute at the University of Sussex, who has assisted us in several other inquiries
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and has an unrivalled knowledge of the subject. I also wish to place on record the committee's most grateful thanks to Dr Valsamis Mitsilegas, our legal assistant, and Mr Tony Rawsthorne, our Clerk, who, as always, helped us tirelessly.
This is a large subject and a substantial report, with 22 conclusions and recommendations. I will not attempt to cover every aspect of it, but instead focus on some of the main themes. I shall first explain briefly the background to the inquiry, then describe our broad approach to the main underlying issues; identify the main points of disagreement with the Government—although there are many points where we are in broad agreement with them; and finally seek further explanation from the Minister on those points, and perhaps ask some questions about developments since the report was published.
I turn first to the background to the inquiry. I n 1997, the Treaty of Amsterdam transferred the bulk of immigration and asylum matters into Community competence. Previously, they had been dealt with largely in the third pillar. A protocol to the treaty gave the United Kingdom the right to decide, in relation to each specific immigration and asylum measure, whether or not to opt into it. I shall return to that later.
Since Amsterdam, the European Commission has been seeking to construct, initially through a series of communications, a comprehensive policy on asylum and immigration. Some noble Lords may remember the committee's earlier report A Community Immigration Policy, which we debated two years ago. There have also been a series of reports on different aspects of asylum policy. The communication on which this inquiry is based—Proposing a common policy on illegal immigration—is the last major piece in the Commission's jigsaw in this area.
Three broad propositions underpin the report and its recommendations. First, illegal immigration presents a serious challenge to us all, and to all the member states of the European Union. It undermines policies governing the admission of legal immigrants; it creates insecurity among host communities; it attracts the increasing involvement of organised crime; and it can place illegal immigrants themselves in personal danger, and at risk of exploitat ion. We do riot underestimate its adverse effects, and in particular we do not subscribe to the laissez-faire approach advocated by some, that would leave immigration levels to be determined by market forces.
Secondly, illegal immigration will not be tackled effectively by control measures alone. There needs to be a comprehensive approach involving positive immigration measures and action with third countries as well as effective enforcement action. Immigration policy needs to be driven by labour market policy. As long as there is a significant unmet demand for labour, it will act as a strong pull factor for illegal immigrants. But if there are adequate legal avenues to fill identified labour shortages, there is much stronger justification for cracking down on illegal working, ready access to which is probably one of the main pull factors for illegal immigrants.

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The Government's current scheme to prevent illegal working is widely regarded as ineffective. Their proposals to tighten up the existing scheme are based on the idea of an entitlement card. It would be helpful if the Minister could give us some indication of the Government's thinking on how they plan to take this forward now that the period of consultation is over.
Thirdly, no member state can tackle illegal immigration on its own. This is self-evident as far as the Schengen member states are concerned as they have removed the borders between them, creating in effect a large common travel area. But even for the United Kingdom, as we are seeing increasingly, retention of border controls with its immediate member state neighbours is no panacea. The United Kingdom, no less than other member states, should have a strong interest in a common response to what is clearly a common challenge.
I am grateful to the Government for their thoughtful and detailed response to our report. It indicates, as I hope the Minister would accept, that the Government are in broad agreement with the committee's general approach. In particular, they have shown commendable commitment to the principle of a comprehensive approach by a series of measures to facilitate legal migration in a number of sectors which are clearly set out at the beginning of their response. We welcome those measures. It would be helpful if the Minister could provide further details of schemes of managed migration that he announced last year. We should particularly like to hear more about not only the positive proposals as regards people with high skills and the seasonal agricultural workers' scheme, but also about the low-skill areas.
Before examining some of those issues in more detail I should say what the report is not about. In particular, contrary to much of the press reporting when it was published, it is not about asylum. There is, of course, a connection between immigration and asylum. But we were at pains in our report to distinguish clearly between the two phenomena and emphasise that our report was concerned with illegal immigration. Asylum is an issue in its own right which should not be confused with illegal immigration. We made no recommendations about the Government's handling of asylum applications or the rate of removals of failed asylum seekers and were surprised to read in some press reports that we had.
The most substantial difference between the committee and the Government concerns the extent of the Government's commitment to a common policy on immigration and asylum. As I said earlier, we believe that the case for a common and comprehensive EU policy on immigration is irrefutable. The Government claim to be fully committed to a common EU policy, and in relation to some aspects of policy, that cannot be gainsaid. The Government signed up to the Council action plan on illegal immigration in February 2002; and at the Seville European Council last June, the Prime Minister took
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a strong and largely successful initiative to put the fight against illegal immigration at the top of the political agenda.
But the Government's commitment is very partial. It is strongly skewed towards action on enforcement measures. Our contention is that a balanced approach, embracing positive immigration measures as well as enforcement measures, is an indispensable prerequisite of a common policy. It is difficult to see how the Government can genuinely subscribe to a common policy when they remain so strongly attached to the opt-outs that they secured at Amsterdam in 1997.
There are two relevant protocols to the Treaty of Amsterdam, and it may be helpful to explain their effect briefly, as in defending their position the Government do not seem always to distinguish sufficiently clearly between them. The first protocol settled a long-running dispute about the United Kingdom's retention of systematic controls at its borders with other member states in the face of the obligation to respect the free movement of persons in Article 7a of the EC Treaty. This protocol specifically authorises the United Kingdom (and Ireland) to retain immigration controls at its frontiers with other member states. The second protocol enables the United Kingdom and Ireland to choose on a case by case basis whether or not to opt into measures relating to visas, asylum and immigration in Title IV of the treaty.
The effect of those two protocols is quite distinct although sometimes the Government seem to present them as mutually interdependent. The first protocol concerns the mechanism by which the entitlement or qualification of a person seeking to enter the country is checked. For the Schengen member states that check now takes place at the external border of the European Union. The second protocol is largely concerned with the qualifications for entry of third country nationals. It covers the whole range of Title IV measures, which, in relation to immigration, include common rules for the EU visa regime and for the admission of different categories of third country nationals, such as visitors, students and people coming for work or self-employment.
Signing up to measures in Title IV would not prejudice the maintenance of frontier controls at the UK's internal borders. Although enthusiastically opting into Title IV measures relating to illegal immigration, the Government have consistently declined to opt into positive measures on immigration. It is difficult to see how a genuine commitment to a common EU policy can be reconciled with declining to opt into measures relating to, for example, the admission of third-country nationals for work and self-employment, the admission of students, and the protection of victims of trafficking—all recent examples—not to mention the common visa list.
Those are all measures in which the Government have decided not to participate. In the past, the committee has expressed its opposition to the United Kingdom's opt-out from the Schengen system and the maintenance of its internal frontier controls. We

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realise that that is a matter on which the Government are unlikely to change their views in the near future, but we would urge them to think again about their negative attitude to Title IV measures, and I hope that the Minister can give us some comfort on that point.
I would like to draw attention to the paucity of data on illegal immigration. As our report described, there are no figures indicating the scale of illegal immigration in the United Kingdom, not even a rough estimate. It is by definition difficult to measure illegal activity, but the Government's own response indicates that in some member states there are at least official estimates. If the United Kingdom and the EU as a whole are to develop effective policies to combat illegal immigration. it is essential that they have better data on the scale of the problem.
We were pleased to hear that the Home Office Research Development and Statistics Directorate was undertaking research in that area. It has already done excellent work on the economic effects of immigration, and we look forward to the results of the further work that is in hand. I should be grateful for any indication that the Minister can give us of its emerging findings, and of when we might expect to see the results of its research.
A proposal in the Commission's communication relevant to the issue was the establishment of a European migration observatory. We warmly endorsed that suggestion, and were disappointed that the Council of Ministers seemed lukewarm towards it. In the Government's response to our report, they explained that a start had been made by setting up a "virtual" network of research, with statistical experts from each member state to share information. I suppose that that is better than nothing, but, as illegal immigration is clearly not a "virtual" phenomenon, it cannot be a substitute for a dedicated EU research and information facility. Given the work that the Home Office has done on the matter, it would be well placed to make a major contribution to such a body.
Another issue which I would like to develop is what our witnesses tended to describe as the "regularisation" of illegal immigrants—the granting of legal status, sometimes in the form of an amnesty, to some categories of long-resident illegal immigrants. The committee did not make a firm recommendation on the matter, contrary to press reports which claimed that we had recommended amnesties for asylum seekers. We did not underestimate the importance of avoiding action that might give encouragement to future illegal immigrants, but we drew attention to what is potentially a very serious problem.
The Government concede that they cannot currently remove more than a small minority of those identified as illegal immigrants. They have abandoned their target of removing 30,000 failed asylum seekers a year, and that is only one of several categories of illegal immigrants. Despite the lack of statistics, there is little doubt that there is a large and rapidly growing population of illegal immigrants in this country. If the Government are unable to remove them and are unwilling to consider any form of regularisation except
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after 14 years' residence, as the Minister suggested in the Government's response, we are building up a serious social problem of people who have long residence in this country but have no rights and are vulnerable to exploitation and penetration by crime.
The committee did not underestimate the difficulty of dealing with that problem, but we were clear that it needed to be addressed. I would welcome some indication from the Minister that the Government appreciate the dangers of effectively leaving large and increasing numbers of people in limbo indefinitely.
Finally, I will say a few words about the criminal aspects of illegal immigration. Those are most definitely not to be underestimated. Organised crime is now heavily involved in people smuggling and trafficking, as evidence that we received from Europol and the National Criminal Intelligence Service. among others, highlighted. That is an area where there is a great need for close co-operation between law enforcement agencies across the EU and beyond, and for a significant involvement of Europol and Eurojust as the key European agencies.
We were pleased to find that the United Kingdom, particularly through NCIS, was making a major contribution to that co-operation and we congratulate NCIS on that. However, we were concerned about some aspects of the domestic situation. We drew attention to Operation Wisdom, which has uncovered identity theft on a large scale. That problem is very much in the news at present following Mr Bond's arrest and detention in South Africa as a result of his identity being stolen. However, there have not been sufficient resources to follow up all the cases identified.
We were also concerned at what appeared to be a lack of priority given to serious immigration crime by some major urban police forces. The Government's response indicates that they are taking some steps to rectify the situation and I hope that the Minister can give us some further reassurance this morning.
I am very much looking forward to hearing the views of other speakers in the debate, and the response of the Minister. I beg to move.
Moved. That this House takes note of the report of the European Union Committee; A Common Policy on Illegal Immigration (37th Report, HL Paper 187, Session 2001–02).—(Baroness Harris of Richmond.)
11.27 a.m.
Lord Corbett of Castle Vale: My Lords, it is a pleasure to speak after the noble Baroness, who has opened the debate so well. I was not a member of the sub-committee that produced the report, although I am happy to be so now and to endorse its main conclusions. It is obvious that illegal immigration is a major challenge to the United Kingdom and to all other member states of the European Union.
It is a good idea, not least for the Daily Mail, the Daily Express and other ill-informed newspapers, that we make what we are talking about clear. The report is about illegal immigration and, as the noble Baroness

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said, not about asylum seekers or refugees. Asylum is a separate issue, although clearly there is a link. The confused and thoughtless newspapers—I am being generous to the Daily Mail in particular—are unhappily unable or perhaps unwilling to distinguish the difference. I hope that they will get around to it, the better to discourage the community-splitting impact of the British National Party and other racists who feed on such inaccurate reports.
There are millions on the move in our world today. Our world is much smaller in terms of ease of travel, although most of those millions leave one poor country for a poor neighbour, because that is as far as their feet will take them. However, it is no surprise that those in poorer and not yet developed countries should seek a better life for themselves and their families in the developed world. The pull of the chance of a better life elsewhere is understandable, and why not in the country whose vast empire offered English as a major international language and had a proud record of tolerance?
Illegal immigration has a darker side. When, in this Parliament, we killed the slave trade, we never knew that it would be reborn in the people traffickers who, for the right price, smuggle those with enough cash across half a world into the UK and other parts of Europe. That is why, as the report states, the UK and the rest of the European Union need a clear immigration policy to offer jobs and prospects to those who, because of our ageing working population, we need. The short point is that we want to welcome people, whose skills and talents we need, through the front door rather than helping the people smugglers to get them in the back door, and then to help them to claim asylum.
I welcome the Government's response to the report where it states that they want to open up legal migration routes for those who want to come to do the work that we need to be done. That must be done across the whole of Europe because no one country can do it alone. In a couple of sentences I believe that the policy should be, "Welcome when you have the skills and talents we need; when you don't we will gear EU aid to assist your country's development".
I want to raise some specific issues. The noble Baroness, Lady Harris, referred to the issue of entitlement cards. The idea of an entitlement card for people living here was first floated by the Home Affairs Select Committee in another place, which I was pleased to chair. It was not meant to be an identity card by another name, which the police could demand to see. It was meant as a passport to entitlement to work and welfare benefits to help those here who were being exploited, often by those in their own communities. It would be useful if the Minister could say where the Government are with that suggestion and whether and when it might be introduced, especially as the consultation period is over.
The noble Baroness, Lady Harris, complained that there are no figures indicating the scale of illegal immigration into the UK. I take her point, but I rather think that that is not the issue. It is not so much a
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question of counting what cannot easily be counted as trying to stop illegal immigration happening in the first place. What matters is that we and other countries in the European Union have a clear and known policy on immigration so that separately and jointly we can work to put the people traffickers out of business. There is a welcome and increasing co-operation between present and future EU member states in which the UK is heavily and properly involved, the better to manage our borders. This week, on a very cold afternoon, the committee was able to see examples of such co-operation between the German and Polish authorities on an important border at Frankfurt and Oder.
I question the report's assertion that there is a large and rapidly growing number of illegal immigrants. The committee may have forgotten its own injunction clearly to understand the distinction between illegal immigrants and asylum seekers. But let me quickly add that any rise in illegal immigration stores up problems for people with no rights and makes them vulnerable to exploitation both by criminals and those who would cheat them over their wages.
I am glad that the Government accept the report's call to develop routes for legal migration. The better we do that, the better we counter the people smugglers. I say again, "Come in through the front door, not the back door". The report backs UK participation in the EU's common visa list. I am with the Government when they say that that would not be consistent with us having control over who should be admitted to the United Kingdom. We should co-operate, as we do, on the better management of ELJ borders, but I believe that it is right that we should maintain controls of our own.
I turn to recommendations that the EU should do more to help countries of origin of illegal immigrants and transit countries. That is part of our shrinking world. I welcomed the Government's support for that at last June's European Council. That led to member states agreeing a list of source and transit countries where better co-operation will help us all. The plain fact is that neither the UK nor the EU can solve the economic social and political problems which drive those seeking a better life to become illegal immigrants. We can and should, through the EU and UN, help to aid and encourage the development of their countries and encourage them to he part of that.
For at least two centuries our country has been refreshed and reinvigorated by those from other countries who bring their skills and talents to us. We need them still. But let us have policies which aid development in their own countries—those which need it—helping them to help themselves, while we continue to welcome those who can help us to succeed, which in turn helps the developing world.
11.35 a.m.
The Lord Bishop of Rochester: My Lords, the Select Committee's excellent report underlines the importance of not isolating illegal immigration from the wider issues regarding immigration as such,

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including legal immigration—the noble Baroness touched on that—and its effects on the economy and society generally.
For any government, surely the point of departure on immigration policy must be the security and prosperity of those who already live here. That needs to include procedures for ensuring that those who are a danger to peace or to public order are not admitted. It needs also to include the safeguarding of conditions of service for existing workers so that those cannot be undercut by the employment of new arrivals.
I believe that the question of immigration should be set in the wider context of freedom of movement. The noble Lord, Lord Corbett, just touched on that. One of the reasons for increasing emigration to the EU is that it is becoming forbidden fruit, thus making it more attractive. That is a thought for Lent. Better provision for youth and student exchanges, facilities for relatives visiting those here already and even well-regulated tourist arrangements for the growing middle classes in developing countries will all help to reduce the perception of a fortress Europe.
At the same time, as the noble Lord, Lord Corbett, stated, every country needs the fresh blood, new ideas and entrepreneurial flair which legal migration can and does bring. In addition, the ageing populations of most EU countries, noted in the report, also require a labour force which will be sufficient not only for social and service sector needs but also fiscally in terms of the revenue needed to maintain welfare provision. The emphasis in the report on the benefits of legal migration is therefore most welcome. Naturally, such migration will have to be regulated in terms of the needs of the labour market, and with an awareness of the limitations of the social infrastructure. Cultural factors, especially the ability of existing communities to welcome newcomers, will have to be taken into account, as will a willingness to adapt and contribute to society on the part of those who desire to come here. There can be no opting out.
I believe the report to be mistaken in the view expressed at paragraph 88 that, global economic disparities being what they are, economic assistance 'would not contribute much to reducing illegal immigration. Generally speaking, people are not seeking parity with western living standards, especially if measured in strictly economic terms rather than more general terms of well-being. What they seek is political stability, government by consent, a fair price for what they produce and a just wage. Many of those needs can be addressed by carefully targeted assistance, the removal of unreasonable tariffs and encouragement to fair trade.
Paragraph 29 of the report states that EU countries do not regard themselves as "countries of immigration". I wonder what that means. Whatever it may mean, certainly they are countries of emigration. Hundreds of millions of people from these countries have settled in other parts of the world during the course of history. Many still spend a major part of their working lives in countries outside the EU. Surely, that demands some reciprocity of hospitality. I fear
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that a common immigration policy will discourage those countries that are more receptive to reasonable levels of immigration and will whip them into line on the negative repressive policies of which the report speaks in paragraph 58 and elsewhere.
I return to where I began. There can he no free-for-all. Every government have a responsibility for stability, order and prosperity within their own borders. But those need to be approached with enlightened self-interest, where legal migration is concerned. We must show compassion for those who are genuinely fleeing persecution—and therefore asylum cannot he wholly isolated from other aspects of immigration—and humane treatment, which the report commends, even for those who are here illegally, while being tough on those who traffic in human beings.
The EU's immigration policy, whatever it may become, should not extinguish traditions of welcome and hospitality; nor should it isolate the EU from the world roundabout, on which much of its prosperity may depend.
11.41 a.m.
Lord Wright of Richmond: My Lords, I regard it as a privilege to have been involved in the production of this report. If one reads the tabloid press—or, to quote the noble Lord, Lord Corbett of Castle Vale, "the ill-informed press"—one could perhaps be forgiven for thinking that illegal immigration was a problem that affected this country only. The noble Baroness, Lady Harris of Richmond, was ofcourse right to give priority to one of the broad perspectives that underpin our report; namely that illegal immigration presents a serious challenge to all the member states of the European Union.
It is for that reason that I particularly welcome the significant effort that the Government are giving to enhance co-operation with our partners in the European Union. Since our failure to opt into all aspects of Title IV measures may have given the contrary impression—and I was one of the majority on our committee who regretted the Government's continued attachments to the "opt-outs" which they secured in Amsterdam in 1997—it may be worth briefly mentioning some of the projects related to illegal immigration in which the Government are taking an active part and which have been reported to us by the Home Office in the context of our current scrutiny into proposals for a European Border Guard.
British immigration officers have participated in joint operations on both the German/Polish and the Austrian/Slovakian borders to exchange best practice in controlling illegal immigration at an operational level. British vessels were involved in a multinational project at the end of January to track vessels in the Mediterranean that might be carrying potential illegal immigrants. An initial planning meeting was held in November, with nine other participants, to pursue a British initiative to pool our expertise in detection technology, some aspects of which we had an opportunity to see during the committee's visit this week to the German/Polish border. There is also a

