Lords Sitting of 11 November 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chelmsford): The CHAIRMAN OF COMMITTEES on the Woolsack.
The House observed a two-minute silence for Armistice Day.

Unadopted Roads
11.2 a.m.
Lord Beaumont of Whitley Lord Beaumont of Whitley asked Her Majesty's Government:
Whether, in the interest of local government, they will ensure that definitive lists of unadopted roads are compiled.
Lord Davies of Oldham: My Lords, under the Highways Act 1980 councils have a duty to keep lists of all maintainable highways in their area. There is no obligation to keep similar lists of unadopted roads. Clearly, an authority needs accurate information on maintainable highways so that it can fulfil its duties regarding such roads. While some authorities keep lists of private roads, we do not believe that there is sufficient benefit to be derived in making that obligatory.
Lord Beaumont of Whitley: My Lords, while almost thanking, the noble Lord for that Answer, does he realise that when a large number of citizens are without basic services, for whatever reason, at least the size of the problem should be known to both central government and the people at large?
Lord Davies of Oldham: My Lords, the authority which properly needs to have information is the local authority. Power is vested in the local authority in those terms. Some local authorities keep such records with a great deal of diligence; others fulfil their duties quite adequately without being so precise. It is not a matter for central government. Central government have no role at all in relation to those private roads and that is why we do not keep information centrally.
Baroness Miller of Chilthorne Domer: My Lords, the noble Lord, Lord Beaumont, makes a point. The results of unadopted sewers being improperly maintained can be quite severe and I know that many local authorities have a problem with them. If one were to take that as the example, would the Minister give the same reply?
Lord Davies of Oldham: My Lords, the issue of unadopted roads would still remain. Local authorities have responsibility. They know their locality and they know the problems, if any, that emerge from private roads. In the vast majority of cases there are no issues at
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all, but when from time to time they arise, the local authority is obliged to take some action on the frontages or, on occasions, it will adopt a road, particularly if frontages ask for that to be done. Such a decision is made locally and is not one for central government.
Baroness Carnegy of Lour: My Lords, does the noble Lord agree with me that it is highly unlikely that a local authority would not know about its unadopted roads? They are a subject of constant discussion between councillors and their constituents and a constant source of anxiety to a number of people, so local authorities know very well what unadopted roads they have.
Lord Davies of Oldham: My Lords, the noble Baroness is quite right: where unadopted roads cause problems, local councils, and particularly the councillors who represent those areas, are all too well aware of the situation. The concept of unadopted roads covers a wide category. Some unadopted roads do not affect local authorities at all. Although local authorities know of their existence because they have accurate maps of the area for which they are responsible, that does not mean that they are involved in any quantitative or qualitative analysis of any potential problems.
Earl Attlee: My Lords, are there agreed civil engineering standards for the adoptability of such roads?
Lord Davies of Oldham: My Lords, local authorities are issued with guidelines from central government on the process that they need to follow when adopting a road and that relates to the issue of incurring public costs and of the standard of the highway. On occasions, a local authority can insist that frontages make up a road to a proper standard because of the dangers of a road being so derelict that people who are not fully aware of the dereliction suffer difficulties. So standards are applied. Of course, in the vast majority of cases, those issues are solved by frontages and not by the local authority.
Lord Beaumont of Whitley: My Lords, is the Minister aware that he has not even touched on the basis of my Question, which is that it is the duty of the state as a whole to know, not necessarily about roads, but about citizens who are deprived of essential services and, therefore, it should know about unadopted roads? The central point is that the Government should know about the problems of citizens.
Lord Davies of Oldham: My Lords, the noble Lord may be making a case for the all-intrusive state, where the state interferes with regard to private roads when the frontages value their privacy and want to keep all public authorities at a reasonable distance. That is their right; they live on the road; it is their property and their responsibility.
Lord Boston of Faversham: My Lords, is the Minister aware that many unadopted roads are also unmade roads? Many years ago when I was in another

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place, a constituent telephoned my home in the constituency at half-past three one morning to say that his car was stuck on an unmade road and what was I going to do about it. My wife answered the telephone, explained that I was in the Palace of Westminster, and with great presence of mind, said, "He hasn't got his digger available at the moment".
Lord Davies of Oldham: My Lords, nevertheless, such a solicitous response only goes to show how helpful Members of Parliament can be in almost every circumstance.

Northern Way Initiative: Consultation
11.8 a.m.
Lord Greaves Lord Greaves asked Her Majesty's Government:
What arrangements are being made to consult and involve all north of England local authorities in developing policy within the Northern Way initiative.
Lord Bassam of Brighton: My Lords, significant consultation went into the preparation of the report Moving Forward: the Northern Way. That included local authority representation on the independently chaired steering group that prepared the report; three regional stakeholder events in June; tailored presentations to individual councils and committees as requested; and involvement on city-region diagnostics and other work programmes. Following the launch there was a mailing to all local authority chief executives and leaders. I understand that three more regional stakeholder events are planned.
Lord Greaves: My Lords, this is a very important plan. It covers almost everything to do with planning in the region. Yet, all the consultation with local authorities has been top down. They are being told what to do by John Prescott and his team; they are not being involved and asked what they think. The Minister referred to moving forward the Northern Way initiative. At the end of the report there is a list of new contracts, together with the lead agencies. Is he aware that the lead agencies involved consist of: regional development agencies—20; government departments—17; regional quangos and boards—12; unelected regional assemblies—10; Government Offices in the Regions—five; partners or whatever they are—two; and elected local authorities—zero. Is that a satisfactory way to try and deliver such an important planners' list when it is the local authorities which possess the powers and will have to carry out the initiative?
Lord Bassam of Brighton: My Lords, I do not accept the noble Lord's premise that this is a top-down approach. Far from it; I think that the Northern Way initiative symbolises involvement at a very good level in terms of civic participation. Perhaps the noble Lord might like to reflect on the fact that of the 17 members
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of the Northern Way steering group, six are drawn from local authorities. The process of involvement, of which I gave an outline, actually belies the fact that there is much more local involvement in the advisory and steering groups which have come together to supply a lot of the information and background to the production of this important report.
Baroness Byford: My Lords, were those six people on that particular group elected as representatives of local authorities, or did they happen to be local authority councillors and there by chance? The Minister has not actually answered the question asked by the noble Lord, Lord Greaves.
Lord Bassam of Brighton: My Lords, I understand that there was a nomination process. I think that three of those representatives were drawn from the RDAs and the other three were put there by virtue of their involvement in local authorities. They include eminent local authority leaders like Richard Leese, who I am sure will offer the sort of distinguished guidance and leadership which is required in taking forward the important work that the Northern Way represents.
Baroness Hamwee: My Lords, can the Minister translate the statement in the document that,
"The north is at the crossroads of nationally strategic east-west and north-south transport corridors"?
On that basis, where is the Midlands?
To follow my noble friend's point, because I believe I can ask a second question, the noble Lord mentioned local authorities, I think in the context of partnership. Can he explain to the House how the document can advocate culture as a mechanism for development without any reference to Liverpool and its forthcoming status as the capital of culture?
Lord Bassam of Brighton: My Lords, I am sure that Liverpool figures greatly in the minds of those who are involved in the Northern Way steering group. I think that the Liverpool initiative is a great one. I must say that I feel slightly bitter about it because Brighton was left out—but there we go.
With regard to the noble Baroness's first point, of course the Midlands is a critical part of the United Kingdom because of where it is geographically in terms of transport and communication. We all accept that. Sometimes the jargon in reports gets the better of us.
Lord Shutt of Greetland: My Lords, bearing in mind the disappointment for some of us about the devolution referendum in the north-east, surely there is now a deficit as far as concerns democracy in the regions. Is this not an opportunity for these regional bodies to become democratic and for a real partnership between central government and local government to fill that democratic deficit at regional level—for example, in the appointment of members of RDAs and all these other regional quangos?
Lord Bassam of Brighton: My Lords, there is a well tried and tested method for appointment to these bodies. Obviously, there is something of a democratic deficit. That we all understand; and we understand that people have made and expressed their view very clearly in the north-east. It is important that those who are involved in local government should play an important part and role in working with groups like the Northern Way as part of a partnership to ensure that their locality, its views, its needs and its wants are accurately reflected in the works of such important groups.
Lord Greaves: My Lords, such is the concern of many of us that what the Minister is saying is actually not true in terms of consultation with local authorities, that on behalf of Liberal Democrat council leaders in the north of England, Councillor Richard Kemp, my colleague on Liverpool City Council, found it necessary to write to the Deputy Prime Minister about six or seven weeks ago. Will the Minister inquire why he has not yet had a reply?
Lord Bassam of Brighton: My Lords, I shall certainly inquire why the noble Lord's colleague has not had a reply. Obviously, it is important that he receives a reply. However, I would say to the noble Lord that it is important that those in leading positions in local government engage with this process, play a part and demonstrate and show some leadership, so that the prosperity gap in the northern regions can begin to be bridged.

Iraq: Refugees
11.15 a.m.
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
Whether they consider Iraq to be a safe country for returning refugees.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, all Iraqi applications are considered on their individual merits and we will grant asylum or other forms of leave where appropriate. Where applicants have their asylum claims refused and have any appeal dismissed they can in our view return safely to Iraq. We also consider it safe for refugees to return to Iraq where, for example, their previous fears were based on the Saddam regime.
The Earl of Sandwich: My Lords, I thank the noble Baroness for her Answer. Can she confirm that out of 6,400 asylum applicants during the year to last June, only five Iraqi refugees were granted asylum? By forcibly removing them, are not the Government condemning at least some of those refugees—obviously not all of them because there are many voluntary returnees—to the same persecution and torture that they fled from in the first place? Does she
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not accept the United Nations' judgment that until there is some degree of security in Iraq, which of course we are all hoping for, no place in Iraq is safe?
Baroness Scotland of Asthal: My Lords, I regret to tell the noble Earl that I cannot accept either of those propositions. It is right that more than 90 per cent of the applications made by applicants from Iraq have failed. But all have had the benefit of proper extensive judicial process to determine whether they have a valid claim. Those who have established their validity have been allowed to remain. As to the degree of security, it is right that certain areas in Iraq have profound difficulty, but it was quite wrong to say that there are areas in Iraq which are not safe for people to return to, and, indeed, some are safer than they were hitherto.
Baroness Rawlings: My Lords, will the noble Baroness clarify the Government's message on returning refugees? Especially, what recommendations are Her Majesty's Government giving refugees who are afraid to return home due to security issues but who wish to take part in the forthcoming elections?
Baroness Scotland of Asthal: My Lords, first, the noble Baroness will know that provisions are made for voluntary returns. The noble Earl made reference to them; over 300 people have returned voluntarily. We make every effort to encourage people to do that. Of course it is a matter for those who are citizens of Iraq whether they wish to return to take part in the elections. Many are making that choice.
Lord Avebury: My Lords, has the Minister considered that returnees who go back voluntarily under the auspices of the IOM are asked to sign a waiver of responsibility for what happens to them after they touch down? Does the noble Baroness think that that is compatible with the principle of returning refugees to their countries of origin in safety and dignity, as required by the UNHCR guidelines? Has she studied the latest note from the UNHCR dated yesterday, which says that no part of Iraq is safe?
Baroness Scotland of Asthal: My Lords, I have not had the benefit of seeing the document that the noble Lord referred to in relation to no part of Iraq being safe. As I have already indicated, that is not a view with which we concur. The noble Lord will know that there are large parts of Iraq, particularly in the north, which are safe to return to and certainly safer than other parts. The majority of applicants seeking asylum are in fact young males from the northern part of Iraq, where it is safe.
We of course will continue to look very carefully on a case-by-case basis at whether asylum claims are properly made out. I have every confidence that under the legal procedure we have in place that determination will be fair and in accordance with the Human Rights Act and our responsibilities in accordance with international obligations.
Lord Campbell-Savours: My Lords, what attitude are we taking to members of the Ba'ath Party, who supported the previous regime?
Baroness Scotland of Asthal: My Lords, I cannot give a general answer to that, as my noble friend will know. It very much depends on what those individuals have or have not done and the nature of their case. It would be quite improper for me to make any generalised comment that would include all those people, because the position of each individual will be different.
Lord Alton of Liverpool: My Lords, the Minister will be aware of the debate led by her honourable friend, Mr Stephen Pound, in another place concerning the plight of the ancient Assyrian community in Iraq and the peculiarly difficult circumstances in which it finds itself. Will she study that debate further and have regard to their plight before making decisions about returning those people to their very vulnerable situation?
Baroness Scotland of Asthal: My Lords, we will certainly bear those issues in mind. We are very aware of concerns about the Christian community and we will continue to consider how best we can assist in that regard.
Lord Dykes: My Lords, in view of the Minister's response last week about the number of civilian casualties from military action in Iraq and her response today, can she now give a more accurate estimate of the likely civilian casualties so far from military action?
Baroness Scotland of Asthal: My Lords, we have said that we will place a report in the House and I repeat that undertaking today.
The Earl of Sandwich: My Lords, does the noble Baroness agree that one problem is that the United Nations High Commissioner for Refugees, having no office in Iraq, is unable to monitor the safe return of returnees, as would normally be the case? Does not that make this a particularly difficult case?
Baroness Scotland of Asthal: My Lords, we certainly hope that the UN will be able to get back in very soon. Noble Lords will know that we are gathering as much intelligence as we can so that we may make an accurate assessment. The noble Earl will be aware that the Foreign and Commonwealth Office does that on a continuous basis and I can tell your Lordships that officials from the Home Office visited Iraq in both April and September to make an assessment of the nature of the conditions and of the areas that cause the most difficulty. I assure your Lordships that that assessment will continue and will be comprehensive, using the intelligence that we have available to us.