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British project aimed at detecting the movement of ships or boats carrying clandestine migrants from the eastern Mediterranean. Those are only a few of the current multinational projects to reduce what the noble Baroness, Lady Harris of Richmond, referred to as the large and rapidly growing population of illegal immigrants in this country.
When our committee visited Sangatte last year, we discovered that a large proportion of those hoping to get to this country were from Iraq, not because of the supposed level of benefits and grants available here but because most of them wished to join relatives and friends in this country and because their second language was English.
I have referred on other occasions to the strong likelihood that a military attack on Iraq could lead to a further flood of refugees from that suffering country. I hope that the Government are actively considering ways in which the international community could ensure that the flood was controlled and compassionately managed. Iraq is, of course, one country with which, in present circumstances, readmission agreements are not feasible.
I commend to your Lordships that part of our report in which we speak of readmission agreements as an important element in an effective policy towards illegal immigration. In that context, perhaps I may welcome our participation in a French initiative to improve rational procedures for repatriation.
Our report emphasises that arrangements for readmission and repatriation should not focus solely on the penalties that might be applied to countries of origin, but should also identify incentives to encourage third countries to co-operate. In that connection, experience shows that carrots can often be more effective than sticks.
11.46 a.m.
Baroness Greengross: My Lords, I first declare an interest as the vice-chair of the Britain in Europe campaign. It has been a great privilege to be a member of the sub-committee that produced the report, which was admirably chaired by the noble Baroness, Lady Harris of Richmond.
I am still learning an enormous amount. I was very interested to read the earlier Commission documents on which the report built—the Commission communication and the more recent action plan. They suggested a new approach to immigration involving a more flexible and proactive policy generally. Along with the noble Lord, Lord Wright, I regret the UK Government's opt-outs on these issues. There is now a very positive attitude as we in the UK respond to the changing economic and demographic needs of our country along with our member state partners.
In the past decade illegal immigration was identified as a growing problem with extremely negative implications for national labour markets and internal security. There is a growing recognition of mutual interdependence of the EU member states. And of
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course the UK is not in any way immune from that need. In fact, some of the "pull factors" are increasing the numbers wishing to come to the UK compared with other member states: our common language, the ability of many people from other third countries to use English, and its value as a means of getting work. There are fewer controls in obtaining work in this country than in many other EU countries. Furthermore, there are often established communities and families here, which makes it much easier for people to settle.
However, the research that has been undertaken has found that most migrants to this country want to find a job although they do not want to be detected, and they find it easier here than in many other member states. Dr Sciortino from the University of Trieste, one of the witnesses who gave evidence to the committee, said:
"Most illegal migration is, from the economic point of view, simply a labour migration not approved of by the government".
It is on such people that I wish to concentrate my brief remarks.
Of course we all recognise the drawbacks, the costs and indeed the dangers of illegal immigration. We worry about our own unskilled jobseekers. We worry about lower standards of employment and wages. We worry about the numbers of others who might be brought over and the encouraging of organised crime. We know that too many illegal immigrants can increase the racist attitudes and negative views of people who feel threatened in this country. But making a specific number of economic migrants legal would be a sensible and realistic option to deal with some of those problems. I am pleased that the Government are actively considering that, along with their welcome determination to adopt a comprehensive approach and to work with other EU member states to deal with the problem.
In present circumstances, all migrants are at risk of being labelled asylum seekers, which is no longer something of which to he proud. It has become a disparaging description, whereas this country's admirable tradition of welcoming refugees and people seeking asylum is one of which we can be justly proud, and which has enriched our society in social as well as economic terms.
Economic migrants are often lumped together with serious criminals, smugglers and traffickers. But, as our chairman said when introducing the debate, our policy needs to be driven by the needs of the labour market. A comprehensive and pro-active approach by the Government, together with close co-operation in working practice with our European partners, are the only positive ways forward. Such an approach, together with strong measures to deal with current and future illegal immigrants as quickly as they arrive, although it will pose an undeniably difficult set of problems for the Government and public authorities generally, is the only way forward. Much work is also needed to inform the public and educate us all about the valuable work that economic migrants perform and to think about them in positive rather than negative ways.
11.52 a.m.>
Lord Greaves: My Lords, I, too, congratulate my noble friend Lady Harris of Richmond on the incredible amount of work that she carried out to produce the report. I was a member of the committee at the time and was able to observe at first hand just how much work and commitment many members of the committee devoted, most of them rather more than I was able. I also congratulate the noble Lord, Lord Wright of Richmond, and the noble Baroness, Lady Greengross, on their contributions.
The report is vital and will he kept as a research document for many years to come. I welcome many aspects of the Government's response to it. Introducing the debate. my noble friend set out three broad propositions, The first was that the committee did not subscribe to a laissez faire approach to immigration—merely leaving it to be tackled by the market. In today's world, with its huge disparities of income, wealth and power between different parts of the world and different countries within them, it is impossible to remove all immigration and migration controls and expect things to be okay.
In an increasingly globalised world, with an increasingly liberalised world economy and in which modern communications of all kinds are increasingly globalised and easy. it is unrealistic to expect that people can be permanently excluded from the global economy and society. By definition, economies and societies comprise people. So when we talk about controls on people moving freely around the world, we are discussing the short and medium term, not the long term. Not only ought they not to exist for the long term, it will be impractical for them do so if the world is to become a stable and civilised place.
The noble Lord, Lord Corbett of Castle Vale, talked about the global economy and modern communications. There are two aspects to modern communications. The first is that of physical communication. Since the days when Mungo Park, Livingstone and company went plodding around Africa on foot, it has become easier to get from Kano to London, London to Kano or anywhere in Europe to anywhere in Africa and back. That now takes a matter of hours rather than months or years. The changes in communications during the past 150 years have been extraordinary and show no sign of slowing down. The fact that people can move around the world so much more easily and faster will remain.
The second, equally important aspect of communications is the fact that information is nowadays communicated virtually instantaneously from almost anywhere to almost anywhere else. One can be walking across the south polar icecap and maintain communication with someone sitting in a council flat in Aberdeen. It was not long ago when people walking across the south polar icecap by definition cut themselves off from the rest of the world for months on end.
People living in an Indian village now have access via satellite television to almost any television programme anywhere in the world. That also applies
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to migrant communities. People had to wait weeks for a letter to come to and from this country if, for example, they were part of the British administration in India—part of the Raj. Then we had the wireless, then radio and then television. Nowadays we have an astonishing variety of communications, not least the Internet. Who knows what communications will be like in even 10 or 20 years' time? The speed of change is so great.
That is vital to the argument about migration because it means that, for example, a migrant community that may be of first, second, third or more generation, living in a European city can daily receive television by satellite from the country from which they, their parents or grandparents came.
So not only are migration and communication much easier than they used to be, but global society is increasingly multi-racial, multi-cultural and multi-layered. On the one hand, people are global citizens and have families, friends and business partners in all parts of the world. On the other, people are still trying to control the movement of others in an old-fashioned manner. There is bound to be conflict. When people ask what is the cause of illegal immigration, it is at one level possible to say that it is immigration controls. If migration was freely available to anyone throughout the world, there would by definition be no illegal immigration.
Governments throughout the world act in the short and medium term to try to manage a difficult situation by erecting controls. Those inevitably create a black market and all its disadvantages, such as illegal traffickers. In the short and medium term, we must manage the situation as reasonably and humanely as possible. We must accept that that will often lead to individuals being put in difficult circumstances because the rules prevent them from entering to live with their families. We must find a way of stopping migrants from coming in, or of finding those who have come in and sending them back. It will lead to much heartache and many difficulties, particularly in the relationship between migrant communities and everyone else.
I have spoken generally and tried to put the issue in its long-term context. Forty years ago, when I was a young lad, I used to think that by the time I died such problems would be sorted out and we would live in a wonderful, liberal world. It is now clear that it will riot happen by the time that I die. In many cases, some of us are trying to stop matters getting worse rather than make them better. Nevertheless, we should have an eye to the long term as well as the short term.
Forty or 50 years ago, who would have thought that today there would be free movement of people within the 15 countries of the European Union, which is soon to expand by another eight, nine or more. That has been a revolution within Europe. Fifty years ago, people would not have talked about a fortress Europe, as the right reverend Prelate did; they would have talked about fortress countries. Previously, a holiday in Europe that involved crossing many frontiers was a nightmare, given the number of checks that had to be made. In this country there are no checks at all.

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The European Union is about to expand to include eastern European countries. My noble friend Lord Avebury has pointed out the absurdity of this country putting resources into stopping, for example, Roma people from the Czech Republic and Slovakia coming to this country, when in two or three years' time they will be able to come as of right. We must continue to seek to expand the European Union.
In her excellent introduction to the report, my noble friend Lady Harris of Richmond asked the Government about the proposed schemes for managed migration. There is a general consensus that, if we can manage legal migration for people who have secured jobs here and can work here, illegal immigration may ease. None of us knows if it will ease the situation, but common sense suggests that it should do and that, if we need labour from abroad, the process should he managed sensibly and legally. I reinforce the request to the Minister for information on the matter.
The noble Baroness also asked for the Government's views on regularisation. It is an extremely difficult question for many reasons. Those of us in close contact with ethnic minority communities of first, second and third generation immigrants know that they include many who have entered on short-term visas and overstayed, in particular, and others who have entered illegally. It causes huge difficulties, not least because it is one of the reasons that co-operation between members of those communities and the police is often not as forthcoming as it might be. If a member of someone's extended family is living here illegally on the same street, he will be less forthcoming to help the police if a burglary, petty arson or stabbing occurs on the street for fear that the illegal immigrant might be uncovered. People in ethnic minority communities do not like to talk about it, but we all know that it happens. The problem of immigrants living here indefinitely and in limbo for long periods is difficult but should be tackled. It will be interesting to hear what the Minister says.
Nobody knows how many illegal workers there are in this country or in the rest of Europe. The German Minister suggested that there were several hundred thousand in Germany, but some believe that there are up to one million there. Nobody will guess how many there are in this country, but we all know that the number is quite large, particularly in catering and construction and in illegal trades such as prostitution, including child prostitution.
One of the issues that emerged from the Committee inquiry was the substantial amount—according to the National Crime Squad—of illegal immigration of women and children as sex slaves. We were told that the same couriers enter the country week after week bringing different children on passports from Africa. We were told that the Immigration Service knew who those people were and what they were doing but did nothing about it. A substantial clampdown on the trade is needed. It would be good if the tabloid press, to which the noble Lord, Lord Corbett, referred, paid
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more attention to such activity rather than to asylum seekers, who, whether justified or not, come here for legitimate personal reasons.
I conclude by congratulating my noble friend on the report and her presentation. I thank the support staff who helped to produce it and look forward to the Government's reply.
12.7 p.m.
Baroness Anelay of St Johns: My Lords, I. too, thank the Committee for giving us the opportunity to debate this important matter. I agree that illegal immigration is a major challenge to all EU member states. It undermines policies governing the admission of legal immigrants; it acts as a pull factor for further illegal immigration; it creates insecurity among host countries; and it attracts increasing involvement of organised crime, on which the noble Lord, Lord Greaves, made important comments. In addition, it leads to the exploitation of illegal immigrants themselves; it provides opportunities for organised crime involving the smuggling and trafficking of people and the provision of slave labour, and, over the past decade, it has been identified as a serious and growing problem in nearly all member states. As noble Lords have observed, it has risen to the top of the agenda in this country.
I agree with the three basic assumptions about illegal immigration that underpin the Commission's communication. They are: first, that illegal immigrants should not be considered as a pool to meet labour shortages; secondly, that illegal immigration has an internal security dimension; and, thirdly, that illegal entry or residence should not lead to the desired stable form of residence. I shall return to that theme, in particular, at the end of my remarks.
The committee points out that several factors make the UK attractive to illegal immigration; in particular, our language, employment availability and a lower level of control by public authorities on access to work and public services. The Chairman, the noble Baroness, Lady Harris, and the noble Lord. Lord Corbett of Castle Vale, drew attention to the issue of entitlement cards. I would be grateful if the Minister would expand on the comments made in his letter of 28th January to the Chairman on the issue of entitlement cards and the role that they might play in dampening our attraction to illegal immigrants.
I share the committee's concern about evidence given by the immigration crime team at Heathrow that, in many major smuggling or trafficking operations, there may be an element of corrupt collusion by some of those employed at airports or ports of entry. Does that mean UK ports and airports? If so, what action has the Home Office taken, on the basis of that evidence?
The committee is right to draw attention to the importance of the work of Europol and Eurojust. The noble Baroness, Lady Harris of Richmond, properly referred to that in her opening speech. We have also referred to it during our consideration of the Crime (International Co-operation) Bill over the past couple

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of months. I am also interested in the committee's recommendation that large urban forces in the UK should establish specialised units for serious immigration crime. Will the Minister give us some up-to-date information on Reflex?
In the absence of my noble friend Lord Attlee, who has been called up to serve in the Gulf, I shall draw attention on his behalf to the recommendation on carriers' liability in paragraph 80. It seems a practical suggestion to let the recent legislation bed down before further measures can be justified. The Minister's letter to the Chairman suggests that the Government agree with that view, and I would like the Minister to confirm that.
I disagree with the conclusions in paragraphs 54, 56 and 61. I support the view of my noble friends Lord Griffiths of Fforestfach and Lady Knight of Collingtree. The report goes too far towards harmonisation and a common policy, instead of seeking what I consider to be the preferred route of cooperation in such matters. In particular, I support the Government's decision not to participate in the common visa list. Unlike members of the committee who have spoken today, I agree with the comment made by the Minister in his letter to the Chairman that participation would not be consistent with the principle of maintaining control over policy on who should be admitted to the UK. I hope that the Minister will continue to adopt that robust response.
The noble Baroness, Lady Harris of Richmond, the Chairman of the committee, made the central point that one should not equate illegal immigration with asylum seeking. Several noble Lords made that vital point. However, in paragraph 13. the report recognises the fact that, in practice, there is an overlap. That problem has bedevilled the UK Government's attempts to provide an effective and fair system of asylum in the past couple of decades.
The Government have made the problem worse because of the nature of the agreement that they reached with the French on the closing of Sangatte. That agreement will provide hundreds of asylum seekers with work permits and transform them overnight into legal economic migrants. Effectively, the position of that group was regularised. Under what rules or powers was that decision made, in the absence of any evidence from employers that they needed the services of those particular asylum seekers? How many other applicants for asylum or immigration who did not come from Sangatte have been granted work permits without needing to show that an employer has shown a need for their services? We may be discriminating unfairly against the asylum seekers and illegal immigrants who are in our country now.
The Home Secretary's pronouncements since the agreement on Sangatte make it look as though the Government are trying to solve their failure to sort out the processing of applications for asylum by shifting the applicants to another category. I hope that that is not the case, but if it is, the Home Office should say so clearly. That would enable grown-up debate. I share the view of the noble Lord, Lord Corbett of Castle
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Vale, that there is no use the papers getting into a tantrum about the issue; there must be grown-up debate.
We had a debate about managed migration last summer. On these Benches, we made it clear then, as we make it clear now, that we support a sensible approach. My right honourable friend Oliver Letwin has developed that theme in recent weeks and has made it clear that we should study policies throughout the EU and beyond to ensure that we take a proper quota of refugees. We must have constructive policies on managed migration, to ensure fair treatment of all.
I was intrigued to hear of the policy statement on immigration made by the noble Baroness, Lady Scotland of Asthal, a Minister in the Lord Chancellor's Department, on 25th February at a seminar at Oxford University on national identity and migration. She said that it was the Government's view that the United Kingdom should receive a net in-flow of 2 million immigrants over the next 10 years. That overall figure and the further break down that she provided appeared to be in harmony with the figures provided by Migration Watch. It does not accord with what the Home Office has said publicly, as far as I am aware. I may have missed some announcements, but I do not think so.
The noble Baroness, Lady Scotland of Asthal, went on to say that, although the Government were intent on controlling the entry of asylum seekers into the UK, they intended to use the work permit scheme to facilitate that inward migration. Was the Home Office consulted about that statement by the Lord Chancellor's Department in advance of a statement of policy with regard to the in-flow figure of 2 million over 10 years and the use of work permits?
As other noble Lords said, the issue of regularisation is not straightforward; it is highly complex and sensitive. Parliament is owed a long debate on it before we come to any conclusion. On this occasion, as so often, I find myself thinking—worryingly for me and, perhaps, also for the noble Lord—that the noble Lord, Lord Corbett of Castle Vale, hit the nail fairly and squarely on the head. In a brief comment that summarised everything about the issue, he said that it was important that we should have a clear and known policy on immigration. I agree.
12.16 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, it is a pleasure to start by thanking the noble Baroness, Lady Harris of Richmond, and the committee for an extremely thoughtful and balanced report on a complicated and challenging subject. As several speakers have said, the issue will be with us for a number of years. As ever, it is a help to the Government in challenging our thinking, adding new ideas and testing whether there are things we have forgotten or to which we should give more emphasis.
We have not explored the reasons why there is such a significant challenge to Britain and other European countries from illegal migration, although the noble

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Lord, Lord Greaves, touched on the subject. Improvements in communications have made it easier to move, and there are the wealth disparities about which several noble Lords spoke. Not all illegal migrants come because they want work, although a large proportion do. Those are two of the prime reasons, and they will not go away quickly. Therefore, the problem remains.
The methods by which illegal migrants come into the country are varied. There is no need to go into detail now, but such people include over-stayers, illegal entrants and people who have come here for one reason and have translated to another.
One of the initial areas of discussion was the extent to which there should be a commonality of policy and process in the European Union on migration and asylum. It touches on the questions raised about Title IV and whether we were sensible to participate fully in it. I have the pleasure and privilege of being the Home Office's Europe Minister, so I spend a lot of time with other European interior Ministers discussing issues and forming European policy. It is a privilege to do so, and I say without shame that I am a strong supporter of the contribution that the European Union can make to the quality of our life in Britain. I do not do so blindly; nor do the Government.
In essence, we should consider when the European Union can add value to our response to a problem that we face in this country and cannot solve ourselves. That requires an open-minded but rational approach to measures. At times, it requires us to think whether a measure goes to the heart of a problem. I shall illustrate that briefly. We must consider whether legislation is the solution to a problem or, as the noble Baroness, Lady Anelay of St Johns said, more cooperation is needed. We must consider whether harmonisation, which has often tended to be the legislative goal of the European Union, gets to the heart of the problem or, in a sense, just carries on the tradition that, in some way, harmonisation is the solution.
That illustrates why in Britain we believe that there is a need for fresh thinking both on asylum and immigration policy in the European Union and globally. That is why we have not opted into Title IV of the Amsterdam treaty. We have not opted into Title IV because although it is clear that in some areas harmonisation is sensible, on looking at the elements that Title IV is concerned with they do not always fit with our national interest, our geography or our history. We have strong links with many parts of the world that are different from others. We examine on a case by case basis whether it makes sense to opt into a particular measure. If we had opted in blindly to all of them we would have encountered a whole range of consequential disadvantages.
For example, we are able to take a different approach, when appropriate, to Commonwealth visa applications. And we are able to take a different approach to legal routes for employment of students, which is beneficial. In essence, when we think that we should, and it makes sense to, co-operate with our
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European Union partners we should do so wholeheartedly, both in legislation and operations. When it does not make sense to co-operate, we should maintain a rational evidence-based approached to policy rather than a doctrinal one and not do so.
I have not detected any particular disadvantage in my relationships with my colleague Ministers in Europe as a consequence. They tend to welcome our contribution both to policy making and to operations. I am grateful that the noble Lord, Lord Wright, acknowledged that. We are active participants in joint operations to try to stem illegal entry. We have done an enormous amount of work in eastern Europe at entry countries. We were vigorous in supporting some of the maritime operations in the Mediterranean. Our colleagues in Europe look to us positively for that participation. They welcome our expertise and our operational capacities. The fact that we are not part of Title IV does not mean that we are not, ultimately, welcome participants.
As regards some of these problems—it is true of both illegal migration and operations—a strong case can be made for more operational effectiveness. It is not automatic that harmonisation on its own will crack some of the problems. I should be happy to develop that argument in debate at another time.
I turn now to some further interesting points. On the issue of scale, there is no country in Europe that knows the true scale of illegal migration. Clearly, we share a view that we must seek to undertake sensible research to identify whether a better fix on the numbers can he obtained. So far, no easy research methodologies have been identified. In some cases, estimates are made of the scale of illegal migrants by identifying the number picked up in operations. The flaw in that as a methodology can be understood without too much intellectual effort. None of the methodologies gives the answer. The test will be whether by using a combination of methodologies one can obtain an estimate of the potential scale.
What else can be done? My noble friend Lord Corbett and others marked the importance of working with developing countries and source countries. One should not be Utopian about this and expect the issues to be quickly solved. However, it must be right both morally and practically to seek to encourage source countries to develop their own societies and economies and to co-operate more vigorously on both preventing illegal migration and accepting returns as part of it. Clearly, that was what Seville was about. We felt that significant progress was made with our European Union colleagues in moving the debate forward. Now we have the difficult task of making it happen in practice. But it must be part of the picture.
Detection and deterrence of people in this country raises the issue of entitlement cards. We have had a strong response to the consultation paper—over 2,000 letters and e-mails. The consultation ended on 31st January and we are now evaluating the responses. We are evaluating what has been said. We are evaluating, as we must, to what extent we would have confidence that entitlement cards would work in practice and bear

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down on the problem effectively. One must look to existing procedures in Europe and elsewhere to determine the impact of tighter documentation or tighter controls over what is effectively illegal working. We start from a position of believing that in principle this is part of the solution. It will be some months—but, it is to be hoped, not too long—before we can give a final answer.
I hear the arguments concerning regularisation. We have indicated that when someone has been in this country for 15 or 20 years, there comes a point when it is churlish not to regularise his or her position. However, the widespread universal regularisation of illegal migrants has significant dangers, as I believe noble Lords recognise. It could easily be seen as a pull factor that if a person managed to enter this country, after a while he or she might be safe to stay.
Turning now to police law enforcement to seek to identify and remove illegal migrants, the Government's view is that the police should treat this as an important issue and that there should be cooperation. In general, there is good co-operation. It is to be hoped that the police pay close attention to those illegal migrants who are potentially the most vulnerable—children and young women, and people brought into this country against their will or by deception and are now involved in prostitution in some cities that is close to a form of semi-slavery. Police efforts recognising that those, above all, are the illegal migrants one should be seeking to identify will thereby bring to justice the traffickers and those who have promoted a person's entry, often against his or her will, or by deception.
There have been a range of successful operations in that respect—Operation Seastar and Operation Harvest. There are further operations ongoing to which I shall not refer. It would be wrong therefore to imply—I do not believe that it has been—that nothing is being done.
The Government's view at present as regards the European migration observatory is that we do not need to set up another institution but that we need to make it work by a virtual European institution, as signalled in our response. There are benefits in cases where a European institution is desirable, but there are also down sides. If national bodies could co-operate more strongly on the exchange of information, the same results could be obtained with less bureaucracy and less cost.
Clearly, readmission is a significant problem whether concerning illegal migrants or failed asylum seekers. The noble Lord, Lord Wright, is correct that incentives, as well as penalties, must be part of the solution. Therefore, we seek to identify mechanisms by which we can encourage greater levels of responsibility with potential source countries. We also look to them on the issue of whether we should give them quotas for lower skilled migrants to enter this country, recognising that where this country needs particular migrants to meet our labour needs it may be sensible to give a source country an indication that we would be open to specific numbers.
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The linkage between asylum and illegal immigration has been discussed. I agree with the noble Baroness, Lady Anelay, on this issue, if not with all that she said. In practice, there should he no linkage. In fact. there is a strong inter-connection because asylum is used as a route for illegal migration. I have not heard many noble Lords deny that that is a fact. The problem is being able to grant refuge to those with a genuine case for asylum while denying those who are using asylum as a route for economic migration and, consequently, illegal migration. We are not alone in facing that challenge; other European countries face it too.
I turn now to the comments made by the noble Baroness, Lady Anelay, regarding Sangatte. I was surprised by her comments because I thought that there had been consensus in your Lordships' House that Sangatte had become a major problem and a major source of people entering this country either illegally or to make asylum claims which eventually were found to be invalid.
The numbers, which are not to hand, illustrate clearly the scale of illegal migration which was coming from Sangatte as a consequence of it being used as a jumping-off point. People made attempt after attempt to get into this country. Noble Lords will also have seen the television pictures. One knew it presented a serious entry problem and a serious social problem in northern Calais.
Working with the French in bringing about the closure of the camp, we achieved something remarkable. Nicolas Sarkozy acted most responsibly in handling the matter. The way in which the police in France are dealing with and removing people from the area illustrates that the policy is working successfully. We have reduced the flows of illegal migrants and asylum claims that were found to be false as a consequence. That was a brilliant piece of work by the Home Secretary, David Blunkett, and Nicolas Sarkozy.
As a consequence of sorting out the problem, one must face reality and decide what to do about the people who are there. As a result, we had to bring into this country some 1,000 people, mainly from Iraq, to seek to settle the problem. We did not grant them asylum because we did not consider that they were asylum seekers. They were economic migrants, as the subsequent facts have proved. I was disappointed and surprised by what was said because I believed that there had been consensus on the matter.
Baroness Anelay of St Johns: My Lords, the Minister is wrong to imply that there was no consensus that Sangatte needed to be closed. We have always made that clear; I hope that I was equally clear in my remarks. The questions I put to the Government related to what appeared to be a sleight of hand over policy on regularisation; the fact that hundreds of people were given work permits on the closure of Sangatte when others are denied them unless able to show in advance that employers require their services. I was seeking clarification of government policy on the granting of work permits.

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If the Minister is not able to give that clarification today, I should be most grateful if he would write to me setting out the policy and explaining which other immigrants have been granted work permits without fulfilling the proper and normal legal requirements.
Lord Filkin: My Lords, it will be a pleasure, as ever, to write a letter to the noble Baroness, Lady Anelay, giving detailed chapter and verse. The broad thrust is clear. This was a necessary part of managing an appalling situation and it was done well. No doubt we shall return to the matter.
We sought through Reflex to achieve strong cooperation both nationally and internationally to identify and deter migrants. Our sense is that Reflex, while not perfect, is working well. The noble Baroness, Lady Anelay, also referred to carriers' liability, a subject on which we have had many debates in this House. For obvious reasons, it is not always welcomed by the road freight industry, but it has had a significant impact.
I shall be interested to read the speech made by my noble friend Lady Scotland at Oxford. I shall share with the noble Baroness, Lady Anelay, our figures. I have some before me but I would prefer to set them out in a letter to her and to the noble Baroness, Lady Harris. Our thrust on migration could not be clearer. We believe there is a need for migrants to come into this country; we believe they make a valuable contribution to our economy. The Home Secretary and the Government believe that there is a strong case for increasing the number of economic migrants. That belief is not new; it was set out in black and white in the White Paper published in January 2002. It was the cornerstone of our policy throughout debates on the Nationality, Immigration and Asylum Bill and it is utterly consistent with the view that we need skills, that we benefit from them and that we should encourage them through legal routes. At the same time, we should do all we can to deter illegal routes and to stop asylum being used illicitly.
I can well believe that in practice we will go higher on managed migration if the workforce needs of this country so dictate. Any attempt by Migration Watch or others to try to create some hysterical scare about the issue seems both deplorable and suspect in its motivation. That is where these issues are so difficult for us all, are they not? While illegal migration should be separate from asylum, we know that they interconnect. Concerns about illegal immigration and false asylum claims cause unsettlement in the country. We must work hard to reduce illegal migration without creating an illusion that all migrants are in some way suspect; that all asylum seekers are in some way terrorists and criminals; and without feeding the hysteria which some elements of our society are happy to do.
In that context, I welcome the thoughtful, mature and balanced report that the group has put forward. I look forward to responding in more detail through correspondence to all the points I have been unable to deal with in this short speech.
12.35 p.m.
Baroness Harris of Richmond: My Lords, I shall not detain the House. I thank all noble Lords who have taken part in the debate. A number of different views were expressed, many of which were voiced and aired thoroughly during the course of our inquiry. I want to touch briefly on the Minister's remarks.
I was disappointed, but not entirely surprised, that we have not moved further, particularly as regards the condition of entry and residence of third-country nationals for the purpose of paid employment and self-employed and economic activities; for the purpose of studies, vocational training and voluntary service; and on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings to co-operate with the competent authorities. However, I take on board what the Minister has said and some of the reassurances he has given us, particularly in his closing remarks, and I thank him for that.
I hope that the debate will have clarified the fine distinction between illegal immigration and asylum seekers and that it will inform and educate public opinion about migrants generally. I hope that we will begin to think of them in a more positive and a less hostile way. If we have been able to contribute to that better understanding, we will have done our work well. I commend the Motion to the House.
On Question, Motion agreed to.

Wild Mammals (Protection) (Amendment) (No. 2) Bill [H.L.]
12.37 p.m.
Lord Donoughue: My Lords. I beg to move that this Bill be now read a second time. The House will be aware that I introduced a similar, but not identical, Bill in early 2001. It received widespread support at Second Reading, but did not proceed further due to the general election of that year.
Since then, we have made some changes in response to points made. I have listened to views on all sides, will continue to do so, and will alert the House of further amendments that I propose to introduce in Committee. I want to thank the Public Bill Office and especially the noble Viscount, Lord Bledisloe, for their legal and technical help in redrafting my proposals.
The House will he interested to note that the National Farmers Union, the Country Land and Business Association and the Countryside Alliance, reflecting the largest groups involved in our rural economy and concerned with the management of animal welfare, support the Bill. I have received letters from them. The National Farmers Union has written to me stating that it is,
"very disturbed by the provisions of the Hunting Bill, now in another place, as it promises to have adverse implications for agricultural pest control and would, we believe, be likely to lead to greater suffering by wild animals".

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It goes on to say that my Bill however,
"has the prospect of being beneficial in term of animal welfare by outlawing excessive actions within current legal methods of control".
The Country Land and Business Association considers that,
"this is a much more useful approach than that proposed by the Government in its Hunting Bill",
which,
"does nothing to improve the lot of wild animals generally …Lord Donoughtle's Bill provides a better result for wild animals and in a better way".
So we do have widespread support.
But not from everyone. We seem not to have support from one or two political agenda groups which, I suspect, resent seeing on offer a better alternative to the Hunting Bill. I am disappointed that the RSPCA is in that category. An organisation which once supported a reduction in cruelty to animals now appears not to. Those who consider, as I do, making donations to groups opposed to animal cruelty will think twice about donating to the RSPCA.
I declare interests as a trustee of the International League for the Protection of Horses; as a former Minister for Farming in the Government; as a member of the Middle Way Group and the Countryside Alliance, although I take no part in the direction of its affairs; as the holder of a shotgun licence; and as the proud owner of the most beautiful terrier in the world.
The arguments in favour of the Bill remain as before. In my view, they are made even stronger by the current passage through the Commons of legislation which touches on some of the same areas, but not helpfully.
Our present arrangements for protecting animals from cruel abuse are complex and incomplete. Britain is woefully behind many other countries in legislating for wild animal management. Our provisions reflect nearly a century past of sporadic legislation concerned primarily with captive and domestic animals, where humans have a direct responsibility. The issue of non-captive wild animals was addressed—inadequately—in the most recent legislation, the Wild Mammals (Protection) Act 1996, which began, like mine, as a Private Member's Bill and which I am now proposing to amend.
The 1996 Act is deficient in several ways, mainly in that it lists specified cruel acts, such as the nailing-up of a fox, but inevitably leaves uncovered many areas of cruelty, such as wounding a fox and leaving it to die in agony. The Act also lists some pursuits—such as hunting with dogs, shooting, coursing, snaring and trapping—which are exempt from prosecution.
My Bill is deliberately simpler and more comprehensive because it has no specified exemptions. It simply provides that if a wild mammal is deliberately caused undue suffering, that is an offence. It would bring the law closer in line to that now relating to domestic and captive animals. The Bill sends out to the public the clear and simple message that, even when using legal methods of killing wild animals, deliberate and undue cruelty will not be tolerated.
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The advantages of this amended approach are clear. The Bill modernises nearly a century of piecemeal legislation and creates minimum and universal standards to protect all wild mammals. It provides clarity and certainty, with no exemptions or grey areas. Being simpler, the protections should be easier to police. At first, of course, enforcement may involve some appeals through the courts to establish precedent, but my legal advice is that it would not clog-up the courts. The best few cases would be tested and precedent soon established.
I do not pretend that all suffering can be eliminated from life in the wild; some suffering is inevitable there and some of it will appear cruel. But the Bill establishes that suffering which is intentionally inflicted by man and which is undue in degree is unacceptable and will be punished.
Noble Lords will note that the wording of the Bill deliberately refers to intentionally ca using "undue" suffering rather than to "unnecessary" suffering, which is the term used to define cruelty in the original Protection of Animals Act 1911. This distinction is made because the Bill seeks to address excessive and unduly cruel actions which might take place within currently legal methods of control, including hunting with dogs, snaring, trapping and the use of firearms. It does not seek to encourage prosecutions against those actions as a whole where they are currently legal. That could happen with the term "unnecessary" because whether shooting or hunting are "necessary" is a matter of opinion. The term "undue suffering" means excessive suffering caused within a particular practice, not the practices and activities in their entirety.
This point relates to the important issue of pest control. When an earlier version of the Bill was read in March 2001, the then Home Office Minister, my noble friend Lord Bassam, raised some reasonable concerns about its impact on pest control, especially that if the current exemptions for pest control contained in the 1996 Act were removed, it could expose to prosecution those who now legitimately use snares and traps to control, for instance, mink numbers. I, of course, would not wish to do that.
We hope that we have addressed that issue in the term "undue suffering". I am advised that this should mean that the legal scrutiny and action would be against excessive and undue suffering within a legal activity, such as pest control, and not the activity of pest control itself. Provided that the pest controller uses a method of control which does not cause undue suffering, and is not more cruel than an alternative and effective means of control, he will have a proper defence.
I should point out that the National Farmers Union and the Country Landowners, bodies which have many practitioners of pest control among their memberships, support the Bill and the clause. I trust that Ministers and officials are now satisfied on this point, where I certainly shared their original concerns.
As to the mechanics of enforcement, the Bill would give powers to the Secretary of State to recognise existing bodies, such as the governing bodies of field

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sports, as the designated and proper authorities for making codes in respect of the conduct of any activity in connection with wild mammals. The Secretary of State would also have the power to establish such a body where none existed within a sport or activity.
When this approach was originally proposed, parts of the shooting world expressed concerns that this would allow a hostile and malign Secretary of State to interfere and directly regulate their sport through a government quango—although, of course, noble Lords will note that the Bill does not apply to birds or to fish. That was never my intention. Therefore the original draft has been amended—and will be further amended in ways I shall describe—to make clear that the Secretary of State is empowered simply to recognise the existing authorised body governing a sport or activity and to recognise that body's code of practice.
Such powers would not place these codes of practice into law. The codes could be used as a defence, as an indication of good practice, similar to the way in which the Highway Code is currently used in relation to driving a vehicle.
The sporting bodies recognised as the proper authorities, such as the shooting governing bodies, would, by this process, be recognised as the proper authorities for a sport. These bodies would be conducting a recognised code. I believe that that would reinforce desirable self-regulation, which is the proper concern of many sports, although of course we know that many shooters are not members of any organisation and so are currently unregulated.
The fact that adherence to a recognised code of good practice could be used as a defence should encourage practitioners to develop acceptable codes of practice. Many sports have such codes; indeed, I am considering collating and publishing them to demonstrate how much good practice and self-regulation exists. That process would also encourage individual practitioners to join bodies which develop such codes.
On the suggested powers for the Secretary of State, legitimate concerns have been raised that under paragraphs (a) and (b) of the proposed new Section 2A(1) a "malign"—a word used by a shooter—Secretary of State could replace the existing bodies with new authorities and codes of practice reflecting particular sectarian agendas.
I am too naïve even to contemplate the concept of a "malign" Secretary of State. and I have certainly never met a malign Parliamentary Under-Secretary. However, I am keen to listen to and to meet concerns. So I should be happy to amend those provisions, so that paragraph (a) would refer to recognition of an "existing body representing the participants in a lawful activity as the proper authority"; and paragraph (b) would refer to, "the establishment of a body where there is no existing appropriate body as the proper authority", and so on. That would reinforce the recognition of the existing governing bodies and their codes and should leave no scope for "malign"
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ministerial intervention—not that I can contemplate any such remote activity. I trust that those amendments would meet any such concerns.
I might add that a constructive role for the Secretary of State in this process would be to encourage self-regulatory bodies to update their codes to reflect new circumstances and new scientific evidence and to promote a better understanding of wildlife management.
I trust that the shooting interests and others will be satisfied by these efforts and amendments to meet their concerns. If, as I believe, they and others have no cruelties to hide, they have nothing to fear from this approach.
While mentioning our adjustments and amendments to meet previous comments, I should add that the Second Report of the Delegated Powers and Regulatory Reform Committee expressed some concern about our earlier reference to tribunals in proposed new Section 2A(1)(c). That was deliberately mirroring the phrasing in the current Hunting Bill, but it was not central to our intentions. That reference will be removed by an amendment at the next stage.
The committee was also worried that our proposed code of practice might inappropriately determine whether or not a person had committed an offence. I believe that that is a misunderstanding, since the proposed code would not be part of the law. It would determine only whether a person had a defence through having obeyed a recognised code. But I am content to amend the proposed new section to provide that the code itself has to be the subject of regulation made by statutory instrument. I thank the Public Bill Office in regard to the drafting of those amendments, which I shall bring forward in Committee.
I turn finally to the Bill's relationship to the issue of hunting with dogs—although I stress that it stands in its own right as a desirable advance in animal welfare. I would support it even if there were no current proposals on hunting; and noble Lords will have noted that major bodies support it as such.
If the Government were to adopt this Bill, there would be no need for a separate Hunting Bill, with all its social divisiveness. This Bill would deal with all the genuine concerns about any alleged cruelty in hunting. But it would not, of course, meet the political agenda of those who wish to wage class war on people who hunt, often with little concern about cruelty. I might add that I have never hunted and have no desire to do so.
The Bill would remove the current exemption of hunting with dogs, shooting, and so on from the protection of the 1996 Act. Some supporters of hunting might assert that their activity does not involve undue cruelty. I accept that in general—but if so, I ask the hunters and the shooters: why have the artificial protection of the 1996 Act? That sends out the wrong messages, even suggesting that they might be hiding something.
If their pursuits ever do involve deliberately causing undue suffering, then that cruelty should be addressed—as it is in the Bill—and not exempted. The