Licensing Act 2003
11.22 a.m.
Lord Watson of Richmond Lord Watson of Richmond asked Her Majesty's Government:
Whether they share the concern of the Association of Chief Police Officers on the implementation of the Licensing Act 2003.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I agree with the Association of Chief Police Officers that those responsible for administering and enforcing the new licensing regime need to play their part, in conjunction with the industry, to ensure that the new system is effective. I am sure that ACPO agrees that we need active co-operation between the police, planning and licensing authorities.
Lord Watson of Richmond: My Lords, I am grateful to the Minister for that reply. However, does he accept that, while the Government's approach to 24-hour drinking in the Act—and, for that matter, to the licensing of casinos—is a strange mélange; of libertarianism and authoritarianism, if I may characterise it in that way, it would help to allay the real fears of chief police officers and the wider community if the Government now gave full support to the idea that there should be minimum pricing for drinks in pubs and clubs and control over the timing of that offer?
Lord McIntosh of Haringey: My Lords, in response to the noble Lord's first question, I am tempted just to say no, but I will confine myself to saying that the Licensing Act is not about 24-hour drinking, it is about removing a particular single artificial closing time in an attempt, among other things, to avoid binge drinking at a single closing time, which is unfortunately too rife in many of our cities and, indeed, in the countryside and small towns as well, these days. I have forgotten the second question.
Lord Watson of Richmond: My Lords, the mélange; must have thrown the noble Lord. The question concerned minimum pricing.
Lord McIntosh of Haringey: Ah, my Lords, happy hours. I am sure that the matter is being considered in government.
Viscount Tenby: My Lords, I declare an interest as a former magistrate now on the supplementary list. Does the Minister agree—I am sure that he does—that the overwhelming number of minor cases that come before the courts are alcohol related? That is shown all over the country. Accordingly, will the Government consider issuing stricter guidelines for the issuing of licences for licensed premises by local authorities?
Lord McIntosh of Haringey: My Lords, I fear that the noble Viscount, Lord Tenby, is raising one of the most difficult, complicated issues on which we spent

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many hours when considering the Licensing Bill last year. He is raising again the issue of saturation and of whether it is possible to limit the number of licensed premises in an area. That is a matter for the local licensing authority and not one on which the Government can issue a diktat.
The Lord Bishop of Southwell: My Lords, does the Minister share my view that we can greatly assist our police forces and local authorities, such as mine in Nottingham, by applying the "polluter pays" principle to the drinks industry?
Lord McIntosh of Haringey: My Lords, I think that the thought behind the right reverend Prelate's question is that somehow there is an additional burden on police. That is the reverse of the case. In fact, under the six licensing regimes which we had previously, around 1.6 million individual administrative processes had to be carried out annually by the police. The simpler regime that we are introducing will reduce that to around 170,000 processes. We considered the "polluter pays" principle in the National Alcohol Harm Reduction Strategy that the Strategy Unit published in March, but it was not thought appropriate to have a compulsory levy.
Baroness Buscombe: My Lords, will the Minister take to heart the words of Paul Evans, head of the Home Office Police Standards Unit, when he spoke in evidence to the Home Affairs Select Committee on 12 October? He said:
"if you take care of the little things the big things take care of themselves. If you take care of issues like alcohol, the anti-social behaviour and the thuggery that comes as a result of that, I think that will drive down some of your serious crime".
Lord McIntosh of Haringey: My Lords, that sounds entirely unexceptionable to me and I have no reason to disagree with it.
Lord McNally: My Lords, will the Minister concede that the reality on the streets of our towns and cities is a million miles from the café society proclaimed when the Bill was introduced? Will the Government carry out an early review of the impact of this deregulation on public health, especially among young people, and on crime? The reality goes against the bland assurances that he is giving at the Dispatch Box.
Lord McIntosh of Haringey: My Lords, I am not conscious of having made any bland assurances. In answer to an earlier question, I said that unfortunately there is far too much binge drinking, not just in our towns and cities, as the noble Lord, Lord McNally, says, but also in small towns, villages and the countryside. That is certainly not being bland and is certainly not offering reassurances. The noble Lord asks for a single review; these matters are under continual review.
Lord Colwyn: My Lords, what consultation has taken place with the Association of Chief Police Officers about licensing and the apparent danger of
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four or five acoustic musicians performing but acceptable risk of megawatt discotheques and large-screen television coverage of major sporting events?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Colwyn, likes to revive the most enjoyable debates that we had during the passage of the Licensing Bill last year. We are in constant consultation with the Association of Chief Police Officers, which continues to maintain its support for the Bill. Issues of entertainment and music licensing are part of those discussions.
Viscount Simon: My Lords, I am led to believe that in most public houses alcohol prices are way below those of non-alcoholic beverages. In the interests of road safety for those who drive cars from public houses, should not publicans be encouraged to lower the prices of non-alcoholic drinks?
Lord McIntosh of Haringey: My Lords, that makes sense to me.
Lord Avebury: My Lords, does the Minister recall that he and I have had correspondence over the past year on what indices should be used to measure the effects of the Licensing Act 2003 on levels of crime and disorder? When will the Government decide what those indices should be? Are they satisfied that time remains for sufficient baseline data to be collected before the Act comes into force?
Lord McIntosh of Haringey: Yes, my Lords, I have had the privilege of reading many long, closely argued letters from the noble Lord, Lord Avebury, on the subject. He proposes that statistics on injuries caused by alcohol be collected from accident and emergency units. That is not ruled out, but I suggest that in many incidents, which, unfortunately, do occur—I am sorry that here I cannot give enough bland assurances—those injured do not go to accident and emergency units; we must rely on existing medical statistics.
Lord Watson of Richmond: My Lords, perhaps I might give the Minister a further opportunity to tell us whether he supports the view expressed by the Home Office that minimum prices should be established in clubs and pubs. The reason is very clear; it is all to do with binge drinking. I think that the noble Lord is aware of the issue.
Lord McIntosh of Haringey: My Lords, until 1979 the predecessor government had a Department of Prices and Consumer Protection. My noble friend Lord Hattersley, if he were present, would no doubt give a robust defence of it. In the 21st century, the idea that we should intervene to raise prices other than by taxation in individual establishments is a little remote from the ethos of the time.
Baroness Buscombe: My Lords, is the Minister therefore content that in our universities there are offers of all you can drink for £9 or £10? That is where

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a lot of binge drinking starts. Are the Government consulting those universities where that drinking culture is encouraged?
Lord McIntosh of Haringey: My Lords, I have been guilty of answering questions that stray from the original Question on the Order Paper but consultation with universities is a long way from the Question on the Order Paper.
Hunting Bill
11.32 a.m.
Report received.
Clause 1 [Hunting wild mammals with dogs]:
Lord Tunnicliffe Lord Tunnicliffe moved Amendment No. 1:
Page 1, line 6, after "registered" insert "for the purpose of pest control"
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 3, 5 to 18, 21, 22, 27 and 30. I shall not move Amendment No. 4. My objective will be to create the Alun Michael Bill as it left Commons Standing Committee F in 2003, printed on 28 February 2003. I shall fail that test with respect to hare coursing and hunting, as I shall explain. As amended, the Bill would contain additional consensual clauses in the schedules that are retained in your Lordships' Bill.
Why am I doing this? Noble Lords may reasonably ask that question; certainly, I asked it at 5.30 a.m. today, when I started to write this speech. I joined this House on 21 June, went through the ritual of my maiden speech, enjoyed splendid praise for it, which I always show my friends—the praise not my speech—and settled down to the life of a working Labour Peer, turning up when my Whips told me to and, when the bell rang, going through the "Not-Content" Lobby. I even survived the confusion of the rare occasions on which we went through the "Content" Lobby.
As I was settling into this life along came a Hunting Bill. I was told that I was to think for myself, which, given the happy state into which I had settled, was something of a shock. As I knew nothing about hunting, I had the option of not attending the debates, doing more of my wife's chores, and abstaining. I felt, though, that my duty was to try to take a point of view, and the only way in which I could sensibly do that would be to listen to the debate. The effect of listening to the debate was the somewhat confusing emotion of increasing in respect for all points of view. The only area where the whole House and I were upset was the manifestation of violent protests to which we were exposed, and which we universally condemned.
I recognised as I listened that a total ban would create trauma in communities; that enforcement, while not impossible, would be difficult; that the use of the Parliament Act left, at a minimum, unease in many quarters. This, I felt, called for a compromise; therefore, as the debate went on I tried to search one out. I thought that I had found it in the Alun Michael Bill. Sadly, I did not realise that that term was not very
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precise: there was the Alun Michael Bill that went into Commons Standing Committee F and there was the one that came out on 27 February 2003 after 27 sittings. Only when I had understood that distinction did I realise that the Alun Michael Bill that I wanted to support was the one that came out of the Standing Committee.
That was the compromise that I favoured, but I was to have no opportunity to vote for it. Something had to be done. I could but pause a little before realising that, if I wanted something to be done, I had to do it. Therefore I have tabled these amendments with the objective of creating the Alun Michael Bill as amended by Standing Committee F, with the subsequent consensual additions. I am grateful to my noble friends Lord Donoughue, Lady Golding and Lady Mallalieu for their endorsement of my efforts. They sent a letter to some noble Lords saying that my amendments put the Bill back into the state that it was in as it left Standing Committee F. For simplicity, in the rest of my speech I shall call this the Alun Michael Bill.
Noble Lords present in this House are possibly in two groups. There are those who have been engaged in this debate for many years and understand it in great depth. They will understand the impact of every one of my amendments and I can add nothing to their understanding. There will be some like me, however, who come to the debate almost for the first time. If the House will bear with me, I shall go through the amendments very briefly so that those new to the debate will understand their impact.
Amendment No. 1 makes clear that hunting is to be for pest control; it is a cosmetic amendment, but it makes that clear. Amendment No. 3 bans deer hunting. Amendment No. 4 will not be moved, for reasons which I shall outline. Amendment No. 5 bans the use of dogs below ground. The crucial amendments are Amendments Nos. 6, 7 and 8. Amendment No. 6 makes clear that the utility is pest control, which it then closely defines; Amendment No. 7 deletes "the management of wildlife" as a utility; Amendment No. 8 tightens the cruelty test to,
"significantly less pain, suffering or distress … than … any other reasonably available method".
Amendments Nos. 9 to 13 would change from six to 12 months the delay in renewal applications. Amendments Nos. 14 to 16 would clarify intent. Amendment No. 15 would complete a cross-referencing. Amendments Nos. 17 and 18 would flesh out the word "specified" in the duration clauses. All the above amendments were added in Standing Committee F in the House of Commons in January and February 2003.
Amendments Nos. 21 and 22 cover commencement and transition arrangements, as specified in the original Bill. Amendments Nos. 27 and 28 would delete the orphaned cubs amendments. That was considered in Standing Committee F and rejected. Amendments Nos. 29 and 30 would introduce the balance of the tribunal provisions added in Standing Committee.
The original Bill banned hare coursing. I would have tabled an amendment to that effect, had not the House authorities advised me that it would have offended

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against Standing Orders. Therefore, I have not tabled such an amendment. However, if these amendments are made and the Bill, as amended, goes back to the other place, we must reasonably expect that there will be a ban on hare coursing when it re-emerges.
I believed that I could table an amendment that was made to the Bill in Standing Committee F to ban hare hunting. That was the opinion of the House authorities, when they were first asked. They later changed their advice, so, in order not to create any problems, I shall not move Amendment No. 4. Nevertheless, if this Bill, amended, goes back to the other place and comes out largely intact, one must reasonably expect that there will be a ban on hare hunting.
There are other provisions in Schedule 1 that my amendments do not touch. They were introduced as a result of government promises in Standing Committee F. They remain in the Bill and are consensual. For completeness, they relate, in addition to stalking and flushing out, to participation in field trials; the use of dogs below ground to protect birds for shooting; the rescue of wild animals; and research and observation.
I make a general proposition to the House. I would not presume to debate the merits of each clause. Your Lordships have debated them on many occasions, and I suggest that they have been debated exhaustively. As a whole, the series of amendments would return the Bill to the Alun Michael Bill, as far as is reasonably practical. Such a Bill may be acceptable to the other place, and it may be an acceptable compromise for all parties.
In seeking the support of the House, I shall address three groups. As if to encourage confusion, I must admit to being a member of two of them. The first group that I shall address are the intuitive banners. I am intuitively a fox hunting banner. I disapprove of an activity carried out for the gratification of individuals that results in the death of an animal. However, as somebody cleverly noted about me as an individual many years ago, I am a woolly-minded liberal. When I come to a view, a voice will frequently say to me, "Hypocrite". I love lamb, and I eat red meat—more than I need for nutritional purposes. I would not dream of buying my wife a fur coat, but I wear leather shoes. I recognise that I pay people to kill animals for my needs and for my gratification. I accept that my disapproval of fox hunting is, inevitably, a disapproval of degree.
11.45 a.m.
Our role today, as intuitive banners, is that not of citizens but of law makers. As law makers, we must recognise the crucial distance between what we disapprove of as individuals and what we have a right to make criminal. Law is a dilemma and a paradox. At its best, the law seeks to balance the restraint of individuals with the rights of others. In this case, we also have the complex issue of the rights of animals. The test of such a law should be more than our personal prejudices.
The Alun Michael Bill does not ban hunting. It restrains those who would hunt through the twin tests of utility and cruelty. To the intuitive banners, I say
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that we have no right to insist on more than the restraint that we should reasonably ask under those tests.
The second group to whom I shall speak are the compromisers. We compromisers are a somewhat derided group. For most of my quite successful and well rewarded career, I have been a compromiser. We are never seen as heroic; we are always seen as being slightly iffy. We nudge round the corners of problems and end up with answers that nobody really likes but to which they agree. However, we don't half get things done. Much would not happen in the world if there were no derided, shabby compromisers such as myself in it.
We compromisers are uncomfortable with conflict and trauma. We think that, when there is conflict and trauma, things are wrong. We are proud to be members of a society that, on balance—when I say "on balance", I accept that we have executed one king and, I think, seven Speakers—has got where it is through consensus and incremental change. We compromisers are uncomfortable with extremes, and we are even more uncomfortable with disengagement. We naturally seek compromise, and we seek, as a first step, engagement between the parties. We compromisers recognise that propositions that achieve engagement and eventual agreement are frequently looked upon by the parties as propositions of equal difficulty. The Alun Michael Bill is the basis for engagement. It is a proposition that can become acceptable to all points of view.
Finally, I address the pro-hunters. The Alun Michael Bill is not a ban. In industry, we would call it a "permissioning regime". The Bill says, "You may hunt, but only if you meet the tests that society reasonably requires". For pro-hunters, the Alun Michael Bill is the only reasonable chance for hunting with dogs in the future.
I seek the support of all groups for the amendments. The Alun Michael Bill is the best chance of meeting the most important needs of those of all points of view.
Lord Marsh: My Lords, in his very interesting speech, the noble Lord said that what he proposed could be acceptable to both sides. Is that just a comment in passing, or does he think that there is any reason to believe that?
Lord Tunnicliffe: My Lords, my reason for making that comment is that it seems, from my mid-position, that the amendments would take us as close as possible to the position—on record—at which the House of Commons was, when it was working with consensus. I will test whether this House is willing to accept that position as a consensus. I beg to move.
Baroness Trumpington: My Lords, first, perhaps I may say how very much I enjoyed the noble Lord's second maiden speech.
If foxes looked like rats we would never have been put in the ridiculous position that we are in now. I submit that it is not we who are in favour of hunting