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Bill bans undue cruelty in hunting as in other animal pursuits. But it does not ban the pursuits in themselves, if pursued properly under approved codes. That is surely better than the Stalinist class war approach of the current Hunting Bill, as it is being amended in the Commons.
It is certainly better than the shambolic muddle now operating in Scotland under the Protection of Wild Mammals (Scotland) Act 2002, where foxes arc still chased by dogs, but are then being shot, and in some cases wounded to die in agony. I do not see the welfare gain in that.
Your Lordships will be aware of the respected work undertaken by the noble Lord, Lord Burns, on the issue of hunting with dogs. My Bill relates closely to the noble Lord's analysis. His report stated:
"In the absence of a ban, one possible legislative approach would be to remove the present exemptions for hunting in the Wild Mammals (Protection) Act 1996. This would … give the opponents of hunting a clearer opportunity to test their views about cruelty in the courts".
This Bill would allow for that measured approach.
The Bill approaches the hunting with dogs issue within a broader context of welfare management for all mammals. Controlling foxes is addressed more widely than just by the use of dogs. It allows hunting with dogs to be compared, in cruelty terms, with any intentional and undue suffering which may occur in the alternative methods of control.
In that sense, I believe that the Bill is a true animal welfare measure and, unlike the current Hunting Bill, can guarantee a diminution of cruelty and an improvement in animal welfare. The Bill aims simply, and I believe effectively, to ban deliberate and undue cruelty to wild mammals. I trust that everyone who deplores such cruelty will support it. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Donoughue.)
12.58 p.m.
Lord Astor of Hever: My Lords, I declare an interest as secretary of the All-Party Group on Shooting and Conservation and, like the noble Lord, as the holder of a shotgun licence. The Government have recognised the conservation and land management benefits of shooting, as well as the economic ones. Shooting generates an estimated £1 billion each year for the UK economy.
I am grateful to the noble Lord, Lord Donoughue, for his commitment to hunting and to other country sports, and for listening to the views from all sides. I entirely agree with his remarks about the RSPCA, and that the law needs clarification, simplification and consolidation. The noble Lord has considerable experience on these issues from his time at MAFF and as a supporter of the Countryside Alliance.
As I am sure many other noble Lords do, I welcome the principle behind the Bill. Any measure designed to promote higher standards of welfare, coupled with greater openness, is to be welcomed—particularly as the Government's Hunting Bill, as it continues its way
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through the other place, is increasingly concerned with restricting and proscribing human activities, rather than seeking to safeguard animal welfare. There is no doubt that this is a better Bill for the regulation of hunting with dogs than the Bill introduced by the Government in another place.
I assure the noble Lord, Lord Donoughue, that I support his Bill as it applies to hunting with dogs. However, I hope that he will not take it amiss if I tell him that there is considerable concern among the shooting community that, although well intentioned, the Bill could be seen as an anti-shooting Bill. I was therefore delighted to hear what the noble Lord said about the amendments he proposes to bring forward in Committee. I look forward to helping to improve the Bill in Committee and at later stages.
Lord Hardy of Wath: My Lords, I declare an interest as—
1.1 p.m.
Lord Carlile of Berriew: My Lords, I am grateful to the noble Lord, Lord Hardy, whom I have known for a very long time. He probably did not spot me here.
I declare an interest at the outset as somebody who has supported the Countryside Alliance and the Middle Way Group and has taken a particular interest in these issues for a large number of years. I welcome the introduction of the Bill by the noble Lord, Lord Donoughue, and this debate. I think I am right in saying that I have not spoken on this issue before in your Lordships' House. although I spoke on it often in another place.
I come here this afternoon to speak with two hats on—as somebody who is Welsh-born and domiciled and also as a lawyer. I wish to concentrate in particular on hunting foxes with dogs. I am a Liberal Democrat; I was a Liberal and Liberal Democrat MP for 14 years. I regret that my party has seen fit to treat what I regard as a matter of conscience as a matter of party policy. Consistent with over 50 per cent of the individuals who have served as Liberal Members of Parliament in the past 30 years, I have always treated it as a matter of conscience and the fact that others have done so to that proportion is a matter of record.
Let me put on my Welsh hat—as a Welsh-born and domiciled person—first. I live in rural Wales in roughly the centre of rural Montgomeryshire—part of what we call Powys Paradwys Cymru. I do not hunt, I have never hunted, and I have no intention of hun Ling. However, over many years now, I have investigated, witnessed at first hand and assessed the activities of hunts. Above all, I have assessed the attitude of those who hunt to that which they hunt. I have attempted to rationalise the reasons for the hunting; I believe that I have done so as best one can, and I have come to satisfactory conclusions about it. I am also married to a Welsh-domiciled professional artist. Artists have the most acute observation of the countryside that surrounds them and that has added, I believe, to my appreciation of these issues.

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What happens in rural mid-Wales? Do we have toffs rushing around the countryside on horseback shouting "Tally ho" at one another? Very occasionally we do: I know of one mounted hunt in the part of mid-Wales in which I live. Who are the hunts? The best known are the David Davies Foxhounds who hunt on horseback fairly regularly, the Tanat Valley Foxhounds who do not—they are a foot pack—the Plas Machynlleth Foxhounds, who are also a foot pack, and a number of other packs. Most of these packs of hounds one might describe as subscription hunts, paid for by farmers, who pay an annual sum to be able to participate in them. Why do they pay their annual subscriptions?
I learned about this from my late and lamented former election agent, Brian Jones, who farmed a small sheep farm near Llanfair Caereinion in Montgomeryshire. Every year he would show me what happened when his lambs were born, outside or in, for most lambs are born inside now. If the foxes got near the lambs, they would dismember them. They would cause the lambs considerable suffering, leave the wreckage and deplete the potential income of the farmer. I believe that nobody now alleges that foxes are not a pest, and a pest that requires some control.
Do people like Brian Jones want to behave cruelly towards foxes, however much damage they cause them? The answer is no. One will always find rotten apples in any profession, but the vast majority of farmers do not want to behave cruelly to foxes. Indeed, the farmer takes joy in seeing foxes in his countryside. They are part of the beauty of the countryside, provided they are kept under reasonable control. Control is agreed as a need, I suggest.
What would happen if the hunting of foxes with hounds was abolished? At present, I could take your Lordships to a particular gate at the top of a hill about a quarter of a mile from my home near Berriew on any pleasant summer evening, and I could almost guarantee that if we were to lean on that gate and chat for 15 or 20 minutes, we would see a fox running across the field during that period. I could take your Lordships to the hill where I live in Camberwell, south-east London, when I am in town, and I could point you at two or three in the morning to a greater number of foxes going up that hill. The foxes in Montgomeryshire are fatter, fitter and faster, and much more beautiful to observe.
What would happen if the Government's Hunting Bill were passed? I hope that my friends who are farmers will forgive me for saying what I am about to—I am not going home this weekend, so perhaps they will have forgotten by next weekend. Most of them have shotguns. Few of them would win Bisley with their shotguns—indeed, many of the shotguns are not that good and many farmers are not terribly good shots. Many of them would hit a fox, which would be left to wander limping around the countryside. That is the truth of what would happen if hunting were banned. It is one of the aspects.
I do not think that anyone would suggest that traps, poison, snares or any of the other options can be demonstrated to cause less suffering. I have been out
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with responsible hunts and have seen how the fox is disposed of once it is run to earth. It is done very quickly and in a way which, in my view, is entirely consistent with the noble Lord's purpose and his Bill.
Let us not forget that in a place like rural Montgomeryshire, the economy depends to an extent on the existence of the hunts, not just because of the work they provide, but also because of the facilities. There was a time when farm casualties were dealt with very easily. A firm turned up and took them away and nobody had to pay any money. That is not so any more. It is very difficult to dispose of farm casualties, but the hunts do it. They will collect the casualty and dispose of it in an appropriate way.
In rural mid-Wales we have the advantage over the English of having Welsh foxhounds, the most beautiful dogs in existence. They are very expensive to keep. Who on earth will keep Welsh foxhounds, except as the odd pet—and they are unsuitable as household pets—if they cannot be used for hunts? Those Welsh foxhounds are well documented as having been used for hunting even in the days of Owain Glyndwr—this has a very long historical tradition.
What about the horses? I used to ride when I was a child and later. I gave it up when I was a Member of Parliament and a constituent saw me falling off. I thought, "This is bad news, it will get into the local newspaper. I had better give up now". Keeping a good hunter costs a lot of money. People who keep good hunters do so because they love horses and because they can use their horses for hunting. The horse business is international—most of the good hunters in mid-Wales are bought in Ireland. The horse business and the number of fine horses will decrease severely if hunting is abolished.
I turn now to my viewpoint as a lawyer. As a lawyer and—anticipating the view of my noble friend Lord Greaves—as a Liberal, I believe in a fair balance of freedoms. That does not simply involve a fair balance of freedoms between those who are free and those who are not free. It involves a fair balance of rights, and part of that balance of rights is a balance between the rights of those who live in the city and those who live in the country. That is an aspect of rights that is often ignored. As it happens, I believe that people who live in the country areas of the United Kingdom probably accept a greater number of duties than do many of those—the other side of the rights coin—who take the advantages, as they see it, of living in the city for granted.
I say to those who are opposed to the Bill and to hunting that country people often feel, with justification, offended and patronised by the attitude of some who occupy the countryside at weekends but understand little of the issues affecting the countryside. The countryside is made up of beauty and beasts, including human beasts. Many people who come into the countryside appreciate the beauty—it is not very difficult to appreciate the beauty—but they do not understand how the beasts live, all of them, including the humans and the foxes.

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My belief is that a fair balance is reflected in this Bill, which plainly outlaws undue suffering but preserves the balance of the countryside. It preserves that critical balance between fox and farmer, which is the right balance. I sometimes stand in the Central Lobby of this place with visitors and say. "Look that way; it is the Throne. Look the other way; it is Mr Speaker's Chair. This is the critical balance of our democracy—the dynamic tension that exists which makes this country democratic and, relative to many other countries, extremely free". I believe that a similar balance is held between town and country, between the rights of country people and attacking the rights of country people. This Bill contributes to that balance.
The Bill also has, to a lawyer, the advantages of simplicity, uniformity. clarity and consolidation. At the same time, it recognises that government control may be exercised, though my preference would be for the negative procedure rather than the affirmative procedure for statutory instruments, because I think that that would be adequate. As for malignant Secretaries of State, I say to the noble Lord, Lord Donoughue, that a very effective way of removing malignancy in Secretaries of State is by what I would describe as administrative court therapy. As successive Secretaries of State know, it works rather well on the whole.
I suggest to noble Lords that this Bill adequately addresses all the outstanding issues concerning matters of cruelty. It does not anthropomorphise those issues in a way which so many people do. It does not look at obsessions; it looks at facts and reasons. It does not easily allow for the intervention of' party Whips because it is clearly a matter of conscience. It also accords to common sense.
What I fear about this whole issue is that the rights of country people—that critical balance or dynamic tension of which I spoke—will be sacrificed to a perceived interest to keep happy some bored Back-Benchers in another place. I do not want to see that. I believe that this Bill addresses the issue with far more intelligence.
1.13 p.m.
Lord Hardy of Wath: My Lords, the noble Lord has made an excellent speech which I hope will receive a great deal of attention. I declare an interest as a patron of the Yorkshire Wildlife Trust and an honorary member of the Kennel Club. My noble friend Lord Donoughue might like to know that I agree with almost everything he said except for the outrageous claim that his terrier was the most beautiful in the land. I am sure that both of mine would qualify for the same title. Once upon a time, one of them won Crufts. Tomorrow is terrier day at Crufts. I shall attend, and I will no doubt make certain remarks about the Bill. I believe that it is extremely valuable, partly because it requires people to refrain from deliberate and intentional cruelty.
I attended a meeting this week of the All-Party Animal Welfare Group—I think that the noble Lord, Lord Dholakia, was there—where one of the
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organisations present referred to the fact that there is likely to be much more snaring if the Hunting Bill is passed. They then made the point that snaring offences are rarely prosecuted. I was involved in the 1981 Wildlife and Countryside Bill, to which I moved an amendment to abolish self-locking snares. The government of the day finally agreed to accept the amendment. However, I now find that there is no possibility of anyone being prosecuted for the offence because of an argument about whether snares are self-locking. Under my noble friend's Bill, those who placed self-locking snares would be acting intentionally. Consequently, we would be able to prove that they had broken the law and committed an offence. If the Hunting Bill is passed, that would not happen. Hunting would continue and the RSPCA would say that it disapproves of snares. The RSPCA could deal with the problem if it changed its view and supported my noble friend's Bill.
I am reminded of my unsuccessful attempt, 20 or more years ago, in the Commons, to promote a Deer Bill. I introduced it after talking to people such as Forestry Commission conservators, and because of personal observation. It was obvious that some dreadful things were happening to deer. They were being shot by all sorts of weapons—air rifles, shotguns with birdshot, crossbows. It was happening not only ill season; in some cases, as with roe deer, there was no closed season.
Almost everyone in the House of Commons seemed to be in favour of the Bill. Then, one honourable Member came and said, "I am going to block your Bill". I asked why, and he said, "Because you arc allowing deer to be killed". I asked whether he understood that the deer population was increasing to the point at which, in many areas, they were suffering starvation and the risk of disease; that they were being controlled by cruel and improper methods; that the cruelty involved could be obscene; and that, as there was no natural predation of deer in these islands, we had to have a code of conduct, code of practice, methods of slaughter and closed seasons. The Member maintained his objection. He was there at four o'clock one Friday and shouted "Object" and the Bill fell. Probably several thousand deer suffered horribly as a result. Some years later, a rather weaker Deer Bill reached the statute book.
Sometimes the welfare lobby can be unhelpful to the cause that it is supposed to espouse. I believe that the Hunting Bill will lead almost to the extermination of the fox in many areas. I recall following the noble Lord, Lord Carlile, in a debate on these matters 'when I was proposing an alternative to a ban on hunting. I am not a hunter, but I was trying to protect hedgerows. I suggested that, instead of a Bill to ban hunting, we should promote many more hedgerows and have them that bit higher. I think I said that the noble Lord had probably eaten more sheep than foxes had. I do not know whether he recalls that. However, I was I old that the hedgerow alternative would lead to cruelty to horses, and no one seemed to wish to perpetrate that offence.

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The consequences of banning hunting will mean that many people within the shooting fraternity will exterminate the fox. As the noble Lord, Lord Carlile, said, they will do that with shotguns. I have not yet received an explanation to a question I put to the welfare lobby last year, when I received from them a message which said, "The fox is not always killed instantly by the hounds. It is true that, if shot, the fox may be wounded instead of killed instantly. But if the fox is wounded, it will go back to its home environment and die in peace and dignity". I considered that an obscenity. I am still waiting for an explanation, which has not been offered.
The fact remains that the fox may be a pest and a nuisance, particularly in rural areas. But the fox is also a predator, and the predator has a useful ecological role to play. I have made the point before that the brown rat population is rising remorselessly. I understand that it is rising most rapidly in the areas which are most heavily keepered as natural predators are kept down. That very serious pest is increasing in numbers considerably. So there is a case for the predator.
If hunting is continued, the shooting lobby will inevitably be more tolerant of the fox as it will not want to exterminate the prey of fellow field sportsmen. But if we ban hunting, there will still be trapping, poisoning, gassing and snaring—not all gamekeepers necessarily subscribe to the splendid code of practice for the shooting fraternity—which I do not like at all.
I am also anxious about the most effective means of controlling foxes; namely, shooting them with a rifle, provided the rifle is fired by a marksman. There is a new danger here to which the Government may unwittingly contribute. I was uneasy about the right to roam at night. I thought that it would not necessarily be helpful to conservation given its effect on ground nesting birds. If a person goes out at night with a light and a suitable rifle to shoot foxes, he may forget that the lethal range of a rifle bullet is rather longer than the range of his eyesight or hearing. Sooner or later we may hear of some happy nocturnal rambler meeting a very unpleasant fate if the marksman misses the fox. Sometimes a more considered view, such as that offered in this Bill, is wiser.
One of the aspects of the Hunting Bill that worries me concerns the problem of fallen stock. Many of our livestock farmers face very real difficulties. If hunting is abolished, the fallen stock question would present them with a significant problem. I have not yet discussed the matter with the Kennel Club in any detail but I believe that that body, which supervises the activities and hobbies of hundreds of thousands of people in this country, is rather worried about the present situation. There is cause for concern at the possibility that legitimate activities could be imperilled by the Bill as it proceeds through the Commons. We must have regard for liberty and ensure that there is no unnecessary oppression. We ought also to ensure that there is no unnecessary cruelty. My noble friend's Bill points us in the right direction.
1.23 p.m.
Earl Peel: My Lords, I thank the noble Lord, Lord Donoughue, for the very clear and concise way in which he introduced his Bill.
I declare an interest as the chairman of the standing conference on country sports and the President of the Game Conservancy Trust. I do not hunt but, unlike the noble Lords, Lord Donoughue and Lord Carlile, I wish that I did. I have taken a greater interest in hunting since this whole hunting issue has come before us. I am bound to say that the more I learn about the sport, the more fascinated I become, the more intrigued I am and the more I appreciate it as a great community activity serving the purposes of the countryside in the way that the noble Lord, Lord Carlile, described so admirably.
The noble Lords, Lord Carlile and Lord Hardy of Wath, rightly made reference to alternative methods of fox control. It is sometimes assumed that snaring and shooting are always cruel. Nothing could be further from the truth. Snaring in the right hands, and shooting done properly, are genuinely humane ways of disposing of foxes. I acknowledge that in the wrong hands that is not the case. However, that point needs to be made.
I return to the noble Lord's Bill. His timing is impeccable but I should not have expected anything else from the noble Lord. The way in which he introduced the Bill was refreshingly honest and straightforward. Inevitably, we shall make comparisons between the noble Lord's Bill and that Bill going through its various stages in another place.
The noble Lord, Lord Donoughue, referred to the noble Lord, Lord Burns. Goodness me, what a pickle the Government have got themselves into over the Hunting Bill. If I were the noble Lord, Lord Burns, or, indeed, any member of his committee, I would ask myself what on earth I had been doing. They have gone to a lot of trouble, taken evidence and produced a report but now the Government who commissioned it are simply ignoring everything that it recommended. The noble Lord's committee painstakingly considered all aspects of hunting, including the social, economic and environmental aspects, but its report is ignored. The word "utility", which is supposed, as I understood it, to embrace all those important dimensions, has now been narrowed down to a point where, quite frankly, any regulatory body could license a hunt only if it circled exclusively the pinnacle of Snowdon.
The matter has become a complete farce. At the first puff of opposition the Minister collapses. So in effect the Bill that will come to your Lordships' House will constitute a ban on hunting in everything but name. One is bound to ask about the evidence given by the experts at the hunting hearings. Was that nothing more than a farcical charade? What about the Minister's main evidence against stag hunting produced by Professor Bateson? We should not forget that stag hunting is excluded from the Bill. It will be an illegal activity. The Minister has always argued that the evidence from Professor Bateson was the argument on which he would defend his decision to ban stag

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hunting. But what has happened? The professor himself came forward and said that anyone who interpreted his evidence was scientifically illiterate. That does not sound a very impressive way to defend a major part of the Hunting Bill.
Then we have the latest fiasco when the Minister voted against his own Bill to prohibit the use of terriers underground despite his commitment that shooting was safe under Labour. The noble Lord, Lord Whitty, has already given this House a commitment that the Government would introduce amendments to give the gamekeeper back his rights, but I am bound to say that promises made under the Bill are becoming rarer and rarer as it makes its rather seedy way through the parliamentary process. What is now perfectly clear—as many of us suspected right from the outset—is that the Government's Hunting Bill is more concerned with curtailing human activities based on that word "prejudice" than dealing with the issue of animal welfare.
That brings me back to the noble Lord's Bill which I believe does address that very issue. As the noble Lord explained, the Bill amends the Wild Mammals (Protection) Act 1996, which exempted country sports. I can fully understand why that happened as it was considered that there could have been a series of frivolous proceedings. On the other hand, no participant in country sports I know would consider intentionally causing undue suffering.
As I have already explained, I do not hunt. I shoot, but I would give it up tomorrow if I considered that I was in breach of such a principle. What is more. I am hound to add—the point has already been touched on in connection with shooting—that, from an environmental dimension, what I do by conserving habitats and controlling certain predators contributes enormously to the healthy state of many species of wildlife. They might not be there if it were not for the interests of shooting people, as has been increasingly demonstrated by different pieces of research.
We desperately need to move on from the sterile ground of seeking to legislate about dislikes of human behaviour, to more fertile discussions about proper consideration of wildlife management and how best we can foster its welfare in our all too diminishing countryside. The Bill is clear-cut and helps to focus on how we should manage that wildlife. It deals with cruelty in a straightforward fashion. Its solution is a way forward in commanding the positive engagement of country people, who look to Parliament to do what is right by acting in a responsible way and not trying to distort the facts that are being driven underground under the sheer weight of prejudice.
I was going to seek clarification from the noble Lord with regard to the regulations that may be made under his Bill, but he explained them extremely carefully. I am grateful to him for coming forward as he has with the suggestion of amendments that would certainly overcome my concerns. I commend him on his considerable efforts in introducing a straightforward and effective piece of legislation. I believe that it is a genuine attempt to try to resolve a long-running problem.
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The key element that the Bill brings to the question of cruelty is consistency. That is what is missing from the government Bill, which contains the notion that terriers have to be able to distinguish between a rabbit and a hare. Under the noble Lord's Bill, that ridiculous situation would not occur. In terms of consistency, the comparison between the two Bills is stark. It would be encouraging if the Government were to take heed of what has been said and what is in the noble Lord's Bill, but I fear that that is extremely unlikely.
1.33 p.m.
Lord Willoughby de Broke: My Lords., I begin by declaring my interests as a farmer, a member of the Warwickshire Hunt, a supporter of the Middle Way Group, and chairman of St Martins Magazines, which publishes two magazines—Hunting Magazine and Country Illustrated—that deal with country sports and issues.
I am delighted that my noble friend Lord Peel would like to start hunting. I extend to him a public invitation to join me for a day with the Warwickshire; I shall even lend him my own horse.
I congratulate the noble Lord, Lord Donoughue, on introducing the Bill. I agree with everything that he said, except possibly for categorising himself as naive. I do not even think that his best friends would accuse him of naivety.
The most recent time that the House debated a similar Bill was 9th March 2001, just before our debates on hunting. Almost exactly two years later to the day, we are being given the chance to consider this Bill in time to inform our debates on the hunting with dogs Bill, which has recently completed its lengthy but, I am afraid, predictably one-sided Committee stage in another place. We may have to wait some time before that Bill comes to this House, while Members in another place consider whether they want to compromise the welfare of the Iraqi army before returning to the other burning issue of national importance, the welfare of the fox.
It is on the issue of welfare that I strongly support the noble Lord's Bill for two reasons. First, it will rationalise and clarify the current law, the Wild Mammals (Protection) Act 1996, which paradoxically started life as a Private Member's Bill to ban hunting. Secondly, as a supporter of the middle way approach to hunting, I believe that the Bill is a way forward for the Government to find a more sensible, generally more acceptable and less contentious way through their difficulties on the Hunting Bill, which are getting worse and worse.
Under the current law, hunting enjoys an exemption from prosecution, rather bizarrely. The noble Lord's Bill would mean that that exemption would be removed, and any activity within legal hunting that caused undue suffering would henceforth be open to prosecution. The vast majority of hunting people would be able to support that. Hunting is riot cruel. In spite of the noisiest efforts of the anti-hunting zealots and the expenditure of millions of pounds, the verdict

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of the only two authoritative reports to consider hunting—the Scott-Henderson report and the Burns report—was that hunting was not cruel.
Given what the noble Lord, Lord Donoughue, referred to as the shambolic animal rights situation in Scotland following the introduction of the ludicrously named Protection of Wild Mammals (Scotland) Act—as he pointed out, animals are being shot and left wounded to die in agony—I hope that the Government will look very carefully at what happened there, and ask themselves whether they wish to be responsible for the same consequences in England and Wales.
The Bill will address concerns about undue suffering not only within hunting itself, but caused by the alternative methods of control, thus offering a guaranteed improvement in animal welfare across the board. That certainly cannot be said of current attempts to concentrate on one activity alone. By bringing hunting within the legislation, the Bill will mean that it will be open and accountable, and that anyone who has proof that a hunt has been responsible for causing undue suffering will be able to take that evidence to court.
In the light of that I share the noble Lord's disappointment, although I may not be as surprised as he is, that the League Against Cruel Sports and the RSPCA have labelled the Bill "unhelpful". How can a Bill that will improve animal welfare across the board be called unhelpful? Is it, perhaps, because the RSPCA is less concerned than it should be about animal welfare, and is more concerned with pursuing its political agenda to ban hunting? In his excellent speech, the noble Lord, Lord Carlile, called that an obsession. It would of course be unhelpful to that agenda if the Bill were passed. At a stroke, it would remove the need for the RSPCA to campaign against hunting, as any cruelty would be subject to legal challenge. The Bill would expose the RSPCA's real reasons for continuing its campaign.
That brings me to the question of whether it is right that the RSPCA should continue to enjoy charitable status. I believe that it should not. It pours its members' money into a nakedly political campaign to have hunting criminalised. Every RSPCA letter that I receive, for example, is franked with the slogan, "Ban hunting with dogs". I intend to raise that matter with the Charity Commission and ask it to rule on whether the RSPCA's political agenda is consistent with its charitable status.
I agree that the Bill may need some amendment. The noble Lord, Lord Donoughue, dealt with that in his speech. However, the principle behind it is entirely sound. It will bring new coherence to animal welfare legislation in England and Wales, and improve animal welfare across the board. I welcome such a sensible solution.
1.39 p.m.
Viscount Astor: My Lords, I too support the Bill of the noble Lord, Lord Donoughue. Like everyone else,
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I should declare an interest. I am chairman of a hunt, a member of the Masters of Foxhounds Association. and a farmer halfway through the lambing season. I can tell the noble Lord, Lord Carlile, that at the moment we are just winning our way over the foxes, but only just. If it were not for the local hunt, I think that we would be in quite a lot of trouble.
I welcome the Bill and I agree with perhaps everything that noble Lords have said. This is a much simpler and much better solution than a hunting Bill. That has always been the case; it was certainly the case when we debated virtually the same Bill two years ago. In September, I sat through the three days of evidence when the Minister in another place, Alun Michael, listened so that he could make up his mind about hunting. I believe that at that stage he did listen and I was encouraged by the Bill when it was first published in another place. Sadly, it has changed; the Standing Committee has not involved a very edifying process. The Minister voted for an amendment that now means that shooting is included in the Bill, having said that it was his purpose never to do so. The antis in another place have taken over the process and forced the amendment through. Sadly, the Minister, Mr Michael, seems to bear the imprint of the last anti who sits on it.
There is no assurance that the Government will be able to get through on Report in another place their promised amendment to take out shooting. The matter may end up with noble Lords. At the moment, we are in the ludicrous situation in which if the noble Lord. Lord Donoughue, takes his beautiful terrier for a walk and it runs away and goes down a hole, it may or may not be committing an offence under the Bill.
I turn to the Bill of the noble Lord, Lord Donoughue. I note that he noted the points made by the Delegated Powers and Regulatory Reform Committee about codes and the tribunal. The code of practice is a good idea—all sports benefit from such a code. The noble Lord, Lord Donoughue, designed his Bill in a way that deals with the criticisms that were levelled at the previous legislation, when the noble Lord, Lord Bassam, replied on behalf of the Government because that responsibility was still with the Home Office. Noble Lords have said that the noble Lord, Lord Burns, supported the concept of the Bill in the debate last time round. As my noble friend Lord Peel said, it involved a definition of cruelty that was consistent and easy to enforce.
I do not believe that the Government will let the Bill proceed in another place. I hope that it will proceed through this House. The present Hunting Bill, which is in another place, is a total mess. It will, sadly, take days in Committee in this place introducing amendments to get it right. The Bill was quite good when it was first published but it has now been mucked up. Although it is a licensing Bill, it in fact involves a ban and I suspect that it will not survive.
The Government should take this Bill forward and put the other Bill aside, although they probably will not do so until the next Session. The noble Lord, Lord Donoughue, mentioned Scotland and said that the situation there was a shambolic muddle. That is indeed

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the case. It shows how, if one tries to be prescriptive in a Bill, one can degenerate into chaos. There is no benefit in Scotland at the moment for those who hunt or for the fox.
The noble Lord, Lord Hardy, mentioned the benefits of hunting with regard to fallen stock. We realise that on-farm burials will not be allowed from 1st April. As the chairman of a hunt, it is noticeable that hunters are increasingly being called out to deal with fallen stock. There is no local lack of business any more; that does not exist. If it was not for the hunt, I do not know what would happen.
As we have heard, the RSPCA said that the Bill is "unhelpful". It is extraordinarily sad that the RSPCA. instead of being an organisation that deals with animal welfare, has become totally politicised in its agenda. I look forward to hearing about the reply that my noble friend Lord Willoughby de Broke will receive when he questions its charitable status.
All noble Lords who have spoken have supported the Bill. and I, too, do so. The noble Lord, Lord Donoughue, said that he had never ridden or been hunting. but he has owned a racehorse. I had the privilege of riding his racehorse in order to try to get it lit to win a race. Sadly, it did not win a race. Whether that was because of the horse or me, I cannot tell. However, I warmly support his Bill.
1.45 p.m.
Lord Greaves: My Lords, this is an interesting debate and I congratulate the noble Lord, Lord Donoughue, on his ingenuity rather than naivety in introducing it at this time. What I will say represents my views and not those of any other individual member of my party in your Lordships' House. However, as my noble friend said, we have a party policy outside the building.
The noble Viscount, Lord Astor, said that, like everyone else, he would declare his interests. I do not believe that I have any interests to declare, in that I am not a member of a hunt and I have never been hunting. I asked myself why that was. The noble Earl, Lord Peel, said that he wished that he had hunted but had not done so. From a personal and selfish point of view, hunting is one of the activities in which I wish I had taken part. It appears to be an exciting activity and I believe that would have enjoyed it. The reasons why I did not do so in my younger days were probably more to do with my levels of equestrian performance and skill. If I got on a big hunter and started chasing across the countryside, I would have fallen off at the first major fence that I came to.
Earl Peel: My Lords, the noble Lord might like to know that he could have done so on foot if he had so wished.
Lord Greaves: Yes, my Lords. I could follow one of my noble friend's hunts in mid-Wales on foot, but that would take the excitement and fun out of it.
Noble Lords: No.
Lord Greaves: Perhaps not.
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My main point is that hunting is a sport, and it should be regarded as such in discussions. I believe that the Government's attempt to define it in terms of cruelty and utility is a cul-de-sac that is bound to get them into all kinds of difficulties. I agree with noble Lords to the extent that it is getting them into a series of difficulties.
On a previous occasion when we discussed hunting, I said that hunting should either he allowed or banned. That is the limit to which a government and Parliament should get involved. I said that I did not believe that a middle way, in which the Government stepped in and tried to regulate hunting in the interests of utility and lack of cruelty or whatever, was a satisfactory way in which to regulate a sport. At the time, the Minister, the noble Lord, Lord Whitty, said that he found my views bizarre. He is entitled to think that but there are great dangers when a government start to get involved in the detailed regulation of any sport. When sports need regulating, they should be self-regulating, as sports throughout the country are. There is an argument about boxing. If people believe that boxing should be banned—some do—the answer is not for the Government to step in and regulate it; a decision has to be made about whether it should be allowed, as it is, or, if people want to ban it, it should be banned. I fear that once a precedent is established by which a government step in with a quango or whatever to regulate a sport, particularly an activity sport, that might spread to other sports that people believe are dangerous and in relation to which people should be regulated for their own good.
The noble Lord, Lord Donoughue, attacked groups that had a political agenda. There is no point in getting into a slanging match about which side of the argument is political and which is not. Politics is about issues and beliefs, but it is also about interest groups. Whether one supports the Countryside Alliance, the RSPCA or any other group, to start slagging off one side as being political and claiming that one's own side is not political does not appear to be a productive way forward. For anyone to suggest that the Countryside Alliance is not political is disingenuous.
Lord Willoughby de Broke: My Lords, I thank the noble Lord for giving way. The Countryside Alliance is not a charity; the RSPCA purports to be a charity.
Lord Greaves: My Lords, I understand the point made by the noble Lord. That was not the point to which I was replying. If people believe that a particular organisation is contravening its charitable status they should do what the noble Lord proposes; that is, make a complaint and then a ruling will be made. However, I do not believe that that is for noble Lords to rule upon.
The noble Lord, Lord Donoughue, said that he thought that his Bill would provide a better result for wild animals generally. Having carefully considered it and compared it with the Act he seeks to amend, it is not clear to me that that is the case. This all seems to come down to a comparison between "undue suffering" and "unnecessary suffering'''. There may be something obvious here which I have not understood.

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I believe he suggested that his Bill would clarify the matter and resolve grey areas such as whether an activity is "undue in degree". I find it difficult to go along with that understanding. He then referred to undue suffering within different practices, which clearly leaves open to interpretation whether there could be different accepted levels of cruelty or suffering within one practice as compared with another because the question of whether something was undue would depend upon the practice. I believe that the noble Lord accepted that in introducing his Bill.
As usual, I enjoyed the speech of my noble friend Lord Carlile of Berriew. He gave an interesting description of the situation in mid-Wales. He said that this is a matter of balancing freedoms and rights and that whenever it comes to reducing people's freedoms or, indeed, removing them altogether, as Liberals we must be careful. I agree with him on that. It is a fundamental argument in relation to whether activities such as fox hunting should be allowed to continue. I do not want to debate this matter at great length today. However, it all comes down to the clash between the liberties of people and the welfare of animals. The interface between those two aspects of public policy, which is found in all kinds of areas and has been for the past 150 years or so, is interesting and fundamental.
I am not one who believes that animals have rights in that sense. That seems to be an extreme view. By definition, rights are to do with the political and social process of the interaction of people. By definition, other species cannot have the same rights as people. The question of where animal welfare clashes with those rights is interesting. That is a matter of judgment and debate. I look forward to debating that with my noble friend in future.
I return to the point raised by the noble Lord, Lord Donoughue, concerning "undue suffering". My noble friend Lord Carlile said that he saw great advantages in the simplicity and clarification provided by the Bill. He spoke as an extremely distinguished lawyer. However, in my view the real advantage of the Bill to lawyers is the large number of expensive and long drawn-out court cases to which it will inevitably lead. The interpretation of "undue suffering" is one which will keep many lawyers busy and well paid for a long time. It seems to me that the inevitable consequence of the Bill will be a whole series of cases which will go through the appeal process and end up in the House of Lords.
Lord Carlile of Berriew: My Lords, I thank my noble friend for giving way. He might be interested to learn that in my 32 years as a barrister I have made far more money defending people against the outrages committed against them by so-called animal liberationists than I have ever made from anything to do with hunting—by a multiplier of, perhaps, 150.
Lord Greaves: My Lords, I am sure that my noble friend is right. I would not want in any way to condone the activities of people who break the law in the
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interests of what they call animal liberation. That seems to me to be a totally false concept. However, we are considering a situation in which the law will be changed. If legislation is introduced which provides people with the opportunity to pursue their agendas, political or otherwise, to try to ban all kinds of activities—no doubt that would include hare coursing, fox hunting, stag hunting and perhaps shooting rabbits and so forth—I am sure that people would do that and perhaps lawyers who are less particular than my noble friend about the work they do would make a lot of money, even if he does not.
I shall comment briefly on the middle way and government involvement in this matter. I have made my views clear about the degree to which government should be involved in regulating sport, whether that is directly, through a quango, or through recognition of other bodies. I am not clear exactly what is proposed in the Bill. The noble Lord has presented a piece of paper which states one thing but tells the House that all sorts of amendments will be proposed in Committee which will make it quite different. I had the impression that he wants to drag it away from the middle way position more towards the status quo and what in terms of options for fox hunting has been described as self-regulation. I am not clear about that. I believe that that position is unsatisfactory at this stage of the Bill. However, if the Bill gets a Second Reading, we shall listen with interest in Committee to what is said by the noble Lord, Lord Donoughue.
The politics and reality of the situation is that a government Bill is passing through the House of Commons. Whether noble Lords believe it was satisfactory when it was introduced or that any subsequent amendments are a good idea, before long the Bill will come to your Lordships' House. It seems to me that that will be the time for the real debates and arguments about whether such practices should be allowed to continue.
1.58 p.m.
Baroness Byford: My Lords, I find myself in slight difficulty over the last comment made by the noble Lord, Lord Greaves. Whether or not the hunting Bill comes to this House, the Bill introduced by the noble Lord, Lord Donoughue, addresses specifically the question of the protection of wildlife in our countryside and avoiding unnecessary cruelty to it. I do not see it in the same way as the noble Lord, Lord Greaves. I shall return to that point.
I thank the noble Lord, Lord Donoughue, for introducing the Bill and recognising that in its present form it is perhaps not totally acceptable. The Select Committee on Delegated Powers and Regulatory Reform voiced its concerns and the noble Lord has today indicated his willingness to table suitable amendments to rectify the matter in Committee.
Before the noble Lord gave his speech, I noted that that I supported his Bill in principle. However, I knocked out "principle" and changed it to "I welcome the Bill" as he went on to explain the amendments he proposes. I welcome the Bill because it tackles the whole question of deliberate cruelty.