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who are the cruel ones; it is the people who are in favour of this Bill who are the cruel ones. If this Bill goes through, they will deprive many people of their way of life, their income and their future.
Viscount Bledisloe: My Lords, the noble Lord moved his amendments with such moderation, good humour and personal charm that he has disguised with great skill the fact that he is inviting this House to overturn decisions which it made a fortnight ago. He is of course in order in doing so, except in relation to Amendment No. 4, which he has candidly and commendably withdrawn.
But if we take just some of the amendments that he is moving, we can see how much he seeks to invite the House to defy the decisions that it made a fortnight ago. He rightly said that Amendments Nos. 6 to 8 are very important. First, Amendments Nos. 7 and 8 would leave out of Clause 7 the criterion for registration of the management of wildlife and, secondly, they would leave out of subsection (2) the balance of cruelty. Those issues were the entire substance of the debate when inserting Clause 7 into the Bill.
The noble Lord, Lord Mancroft, who opened the debate, explained with total clarity and great force that the purpose of the amendment was to allow and require a consideration of the management of wildlife and a straight balance of cruelty rather than a totally loaded presumption against hunting. The House voted in favour of that by no less a margin than 194 votes to 57. That is precisely what the noble Lord is inviting the House now to overturn.
Perhaps I may give just one further example of the extent to which the noble Lord is inviting us to change our minds and to reverse previous decisions. Amendments Nos. 27 and 28 were passed by the House unanimously, without a single voice of dissent. It is a curiosity of the rules of the House that when there is a vote, if only one person votes against or if the vote is split 51/49, the matter cannot be reopened.
Apparently, under the rules of the House, if the House is unanimously in favour of the matter, it can be reopened. Very curiously, unanimity is less useful than a 51/49 split, which may mean that in future, even on unanimous matters, one supporter of the Bill is encouraged to dissent just so that there can be a vote in order to render it written in stone for all time. But, on that matter, again—it goes through the whole of the noble Lord's amendment—he is actually and totally, with respect, improperly inviting the House to reverse that which it has already done by its previous votes and decision.
Baroness Mallalieu: My Lords, there are a large number of amendments in this group. Some of them are purely technical, and others were either introduced in Committee in another place or are thought by the Minister to be improvements to the Bill. I have no objection to any of those.
However, I oppose in the strongest possible terms that I can, Amendments Nos. 1 to 8 and 27 and 28, which the noble Lord has just moved. Both noble Lords whose
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names are on those amendments voted against a ban and for regulation in this House in Committee. I accept that their motivation is to try to secure the survival of some hunting from what they see as an otherwise impossible blanket ban. But their approach is fundamentally wrong. If these amendments are passed and are accepted by another place, the result would be the very opposite of what I believe that this House wishes to achieve; namely, a just framework of a registration system based on principle and evidence that will stand the test of time.
The amendments tabled—I agree with my noble friend Lord Graham—would produce a scheme that was regulation in name only. It would be a backdoor ban. Those amendments reflect the difficulties in which Mr Alun Michael found himself and were designed to be sold to the Back-Benchers of my party as being as good as a ban.
If we agree to those amendments, not just the hunting community and wider rural Britain, but all who look to this House for common sense, fairness and protection for our freedoms, will feel betrayed, and rightly so. They will have been sacrificed by reason of political expediency. I know that there will be those in this House who will say, "Take this or lose everything", which I feel is the equivalent of being told, "Commit suicide or they will shoot you". It is not an attractive choice. For my part, I would prefer to deal with the effects of an honest ban—the sort that the noble Lord, Lord Graham, and those who agree with him support—rather than one that is dressed up as regulation
Perhaps I may remind the House of how we have come into this mess. On 11 September 2002, in a press release from Defra, Mr Alun Michael stated:
"The future of hunting with dogs should not be decided on personal taste, but on evidence on the principles of whether or not it is serving an effective purpose in managing wildlife and whether it is more or less cruel than the alternative methods currently available".
I totally supported that proposition then and I support it now.
Sadly, Mr Michael found himself unable to stick to those principles. When it became clear that he would have difficulty in selling a regulation system to members of his own party, Mr Michael sought to restrict those who would qualify by removing the main plank of the registrar's consideration; in other words, the contribution to wildlife management.
In his inquiries, which were, in tribute to him, extensive, Mr Michael saw the role played by many hunts and different types of hunting in wildlife management and he was anxious to sell his scheme as one under which very few would qualify. That was his first breach of principle: he confined to pest control the test for registration. He excluded wildlife management, which is, in essence, what hunting is about. We must not follow the seductive words of the noble Lord, Lord Tunnicliffe, and go down that route. Our job in this House should be to restore the Bill to those principles.
The test that Alun Michael included in his Bill on least suffering was a tough one. It was the one that we voted for in this House in Committee. Amendment

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No. 8, which is now being proposed, reflects what the Standing Committee in another place did to that test. That Committee was by a substantial majority composed of people in favour of a ban. I sat and listened to some of those proceedings; some of those people made it plain that when the Bill returned to the Floor of the House they would seek to overturn the work of that committee and turn the Bill into a ban. That, in fact, was what they did.
This amendment was put into the Bill by that majority as a fallback in case they failed later. It was done to provide a back door ban in the event that what happened did not happen. It requires the applicant to do the impossible. All the evidence, both to the noble Lord, Lord Burns, and to Mr Alun Michael at the Portcullis House hearings, said that there was insufficient research to make an assessment of the degree of suffering between alternative methods. Here the onus is placed on the applicant to prove something which everyone agrees there is currently no evidence available to prove. If we agree to these amendments and return to the tests in this form, the House of Lords will have capitulated to and endorsed the prejudices of the House of Commons. Those outside this House who look to us for protection will feel betrayed, and rightly so.
Noon
In Committee in this House we took a logical, consistent and principled approach to registration. The process must apply to all. Whether a particular hunt or a particular form of hunting passes the twin tests must be a matter for the judgment of the registrar when he has considered the case on the evidence. We must not allow the regulation system to be perverted by applying either our personal dislikes or our personal preferences and excluding people from the totality of that scheme. To do so is to abandon the principle that was set out by Mr Alun Michael in his clear statement in the press release to which I referred earlier.
It may well be that coursing, beagling, deer hunting, some forms of terrier work or, indeed, some hunts will not succeed in obtaining registration. But if the scheme is to be seen to be fair, all those activities must be given an opportunity to put their case to the independent registrar. That is because nothing is more likely to generate a lasting sense of injustice than a refusal to allow the arguments to be made.
I am conscious that I have taken a considerable amount of the time of the House, but there is one matter that I must mention, in particular in the light of what was said by my noble friend Lord Tunnicliffe about his concern for rural communities. I declare an interest. For many years I have supported the Devon and Somerset Staghounds and I live down on Exmoor. His proposal within the bundle of amendments that he has put forward—very fairly admitting that he does not have the knowledge to deal with the detail—would
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devastate the community of which I count myself fortunate to be a part. Everyone in the conservation and local government world on Exmoor, the Exmoor National Park Authority, the Exmoor Society, the British Deer Society, the Countryside Agency and 750 different landowners who make up the Exmoor and District Deer Management Society agree that deer hunting should not be banned until a viable alternative deer management scheme is in place. All agree that an immediate ban would mean a massive increase in shooting.
The noble Lord, Lord Burns, said of deer hunting that:
"Because of the widespread support which [deer hunting] enjoys, and the consequent tolerance by farmers of deer, hunting at present makes a substantial contribution to the management of the deer population [in Devon and Somerset]".
That is the utility test evidence.
The only casualty service for deer in those areas of the West Country is provided by the hunts. I happen to know that both yesterday and the day before a representative of the hunt went out and, on each occasion, put out of its suffering a stag—in both cases with a broken leg, perhaps as the result of a car collision. There is no one else who can do that, and the amendments of my noble friend Lord Tunnicliffe would bring into effect a ban on the hunts which provide that 24-hour service every day of the year a month after the Bill comes into force.
When he came clown to Exmoor, Mr Alun Michael said that it was a "special case". Defra itself put money into a study undertaken by the national park and others into the economic consequences of a ban just on deer hunting. This was done at the time when Mr Michael had published his Bill, but before the Commons turned it into a total ban. The study was partly funded by Defra and was conducted according to the criteria set by the department. Its results showed that £9.5 million a year would be lost to that small and fragile economy as the result of such a ban.
There are those who say that deer hunting is cruel. All I can say is that a great deal of scientific work has been done and is still being done. The position has changed greatly since the first report of Professor Bateson for the National Trust. Subsequently there was the joint university study, after which both Professor Bateson and the scientist who had conducted that study did work for the Burns inquiry in Contract 7. Those of us who were able to attend a presentation by the Independent Supervisory Authority for Hunting and Professor Webster—one of Professor Bateson's original scrutineers—learnt that changes have been made in the way hunting is conducted to reduce the duration of the hunt. At the end of a hunt, the death of a deer is instantaneous because it involves a shot to the head. That is only rarely possible with stalking, which is the alternative.
Further work has been done in Scotland since Professor Bateson's study. From that work, which has taken two years to complete and which looked at 900 deer, we know that some 20 per cent took two shots to kill. We know also from Vets for Wildlife

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Management, a group of 500 members of the Royal Veterinary College, that in their view stalking does not provide a humane alternative.
The evidence is incredibly complex and is precisely the sort of evidence—looking at the science, the effect on wildlife and the impact on deer themselves in the area—which should be the job of an independent registrar. He could look at the most up-to-date picture and review it when licences come to be renewed. But a ban would be a disaster for the people of Exmoor, most particularly—as one noble Lord pointed out on the last occasion—given that we should be taking as our guidance animal welfare. From the point of view of everyone on Exmoor, it would be a disaster for the deer.
I therefore urge the House to endorse a fair and comprehensive registration scheme by—I make my apologies to my noble friend Lord Tunnicliffe—rejecting the amendments dealing with the tests and additional bans. My noble friend said that he thought the proposals would command support from all sides. I see my noble friend Lord Graham violently shaking his head, and I am afraid that I must do the same. But I suspect that if my noble friend Lord Graham were to study these proposals with care, he might take a different view, because they would achieve precisely what he is seeking to achieve head-on.
Lord Carlile of Berriew: My Lords, the noble Lord, Lord Tunnicliffe, moved his amendments in a disarmingly reasonable way which I am sure will prove very persuasive to some Members of the House. I know that he will be supported in those amendments by my noble friend Lady Miller of Chilthorne Domer, and I have great respect for her views.
I see the way the argument has been presented by the noble Lord, Lord Tunnicliffe, as a conscientious attempt to achieve a utilitarian compromise on this issue. However, I have to say to the noble Lord and to my noble friend that I think they are wrong. They are wrong for the reasons given by the noble Baroness, Lady Mallalieu, which I shall attempt not to repeat at all. The House would not be assisted by repetition.
The noble Lord talked about compromise and told us that he is by nature and by profession a compromiser. I have never had to negotiate with the noble Lord, but I would fear doing so in the future because I feel that he would be likely to win—certainly if compromise was in issue on something specific in which I could see the merits of one side of the proposed deal he had in mind as well as the merits of the other side. But the speech of the noble Lord, in my view, was about compromise for the sake of compromise, not compromise for the sake of the merits of the cases presented on either side of the argument.
Having been a card-carrying, woolly-minded liberal for the past 33 years, I know all about compromise. I see the noble Lord, Lord Hoyle, an old friend, nodding in agreement. If anyone knows, he does. Also I have been a lawyer for the past 34 years. So if compromise
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does not enter your soul in those two activities over 30 or so years, it never will. However, I do not believe that what is on offer is a compromise at all.
I have only ever become involved in this argument about hunting over these many years—in this House, in another place and outside—because of my concern about sheep farming in rural Wales. I have never hunted. I have been out with a hunt—not toffs on horseback—on one or two occasions. As the noble Earl, Lord Ferrers, has said many times, in most parts of the country hunting is not an activity of toffs. It certainly is not in rural mid-Wales.
My concern and my involvement in this issue is about the viability, the livelihoods and the traditions—and I do not apologise for referring to traditions—of sheep farmers throughout rural Wales and the villages in which they and, confessing an interest, I live.
The best estimate of the noble Lord, Lord Burns, was that less than 2 per cent of lambs were subject to fox predation. Mr Michael's response to that last year was that this loss was insufficient to justify extending the provisions he had in mind. There is clear evidence that if we return to—or almost entirely to—the Alun Michael Bill, then certainly Alun Michael himself believes that fox hunting in areas such as rural Wales, where I live, will effectively be banned. The noble Baroness, Lady Mallalieu, has rehearsed the arguments why that will be the case: it is because the tests that are set out are impossible to meet—mainly because they are so woolly-minded, to be frank with the House.
The 2 per cent figure that came from the Burns report does not totally reveal the regional variations. Foxes have instincts. Anyone who has spent any time in London late at night, as Members of the House do from time to time, will have seen foxes wandering around London. Their instincts do not lead them to going to places where there is no prey and no food for them; we see them—and we see many of them in London—in places where there is food to be found, around collections of bins and in the wildlife which we are lucky enough to find in this amazing metropolitan capital. Equally in the countryside, foxes use their instincts to go to places where they will find prey.
My noble friend Lord Livsey of Talgarth spoke in a previous debate about his own medium-sized flock, which is typical of the size of flock that some of the smaller-scale sheep farmers might have in rural Wales. He spoke on that occasion of 37 lambs being slaughtered shortly after birth by a small number of foxes. That amounts to something like 10 per cent. In many parts of the area in which I live, where there are particularly vigorous foxes, over small periods in the lambing season the percentage of new lambs killed can rise to, or even beyond, 10 per cent. I do not want to exaggerate the figure, but it is significant.
12.15 p.m.
If the local farmers are not to be allowed to pay their subscriptions to the foot packs and to go and take out—kill—the most predatory foxes, it will have a very significant effect on the economy of some sheep farms.