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I do not believe that there is anyone in this Chamber who is not concerned about the suffering of animals. Section 1 of the Wild Mammals (Protection) Act 1996 uses the words,
"intent to inflict unnecessary suffering"
and then specifies the list of offences. Clause 1(1) of the Bill creates an offence covering:
"Any person who intentionally causes undue suffering to any wild mammal".
That covers all wild mammals. I believe that is an improvement.
The noble Lord, Lord Burns, in his report reflects the same sentiments. He states:
"In the absence of a ban, one possible legislative approach would he to remove the present exemptions for Hunting in the Wild Mammals (Protection) Act 1996".
That is what the noble Lord, Lord Donoughue, seeks to do.
The Bill would remove the list of limited exemptions in the current 1996 Act and replace them with a general offence to "intentionally"—the important word—cause "undue suffering". That is similar to the existing law covering domestic animals.
The Countryside Alliance in its briefing recognises that UK animal welfare legislation is piecemeal. It believes that the Bill of the noble Lord, Lord Donoughue, will go a long way towards clarifying the law in relation to wild animals and protecting them from intentional and unnecessary suffering. Indeed, as other noble Lords have said, the CLA specifically raises the two issues. As such it is neither a pro-hunting nor an anti-hunting Bill; it is an animal welfare Bill that simply aims to afford wild animals a similar level of protection to that enjoyed by domestic and farmed animals.
The Hunting Bill is based solely on a desire to heavily regulate one activity—hunting with dogs. It does nothing to improve the lot of wild mammals generally. I think that, with one slight concern, that has been very much reflected around the Chamber today.
The NFU in its briefing reminds us that when the previous Bill of the noble Lord, Lord Donoughue, was debated in March 2001, the noble Lord, Lord Bassam, expressed concern about the possibility of vexatious prosecutions of normal pest-control activities if the exemptions in the 1996 Act were repealed. The NFU believes that the onus on the prosecution to prove intent should reduce such a risk; no doubt we shall have greater debate in Committee on that issue.
The noble Lord, Lord Donoughue, explained to us the kind of proposals that he wishes to bring forward in his amendments. We obviously do not have their written details, but we look forward to those so that we can debate the matter properly in due course.
Inevitably, today's discussions have also covered many concerns about the Hunting Bill. It is impossible to separate the two. My noble friend Lord Astor of Hever explained the reservations held by many in the shooting fraternity. They are perhaps concerned that the noble Lord's Bill might lead to additional
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regulations being placed on them. I suspect that that is not the noble Lord's intention. I see him shaking his head. I did not assume that it was. No doubt when he tables amendments he will clarify that matter, which will be immensely helpful.
The noble Lord, Lord Carlile, in his very moving speech said that hunting was a matter of conscience. That is also so on our Benches. Therefore, I find myself responding to the Bill of the noble Lord, Lord Donoughue, with the backing of my own party. I support it anyway. My views on hunting will obviously be expressed from a personal point of view. It seems an odd clarification to make in a debate dealing with a different Bill, but I hope that my words express my belief. I should declare my family interest. We have a family farm. I also used to hunt, although I sadly do not ride any more. That should also be placed on the record.
The noble Lord, Lord Carlile, recognised that the Bill is trying to give greater support and to reduce the actual risk of animal cruelty, as it exists at the moment. He, too, picked up on a matter that I wanted to point out. The Bill is good because of its simple approach. It will bring uniformity to the legislation when it becomes an Act.
I always enjoy the contributions of the noble Lord, Lord Hardy of Wath—although we have a Labrador and would claim that that is an even better clog than his. He raised some very important points. I should particularly like to pick up on one point regarding the CROW Bill. He and I and many other noble Lords in the Chamber today went to great lengths to try to persuade the Government to include in that Bill a ban on a right to roam at night. We tried consistently to do so on the grounds of safety for the people who would be wandering. One of the problems is that limping to control foxes is a regular feature across some hillsides. If one does not have a ban at night, one runs a great risk that people may be shot.
Unfortunately, at the time we could not persuade the Government of that and so the Act was passed with that point, about which we were so vehement, being totally ignored. My only hope is that it will never happen and that someone will not be shot. But it is a risk that we recognised then and here we are still debating it now.
My noble friend Lord Peel expressed his concerns on the Government's approach to the Hunting Bill. It is a personal view, but I share those concerns very strongly. I do not believe that it deals with the whole question of animal cruelty, to which this Bill has regard. I, too, am very disturbed that all the work that went into the Burns report is being overturned, ignored and bypassed.
My noble friend Lord Willoughby de Broke, who chairs and leads the Middle Way Group in putting forward suggestions for the Hunting Bill, recognises the importance of the Burns report. He specifically touched on three issues that I would like to pick up. First, there is the question of the shooting of foxes, It is not a good alternative, in particular as the proposed Hunting Bill will ban the digging-out of foxes, so that

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if they are shot and go to their lairs they will be left to die in misery. Of that there is no doubt. Certainly, the Hunting Bill does not address that issue.
My noble friend and others referred to the political correctness of some of the animal welfare groups. I do not mind when people do not agree with me and have different views—that is what democracy is about. What I find difficult is when people purport to represent animal welfare but have no scientific ground on which to base their argument. The Royal Society for the Prevention of Cruelty to Animals simply does not want hunting to continue. It does not tackle the whole question of cruelty to and suffering of wild mammals.
Lastly, I was glad to hear my noble friend Lord Astor support the Bill and speak about how the Hunting Bill is progressing in another place. He has great personal expertise and understanding of how hunting works, so I was grateful for his contribution. He also raised an issue raised by the noble Lord, Lord Hardy, to which I should like to refer: the question of fallen stock. As my noble friend said, come 1st April, one will not be allowed to bury fallen stock as previously. My noble friend asked what will happen to it. I read a piece in the newspaper only a few days ago saying that it. would be dumped by the roadside or left there in dustbins to be collected. That is surely not right. I hope that the Minister will mention that in his response.
We support the Bill. There is much good in what the noble Lord, Lord Donoughue, proposes. We appreciate that all its provisions have not been spelled out, so we must accept his intention to table suitable amendments in Committee. It has great merit. It is simple. It opens up the provision to cover all wild mammals. Like other noble Lords, I support the Bill and look forward to working with the noble Lord in Committee.
2.10 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, in some respects this has been an extraordinary debate. As a result, I should probably declare an interest: I am the Minister who will have to introduce the Hunting Bill to the House in whatever form it ends up. We do not yet know what will be the final version of that Bill and it is not before the House today. One could have been fooled by some of the debate focusing on that Bill, but it is the Bill of my noble friend Lord Donoughue that is before us. I correct the noble Baroness, Lady Byford. I am not responding to the debate; I am giving the Government's view on my noble friend's Bill. I hope that we can focus on the Bill on its merits, rather than diverting to parallel matters.
The Bill has merits. I have concerns about it, but it clearly has merits. One of its apparent merits is that of simplicity. However, although the noble Lord, Lord Carlile, said in passing during the course of an otherwise eloquent and evocative speech—not that I
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agreed with it; but it was a good speech—that simplicity was to the advantage of lawyers, I am not sure that that is true, or that simplicity necessarily brings clarity. Ambiguities that we must address arise from the terminology used in my noble friend's Bill.
The essence of current law—which reflects earlier law—is that it makes it an offence for a person to mutilate, kick, beat, nail or otherwise impale, stab, burn, stone, crush, crown, drag or asphyxiate any wild animal with intent to inflict unnecessary suffering. Several different things are implied in that definition. My noble friend attempts to simplify the provision by stating in the Bill:
"Any person who intentionally causes undue suffering to any wild mammal shall be guilty of an offence".
That is a major change and runs the risk of extending the law into areas such as hunting with hounds—where there will be argument about whether that constitutes undue suffering—and could conceivably open up arguments about shooting. I understand that the noble Lord, Lord Astor, is concerned about shooting.
The second change proposed in the Bill is to remove current exemptions to lawful hunting and shooting and to introduce a new one, which is where an act is,
"in accordance with a recognised code".
It then defines that. Thirdly, it gives the Secretary of State affirmative order-making powers concerning the bodies to administer the codes.
Each of those areas presents us with some difficulty. It is not entirely clear to me on first reading whether "undue" suffering is a weakening or a strengthening of the provision in the previous Bill and current legislation, "unnecessary". It is a relative term. In so far as it is relative, I am not sure that it is the equivalent of the Bill that I am not supposed to mention, which uses the concept of "least suffering". Undue suffering, therefore, would not be the least suffering needed to attain the outcome. The definition is ambiguous and problematic.
The provisions dealing with codes present a problem. The Delegated Powers Committee regards the Bill as granting some degree of status to codes promulgated by existing authorities. My noble friend Lord Donoughue said that the codes should be seen in the same way as the Highway Code. The Highway Code is produced by the Government and can be cited in court, although it is not directly enforceable. The Delegated Powers Committee felt that it would be difficult to delegate such a power to a voluntary body, which is why it used the term "inappropriate".
It would also be difficult for the Government. We would have to judge whether existing codes were appropriate, which could lead to all sorts of arguments. As I understand it, my noble friend's Bill provides that, where no code exists, the Government must create one to be enforced. That would engage the Government in various areas in which they are happily uninvolved. To that limited extent, I agree with the noble Lord, Lord Greaves, that we would probably not want to be involved in the promulgation of detailed codes in that area. Therefore, the issue must

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be addressed. I think that my noble friend Lord Donoughue recognises that the Delegated Powers Committee raised a relevant point.
The organisations may not relish the prospect of their codes being second-guessed by the Government either. Therefore, other tensions could arise. The Bill would result in DEFRA-approved codes that could be cited in court. That would place a new responsibility on the Government and create a new range of potential cases for the courts. It is unclear how far those measures would improve the protection of wildlife as against the current voluntary codes and general provisions of the existing Act.
The Delegated Powers Committee raised another quasi-legal problem, which my noble friend Lord Donoughue said he would deal with. The Bill would give the Secretary of State powers to set up tribunals. Normally, such a provision would be included in the Bill and would grant the power, not to the Secretary of State, but to the Lord Chancellor. With due respect to the subsequent debate, although it is just possible to envisage a maligned Secretary of State at some time in the distant future, it is obviously beyond our imagination to conceive of a maligned Lord Chancellor. Therefore, we would need to reflect convention in that respect.
The principle in the Bill of providing a coherent and simpler approach to the protection of wild mammals is a desirable objective. It would be fruitful for this House to discuss the matter in subsequent stages. However, the Bill in its present form does not avoid ambiguity, conflict and argument. I suspect that in this area it is impossible entirely to avoid those problems. I suspect that we shall see that when we debate the other Bill progressing in another place. But it is a valiant attempt. I would be happy to make further comment in Committee. I confine myself today to those remarks and allow my noble friend Lord Donoughue to respond to the debate.
2.18 p.m.
Lord Donoughue: My Lords, I thank everyone who contributed to this excellent debate. It produced widespread support, certainly in principle, for my proposals. I recognise that we are running late on a Friday.
I thank the noble Lord, Lord Astor of Hever, for his support and welcome of my proposed amendments. I look forward to working with him with positive assistance in Committee. My concern is to meet the concerns of he and his colleagues. Like others, I welcome the impressive speech of the noble Lord, Lord Carlile, which was a pleasure to hear. He represents the long, honourable libertarian tradition of his liberal party, which, sadly, has been deserted by some urban guerrillas in his party with less distinguished political records than he.
As always, my noble friend Lord Hardy spoke from deep knowledge and experience of the area. He made a challenging point about his terriers. We might settle that with a meeting, as they are gentlemen and mine is a lady, so that they may produce even greater perfection in the future.
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The noble Earl, Lord Peel, the noble Lord, Lord Willoughby de Broke, and the noble Viscount, Lord Astor, offered generous support from the Opposition Benches. They made some telling points, especially in emphasising the element of consistency in the Bill and the need to clarify the existing legislation. I was especially pleased that the noble Baroness, Lady Byford, welcomed the Bill. I believe that the amendments will satisfy her, and I look forward to working with her in Committee.
The noble Lord, Lord Greaves, made some interesting points. I am not clever enough to have understood everything, but he made some interesting arguments against the Hunting Bill. I am content to allow our courts to judge basic issues. The noble Lord is wrong to say that there will be a clogging-up; it is not an unusual process, and the precedent has been established.
My noble friend the Minister displayed his customary knowledge and understanding, with no sign of malignity. I welcome his view of the Bill's merits, and I have confidence in the courage with which he will face the passage of the Hunting Bill through this House. The Minister said that he had difficulties with the definitions in my Bill, so I invite him to discuss that with me before the Committee stage. I assure him that I am willing to listen even to the Government. Most of the points that the Minister made, which were understandably written by officials before I made my speech, will he met by my amendments. I should like to sit with the Minister and confirm that.
In practice, the Secretary of State would not be deeply involved in proposing codes for the sports. Most of the sports have codes, and, as I said, I propose to collate them. If they do not exist, the role of the Secretary of State would be to encourage the relevant bodies to produce them.
It has been an excellent debate. I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Ministerial and other Salaries (Amendment) Bill [H.L.]
2.23 p.m.
Lord Goodhart: My Lords, I beg to move that this Bill be now read a second time.
The Bill has one obvious virtue: it is very short. Its purpose is to link the salary of the Lord Chancellor to that of a Secretary of State, instead of to that of' the Lord Chief Justice. Roughly speaking, it would halve the salary of the Lord Chancellor. Under present legislation, the Lord Chancellor will he entitled to £202,000 from 1st April, although the present holder of that office said that he would, for the time being, draw only £184,000. Under the Bill, the Lord Chancellor would get about £97,000, the same salary as the Leader of the House of Lords.

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I should make it absolutely clear that the Bill is not in any way intended as a personal attack on the noble and learned Lord, Lord Irvine of Lairg, as the present Lord Chancellor. He is someone for whom I have the utmost respect—except, perhaps, for his views on the reform of your Lordships' House. I do not wish anything I say, nor do I wish anything in the Bill, to be taken as a personal attack.
The Bill is moved in support of a constitutional principle. On these Benches, we believe that the office of Lord Chancellor has moved, is moving and ought to continue to move away from being a judicial office and towards being a ministerial and political one. That should be recognised by giving the Lord Chancellor a ministerial salary rather than a judicial salary.
At present, the Lord Chancellor is entitled to a higher salary than the Prime Minister and approximately one-and-a-half times the salary of a Cabinet Minister in another place. Cabinet Ministers receive part of their MP's salary, as well as their ministerial salary. The Lord Chancellor is entitled to approximately double the salary of the Leader of the House—the only other Cabinet Minister in your Lordships' House. That is a historical anomaly.
The noble and learned Lord, Lord Irvine of Lairg, is not here today. That is correct—because of his personal interest in the matter he could not take part in the debate. He would be wasting his time to sit and listen. No doubt he will read it in Hansard.
I am delighted that the noble and learned Lord, Lord Mackay of Clashfern, the only living former Lord Chancellor, has come from Scotland to speak on this occasion. I expect him to give a vigorous defence of the present arrangements. If that is so, it will be a welcome contribution to the debate.
We need to start with a little history. The office of Lord Chancellor has always been traditionally well paid. Much of the background to the salary situation is set out in the report of the Committee on the Remuneration of Ministers and Members of Parliament, chaired by Sir Geoffrey Lawrence QC, published as Command Paper 2516 in November 1964. I should add that my wife was a junior member of the secretariat of that committee.
In 1830, a Select Committee recommended that the salary of the First Lord of the Treasury, and other senior Cabinet Ministers—except for the Lord Chancellor—should be £5,000 per year. That recommendation was accepted by Parliament. In 1832, following the report of the same Select Committee, Parliament gave the Lord Chancellor an aggregate salary of £14,000 per year. That was more than twice the salary that the Prime Minister—or the First Lord of the Treasury, as he was then called—received and was equal to £700,000 per year at today's values. The sum was made up of £4,000 as Speaker of your Lordships' House and £10,000 paid as a judicial salary.
In 1851, the two salaries were merged and the aggregate salary of the Lord Chancellor was reduced to £10,000. Therefore, this Bill is not unique in proposing a reduction in the Lord Chancellor's
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salary—in 1851, a substantial reduction occurred. From the 1830s onwards, High Court judges received £5,000. I am not sure what the Lord Chief Justice received in those times because that post came into existence only in the 1870s with the merger of the three old common law courts, each of which had its own Chief Justice.
By the time of the Supreme Court of Judicature (Consolidation) Act 1925, the Lord Chief Justice received £8,000 per annum. There were some increases after the Second World War as a result of higher inflation.
In its 1964 report, the Lawrence committee recommended an increase to £18,000 per year for the Prime Minister, £17,000 per year for the Lord Chancellor and £12,000 per year for other Cabinet Ministers. Those recommendations were not implemented in full. Two Acts were passed in 1965; the Judges Remuneration Act and the Ministerial and other Salaries Act. Under the Judges Remuneration Act, the Lord Chancellor received £14,500 and the Lord Chief Justice £12,500. Under the Ministerial and other Salaries Act, the Prime Minister received £14,000, which was £500 less than the Lord Chancellor. Other Cabinet Ministers received £8,500. Until that date, therefore, the Lord Chancellor's salary had been treated as a judicial salary.
In the Ministerial and other Salaries Act 1972, the Lord Chancellor's salary was for the first time treated as a ministerial salary, but he continued to be paid a sum which was much greater than that of a Cabinet Minister. At that stage, the Lord Chancellor and the Prime Minister both received £20,000 a year and a Secretary of State £13,000, all subject to increases by statutory instrument to match inflation. Those figures were repeated in the Ministerial and other Salaries Act 1975, an Act which is still in force, subject to later amendments.
Since the Administration of Justice Act 1973, judicial salaries have not been fixed by Parliament. They are fixed by the Lord Chancellor with the approval of the Treasury. Finally, the Ministerial and other Pensions and Salaries Act 1991 provided that the salary of the Lord Chancellor, which was by then fixed at £91,500, should thereafter be £2,000 above that of the Lord Chief Justice. That gave effect to the recommendation of the Top Salaries Review Board in 1983. The 1991 Act has the incidental effect that, technically, the Lord Chancellor has power, by deciding on the salary of the Lord Chief Justice, to decide his own salary, though of course subject to Treasury consent.
The 1991 Act as a Money Bill received only a short debate in your Lordships' House. I have looked at the Second Reading debates in both Houses to see whether anything relevant to the Lord Chancellor's salary was discussed and I discovered only one brief exchange in your Lordships' House. On 26th February 1991, my noble friend Lord Mackie of Benshie said:
"I understand that the Lord Chancellor receives an enormously greater salary than the Prime Minister. Can he say whether that is so because the Lord Chancellor is worth more, because he works harder, or because lawyers in this country are grossly overpaid?".