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If 5 per cent or more of their profits is removed, then in bad years it will be 5 per cent of next to nothing and, indeed, it could increase a loss. Many farmers—particularly small-scale sheep farmers in rural Montgomeryshire, Radnorshire, Merionethshire and areas around that part of Wales—operate on the tightest possible margins. Applying any sort of rational test, they probably would not be doing it any more on the grounds of economics. They do it on the grounds of family tradition, pleasure in the countryside, enjoyment of countryside management, loyalty to the area in which they live and to their culture; and, in some parts of Wales, loyalty also to the very important language and linguistic tradition.
If the amendments are carried it will mean the end of foxhunting in those areas. As I said earlier, repetition does not improve matters, and so I shall say in a sentence—I have said it many times before—what the consequence will be: in five years' time, after the banning of foxhunting, you will find very few healthy foxes living in country areas like mine because they will be killed by other means, and the whole balance of wildlife, which includes the fox, unfortunately and to the regret of all, will be removed.
The farmers are prepared to enjoy a reasonable dynamic relationship between farm and fox, so let me add this to the comments about compromise. As the noble Baroness, Lady Mallalieu, said, the proposals in what is now being called the original Michael Alun Bill shift the burden of proof—which, as the noble Baroness also said, is an impossible burden of proof—to those who wish to hunt. Is it a compromise to remove from people who carry out this activity in my area, for the reasons I have described, a right that they have enjoyed for hundreds of years?
I do not believe that it is a compromise for the civil rights of citizens to be removed at a stroke and for an impossible burden, which none will be able to achieve under these amendments, to be shifted to them for the future. That is not a compromise at all in my view. Indeed, I believe that if I were to vote for these amendments it would not be compromise but surrender.
It is on that conscientious basis that I feel I shall have to take the opportunity to oppose these amendments. I shall do so with deep regret because I understand the motives of my noble friend and the noble Lord, Lord Tunnicliffe.
Lord Carter: My Lords, I support the amendments so clearly explained by my noble friend Lord Tunnicliffe. They are completely in order. They have been checked with the House authorities, I know, and I would not be speaking in support of them if they were not in order.
It is the first time in nearly 18 years in your Lordships' House that I have spoken in a debate on hunting. I have not spoken before because I have long held the belief that if there is nothing new to say, say nothing. However, we have reached the point—as is clear from the speeches we have already heard—where
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the House is facing a crucial decision on the Bill. What the House decides today may—and I emphasise "may"—determine the final outcome of the Bill.
I support the amendments because they are exactly in line with the stance I have adopted since a hunting Bill was introduced in the final Session of the previous Parliament in March 2001. I supported hunting under licence then and have done so ever since—unlike some noble Lords who support hunting and who voted in the debate in March 2001.
I knew nothing about the amendments intended to be tabled by my noble friend until about a week ago. I have decided to speak in support of them for two reasons. First, many noble Lords will confirm that I have always argued outside the Chamber that the only chance of a compromise with the Commons was to send back the Alun Michael Bill. I shall return to that later. Secondly, this is the last realistic chance, in my view, to amend the Bill to reflect that compromise.
When the Bill came to the Lords from the Commons in the previous Session, I held steadfastly to the view then that we should send the Bill back to the Commons in the form that emerged from the Standing Committee in the other place before it became a Bill to ban hunting. I shall refer to that Bill as the Alun Michael Bill, as have other noble Lords.
The amendments in this group, as has been clearly said, effectively reproduce the Alun Michael Bill. So if they are accepted, we shall send the Bill back to the Commons in the only form which, in my view, has any chance of being accepted. To send the Bill to the Commons in the form in which it has emerged from Committee in this place—and I understand all the arguments supporting it—is, in my view, inviting rejection and thereby ensuring a ban.
I should make it clear that, as I have always done, I voted in Committee, a fortnight ago, for a system of regulation. I have always supported hunting under licence, and I voted accordingly. I was assured, outside the Chamber, that I would be supporting the Alun Michael Bill with only 12 or 15 words being different. I freely admit to losing my touch, as I never checked what those 12 or 15 words were.
I do not propose to take the time of the House in rehearsing all the arguments surrounding the Bill. I merely intend to set out my view of the possible scenarios depending on what the House decides today. I emphasise that this is my personal view, based on the stance I have adopted throughout. It is not what I believe has been described somewhere as a cynical political manoeuvre. The House should know me well enough to know that I am nobody's stalking horse. I spent some five years as Chief Whip, when my stock in trade was compromise through negotiation.
I support these amendments because I am convinced that there are only two outcomes on offer—the Alun Michael Bill or a ban. The noble Baroness, Lady Mallalieu, was completely honest; she said that she would prefer a ban to the Alun Michael Bill. I can understand that point of view.

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If these amendments are accepted, this House will have offered a substantial compromise to the Commons. Those in the Commons who support a compromise—and all sorts of names have been quoted—will clearly be able to support the amendments. If—and I emphasise "if"—there is a move for compromise in the Commons, these amendments provide the opportunity to effect that compromise.
I know that there are noble Lords who say that a majority in the Commons will never accept even this compromise. They may be right. But there is only one way to find out, and that is to send the Bill back with these amendments in it. It meets the point that was made earlier by the noble Lord, Lord Marsh. However, if the amendments are rejected today, this House will, for the third time, have rejected the chance to send the Alun Michael Bill back to the Commons—I refer to the Committee stage in this House in the previous Session, the Committee stage in this Session and the Report stage today.
To underline the consistency of my stance on this issue, a number of noble Lords will remember that I strongly urged those who supported hunting to send the Bill back to the Commons, amended to be the Alun Michael Bill, in the previous Session. There was plenty of time to do it in two Committee days, as we have demonstrated in the Committee stage of this Session. Although the Committee stage was spread over three days, it took two days in terms of time. If, in the previous Session, noble Lords had wanted to amend the Bill as they have done this time around in two days, they could easily have done it. They were free to do that, but they chose not to do so. I think that they were wrong then, just as they were wrong, as they now admit, to reject hunting under licence and vote for the status quo in the previous Session.
I know that other possibilities have been canvassed, but what I find hardest to understand is the suggestion that if the Bill is returned to the Commons in the form in which it left our Committee, during ping-pong, the amendments which have been tabled today can be put in the Bill then and offered as a compromise, after having been rejected today. If the Bill comes back it will, by definition, be a Bill to ban hunting. Is it really feasible to expect that Members of another place, who have voted for a ban in the Aye Lobby at, say, 2 p.m., will troop through the No Lobby a few hours later to accept a compromise? I find that hard to believe.
I know that a number of noble Lords regard the Alun Michael Bill as a ban by another name. If that is the case, why did the Commons reject the Alun Michael Bill and vote for a ban? If those who support hunting are confident of their case, let them go to the tribunal and win. Exactly the same applies to those who support a ban.
The fact that the banners in the Commons rejected the Alun Michael Bill and the hunters here feel exactly the same way convinces me that the Alun Michael Bill has it about right.
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Mention has been made in previous debates of the use of the Parliament Act. That debate can wait. We are not at that stage yet, although what we decide today could well affect the outcome and the use of the Parliament Act.
We are long past the stage of arguing the pros and the cons. As I have said, it is my personal belief that we now have a simple choice—the Alun Michael Bill or a ban. These amendments would produce the Alun Michael Bill—that is why I support them.
Lord Eden of Winton: My Lords, it has been very strongly trailed that unless we return the Bill in the original Alun Michael form, unaltered and unamended by this House, the other place is likely to vote for a total ban and the Parliament Act will be invoked. But there is absolutely no guarantee that if the Alun Michael Bill, as such, were to be returned to the other place, it would be accepted by the other place. There is the possibility that there would still be a ban.
In those circumstances, it must be right for this House to do what it believes to be right and to amend the Bill as it believes it is necessary to be amended. One of the amendments to the Bill which strikes me as being of the greatest possible significance—the inclusion of wildlife management as a test for registration—would be removed by the amendment moved by the noble Lord, Lord Tunnicliffe.
I am sure that all noble Lords in this House understand the importance of wildlife management. We live in an overcrowded island; the population is increasing; the spread of our towns across the rural land continues apace. In those circumstances, for wildlife to survive at all it must be managed. That is well understood; it is well understood even by those who live in towns and cities. It is well understood that if you have too many grey squirrels in the park, they cause mischief and damage, and they need to be controlled for their own good. Even the Mayor of London, with his well publicised interest in newts, knows a lot about the need to control the pigeon population in Trafalgar Square. They can become excessive unless there is some form of wildlife management. That happens in our towns and it happens in the country. It is for the good of the survival of the species. For those reasons, it is necessary to retain those words in the Bill that we send back to the Commons, so that Members there may have a chance to give full and proper consideration to these matters.
I find it curious that those noble Lords—some of them sitting on the Benches opposite—who make powerful and emotional speeches about protecting wild animals against any form of cruelty and who want to see the animals survive are none the less afraid of including wildlife management as a test for registration before the tribunal. Why? Because they fear that that test would be upheld and approved by the tribunal, and that hunting in those circumstances would be allowed. What sort of animal lovers are they? What sort of animal lovers can they be if they fail to understand the need for proper management of our wildlife?
12.30 p.m.
Lord Hoyle: My Lords, I shall not detain your Lordships long. I am expressing my own views in relation to the amendment moved by noble friend Lord Tunnicliffe. He moved it in a very courteous and gracious way and I shall come on to my views in relation to it. I am always interested in the different moods of this House. When we debated the Bill in Committee, I remember the praises that were being heaped by many noble Lords on Alun Michael. They now appear to have gone against him. That is a change of mood.
I cannot support my noble friend today, because I am opposed to the licensing of hunting. It would amount to a patchwork quilt because it would vary across the country and it would still leave certain cases in which foxes would be hunted by hounds. As I believe that that is cruel and that, as the Burns report stated, the welfare of the animal that is hunted is affected, I cannot support the amendment that my noble friend has put forward.
I listened very carefully to my noble friend Lord Carter. As always, he was extremely persuasive. However, with my knowledge of the other place, I think that the position of compromise has long passed. I think that the House of Commons will vote for a complete ban, which is my position.
Lord Carter: My Lords, does the my noble friend agree that the only way to find out whether there is a move for compromise is to send the Bill back to the Commons with these amendments in it?
Lord Hoyle: My Lords, I understand my noble friend's point of view. As I said to him, I cannot support that for the reason that I have outlined; namely, I am against the hunting of animals with hounds. At the end of the day, the decision will rest with the elected House of this country. As I have said before, the people who take that decision, unlike this House, will have to face the consequences when they face the electorate.
Viscount Astor: My Lords, this House must see these amendments for what they are. They are a clever and, I have to say, somewhat cynical ploy to ban hunting. That is what they represent; it is nothing else.
When the noble Lord, Lord Tunnicliffe, introduced the amendment, he said that he knew nothing about hunting. I have to say that that is one issue on which I can agree with him. He has not spoken at any stage of the Bill; neither at Second Reading nor in Committee. So I am afraid that we have to examine his motives in bringing the amendments forward. He is quite right to say that the amendments return the Bill to how it was when it came out of Standing Committee. However, as the noble Baroness, Lady Mallalieu, pointed out, when the Bill came out of Standing Committee, which had a Labour majority of anti-hunt members, it contained, as it were, the wrecking amendment, Amendment A, which would mean that registration would become almost impossible. The work that we
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did in Committee in this House was directed to making a workable system. All those noble Lords who have spoken so far have agreed with that.
We must be honest about these amendments. They are exactly as the noble Baroness said they are. They are a back-door ban. It is as simple as that.
Earl Peel: My Lords, as other noble Lords have said, the noble Lord, Lord Tunnicliffe, put forward a very persuasive argument to try to give the impression to your Lordships that if the amendments were accepted, a sensible system of registration would be put in place and decisions could be made accordingly. But as my noble friend Lord Astor has quite rightly pointed out, there is no question of doubt that if the amendments are accepted, they would lead to a ban in everything but name.
I was very interested in the intervention of the noble Lord, Lord Carter, whom we all respect, particularly on matters to do with the rural environment. Like the noble Lord, Lord Tunnicliffe, the noble Lord suggested to your Lordships that if we were to reject the amendments, we would, for all intents and purposes, be saying goodbye to a possible registrative Bill. However, he put an interesting question to us: if the Alun Michael proposals, which were amended in Standing Committee, would, in effect, have allowed hunting to continue, why did the House of Commons reject it? Why did we end up with the Banks/ Kaufman Bill?
It is a pretty well known secret that the Minister, Alun Michael, was distressed, to say the least, by the outcome. He tried to persuade his colleagues in another place not to pursue an outright ban, because, in effect, that is what they had anyway. I think that we all know that. So I urge your Lordships to reject these amendments because, as I have said, they amount to a ban in everything but name.
I want to make two points. The first is on the question of wildlife management, which we debated in Committee. That debate was led by my noble friend Lord Mancroft, who put forward the arguments in a highly persuasive fashion. As somebody who is involved in the management of the countryside, I find it quite incomprehensible that we could not embrace the concept of the management of wild mammal populations. That is the cornerstone of the inter-relationship between predators and prey, between wildlife and the countryside. It is absolutely basic to the very principles of what we are trying to do. As the noble Baroness, Lady Mallalieu, pointed out, the Minister, Alun Michael, recognised that in the early part of the discussions on the Bill. He said:
"I plan to set out proposals for Parliament which can form good and robust law and can take us forward into the 21st century, able to reflect evolving views on animal welfare and wildlife management".
Nothing could be clearer than that.
Among other points, the noble Baroness raised the whole question of principle and evidence on which the Minister has been basing his approach to the Bill. If we accept the amendment, principle and evidence go out of the window.

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I shall say a few words about stag hunting. I do not hunt. I have been down to Exmoor only once, out of interest and curiosity, to see for myself how that form of hunting operated. I was convinced beyond any question of doubt, as the noble Baroness said, that it is by far and away the most effective way of managing that deer population. Where is the evidence to suggest that we should pre-empt what a registrar may decide by taking stag hunting out of the registration system? That would be quite wrong. I have always been immensely impressed by some of the comments that have been made by the Exmoor National Park Authority. It has stated that a ban might adversely affect the future sustainability of the herd. It has referred to cultural heritage. It has stated that a ban could put the national park authority's own statutory purposes and duties at risk. They are very powerful arguments.
In the absence of evidence against stag hunting, who are we to pre-determine the outcome of any deliberations or decisions by the registrar? Who are we to impose in such an arbitrary fashion a restriction on those who have managed these herds so effectively and for so long? To bend to prejudice in this way would be wholly contrary to the democratic process.
The Bill as it stands produces a framework by which stag hunting can be judged along with all other forms of hunting. I believe that to be the responsible approach and it would be highly responsible for your Lordships today to be acting as judge and jury.
Baroness Miller of Chilthorne Domer: My Lords, I have put my name to these amendments—and I must say that I have not done so in any spirit of cynicism. Indeed, all the time since I joined your Lordships' House in 1998, the work that I have done here has been to promote wildlife management. That started with the CROW Act, which, along with the noble Baroness, Lady Byford, we successfully amended—very strongly, in the case of Part 3. I have promoted wildlife management through numerous other debates and questions, which have included TB in badgers, the need to tag deer carcasses, slug pellets and farmland birds—but I shall not take up your Lordships' time with a list. I must assure noble Lords that I have not attached my name to the amendments in any spirit of cynicism.
I do not believe that we are now looking at a situation in which all hunting can continue under a registrar in any case. That moment has long passed. We are looking at either a total ban or at regulated fox hunting—and, as other noble Lords have said, even that is not a given. I am anxious that regulated fox hunting should continue, and I believe that these amendments give it the best chance that it has of doing just that.
Perhaps the most difficult issue for me throughout these debates has been the situation involving Exmoor. I have lived near Exmoor and had a long attachment to Exmoor, and I must declare some interest as my husband chaired the national park authority for some nine years. Exmoor is very special and it is very different, and the social and economic case that can be
1036
made for deer hunting can be made much more strongly there than anywhere else. But it is not the exception that proves the rule—it is the exception.
The Government should recognise that difference, treat the park area and the deer herd accordingly, and give some serious and immediate replies on what will happen to the deer herd if hunting is banned on Exmoor. I should like the Minister to comment on that in his reply. There is one big advantage—that the National Park Authority does have the geographical area responsibility for wildlife management and employs officers to take care of the biodiversity issue. It is better placed than many parts of Britain to address those issues.
In considering the amendments today, I have some regrets that the noble Baroness, Lady Byford, has not retabled her excellent amendment on compensation that she introduced in Committee, when I said to her that I would support it if she narrowed its scope. I believe that if people's main livelihoods have been involved in hunting, it is fair that they should be compensated when we take a moral judgment to end the activity.
My noble friend Lord Carlile and the noble Baroness, Lady Mallalieu, have always made very powerful speeches on this subject. The fact that they make such powerful speeches and are both such eminent barristers has in some ways put us in the position in which we find ourselves today. The House has been—I would not like to use the word "seduced", although I believe that the noble Baroness used that word—
A Noble Lord: Go on!
Baroness Miller of Chilthorne Domer: Okay, my Lords, the House has been seduced by their arguments. That has meant that instead of accepting regulated hunting when we should have done, we did not, because we were not as powerful in arguing the case as they were, with their years of experience of arguing cases. They are used to a win-win or win-lose situation; that is the nature of barristers. But in this House, as the noble Lord, Lord Tunnicliffe, rightly said, we should aim to create a political way forward—which in this case noble Lords may call a compromise. If noble Lords choose to vote for these amendments today, there is a chance that fox hunting will be able to continue. But if noble Lords vote against these amendments, they will seal the fate of all hunting.
12.45 p.m.
Lord Willoughby de Broke: My Lords, I do not believe that the proposals represent a compromise. I remind the House of the words used by the noble Viscount, Lord Bledisloe, earlier this morning: that if the amendments are accepted they will overturn the decision of this House, which was taken in Committee after great deliberation. There were three days of Committee stage, and we had a majority of about 250 votes in favour of a sensible regulated hunting system. I remind noble Lords of the size of that vote.

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On two matters of detail, I believe that the noble Lord, Lord Carlile, will not be able to speak on this matter again, but he did make a speech in favour of regulated hunting in 2001, in relation to the Middle Way. So it is not correct to say that this House has been in any way seduced by him now into supporting that system. He has always been in favour of regulated hunting.
I am astonished that management of wildlife has been left out of the amendment and taken out of the Bill, as it has always been a matter of principle—if we want to use that word—for Mr Alun Michael, that it should be included in any test of utility. It was only in the end removed by the Committee and not put in the Bill because Mr Michael, who is a convinced banner, realised that if he put it in the Bill, most hunts would pass that test and therefore be able to continue hunting. So it was nothing more than political expediency to leave out the wildlife management provision.
Again, it is damaging for hunts to have to prove that they are causing least suffering. There are no tests. The noble Lord, Lord Hoyle, keeps quoting the words about damaging the welfare of the fox. He was here at Second Reading, so did he not hear the noble Lord, Lord Burns, explain very clearly that there was no evidence for that? The chairman of the committee that was set up by the Government to inform the country at large, the House of Commons and your Lordships about all aspects of hunting, including suffering, took the trouble to come here himself. He said:
"The committee did not have sufficient evidence to reach a clear conclusion on whether hunting involves significantly worse welfare effects than other legal methods of control".—[Official Report, 12/10/04; col. 144.]
Surely, that is the end of the story.
I have reminded your Lordships that this House came to an overwhelming conclusion that registered hunting should be allowed. I believe that these amendments do not meet that end, as they are asking the House to reverse its decision, which it took by a huge majority two weeks ago.
Baroness Byford: My Lords, I shall speak very briefly because everything has been said that needs to be said. We spent three days on this matter in Committee and came to a big conclusion, so I hope that I can urge noble Lords to be resolved and reject the amendments. In that rejection, I would include Amendments Nos. 1 to 8, and Amendments Nos. 27 and 28—the technical amendments we shall come to later on.
The whole question whether a compromise can be reached is unrealistic. The noble Lord, Lord Carter, suggested that it was possible, but I do not believe that it is. Even if it were possible, in supporting this amendment we would be letting down in a most dreadful way so many people who up to now we have spoken up for and fought for. It would be giving ground before coming to any sort of compromise, which I am sure that this House would not want to support.
1038
The question of removing wildlife management from the Bill is a major problem. Certainly, there are aspects of this Bill that we discussed at great length. At the end of the debate that we had over three days of Committee, we said that everything should be judged in the same way, and that if hunting did not qualify under utility or least suffering, it would not be registered. That has not altered at all.
With due respect to the noble Lord who tabled the amendments and the noble Baroness, Lady Miller of Chilthorne Domer, I do not believe that they have won their case at all. We have no guarantee whatever that Members in another place will consider the matter in any different way. The noble Lord, Lord Graham, is nodding his head—he is quite right. There are people there who wish to have a ban and will continue to vote for a ban. This compromise is no compromise, as far as they are concerned. I believe that we should stand up for the minorities we have supported before. We have judged the matter fairly on the ground that those who want to hunt have to qualify. We should resolve to reject these amendments.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, as during Committee stage I have to point out to the House in these slightly unusual circumstances that the role of government Minister on this Bill has been to guide the House on the effects of the amendments proposed, on the situation reached in the House of Commons and to comment on the prospect of any changes being acceptable to the majority in the House of Commons. I will continue in that role. Noble Lords are familiar with my personal opinion but I put that to one side.
I congratulate my noble friend Lord Tunnicliffe on a number of matters. Fist, I congratulate him on listening to the arguments. While there has always been good attendance on this Bill I am not entirely sure that he is not part of a relatively small subset of noble Lords who have actually listened to the arguments. Secondly, I congratulate my noble friend on a very good opening speech. It has been described as disarming, persuasive, courteous and even clever. These appear to be terms of criticism in this House. I thought that it was a very good and persuasive speech.
I congratulate my noble friend on producing a set of amendments that gives this House a coherent alternative to present, if it should so wish, to the House of Commons. It also has the very great benefit of smoking out the difference between the Alun Michael Bill, as amended in Committee, and the Bill which this House adopted in Committee two weeks ago, which was claimed by no less an authority than my noble friend Lord Donoughue to be a reversion to the Alun Michael Bill when in fact it was nothing of the kind. That claim has subsequently been made externally and in the media.
Lord Donoughue: My Lords, if my noble friend checks what I said, he will see that I stated that it reverts, quite rightly, to the Alun Michael structure

1039
and basic approach of registration. I also stated that there were changes in it and that all were based on the principle of animal welfare.
Lord Whitty: My Lords, I am simply referring to some early words in my noble friend's moving of the amendments that day when he said that we were proposing to revert to the Bill to which Mr Michael was referring; that is, his original Bill. He then said that there were some minor changes in it; in fact, those changes are fairly major. These amendments are, of course, not the original Alun Michael Bill either. As my noble friend Lord Tunnicliffe pointed out, they attempt to restore the position to the state of the Bill as it came out of Committee in another place, taking in amendments made or committed to in that Committee stage; in other words, precisely the position that the House of Commons had reached before it voted for a ban.
In relation to the Bill that emerged from Committee in this House, these amendments would move significantly closer to where the Commons were at that point by restoring, as noble Lords have said and have opposed, the complete ban on deer hunting. My noble friend pointed out that if it were not for procedural difficulties he would also wish to restore the complete ban on hare hunting.
These amendments would also restore the general ban, with qualifications, introduced in Committee on terrier work. They would remove the widening of the utility test and restrict it to the Bill's original intention in relation to pest control. They would remove the dilution of the least suffering test. They would restore a sensible balance on the tribunal system and would get away from the pick and mix approach of the Gang of Four and reflect all the changes which were made or committed to in Commons Committee. That would result in a situation that was much closer to the Alun Michael Bill.
Lord Mancroft: My Lords, I am most grateful to the Minister. Does he not agree with me that this is a slightly different sort of pick and mix? The difference with this particular pick and mix is that the tests are as they came out of Standing Committee. I refer to the comment of one of the Minister's officials talking to one of our people, "Whatever made you think that those tests were meant to be passed?". Is not the reality that it was impossible for the Bill which came out of Standing Committee to be passed? The Minister knew that at that time and that is why it is in fact a virtual ban. Is not that the truth?
Lord Whitty: My Lords, I do not believe that to be true. I believe that it is a fairly heavy restriction on hunting in many areas, but where hunting can pass the pest control and the least suffering tests, it would still have been allowed under that Bill. I am simply referring to the procedural position. If my noble friend Lord Tunnicliffe's amendments were accepted we would be to all intents and purposes at the position that applied immediately before the vote on the ban in
1040
another place. That is purely factual. One can draw different conclusions from the substance of the matter but that is the position.
If this House decided to change the stance that it took in Committee, it would be making substantial changes, but those substantial changes would be in line with the claim that this was a reversion to the Alun Michael Bill. Therefore, it could be argued that these amendments give a rational, sensible and coherent chance for the House of Commons to think again. I advise noble Lords that that is a legitimate role for this House. It is, of course, one that this House has frequently adopted. However, in terms of its potential for success I have to remind the House where we are and to some extent how we got there. The House of Commons has decisively and overwhelmingly voted against any kind of registration system.
The Government's commitment—reflecting what we have said in two manifestos—is to resolve this issue on the basis of a free vote of the House of Commons. My role now therefore is to encourage the House to assess what is likely to be acceptable to the majority in the House of Commons. This House is not negotiating with the Government but with the majority of the House of Commons, as I have said on many occasions.
My advice to noble Lords at an earlier stage was that it would have been more sensible to take the format of the Bill received from the House of Commons and to discuss amendments on that basis. That advice was ignored. In Committee noble Lords decided to substitute a different format for the Bill. We are where we are and that is now the Bill before us post Committee. It is that Bill which these amendments have to address. However, it is not the format of the Bill that we received from the House of Commons, and the House of Commons may well conclude that the House, whether or not it adopts these amendments, has rather departed from its role as a revising Chamber and effectively presented the House of Commons with a direct alternative.
In the original Alun Michael Bill the Government had previously proposed a system that would have allowed registration on the basis of evidence to a registrar and tribunal. If that were the will of the House of Commons, clearly the Government would be able to implement that Bill. At the moment, however, it is not the judgment of a majority of Members of the House of Commons. It is not the preference of government Ministers that is at stake here but whether the proposals which come from us will make the House of Commons change its mind. I believe that it has now voted seven times for a system which rejects registration. The House must bear that in mind. That is the position we are at.
A few issues were raised during the course of the debate to which I should like to refer. It was claimed that we have rejected from the original purpose of the Bill the question of the utility test including wildlife management. The fact is that wildlife management was never part of the original Bill. Most purposes of wildlife management relate to the broad issues of pest control. It was clarified in Committee but the intention of the original Bill was always that the utility test should relate to pest control.