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To that, Lord Cocks of Hartcliffe responded:
"I should point out that the Lord Chancellor receives an additional payment because he is well worth it".
Finally, the noble Lord, Lord Waddington, winding up as Leader of the House, said:
"I do not know whether I should now embark upon a long explanation as to why the Lord Chancellor is paid more than the Prime Minister. I shall leave that issue for another day".—[Official Report, 26/2/91; cols. 873–75.]
Another day is today because there have been no intervening debates on the subject. And in order to show how little changes over time, I point out that immediately after the debate from which I have quoted, the House went on to hear a Statement about the Gulf War.
The Lawrence committee considered at some length the justification for paying the Lord Chancellor such a high salary compared with other Cabinet Ministers. Paragraph 136 of its report states:
"We are of the opinion that the total salary of the Lord Chancellor should be increased in order to preserve a marked difference of remuneration consistent with the eminent nature of his office and with his position as the head of the judicial hierarchy of England entrusted with the great responsibility of recommending appointments to judicial office. Moreover, the office of Lord Chancellor, in our opinion, should continue to be an object of ambition to the ablest members of the Bar as the highest position constitutionally open to them as lawyers. The Lord Chancellor's salary therefore should be set at a level acceptable to such leaders of the Bar as have the outstanding qualities and attainments required for discharge of the manifold duties of this great office".
That sounds like something from another age. Indeed, my wife, as a member of the secretariat, felt so at the time.
The first justification mentioned is the special responsibilities of the Lord Chancellor. Frankly, as an explanation or justification, that will not wash. Of course the appointment of judges is a matter of great constitutional importance, but we have to ask whether the responsibilities of the Lord Chancellor are greater than those of the Chancellor of the Exchequer, the Foreign Secretary or the Home Secretary, the three traditional great offices of state. Are the responsibilities of the Lord Chancellor necessarily even greater than those of, for instance, the Secretaries of State for Defence and Health?
As to the need to pay high salaries to obtain suitable candidates for the office, the proof of the pudding is in the eating—or, in this case, the disproof of the pudding. The ministerial Benches include the noble and learned Lords, Lord Williams of Mostyn, Lord Falconer of Thoroton and Lord Goldsmith, and the noble Baroness, Lady Scotland of Asthal—all of them barristers of the highest ability; any of whom would be an admirable choice for the office of Lord Chancellor; and each of whom would be able to earn far more in private practice than they do as a Minister. But each of them has accepted a government post for a salary which is far less than that of the Lord Chancellor.
The role of the Lord Chancellor as an active head of the judiciary is now, frankly, fictional. The Lord Chancellor hardly ever sits as a judge. In response to a Written Question of my noble friend Lord Lester of
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Herne Hill, it was disclosed the other clay that the noble and learned Lord the Lord Chancellor sat not at all in 2002 and in one case lasting for three days in 2001. Under the European Convention on Human Rights and the Human Rights Act, the Lord Chancellor cannot sit in any case in which the Government have an interest. Many lawyers consider that he should not sit at all.
Of course the Lord Chancellor's role as Speaker of your Lordships' House is now largely nominal. It is, frankly, a waste of the time of a Lord Chancellor. Why should a Lord Chancellor spend half an hour a day, dressed up in fancy dress, listening to questions?
By contrast, the political and administrative role of the Lord Chancellor has increased greatly. The Lord Chancellor's Department is large, with a very large bill, and it will become larger when the staff of the magistrates' courts are absorbed into it. At that point it will have a staff of approximately 25,000 people.
The responsibilities of the Lord Chancellor's Department now go well beyond the traditional ones of the judiciary, the court system and civil law. After the last election, the Lord Chancellor's Department took over from the Home Office responsibility for the Freedom of Information Act and the Data Protection Act. Since then, it has also taken over responsibility for elections. The department has general responsibility for constitutional law. Indeed, apparently it wishes to restyle itself as the "Department for Justice, Rights and the Constitution".
The present Lord Chancellor is far more politically active than was the noble and learned Lord, Lord Mackay of Clashfern. The noble and learned Lord, Lord Irvine of Lairg, heads several Cabinet committees and is a big fish in the political pond. He is seen as a politician. In the public's view, it is not him but the noble and learned Lord, Lord Woolf, the Lord Chief Justice, who is seen to be the real head of the judiciary. It is of course the noble and learned Lord, Lord Woolf, and not the Lord Chancellor, who has in the past few days defended the judiciary against the intemperate attacks of the Home Secretary.
The office of Lord Chancellor is becoming almost indistinguishable from that of any other Cabinet Minister. The only remaining function of the Lord Chancellor that is distinctive is his role in the appointment of judges. I have no criticism at all of the judicial appointments made by the noble and learned Lord, Lord Irvine of Lairg—the appointments made by his predecessor are, by common consent, quite outstanding—but we cannot assume that the standards will always be so high. We on these Benches, together with many lawyers and organisations such as Justice, believe that the appointment of judges should now be made by an independent judicial appointments commission. If this happened, the Lord Chancellor's Department would become simply a ministry of justice, headed by a Minister who need not be a lawyer and who might well sit in the House of Commons. I do not think, therefore, that there is any justification for paying the Lord Chancellor twice as much as his colleague, the Leader of the House.

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I turn to two final points. First, the Bill does not deal directly with the Lord Chancellor's pension. The pension would, of course, be reduced in consequence of the reduction in the salary to which it is linked. The Lord Chancellor's pension—uniquely—is not linked to the length of his term of office. That is to a limited extent, although not wholly, justified by the fact that the Lord Chancellor, as the holder of a judicial office, cannot return to practice, unlike the Law Officers or other Ministers who are lawyers. Once the Lord Chancellorship ceased to be a judicial office, the Lord Chancellor, if a lawyer, could return to practice. But then, the justification for a full pension, however short the term of office, would end, even if it is justified now.
Secondly, the Bill is intended to come into effect on 1st April 2004. That date has been chosen not as All Fools Day but as the beginning of a financial year. Even with the help which I fully expect the Government to give to this Bill as a useful contribution to the reduction in public expenditure, I do not expect it to become law by 1st April this year.
I believe that it is right, and timely, that the salary of the Lord Chancellor should be the same as that of a Secretary of State. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Goodhart.)
2.42 p.m.
Lord Mackay of Clashfern: My Lords, it is a privilege to follow the noble Lord, Lord Goodhart, particularly when he wrote to me saying that it would be welcome were I to speak in this debate. I received from his letter the impression—at which he has at least hinted—that I might not be entirely in favour of his proposals.
As your Lordships know, I held the distinguished office of Lord Chancellor for almost 10 years. Therefore, I must have some kind of interest—although essentially academic—in the Bill. I do not believe that the Bill as it stands would affect my personal position.
Like the noble Lord, Lord Goodhart, I propose to approach this matter on the basis of the Lord Chancellor's office; I do not propose in any way to discuss the situation so far as concerns my successor, the noble and learned Lord, Lord Irvine of Lairg.
The Bill seeks to equiparate the Lord Chancellor's salary with that of a Secretary of State. It is suggested by the noble Lord, Lord Goodhart, that in practice the Lord Chancellor's position has become that of a Secretary of State. In my submission that is obviously not correct.
The Lord Chancellor is, first of all, a judge. On taking office, he takes a judicial oath as Lord Chancellor, usually administered by the Master of the Rolls in the presence of all the senior judges of the Supreme Court. He is president of the Supreme Court, and president of the Chancery Division of the High Court of Justice. He provides the administration for all these courts and for county courts and the Crown
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Court. If the proposals presently before Parliament become law, he will also provide the administrative support for magistrates' courts throughout the country.
I regard the provision of administrative support to the judges and the way that the Lord Chancellor's Department is organised as part of the judicial administration of judicial functions. For example, the Lord Chancellor provides the listing officers in the various courts. Listing is a judicial function: it is done by the listing officers in the name of, and on behalf of, the judges who are in administrative positions at the various courts, such as the resident judge in a normal combined court centre.
That administrative provision is made by the Lord Chancellor. In my view, it is extremely important that that administration should be seen as provided by one who holds the office of a judge and who, as I said, has taken the judicial oath, as Lord Chancellor, to do right to all manner of persons according to the laws and usages of this realm without fear or favour, affection or ill-will. In that capacity, he is discharging an important judicial function.
The noble Lord, Lord Goodhart, referred to the appointment of judges, and I need not refer to that again. I am grateful for his comment upon the appointments that I was instrumental in proposing while in office. It is an extremely important part of the Lord Chancellor's function and I think I am right in saying that one of my noble and learned predecessors, Lord Hailsham of Saint Marylebone, said he thought it was perhaps the most important part of the Lord Chancellor's function. I would not necessarily say that it is more important than some other parts, but it is certainly very important.
My third point relates to complaints against judges, which the Lord Chancellor is responsible for dealing with. In my view, it is very important for the independence of the judiciary that complaints against it are dealt with by a judge, a member of the judiciary himself. So there is a very close arrangement of judicial functions, apart from sitting in court.
As has been mentioned, the Lord Chancellor is a Lord of Appeal and therefore entitled to sit in judicial proceedings of the committees of this House, and when he sits, he presides. He is also, by statute, a member of the Judicial Committee of the Privy Council and again, when he sits there, he presides. I sat with the present Lord Chancellor a year or two ago in a case in the criminal law area.
The extent to which any Lord Chancellor sits from time to time is often a matter of' circumstances and personal convenience. So far as I am concerned, I do not regard it as in any way preventing the Lord Chancellor from sitting that he is a member of the Government. When he sits, he sits as a judge, with the responsibilities of a judge incumbent upon him. I believe that the Lord Chancellor. like any other judge, will not sit in a case in which any bias or party interest is reflected, but that applies to every judge. In that respect, the Lord Chancellor is no exception.

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I believe that it is correct, as the present system provides, that the Lord Chancellor is salaried on the basis of the judicial office that he holds. He is not a Secretary of State. As your Lordships know, Secretary of State is an office held by a number of people, all of whom are equivalent in parliamentary terms. It is not usual to designate particular Secretaries of State in Acts of Parliament although that can happen. However, the Lord Chancellor has no power to execute any of the functions of a Secretary of State, nor does any Secretary of State have power to exercise the functions of the Lord Chancellor except in very rare circumstances provided for in an Act of Parliament. Generally speaking, however, there is no question of any Secretary of State being able to perform the Lord Chancellor's functions. The offices are quite distinct. No Secretary of State takes a judicial oath or in any way holds office in any of the courts of this country or is entitled to sit.
One of the consequences of all this, certainly in modern times, is that persons appointed as Lord Chancellor have been regarded as persons with sufficient experience and standing in the law to be able to preside with appropriate competence in the highest courts in this country. In that situation, it is only right that the salary should be on the basis of the appointment—as a judicial appointment and as the head of the judiciary. It is for that reason that the salary arrangements are as set out by the noble Lord, Lord Goodhart, with a small lead over the Lord Chief Justice, reflecting the Lord Chancellor's place in that hierarchy. The current lead is £2,500, which is less than any percentage lead that is likely to be awarded. I think that on the current basis, at the Lord Chancellor's current level, if 1·5 per cent were awarded, the lead would be more than £2,500. So a fixed lead would in fact be a diminution from what would be expected if the ordinary arrangement of percentage increases were allowed.
When I was first introduced to the office of Lord Chancellor, I was told by a well-informed department that the Lord Chancellor's office dated from 602. 'The earliest appointment that could be traced was in 602. So it is a fairly ancient office. It has developed over the years. I believe that it is a very important part of what our constitutional history has provided for us. It has provided that the head of the judiciary is a Member of Parliament and responsible to Parliament for the proper performance of the important judicial aspect of government.
As has been said, the Lord Chancellor can be removed from office summarily, without any notice, although he then automatically becomes a Lord of Appeal, entitled to sit in the House of Lords in that capacity. He is therefore in a unique position to be answerable to Parliament for the way in which the judicial functions of the state are performed. Any other judge will have security of tenure and cannot be answerable to Parliament in the same way. It is a unique provision provided by our constitutional history. I certainly think that. on the basis of the arguments we have heard so far, it is one that we should seek to preserve.
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In the current situation I believe it right to say that this Bill cannot properly proceed if the present office of Lord Chancellor remains as it is. Accordingly, I submit to your Lordships that on that basis this Bill should not be supported. But I also take the view that it would be a mistake to modify the office of Lord Chancellor along the lines suggested by the noble Lord, Lord Goodhart.
I note with interest that the noble Lord, Lord Lester of Herne Hill, will speak on behalf of the Liberal Democrat Benches. When I was Lord Chancellor I remember being invited by the noble Lord, Lord Lester, to a human rights conference in Oxford. He kindly invited me to preside at that conference. He made very clear to my private secretary that he invited me in my capacity as a judge, not in my capacity as a Cabinet Minister. That is still the position. The noble and learned Lord, Lord Irvine of Lairg, is a judge just as much as I was. Therefore, it would be quite wrong to alter the situation in which his salary is presently determined.
The combination of functions to which I referred being in the hands of someone competent to exercise judicial office at the highest level is an important feature of the independence of the judiciary in this country and also an important feature of the way in which the three arms of government are in harmony although in tension. It is sometimes suggested that the Lord Chancellor's office is a breach of the doctrine of the separation of powers. One often hears that referred to. What one does not hear so often referred to is that the three powers in question are the executive, the judicial and the legislative branches. In our country the executive branch is entirely made up of members of the legislative branch. I think I am right in saying that at the moment all Ministers of the Crown are Members either of your Lordships' House or of the House of Commons. So there is a terrifically strong link there. The link that exists in the Lord Chancellor between the judicial and the executive branches has been tried and formed by our history and is surrounded by important conventions. It is an office that I hope will long continue.
I think I am right in saying that the late Lord Elwyn-Jones said that he spent a lot of his time as Lord Chancellor trying to ensure that he would not be the last. He was successful in that. To that extent I succeeded also and I hope that many of our successors will have the same success.
2.58 p.m.
Lord Lester of Herne Hill: My Lords, it is a particular pleasure and privilege to speak after the noble and learned Lord, Lord Mackay of Clashfern. He exemplified the extraordinarily powerful advocacy that I am told he displayed at the Scots Bar and when he defended some of the measures that the government of which he was such a distinguished member introduced. I well remember that.
If he will allow me to say so, the heritage that he left behind as Lord Chancellor, and which I particularly cherish, is threefold: first, the way in which he upheld

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the independence of the judiciary as Lord Chancellor; secondly, the way in which he persuaded members of my profession, the English Bar in particular, to reform that profession and remove many of its restrictive practices—I was among those who keenly supported those reforms—and, thirdly, and perhaps most importantly, the extraordinarily enlightened judicial appointments that he made, the benefits of which we see today in our senior judiciary.
My only disappointment, if I may say so without impertinence, is that I never persuaded the noble and learned Lord, Lord Mackay of Clashfern, that there was anything in the far-reaching constitutional reforms for which I, my party and many others pressed during his period in office. In particular, we never persuaded him at all of the kind of reforms that underlie my noble friend's Bill, in relation to the office of Lord Chancellor.
We should be grateful to my noble friend for introducing such a significant constitutional measure, and for the way in which he explained the issues and background. Like the previous speakers I want to emphasise for the avoidance of doubt that, in our support for the Bill, we do not regard it in any way as a personal attack on either the noble and learned Lord the Lord Chancellor or the office of Lord Chancellor.
I want to give a little more background and add a little more colour to the issues, if I may. The Ministerial and other Salaries Act 1975 that the Bill seeks to amend was enacted when the Lord Chancellor was the genial and companionable Lord Elwyn-Jones, whom many of us remember with particular affection. His autobiography, In My Time, which has been referred to, contains much sartorial and other information about the office of Lord Chancellor. In addition to describing his three hats as Speaker, head of the judiciary and Cabinet Minister, he also described his ceremonial clothing in great detail.
Lord Elwyn-Jones was also pleasurably expansive about other aspects of the Lord Chancellor's pomp, such as his two maces and his,
"large, heavily tasselled purse of crimson velvet embroidered in gold thread with the royal arms and the lion and unicorn with attendant cherubim".
That was originally used to hold the Great Seal. It is now normally carried empty, although it is used to hold the text of the Queen's Speech at the state opening of Parliament.
Nowhere in Lord Elwyn-Jones's autobiography did he mention that Parliament had given him and his predecessors a very fine salary, equal to that of the Prime Minister and much greater than the salary of the Chancellor of the Exchequer, the Foreign Secretary or the Home Secretary, all of whom had been elected by the people as Members of Parliament. Nowhere did he mention that although his large ceremonial purse is normally empty, the Lord Chancellor's own purse is amply filled out of the Consolidated Fund, in addition to the considerable public expenditure on his palatial apartment.
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As has been said, in 1983, the Top Salaries Review Board—a very distinguished body indeed—presided over by Lord Plowden, recommended that the Lord Chancellor should receive £2,500 more than the Lord Chief Justice, in recognition of his role as head of the judiciary. That was passed by affirmative resolution procedure year on year. The reasons given by the review board are interesting. It noted that determining the Lord Chancellor's salary presented difficulties because of the special nature of the job. It stated:
"The Lord Chancellor has several roles: as a Minister and as head of department; as the constitutional head of the judiciary; and in presiding over the House of Lords. When deciding our recommendations we have to consider both the ministerial and the judicial pay structure. This has led us to conclude in previous reviews that the salary of the Lord Chancellor should be the same as that of the Lord Chief Justice. We have considered this relationship again in this review. Having regard to the pre-eminent position of the Lord Chancellor in the judiciary and his responsibilities as a whole, we have concluded that a more appropriate relationship would be established if he were to be paid rather more than the Lord Chief Justice. We recommend that the appropriate salary for the Lord Chancellor…is £62,000. The recommended salary also includes an element of £8,500 to be paid in recognition of the Lord Chancellor's function in presiding over the House of Lords. In making this recommendation, we have been concerned to set the appropriate salary for the position, and have taken no account of the fact that the present Lord Chancellor does not draw the full salary".
The fact that Lord Hailsham of Saint Marylebone, as Lord Chancellor, had decided not to draw the full salary is surely of some significance. It suggests that he, a most distinguished holder of that office, regarded the amount awarded to him as excessive. However, in 1991, as the noble Lord, Lord Goodhart, mentioned, the 1975 Act was amended so that that £2,500 automatic increment was prescribed in primary legislation without the need for further parliamentary approval by the affirmative procedure.
Those events occurred long before the enactment of the Human Rights Act 1998, which incorporated the European Human Rights Convention into UK law and long before the important judgment of the European Court of Human Rights in McGonnell v United Kingdom in February 2000.
Times have changed in other ways. It was no doubt true in Lord Elwyn-Jones' time, as his autobiography records, that Cardinal Wolsey's term of office marked the high point in the power and influence of the Lord Chancellor. But that is no longer so. The power and influence of the present Lord Chancellor is unequalled as a heavyweight Cabinet Minister and close confidant of the Prime Minister. Without surrendering any part of his ministerial patronage, he has added greatly to the powers of his department and to the public funds at his disposal. He has great responsibilities—greater than any modern predecessor. However, as the noble Lord, Lord Goodhart, said, they are no greater than those of the Prime Minister or his other senior colleagues.
In one other significant respect, his position has significantly altered. Although, as the noble and learned Lord, Lord Mackay of Clashfern, said, he remains head of the judiciary, that is in a nominal sense. In practice, he has had to abandon sitting in a judicial capacity because of the need to comply with

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Article 6 of the convention and with modern constitutional principles about judicial independence and the separation of judicial from executive and legislative powers. That change is widely welcomed not only on these Benches but by the Law Lords themselves.
The description by the noble and learned Lord, Lord Mackay, of the Lord Chancellor as head of the judiciary is, as I said, entirely correct in theory, but not in practice. I respectfully suggest that the administrative support that is given by his department to the courts is more an executive function than a judicial function and, in any case, could not justify an inflated salary.
The changes mean that any justification for the increment has been eroded, if not altogether destroyed. We now have the report of Mr Erik Jurgens about the office of the Lord Chancellor, which, if approved by the Parliamentary Assembly of the Council of Europe, would invite the UK to review the office in such a way that the Lord Chancellor's judicial function is no longer combined with membership of the Cabinet and with presiding membership of a Chamber of the legislature. I believe that similar concerns have also been raised internationally within the Venice Commission for Democracy. This has become an internationally important issue. I should add that, even if the Lord Chancellor continued to sport three hats, it would be profoundly unsatisfactory if there were to be a personal financial incentive for him to sit judicially in order to seek to preserve his inflated salary. I am sure that that is not the case.
Another change, which was noted in the autobiography of the noble and learned Lord, Lord Rawlinson of Ewell, is that,
"in 1988, for the first time in history the judges felt impelled to appoint from among their number a Council of Judges, a council which is presumably intended to be the representative body designed to look after the interests of the English judges who in former times were content to leave the protection of their constitutional independence in the hand of a Lord Chancellor".
To revert to Lord Elwyn-Jones' autobiography, he noted that the Lord Chancellor,
"still takes precedence over all ministers of the Crown, even the Prime Minister. He ranks in precedence after the Royal Family and the Archbishop of Canterbury".
Nothing in the Bill of the noble Lord, Lord Goodhart, would alter the Lord Chancellor's exalted status or diminish the splendour of his antique garb. Nothing in the Bill would diminish the Lord Chancellor's recently expanded ministerial empire. The sole anomaly with which it is concerned is the exorbitant remuneration attached to his office.
As several noble Lords have said, the increment awarded to the Lord Chancellor to ensure that he is paid £2,500 more than the Lord Chief Justice is founded on the notion of him as head of the judiciary; a notion, it is argued, which means he should not be paid at the same rate as his fellow Ministers. That might have been acceptable in 1983, when the Lord Chancellor sat frequently in a judicial capacity in the real sense, but these days it is surely anachronistic and an unnecessary drain upon public funds.
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There can be no doubt that the present very distinguished incumbent of that great office, who has been known to refer disparagingly to "fat cat QCs", would not wish to be remembered as a fat cat on the Woolsack. When I came to the Bar there was an outmoded practice called the two-thirds rule, according to which a junior barrister had to be paid two-thirds of the fees of a Queen's Counsel, in addition to the amount paid to the QC. I am glad to say that that was eventually abolished. Surely, the present Lord Chancellor should welcome the abolition of a rule requiring him to be paid more than the Lord Chief Justice and much more than his fellow Ministers.
Nor can the present position convincingly be justified on the basis of market forces, that is, on the ground that able candidates cannot be found for the office of Lord Chancellor unless they are paid more than other Ministers. The noble and learned Lord, Lord Williams of Mostyn, who is the Leader of the House, and the noble and learned Lords, Lord Falconer of Thoroton, and Lord Goldsmith. are all examples of Ministers who were willing to sacrifice the possibility of earning much larger sums in private practice so as to devote themselves to public service. I have no doubt that the noble and learned Lord, Lord Irvine of Lairg, would have accepted his appointment as Lord Chancellor if his salary had been equal to that of a senior Minister of the Crown.
Lord Mackay of Clashfern: My Lords, I thank the noble Lord for giving way. I think it would be fair to point out, as the noble Lord, Lord Goodhart did, that the Lord Chancellor as a judge is precluded from returning to practice, whereas I would have thought that the Ministers to whom the noble Lord referred would be able to return to possibly enhanced remuneration in private practice having held such distinguished office in Government.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for reminding me of that point. I accept that that is a possible ground for distinction under the arrangements which now exist. However, I believe the answer to that is given by my noble friend Lord Goodhart. We would anticipate that consequential changes would need to be made in the course of the next two or three years before the Bill comes into force in order that it would become unnecessary for the Lord Chancellor to be nominally a judge or even necessarily to sit as a Member of this House. In our view on these Benches he could be put into exactly the same position as a Secretary of State, as are the other very distinguished lawyers on the Government side.
It remains for me to refer briefly to that part of the Lord Chancellor's salary that he is paid for acting as Speaker of the House. It would seem appropriate for the level of remuneration for that responsibility to be determined separately by the House, perhaps even on the basis of an hourly rate to be paid to the Lord Chancellor and such other officers of the House as sit from time to time upon the Woolsack. There does not seem any justification for a fixed sum to be included for him alone.

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For those reasons we on these Benches hope that the Government will support this modest Bill and remove an anomaly that unjustly enriches whoever is holder of the office of Lord Chancellor and places an unfair and unwarranted burden upon the taxpayer. This is not a case where the emperor has no clothes; the Lord Chancellor has expensive ministerial and judicial clothes, some of which should be shed or reduced or there should be a reduction in the price paid for them by the members of the public.
3.14 p.m.
The Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster (Lord Macdonald of Tradeston): My Lords, the noble lord, Lord Goodhart, proposes significant amendment of the provisions of the Ministerial and other Salaries Act 1975. The Government cannot support this amendment. The Lord Chancellor has already requested that this issue he considered by the independent Senior Salaries Review Body.
As the Lord Chancellor's remuneration reflects the status and responsibility and tradition of the offices this debate has made clear, there is a wider context, as the noble Lords, Lord Goodhart and Lord Lester of Herne Hill, have also made clear. It has been suggested that by implication, the Human Rights Act might make it inappropriate for my noble and learned friend to continue to exercise any judicial functions.
The Government do not accept that reasoning. In the United Kingdom, we have never accepted pure adherence to a doctrine of the separation of powers. The noble and learned Lord, Lord Mackay of Clashfern, elegantly dissected the arguments, which I would not presume to try to match. He referred to his distinguished predecessor as Lord Chancellor, the late Lord Hailsham of St Marylebone, who in a speech to the committee of Ministers of the Council of Europe in 1979 summed up the position in a way that is worth noting. He said:
"Unlike that of the United States, the British Constitution is such that every leading member of the executive is also a member of the legislature.
We have an omnipotent, omnicompetent and sovereign parliament and, to some extent, it reflects the will of the executive, but we have an independent judiciary and the function of the Lord Chancellor is precisely to maintain the independence of the courts of law and the judges.
We have no written constitution and in the absence of a document we must rely on the integrity of a man. It is the function of the Lord Chancellor to fight, to the last gasp if need be, for the independence of the judiciary. He can perform that function only if he has a foot in all three camps".
Therefore, the office of Lord Chancellor, straddling as it does the three parts of the constitution, makes its holder uniquely placed to protect the interests of each part against the demands of the others. In particular, it both upholds judicial independence and mediates between the executive and the judiciary when occasion for controversy arises.
The Lord Chancellor is able to perform that function both because of his seniority in Cabinet and because he is head of the judiciary and sits as such from
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time to time. Through his office, the judiciary has a representative in the Cabinet. The Lord Chancellor is in a position to promote mutual understanding in order to avoid collisions at the major intersections in the separation of the powers.

It is sometimes suggested that the Lord Chancellor could continue to fulfil that function without himself sitting as a judge. The Government do not agree. Sitting as a judge can give the Lord Chancellor a practical awareness of the development of the common law at the highest level. More than that, the Lord Chancellor's position as head of the judiciary also has the effect of ensuring that only an experienced and senior professional lawyer can be appointed to the position. It is not enough to have a legal qualification; the holder must be practising as a lawyer. A review of the outstanding attributes of the present and former Lord Chancellors underlines the achievement of successive Prime Ministers in appointing only practising lawyers held in high regard.
It is of course important that when the Lord Chancellor sits as a judge, it should not be in a case in which it would be inappropriate. My noble and learned friend has made it amply clear that he would take great care not to compromise his position in such a way. He has spelled out in this House that he would not sit on any case concerning legislation, in the passage of which he had been directly involved, or in any case where the interests of the executive were directly engaged. The Lord Chancellor would always be greatly concerned that he might render himself ineligible to sit judicially were he to express an opinion on a matter that might later be relevant to an appeal to your Lordships' House.
It can be argued, of course, that whatever may have been appropriate in the past, the Human Rights Act now makes it unacceptable that the Lord Chancellor should continue to fulfil his multiple functions. The Government do not accept that. I would point out, first that the only jurisprudence on this subject from the European Court in Strasbourg, the McGonnell case, as mentioned by the noble Lord, Lord Lester of Herne Hill, emphasised that:
"The question is always whether, in a given case. the requirements of the convention are met".

The court accepted the UK's contention that neither Article 6 nor any other provision of the convention required,
"states to comply with any theoretical constitutional concepts as such".
Lord Lester of Herne Hill: My Lords, I am grateful to Minister for giving way. Is he aware that experience in the Parliamentary Assembly of the Council of Europe and in the Venice Commission for Democracy suggests that it is almost impossible to explain to lawyers, judges and politicians in the rest of Europe how in Britain alone we retain that curious mixture of the three branches in a single person? Is the Minister

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aware of the difficulty that the United Kingdom Government will have defending that position on the international plane?
Lord Macdonald of Tradeston: My Lords. the Government are indeed aware of that, which is one reason why I cited Lord Hailsham as well as the matters before me.
It follows that the Government do not accept that the Human Rights Act 1998 causes us to review the role of the Lord Chancellor. If there is a human rights point here—we do not think that there is—it stems from our international obligations, not from domestic legislation. In any case, the Act was intended to work with, not against, the grain of our constitutional tradition. It assumes a settlement in which the judicial, executive and legislative branches of government all have an interest and role. Indeed, it works best if there is mutual respect between those branches, with each understanding the responsibilities given by the Act to the other two. The role of the Lord Chancellor encourages and promotes that.
I turn to the substance of the Bill: the issue of the salary payable to the Lord Chancellor. In principle, the level of ministerial salaries is a matter for the Government of the day. However, as the noble Lord. Lord Goodhart, mentioned. since its establishment in 1971, the independent Top Salaries Review Body, now the Senior Salaries Review Body, has periodically been asked to undertake a review of ministerial and parliamentary pay and allowances. Following the 1996 Senior Salaries Review Body report, the Government of the day now ask the Senior Salaries Review Body to carry out a thorough review about every three years and to make recommendations.
As I outlined, the Lord Chancellor is by statute head of the judiciary. Many of the core functions of his office derive from his being head of the judiciary. In addition to those functions, he is entitled to sit in the Chair of the House of Lords in its judicial capacity. As has been mentioned, the Lord Chancellor's Department has a wide range of responsibilities, employing more than 11,000 staff.
In 1983, the Top Salaries Review Body recommended that, given,
"the pre-eminent position of the Lord Chancellor in the judiciary … and his responsibilities as a whole",
he should be paid rather more than the Lord Chief Justice. In 1991, that salary linkage was enshrined in primary legislation.
The Bill may be partly in response to the pay rise due to my noble and learned friend this April, following the Government's acceptance of the recommendations on judicial salary made by the Senior Salaries Review Body in February. I recognise that the increase this year is substantial, but it is entirely due to the statutory link between the salaries of the Lord Chief Justice and the Lord Chancellor.
The 12.6 per cent increase arose because the Lord Chief Justice received the 2.75 per cent increase for 2003 given to every member of the judiciary. along with the remaining 4.4 per cent of the staged award for
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2002. In addition, the review body recommended a further increase of £10,000 for the Lord Chief Justice to ensure broad comparability with the Cabinet Secretary.
The related statutory pension entitlement of the Lord Chancellor is based on his salary entitlement on retirement. That, too, has caused some comment in your Lordships' House, which the noble and learned Lord, Lord Mackay of Clashfern, tried to set in context. To repeat, it is necessary for a new Lord Chancellor to retire from legal practice prior to assuming the office.
However, the other matter to which the noble and learned Lord referred is surely fundamental to the debate and must be considered. Unlike any other Cabinet Minister, by convention, Lord Chancellors may not return to legal practice upon retirement. Thus, Lord Chancellors lose their livelihood, regardless of the length of time for which they may occupy the office. That is surely a crucial concern—one that has no doubt dictated the enduring all-party acceptance of the pension arrangements first set up in 1831 but now being called into question in some quarters.
The Senior Salaries Review Body said in its February report that it would review the broad linkage between judicial and Senior Civil Service salaries. That is needed because performance-related pay plays an increasing part in the salaries of the latter but not the former. The Lord Chancellor subsequently asked the Senior Salaries Review Body to review the statutory link between his salary and that of the Lord Chief Justice. While the review body considers the matter, my noble and learned friend has volunteered to forgo the majority of his pay rise. Instead he will accept an increase of 2·25 per cent in line with the award received by other Ministers.
The noble Lord's Bill would remove the link between the salaries of the Lord Chief Justice and the Lord Chancellor. It would set the Lord Chancellor's salary at the same level as that of a Secretary of State. It is surely clear to everyone who listened to the powerful arguments of the noble and learned Lord, Lord Mackay of Clashfern, that the Lord Chancellor's role is singular, as I briefly touched upon.
In conclusion, in the light of the work being done by the review body, which we expect to receive early in 2004, the Government believe that it would be premature to amend the legislation on the Lord Chancellor's salary before the review body has had a chance to report.
3.26 p.m.
Lord Goodhart: My Lords, I am grateful to everyone who spoke in this debate. I am particularly grateful to the noble and learned Lord, Lord Mackay of Clashfern, who contributed much, as I hoped he would, by presenting a closely argued view that was opposite to mine and that of my noble friend. I regret that we heard no comment whatever from the Conservative Front Bench, although a Minister has been present. I would have thought it appropriate that

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the view of the Conservative Party, which may or may not be the same as that of the noble and learned Lord, should be expressed.
I wish to say something slightly different from what my noble friend Lord Lester of Herne Hill said. I do not intend to argue that the Lord Chancellor's current salary involves any unjust enrichment. The real problem is not that his salary is too high but that Cabinet Ministers' salaries are too low given the enormous responsibility that they bear. I would be more than happy if the salary of the Secretary of State were increased to that of the Lord Chancellor. Obviously, a link to the salary of the Lord Chief Justice would still be inappropriate. The problem is the disproportion between the salary of the Lord Chancellor and those of Secretaries of State.
The conclusions of the noble and learned Lord, Lord Mackay of Clashfern, proceeded by irrefutable logic from what I believe to be a false premise—that the Lord Chancellor can be regarded primarily as someone who holds judicial office. That is nominally correct. As the noble and learned Lord pointed out, the Lord Chancellor swears a judicial oath and is entitled to sit as a member of an Appellate Committee of your Lordships' House both during and after his period of office. When the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, the position may have been closer to a judicial office. He had not served in political office and his involvement in political issues and in the Cabinet was undoubtedly much less than that of the noble and learned Lord, Lord Irvine of Lairg. In a sense, the noble and learned Lord, Lord Mackay of Clashfern, could have been regarded as sitting in the Cabinet as a representative of the judiciary. At present, however, that is not the case.
The Minister referred to the fact that, in this country, we do not have a constitutional separation of powers in any true sense. Some of us feel that that is unfortunate. Although the entwinement of the legislature and the executive is so fundamental that it cannot be changed, that is not necessarily true of the relationships between the judiciary and the executive.
The argument that the Lord Chancellor's role in Cabinet is to fight for the independence of the judiciary and, in some sense, to act as its representative in Cabinet is not and, what is more, cannot be true because of the doctrine of collective Cabinet responsibility, apart from anything else. The Lord
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Chancellor cannot speak out outside the Cabinet Room against decisions that might threaten the independence of the judiciary, unless he is prepared to resign. It has become increasingly clear in recent years that the Lord Chief Justice, who is freer to speak his mind, is the true representative of the judiciary, not the Lord Chancellor.
The noble Lord, Lord Macdonald of Tradeston, used the argument that sitting as a judge gave the Lord Chancellor practical experience of the exercise of judicial functions. All I can say is that sitting in one case in two years cannot do that. The burdens on a Lord Chancellor, with the increase in the role of the Lord Chancellor's Department, are so great that it would be impossible for any future Lord Chancellor to sit regularly in an Appellate Committee of your Lordships' House, in the way in which, until relatively recently, that was commonly done.
It was argued that the Lord Chancellor's inability to return to practice was an argument for the present level of salary. I deny that. It may be regarded as the reason why the Lord Chancellor is entitled to a full pension for however long he served in the office, but it is not an argument for a higher salary. Apart from anything else, a retired Lord Chancellor can sit as a member of the Appellate Committee, either as a Law Lord, as Lord Dilhorne did, after he ceased to be Lord Chancellor, or on an ad hoc basis, for which he is entitled to draw salary. Furthermore, a retired Lord Chancellor can sit as a commercial arbitrator, as do many other retired senior judges. Those arguments against the Bill are not justifiable.
I recognise that the Bill is unlikely to become law, but it is, nevertheless, wholly justifiable. For the first time since the Lawrence committee in 1963 and 1964, there is an opportunity for the Senior Salaries Review Body to consider whether there should be a change in the basis on which the Lord Chancellor is paid. It is clear from the 1983 report to which my noble friend referred that the question was not considered on the basis of whether the distinction was justified; it was simply an examination of what the difference in salary levels should he.
As a contribution to further debate, I wish to move the Second Reading of the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at twenty-five minutes before four o'clock.