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A number of noble Lords have referred in different ways to Exmoor. I agree with the noble Baroness, Lady Miller of Chilthorne Domer, that one example cannot make the whole case. I do not wish the situation on Exmoor to determine the result for the whole of the country, particularly as other forms of deer management exist in other parts of the country that do not comprise hunting with dogs. Nevertheless I have throughout this debate and on earlier occasions recognised that a special situation exists on Exmoor. The noble Baroness asked whether there were powers to deal with that. Some such powers do exist. The national park has some powers in that respect, at least in relation to the areas covered by SSSIs. The national park, therefore, is in a strong position in that regard.
In addition, the Government are about to appoint a deer liaison officer covering the south-west region, which will include Exmoor. Co-operation between the national park, the government office and the private sector within Exmoor will constitute an important way of establishing new systems for managing the red deer population on Exmoor at an appropriate level. Of course, we cannot do so without the co-operation of the landowners and other operators within Exmoor. The park does not have the authority—nor do the Government—to force that on those who undertake deer management. Nevertheless, we have powers of both direct action and persuasion to do so. The Government recognise that, should the Bill that we received from the Commons or, indeed, the amendments of my noble friend Lord Tunnicliffe be carried into law, the situation in Exmoor would have to be addressed in a specific way that excluded the use of hunting with hounds, but nevertheless recognised the special problems of the deer population within Exmoor.
1 p.m.
The noble Viscount, Lord Bledisloe, and the noble Lord, Lord Willoughby de Broke, challenged the House not to reverse a position taken only two weeks ago. That is the advice of those who have learnt nothing and forgotten nothing. Clearly, if it is sensible to change one's mind, one will change one's mind. Frankly, it is much less of a change of mind than noble Lords are asking the House of Commons to make either with the amendments or the current position. Therefore, whether one should change one's mind in a fortnight ought not to be the key issue.
The Government remain centrally committed to implement the will of the democratic Chamber. At this stage, I do not think that the House of Commons will accept the amendments, as the Houses are taking very different positions. But that is merely my judgment and, as my noble friend Lord Carter said, this is all a matter of judgment. What must be clear is that, if the House does not shift to the amendments, the chances of the other House taking a different position are much less. Nevertheless, the chances of even the amendments being accepted in the House of Commons must be pretty low. I would mislead the House were I to say anything different.
Your Lordships have to accept a degree of blame for that. As my noble friend Lord Carter also said, at every stage in the past two Parliaments when the issue has been before you, you have adopted the more and not the less confrontational point. Your Lordships have come some way from the original point, but at every stage have taken the more confrontational option. That has not helped opinion in either the lower House or the country. Some of the noises outside the House have not helped the position either. The intimidation, harassment and threats of civil disobedience have undoubtedly hardened opinion in the other place as well as in the country.
Earl Ferrers: My Lords, would the noble Lord be good enough to address the House? He has his back turned to half of us.
Lord Whitty: My Lords, I apologise; I shall address the noble Earl himself as my focus of attention for the rest of my speech, which I am happy to say will not be much longer.
There is very strong opinion in another place against adopting a registration system. At the moment, I cannot see that view being changed. Nevertheless, I underline the points of my noble friend Lord Carter. The chances of any change would be immeasurably diminished were this House to decide once again to take the more confrontational of the options before it. That is the choice before noble Lords today; it is a choice that I leave to them. It is a free vote for me as well as for all of us, but it is a very serious judgment that we all have to make.
Baroness Byford: My Lords, will the Minister clarify his words? He suggested that the blame lies with your Lordships, which is unsatisfactory. The Government have spoken about some form of compromise. Over the past three days, and at Second Reading, we have been given no indication of where any sort of compromise could be reached at all. To blame your Lordships' House is a disgrace.
Lord Whitty: My Lords, the noble Baroness has not listened to me. I have said throughout the debate that the House has to recognise that the people whom they have to convince of an alternative proposition are not me, the Government or the Prime Minister, but the majority of the House of Commons. The ball is therefore in this House's court to come up with a compromise. I have also said, at every stage from 2001 onwards on this matter, that the choice of this House to take the more confrontational rather than the less confrontational option has greatly aggravated and increased the degree of confrontation and resistance in the House of Commons. Frankly, that is a fact. The noble Baroness may not wish to share the blame, but at least some of the blame rests with the attitude taken by the pro-hunters in this House.
Lord Tunnicliffe: My Lords, I shall be brief.
Noble Lords: Hear, hear!
Lord Tunnicliffe: My Lords, it is good to have support.
In the final analysis, one cannot affirm truths, but only what one believes to be true. I genuinely believe that the Bill, as amended by my amendments, is not a ban, but a restraint. It is an evidence-driven restraint; it is not an impossible test. I genuinely believe that it is the best compromise available. A conciliator runs the risk of being equally rejected or embraced. I wish to test the opinion of the House to find out which.
1.7 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed do?
Their Lordships divided: Contents, 39; Not-Contents, 189.

Division No. 1

CONTENTS

Acton, L.

Massey of Darwen, B.

Alderdice, L.

Miller of Chilthorne Domer, B. [Teller]

Avebury, L.

Bradshaw, L.

Morgan of Huyton, B.

Campbell-Savours, L.

Neuberger, B.

Carter, L. [Teller]

Oakeshott of Seagrove Bay, L.

Drayson, L.

Roper, L.

Dykes, L.

Royall of Blaisdon, B.

Elis-Thomas, L.

Sandberg, L.

Evans of Parkside, L.

Sharp of Guildford, B.

Falkner of Margravine, B.

Shutt of Greetland, L.

Goodhart, L.

Simon of Glaisdale, L.

Grantchester, L.

Thornton, B.

Hayman, B.

Truscott, L.

Hilton of Eggardon, B.

Tunnicliffe, L.

Jordan, L.

Wallace of Saltaire, L.

MacKenzie of Culkein, L.

Watson of Richmond, L.

McKenzie of Luton, L.

Williams of Crosby, B.

Mar and Kellie, E.

Wright of Richmond, L.

Marsh, L.

Young of Norwood Green, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Burnham, L.

Ampthill, L.

Buscombe, B.

Anelay of St Johns, B.

Byford, B.

Archer of Sandwell, L.

Cameron of Dillington, L.

Armstrong of Ilminster, L.

Campbell of Alloway, L.

Arran, E.

Carlile of Berriew, L.

Ashley of Stoke, L.

Carlisle of Bucklow, L.

Astor, V.

Carnegy of Lour, B.

Astor of Hever, L.

Carrington, L.

Attlee, E.

Chadlington, L.

Ballyedmond, L.

Chorley, L.

Beaumont of Whitley, L.

Clinton-Davis, L.

Bell, L.

Cobbold, L.

Blaker, L.

Cohen of Pimlico, B.

Blatch, B.

Colwyn, L.

Bledisloe, V.

Condon, L.

Boothroyd, B.

Cope of Berkeley, L.

Bowness, L.

Corbett of Castle Vale, L.

Bragg, L.

Crathorne, L.

Bridgeman, V.

Crickhowell, L.

Bridges, L.

Cumberlege, B.

Brooke of Alverthorpe, L.

Dahrendorf, L.

Brooke of Sutton Mandeville, L.

David, B.

Brookeborough, V.

Dean of Harptree, L.

Brougham and Vaux, L.

Denham, L. [Teller]

1044

Dixon-Smith, L.

Montrose, D.

Donaldson of Lymington, L.

Moore of Wolvercote, L.

Donoughue, L.

Morris of Bolton, B.

D'Souza, B.

Morris of Manchester, L.

Eccles of Moulton, B.

Mowbray and Stourton, L.

Eden of Winton, L.

Murton of Lindisfarne, L.

Elder, L.

Noakes, B.

Elliott of Morpeth, L.

Norfolk, D.

Elton, L.

Northbrook, L.

Erroll, E.

Northesk, E.

Feldman, L.

Norton of Louth, L.

Ferrers, E.

O'Cathain, B.

Filkin, L.

Onslow, E.

Fookes, B.

Park of Monmouth, B.

Forsyth of Drumlean, L.

Peel, E.

Fowler, L.

Peterborough, Bp.

Freeman, L.

Peyton of Yeovil, L.

Gavron, L.

Phillips of Sudbury, L.

Geddes, L.

Pilkington of Oxenford, L.

Glenarthur, L.

Plant of Highfield, L.

Golding, B.

Platt of Writtle, B.

Graham of Edmonton, L.

Plumb, L.

Greenway, L.

Plummer of St. Marylebone, L.

Grenfell, L.

Prys-Davies, L.

Hanham, B.

Randall of St. Budeaux, L.

Hannay of Chiswick, L.

Rawlinson of Ewell, L.

Hanningfield, L.

Rea, L.

Harris of Haringey, L.

Rees-Mogg, L.

Hart of Chilton, L.

Renton, L.

Henley, L.

Richard, L.

Heseltine, L.

Rogan, L.

Hodgson of Astley Abbotts, L.

Rotherwick, L.

Hogg, B.

Ryder of Wensum, L.

Hooper, B.

St John of Fawsley, L.

Hooson, L.

Saltoun of Abernethy, Ly.

Howard of Rising, L.

Sandwich, E.

Howe of Idlicote, B.

Seccombe, B.

Hughes of Woodside, L.

Selborne, E.

Hylton, L.

Selsdon, L.

Inge, L.

Sewel, L.

Inglewood, L.

Shaw of Northstead, L.

Irvine of Lairg, L.

Sheldon, L.

Jellicoe, E.

Shrewsbury, E.

Jenkin of Roding, L.

Simon, V.

Jopling, L.

Skelmersdale, L.

Kimball, L.

Smith of Clifton, L.

Kingsland, L.

Steel of Aikwood, L.

Knight of Collingtree, B.

Stevens of Ludgate, L.

Lewis of Newnham, L.

Stoddart of Swindon, L.

Lipsey, L.

Strabolgi, L.

Listowel, E.

Strange, B.

Luke, L.

Strathclyde, L.

Lyell, L.

Swinfen, L.

McAlpine of West Green, L.

Temple-Morris, L.

McColl of Dulwich, L.

Tenby, V.

MacGregor of Pulham Market, L.

Thatcher, B.

Tombs, L.

McIntosh of Hudnall, B.

Tomlinson, L.

Mackie of Benshie, L.

Trefgarne, L.

MacLaurin of Knebworth, L.

Trenchard, V.

Mallalieu, B.

Trumpington, B.

Mancroft, L.

Tugendhat, L.

Masham of Ilton, B.

Ullswater, V.

Mayhew of Twysden, L.

Waddington, L.

Merlyn-Rees, L.

Wakeham, L.

Miller of Hendon, B.

Walpole, L.

Molyneaux of Killead, L.

Warnock, B.

Monro of Langholm, L. [Teller]

Wilcox, B.

Monson, L.

Willoughby de Broke, L.

Montagu of Beaulieu, L.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
1.18 p.m.
Lord Sewel Lord Sewel moved Amendment No. 2:
After Clause 1, insert the following new clause—
"LESS-FAVOUR ED AREAS: RESTRICTION ON SECTION 1
(1) Section 1(a) only applies to hunting in less-favoured areas.
(2) For the purposes of subsection (1), less-favoured areas are as defined in Articles 17 to 21 of Council Regulation (EC) 1257/1999 and Articles 3(4) and (5) of Council Directive 75/268/EEC, as adopted in Council Directive 84/169/ECC."
The noble Lord said The noble Lord said: My Lords, I am almost repeating what has been said earlier, in that I am trying to search for that elusive compromise that I believe many Members of your Lordships' House are genuinely seeking. I fully acknowledge that that is likely to be a compromise where neither of the two main sides in this debate will feel satisfied. That is the essence of negotiation and compromise—inevitably there is an element of dissatisfaction, but in this case that is worth enduring if we can achieve something that may prevail in the long term.
The alternative, which is unattractive, is for this issue to be determined by a straightforward clash between what I believe are inevitably seen as absolutes. I am uncomfortable with a clash of absolutes in determining political arguments where they can be avoided. I am also uncomfortable when our two Houses are so far apart on matters of principle on an issue which, although I sincerely recognise involves beliefs that are deeply held on both sides of the argument, is not a matter of major public policy. So there is pressure on us to try to see whether we can reach some other solution.
Perhaps I may say something about the way that the debate has evolved and the rhetoric that has been used. Two themes have emerged in Committee and now on Report—a reference to compromise and the desire to seek it on the one hand and a reference to principle on the other. That is one of the difficulties regarding this matter, because principle and its constant repetition can sometimes be the enemy of compromise. So I willingly accept that my amendment contains a move away from a nice, coherent position of principle. That is a sacrifice that I believe is necessary to reach compromise and agreement.
Briefly, the purpose of the amendment is to establish a framework for hunting that has two main components. One is that hunting, where it exists, should be registered and regulated; the second is that hunting should be limited to the less favoured areas, which, in essence, are the upland areas. It is expressed in terms of the "less favoured areas" because that is a well known, clear, geographical and spatial definition but, effectively, it means that hunting would be limited purely and solely to the upland areas of England and Wales.
I turn to the reasons for the amendment. The Bill as it stands, with its framework of regulation and control, is right. I think that it is the right framework and I do not seek to disturb it. But with regard to the areas and geographical constraints, basically I believe that the argument for the continuation of hunting is greatest in the upland areas of Britain and I hope that that is widely recognised. I think that it is greatest in those
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areas because it is the better way to achieve effective pest control and wildlife management in those areas. The impact of hunting on the local economy is greatest in those areas and, in the broadest sense, the social impact and contribution of hunting and everything that goes with it is also more marked in those areas. Therefore, I think it is right to put hard principle to one side and to focus on where the effect is greatest. That is essentially the basis of my argument.
I have sought to move the argument away from a clash between two absolute positions: one where the continuation of hunting is seen as the continuation of something particularly and peculiarly cruel; and one where a significant curtailment of hunting is seen as a major threat to a free society. I am not attracted by either position. I think that there is a way forward that is not based on absolutes or on one side losing and one side winning. It is incumbent on us to try to come up with something that is workable, that is above all reasonable, and that will show the value of the deliberative and revising functions of this House. I beg to move.
Lord Inglewood: My Lords, in following the noble Lord, Lord Sewel, who has spoken to his Amendment No. 2, I shall frame my remarks in the context of what he has just said and shall speak also to Amendment No. 23 standing in my name and in the names of a number of other noble Lords. Once more, I want to speak about fell hunting and especially fell hunting in Cumbria, which is the only topic about which I have any worthwhile knowledge and on which I can make a sensible contribution to the debate. I do not apologise for doing that. I hope that what I have said on previous occasions can be taken as read, and I very much hope that I am not becoming a bore.
Whatever else the Bill as amended in Committee might do, it would achieve what I and those whose names are attached to Amendment No. 23 would like to see achieved in respect of fell hunting. Indeed, as I think I have mentioned on previous occasions, I positively welcome registration and have always done so.
I and those who are actively involved in fell hunting are, on the whole, at one in supporting the idea of registered hunting. We believe that it is the best and most appropriate outcome to the current political controversy. The problem that faces us is that, while it may be the best outcome, it is, as the noble Lord, Lord Whitty, has frequently advised the House, not the only possible one. Amendment No. 23 has been drafted with that eventuality in mind.
I want to point out that, as this Parliament has no formal conciliation process, which exists in other Parliaments, it is all very well for the Government to say that we in this House must seek compromises with the other place but we have absolutely no mechanism for engaging with them to do that. After all, who is one's interlocutor in the current circumstances and what is the forum within which the points can be raised? So far as I can see, under our existing arrangements, the only possibility for doing that is if and when we reach ping-pong. But, in reality, that

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may well be too late a stage simply because the various sides to the controversy will have dug themselves deeply into entrenched positions. As a general proposition, I think that this House and the other place need to think about how to deal with the particular and rather unusual circumstances in which we now find ourselves. It seems to me that the balance between the parties is not merely out of kilter but positively unfair.
Amendment No. 23 has evolved from the one to which I spoke but did not move in Committee. As I said, it has been drafted in order to try to take forward a process of compromise. The other place might reject the changes made to the Bill here, and so this amendment has been tabled, or taken out, in much the same way as one takes out fire insurance on one's house. One does not insure one's house because one knows that it will burn down; one does so in case circumstances arise when it does catch fire. The amendment is also very much intended to lie with the structure of the Bill as amended and to deal with some of the criticisms levelled at its predecessor in Committee.
I point out in particular that, after careful consideration, the amendment has deliberately been drafted to deal with fell hunting alone. I emphasise that that is not because I wish any ill on any other forms of hunting; it is simply because the case that I am making to the House is that, whatever the merits of the arguments for hunting in general, in the case of fell hunting there is no realistic and responsible alternative to hunting foxes in the high fells with hounds.
I know that it has been said by some that the fell hunters do not want to "go it alone". They do not. They stand shoulder to shoulder with all other forms of hunting and will continue to do so. But, equally, they do not want that form of hunting to die, nor for that matter do those who are the beneficiaries of the service that they provide want it to disappear. We must recognise that if and so long as controlling foxes must be done with hounds, the hunts will be needed in order to respond to the sheep farmers' requirements. Nevertheless, it may well be that the detail of the way in which they operate will, perforce, have to change and that they will have to adapt to circumstances as they change.
1.30 p.m.
There are some who will say that the amendment has been drafted too tightly. To those critics I say: produce your own form of words, drawn more widely, if you want. I do not believe there is any magic in the words that I have adopted. I have absolutely no intrinsic pride in them. If people wish to poach them or amend them, or do anything else with them, that is fine by me. I dare say that many fell hunting supporters will embrace such additions, but in return I say to those critics, "Do not damn us because we may not go as far as you would like. It is up to you to widen the scope of whatever exemptions you may like to see". It is not my self-appointed task to do that now.
As I have mentioned on previous occasions, I do not believe that there is any realistic alternative to hunting foxes in the high fells other than with hounds. I draw this point to the attention of the noble Lord, Lord Whitty, in particular, as he has frequently pointed out to us that there is a free vote on this for the Government. Nevertheless, the Government are responsible for dealing with the implications of the consequences of what may follow from any change in the law as it now stands. That is true not only in the area, for example, of law and order, but also in the case of the implications for sheep farming—an area much closer to the responsibilities of the noble Lord.
For fell farmers, foxes have to be controlled and their populations managed. That has been said before frequently and was said early in the debate this afternoon by the noble Lord, Lord Carlile. I do not believe that there is any serious dispute about that. In my view there are only five realistic ways of doing that. They are snaring, poisoning, gassing, hunting and shooting. Snaring is illegal. Poisoning is almost certainly illegal as well, and in any event is likely to kill rare and protected creatures—for example, golden eagles, and peregrines, not to mention domestic dogs—so we can rule that out. Gassing will not work because in the high fells foxes do not have burrows; they lie up in the rocks and the gas dissipates between the boulders—it is as simple as that.
Lord Carlile of Berriew: My Lords, I am grateful to the noble Lord for giving way. I think I am right in saying that poisoning is not illegal in certain circumstances and, therefore, poisoning could be used in some circumstances with the results that he has in mind. Someone will correct me if I am wrong.
Earl Peel: My Lords, perhaps I may intervene briefly. My understanding of the law is that snaring is perfectly legal, but poisoning is illegal.
Lord Inglewood: My Lords, when I checked in Halsbury's Statutes last night I was fairly convinced that snaring was illegal. As regards poisoning, I deliberately said "is almost certainly illegal". I can envisage circumstances in which, as I understand the law, it would be permitted, but the chances are that if peregrines or golden eagles are about, it would kill them and so would become illegal. The responsible approach would be to rule that out. That is the point that I am trying to make.
That leaves us with hunting and shooting. On previous occasions I have said that I simply do not believe that it is possible to achieve proper management exclusively by shooting because of the nature of the terrain that determines how to set about managing a fox population. To use a contemporary metaphor, waging a war in Afghanistan is different from waging a war in Iraq. The circumstances that apply to tactics in the Iraqi desert are different from those that are relevant in the Tora Bora mountains. The same principle applies here.
It is also important to make clear to the House the implications of increased shooting, especially with rifles, on access land. On previous occasions I have

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drawn this point to the attention of the House. I have also on a previous occasion mentioned a GP friend of mine in the Lake District who, a couple of years ago, returned to his car after making a call to discover a .22 bullet had gone through the windscreen.
I must declare an interest in that I have recently had the honour to be appointed president of the Cumbria Tourist Board. Cumbria, and in particular the Lake District, is the United Kingdom's premier national park. It has approximately 18 million visitor nights per year. The vast majority of those visitors come for the landscape and to walk in it. Tourism is the most important sector of Cumbria's economy, which, for reasons that may have nothing to do with tourism, is in serious decline.
Perhaps I may quote three paragraphs from the recently published Cumbria Strategic Partnership's document, Sustainable Cumbria 2004 to 2024:
"Figures from the Office of National Statistics demonstrate how these events, policy changes and trends have taken their toll on Cumbria. The economy of Cumbria has been in decline for more than 15 years. During the 1990s Gross Domestic Product (GDP) per head in Cumbria declined rapidly from a relatively healthy level enjoyed throughout the 1980s, when it had stood both above the European average and some 20 per cent above the national average.
By the end of the century it had fallen 20 per cent below the national figure. This staggering deterioration was not a reflection of a downturn in the national or North West economies. The Cumbrian decline was in stark contrast to Cheshire, for example, where gross domestic product per head rose from below to above average and to a position of 5th nationally.
When the performance of Cumbria is compared with all sub-regions of the European Community, including those states recently added to enlarge the European Union, it becomes clear that Cumbria is the only County in the UK in decline. Even more significantly it is one of just a handful of sub-regions across Europe that are actually in decline".
The table appended, based on European Commission statistics, brackets Cumbria in a group that is principally concerned with countries that have not yet been allowed in: Romania and Bulgaria.
There is only one high spot in the economy of Cumbria at present and that is tourism. Next week when I speak to commercial members of the Cumbria Tourist Board, how can I plausibly explain how Parliament has just decided to jeopardise that industry by significantly expanding the incidence of rifle shooting to shoot hundreds and hundreds of foxes a year across the park? The risks speak for themselves.
That is inconsistent with what the Government have said recently to Allerdale Borough Council and a delegation led by Councillor Musgrove, when both No. 10 Downing Street and Patricia Hewitt recognised the scale and reality of the problem and were committed to doing something to help. The situation is directly at variance with what the noble Lord, Lord Bassam of Brighton, said earlier when talking about the Government's attempt to try to reduce the poverty gap between the north and the south of England. In such economic circumstances, one should not hit the one thing that is doing well.
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That leaves hunting. In the overall picture, people are more important. As for me, I have never heard of anyone being killed by a fox hound.
Lord Willoughby de Broke: My Lords, I am broadly sympathetic to the amendments tabled by the noble Lord, Lord Sewel, and my noble friend Lord Inglewood. They are absolutely right, of course. Upland hill packs perform an extremely important task in controlling predation by foxes, as we heard in Committee from the noble Lords, Lord Livsey and Lord Carlile. Those who cannot accept that should perhaps get out a little more and talk to the hill farmers who are involved and whose livelihood is diminished by predation by foxes.
However, there are three reasons why I find the amendment difficult to support. First, the definitions of upland or less favoured areas—they seem to cross over a little—are based on a whole string of EU directives referred to in the amendment. What will happen if the foxes or hounds have not read the directives and move away from the less favoured areas or away from the uplands—if that is what is in the directive? It is difficult to decide what is meant in the definition in the directive. If, in the course of a hunt, the quarry and the hounds move away from the less favoured area boundary and into the valley, the people following the hunt and the masters would commit a criminal act.
I do not know the detail, but it is likely that many farmers will have land some of which is in a less favoured area and some outside such an area. It is very difficult to frame a sensible amendment with those apparent difficulties.
As I say, there is a list of various places, most of which are contained in the annex, but I could not get it on the Internet. One or two are there but they do not seem to be in uplands. For instance, my noble friend—he is not in the Chamber—may be disappointed or pleased to hear that Castle Hill is part of a less favoured area—Filleigh, which is a recent addition.
The second reason I have difficulty with these amendments is that we have criticised the Alun Michael Bill and the Banks' Bill as based neither on principle nor evidence. The Bill we are now considering is based on principle and evidence. The whole purpose of the registration scheme, which has received your Lordship's support, both in Committee and in an earlier vote today, is that all hunts should be able to apply for registration. Some will succeed; no doubt some will fail. I do not believe it is right therefore to make an exception for a particular form of hunting—valid though it is—on the curious basis of "two feet good, four feet bad". I do not see that that can be right. What about those sheep farmers and poultry farmers who, for whatever reason, are not in the less favoured areas but who suffer exactly the same level of predation by foxes and financial loss?
The third reason is that I agree with the validity of the case the proposer of the amendment makes for hunting in the uplands and LFAs. However, under the Bill your Lordships have approved, and are now still considering, hunting in less favoured areas—whether uplands or simply less favoured areas as in the

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amendment—would surely receive approval anyway. The hunts would not have any difficulty in getting approval from the registrar on the basis put forward by the noble Lord moving the amendment.
I think that we should keep our eye on the ball here. We should remind ourselves that we are framing a Bill based on evidence and principle. I do not believe that this amendment is consistent with evidence and principle. We must keep in mind the whole system that this House has repeatedly voted for. Therefore, I do not think that I shall be able to support the amendment.
Lord Livsey of Talgarth: My Lords, perhaps I may give my views on Amendments Nos. 2 and 23. I say at the outset that I am strongly in favour of registered hunting, both inside and outside the less favoured areas. However, this amendment is specific to foot packs in the uplands in the less favoured areas. I understand that in the event of a ban, they would be exempted from that ban.
I prefer Amendment No. 23 to Amendment No. 2. Amendment No. 23 lays the matter out in some considerable detail, and in fact names the fox as the culprit which is to be hunted. I am sure that efforts will be made over the next week or so to secure a compromise. That may emerge but, sadly, I believe it to be a faint hope. As yet we do not know what the components of a compromise might be. What I do know is that there will be opportunities at Third Reading in this House and on what we call ping-pong—when legislation goes back and forwards between the House of Lords and the House of Commons—perhaps to achieve a final compromise.
Therefore, I believe that these amendments really are insurance for hunting to continue in the uplands as a means of pest control. Clearly, that will be necessary were a ban to come into play.
The protection of lambs in particular is very important. As I have said before—and I shall not repeat it at length today—sheep populations are very dense and there are many lambs in most of the uplands. Monoculture conifers harbour huge numbers of foxes which predate on lambs and cause severe economic damage to the farmers concerned. Only the foot packs provide a vital control. It is a frequent occurrence, especially during the lambing season, for farmers to call in those hunts to control particularly the foxes that get a taste for lamb in the spring.
So I believe that these amendments are very worthy, but they are a backstop in a worst case situation. We will just have to wait to see what emerges at Third Reading and in the ping-pong phase of the Bill.
1.45 p.m.
Viscount Astor: My Lords, perhaps I may ask the noble Lord, Lord Sewel, one question. His amendment has the merit of making the hunting he envisages registered hunting. But I notice that there is nothing in
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the amendment about foot packs. So, can I presume that if I was able to ride my horse up the hills he proposes in these less favoured areas that would be allowed under his amendment? I am interested whether that would be the case because the amendment does not refer to foot packs but to hunting in upland areas. Therefore, how does he consider that point?
I was concerned when my noble friend Lord Inglewood previously moved his amendment—as indeed is my noble friend Lord Willoughby de Broke—that it introduced the element of unregistered hunting. As far as I can see from his amendment, it still introduces the element of unregistered hunting. In the many debates we have had on hunting in this House, I think that we have all agreed that in the past some unacceptable practices took place and that hunting needs to be controlled and managed. That is impossible without registered hunting because nobody has to belong to a foot pack association. In Wales there are many gun packs. On some days they go out mounted, some days they go out on foot and some days they go out on motorbikes with a pack of hounds. Most are not part of any organised hunting association. Under my noble friend's amendment they would be able to continue, and to continue in a way that I believe would not be acceptable.
I also note that the Central Committee of Fell Packs does not want to be singled out for special treatment. Indeed, it is concerned that if it was the only hunting left in England the pressure on it would be so great that it would have to give up hunting. However, if my noble friend were to come back at Third Reading with an amendment that solves those problems in terms of registration and control I would certainly be more sympathetic.
Lord Campbell-Savours: My Lords, I intervene very briefly to say that I support both of these amendments, for two very different reasons. I support the amendment of the noble Lord, Lord Inglewood, because I believe in its content and that it will deliver what we need to deliver in Cumbria. But I support the amendment of my noble friend Lord Sewel for another reason. That is, it is a very good way, if the issue is pushed to a vote, to tease the House of Commons out of its corner. In some ways it is a minimalist amendment. If we could establish that at this stage in our proceedings, I think that it would open the door perhaps to the amendment of the noble Lord, Lord Inglewood.
Earl Peel: My Lords, I start by saying that I entirely support the arguments both of the noble Lord, Lord Sewel, and my noble friend Lord Inglewood. Anybody with any knowledge and experience of hill country knows perfectly well that these packs are the only effective way of controlling foxes, particularly where lamping is not an alternative, and of dealing with a very real problem, as my noble friend has said.
I argued—strongly I hope—when we were discussing the previous amendment, that it would be quite wrong for the House to pre-empt what a registrar may decide.

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We have taken the line consistently in your Lordships' House that the licensing system is the route that we should pursue. In the same way that I argued that we should not take stag hunting out of the registration system, I do not believe that it is right for us to have hill packs outside the registration system, and for all intents and purposes make them exempt hunting.
I should like to ask my noble friend Lord Inglewood about one specific point. His amendment reads:
"Hunting a wild mammal with a dog is exempt hunting if",
and it lists a number of conditions. The last one is that,
"that form of hunting is traditional in the locality in which it is carried on".
The less favoured areas cover Exmoor and Dartmoor. To the best of my knowledge, there is no traditional hunting of the type my noble friend refers to in those parts of the country. So, in the absence of hunting as we know it, and if those areas were looking to substitute hunting on horseback with hunting with hill packs, then his amendment would preclude the ability of foot packs to be able to take the place of hunts carried out on horses.
So, I suggest to my noble friend that that is a serious difficulty. I should be interested to know what he has to say in response.
Baroness Mallalieu: My Lords, I very much sympathise with the arguments advanced by both my noble friend Lord Sewel and the noble Lord, Lord Inglewood. However, I cannot see how either of them fit the principle that this House has, so far, at any rate, adopted. We have determined that all hunting should be registered and, I think, that registration should be determined by tests, not by geography. The arguments that have been advanced are excellent and, to the best of my knowledge, totally valid. They should properly be addressed to the registrar.
I think—other noble Lords have previously expressed this view—that it would be wrong to approach the Bill at this stage by considering what might be the consequences of steps we take here when the Bill goes to another place. My noble friend Lord Campbell-Savours will remember that he promoted an amendment of this sort in another place. It did not find favour, even with the benefit of his advocacy there. Without ruling out the possibility that there may have been a change of heart, here and now, at this stage, it would be unfortunate if either noble Lord were to press his amendment to a Division. For my part, I would feel bound, in honouring the principles that we have adopted, to oppose them.
At some later stage, this proposal may re-emerge in a different form, but I hope that neither noble Lord will feel it necessary to press his amendment to a Division this afternoon.
Lord Jopling: My Lords, these two amendments have been received by your Lordships in our discussion this afternoon in a much more friendly way than was the amendment of the noble Lord, Lord Campbell-Savours,
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and my noble friend in Committee. I very much welcome that. I am sorry that my name does not appear attached to the amendment of my noble friend Lord Inglewood, but that is purely because I forgot to add it. I hope that your Lordships will remember that I have spoken on the issue of fell hunting at every stage of the Bill—in Committee and on Second Reading—as I did on the previous Bill in the previous Session. If we are moving towards restrictions on hunting, fell hunting is the one area that we must do everything that we can to save because of its essential nature to farming in those parts of the world.
Reference has been made to further discussion on these lines at Third Reading. I must tell your Lordships that I shall not be able to be here next week for Third Reading, because I shall be attending a NATO meeting as a representative of your Lordships' House. Of course I understand why there is a feeling of great unity among all hunting people, whether they hunt foxes or other mammals and whether they hunt in the lowlands on horses or on foot in the uplands. I understand that unity.
I am sorry about some of the arguments that have been advanced—in a much more friendly way, as I said—especially by my noble friend Lord Willoughby de Broke. With regard to his three points, the issue of whether a run should take place over the border of a less favoured area could easily be got over if we defined hunting by the place where the hunt met on a certain day. Provided that it met in a less favoured area, it would not matter at all if it happened to run over the border. We could easily get over that. My noble friend also said that he did not see why there should be an exception for the fells. Others have made that point: why should there be an exception for fell hunting?
The answer is simple. Hunting foxes in the fells is essential for sheep farming in those areas, whereas in the lowlands—I speak as a farmer with a hunt that runs over my farm—it is nowhere near as important. As my noble friend Lord Inglewood said, it is important in some cases, but it is nowhere near as important for economic farming practices as it is in the fells.
On my noble friend's third point, the noble Baroness, Lady Mallalieu, said that if we were to get licensing and the registrar, the amendment would be unnecessary. That is exactly the point that my noble friend Lord Inglewood made. As I see it, this proposal is a long stop in the event that another place decides that it is not interested and rejects the concept of a registrar and controlled hunting.
Sooner or later, noble Lords must face up to the possibility that realpolitik will come in to this issue. There are Members of another place who have been fighting this battle for a very long time. I cannot believe that when they are within a week or so of attaining their goal, they will buy some of the solutions proposed by your Lordships. I have voted for all of them gladly. I hope to heaven that they do accept some of them.

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However, given my many years of experience as one who tried to control voting habits in another place as a Government Chief Whip, if the Government want a compromise in another place and set on the Whips to try to attain a compromise on the lines of some of the proposals of my noble friends, and if they achieve that, it will be the greatest whipping achievement. I should be immensely surprised if the Whips were to succeed in getting the majority in another place to agree to some of these proposals.
The time is coming. We will have to decide. The noble Baroness, Lady Mallalieu, talked earlier about whether we should be prepared to let the babies out with the bathwater or whether we should all sink or swim together. As I said, I understand that there is a great unity of feeling and purpose among people who are hunters of one sort or another. But I can just imagine the fury in the Lake District, which I know best, if it were seen that a compromise to save fell hunting had been passed by and that fell hunting had gone down the sink with the rest of the bathwater. I have not met those who run the Central Committee of Fell Packs; they have not approached me. But if they were seen to have been a party to allowing fell hunting to be banned with everything else when there was a chance of saving it, the fury of followers of fell hounds would be such that, I believe, they would never be forgiven.
2 p.m.
We have here a much better compromise, in the name of my noble friend Lord Inglewood, than we had previously. As noble Lords have said, it could be improved again before Third Reading. I, too, very much hope that this debate can be used as a method of perfecting an amendment for Third Reading on these lines, so that when the Bill goes back to another place, if they are minded to find a compromise, they will have a ready-made one to parachute into the Bill, even if it has not been put in by noble Lords at Third Reading. Alternatively, perhaps noble Lords can put it back in the Bill if ping-pong takes place next week. That, I hope, will be the outcome of the debate at this stage in trying to perfect an amendment for which support is growing and which, by the end of next week, will, I hope, have the full support of your Lordships' House.
Baroness Golding: My Lords, I, too, have much sympathy with the arguments in support of these two amendments. I understand that my noble friend Lord Sewel has tabled Amendment No. 2 as a compromise, but I do not think that it can work. The countryside must be managed. As we live in it we change it, and that change must be managed. We should not divide it up into areas that we manage, such as less-favoured areas, and areas that we will not manage, such as those outside less-favoured areas, as my noble friend suggests.
Part of the Government's recognition of our responsibilities is that they have signed up to the European Convention on Biological Diversity, which
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commits them and us to control and eradicate those alien species which threaten ecosystems, habitats or native species. Having signed up to the convention, the Government cannot then say, "We will allow hunts to protect wildlife only in areas deemed less favoured by another European directive, and the remainder of our countryside will not be protected, even though it may need to be". We must take into account that we need to hunt and eradicate other mammals besides foxes. Of course I should mention mink. Mammals know no boundaries and neither should this Government's Bill. I am sorry to say that we should reject the amendments.
Lord Mancroft: My Lords, like every speaker so far, I, too, have sympathy with the direction of these amendments. I listened very carefully to my noble friend Lord Inglewood; practically everything that he said about fell hunting—the practice of it, the reasons for it and the manner of it—was entirely correct.
Of course fell hunting should be saved, but so should all hunting. If we have learnt one thing after these interminable debates it is that there is no case for banning any hunting. Where I have difficulty with my noble friend's remarks is his strong suggestion that he supported what noble Lords had already decided: that registered hunting is the way forward. Although this may be a technicality and I may have got it wrong, he seemed to suggest in his amendment that fell hunting should be exempted. That would be an inconsistency in the technicalities of the case.
Over the past few weeks the House has been attempting to put together principled and coherent legislation based on the principles that the Government identified in their wide consultation and stemming from all the evidence as we were originally promised it would. We have attempted to move the legislation back, where it has been changed for politically expedient reasons, into such a coherent format. What worries me is that what my noble friend is suggesting in his amendment is his insurance policy. Although I understand it entirely, that insurance policy moves away from the coherence of the legislation; as such, it weakens the proposal that we send back to another place.
My noble friend Lord Jopling in his very useful and wide-ranging remarks about what may be happening made clear his belief that the chances of our reaching any compromise are remote. He may well be right. But we have a duty to try to reach that compromise in a coherent, principled way that flows. My noble friend also said that this was the one area that could be saved. I cannot accept that; other important areas must be saved, too. The wording of my noble friend's amendment makes clear that hunting must be traditional and must continue on foot. I immediately think, what about packs that hunt on foot on some days and on horses on others? What about packs in less-favoured areas such as Exmoor and Dartmoor, where they principally hunt on horseback and then, at the request of farmers, come out on foot in the early morning to do lamb calls? Where do they fit?
In all those respects there are areas of difficulty in the drafting of the amendment that make it impossible for noble Lords to accept it today. We should keep this

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concept up our sleeves. If the House of Commons reject our proposal—I dread to think—perhaps we should look at it then. But, on Report, when we are 80 per cent or 90 per cent towards creating the coherent, principled legislation towards which we all have worked over the past few weeks, it would be unwise to abandon it. We should perhaps come back to it.
The last point is, for me, the overwhelming one. My noble friend Lord Jopling talked about the possibility of fury among those who hunt in the fells, if we were to let the possibility of their salvation slip away from us. In the past week I have spoken to the representative of the Central Committee of Fell Packs. We asked him what would be the reaction of other fell hunters, not just the masters of fell hounds but all the farmers who hunt with fell hounds and, as my noble friend rightly said, depend on them in their farming lives. His answer was perfectly clear: at the end of this Bill, if it goes in that direction, there will be fury, but it will be directed neither at noble Lords nor at those of us who have tried to save all forms of hunting. The fury of the fell hunters, like that of the whole rural community, will be focused very firmly and directly on the bigotry in another place, not on us.
Lord Whitty: My Lords, had the House followed my advice at an earlier stage, these are the kind of amendments which it would have been very sensible for us to return to the House of Commons for consideration. The arguments relating to the uplands and fell packs are slightly different from those for hunting with horse and hound. Therefore, either a blanket exemption, as the noble Lord, Lord Inglewood, proposes, or a confinement of registration to uplands, as my noble friend Lord Sewel proposes, could in that context have been considered.
I feel that we are not in that situation. Nevertheless, in the normal exchange between the Houses, serious consideration would have been given to either of these amendments. I must criticise just one point on the amendment tabled by the noble Lord, Lord Inglewood. Whatever our approach, simply being traditional is not grounds for exemption from the test of cruelty. Therefore, I would not have been prepared in any circumstances to support that exemption as it stands.
Lord Sewel: My Lords, I am grateful to all noble Lords who have spoken on the amendment. It may be necessary briefly to clarify what Amendment No. 2 would do. It would keep registration as the cornerstone of hunting, but it would limit hunting to the less favoured areas. I want to make that clear because I judge from several contributions that it may not have been fully appreciated.
I shall deal briefly with the points made. The noble Lord, Lord Willoughby de Broke, asked whether farmers would be aware that they were in an LFA. My experience in the agriculture department of the Scottish Office showed me that every farmer who is in an LFA is well aware of the fact, and certain brown
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paper envelopes that arrive with cheques are greatly appreciated. There is no problem about awareness of being in an LFA.
Lord Willoughby de Broke: My Lords—
Lord Sewel: May I deal with the noble Lord's second point? There is the problem of cross-boundary issues. The noble Lord, Lord Jopling, dealt partly with it. It is not a new issue in these islands. Whatever happens with this Bill, the legislative regimes relating to hunting north and south of the border are different. There will be a cross-border issue between England and Scotland in any case. There will be cross-border issues, but they can and should be resolved.
The noble Viscount, Lord Astor, asked, I think, about foot packs. The point in the amendment is that foot packs in less favoured areas would be registered if they satisfied the conditions of registration.
Viscount Astor: My Lords, as I understand it, the noble Lord's amendment would allow hunting to continue in less favoured areas, but there is nothing in it that relates specifically to foot packs. If it were possible to ride a horse up the hill in the relevant area, that kind of hunting could continue.
Lord Sewel: My Lords, the amendment says nothing about foot packs. It refers to hunting. Foot packs are a subset of hunting, so they are covered by the general term.
I must say something as gently and as strongly as I can to my noble friends Lady Mallalieu and Lady Golding and the noble Lord, Lord Mancroft. I recognise and appreciate the passion that they bring to the argument and their worthy attempt to apply principle at every turn to every aspect and nuance of the argument, but I must say that I think that there is a great danger that total and complete adherence to principle will, in this case, lead to total and complete defeat. That would be a tragedy.
I do not think, on the basis of our debate today, that it would be appropriate to force a Division on the amendment at this stage. However, I hope that it will be possible to return to something like the amendment even at a very late stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 5 not moved.]
2.15 p.m.
Clause 7 [Tests for registration: utility and least suffering]:
[Amendments Nos. 6 to 8 not moved.]
Clause 15 [Renewal of application]:
[Amendments Nos. 9 to 13 not moved.]
Clause 16 [Determination by registrar]:
[Amendment No. 14 not moved.]
Clause 17 [Appeal to Tribunal]:
[Amendment No. 15 not moved.]
Clause 18 [Determination by Tribunal]:
[Amendment No. 16 not moved.]
Clause 23 [Standard duration of registration]:
[Amendment No. 17 not moved.]
Clause 24 [Renewal of registration]:
[Amendment No. 18 not moved.]
Clause 47 [Subordinate legislation]:
Lord Donoughue Lord Donoughue moved Amendment No. 19:
Page 19, line 18, at end insert "other than an order under section (Commencement) which shall not be subject to parliamentary proceedings"
The noble Lord said: My Lords, in moving Amendment No. 19, I shall speak also to Amendment No. 20. Amendment No. 19 should be understood in conjunction with Amendment No. 20, which gives the Secretary of State power to commence the Hunting Act by order. Without the amendment, such a commencement order would be subject to approval by a resolution of each House, under Clause 47.
With Amendment No. 20, the Act would come into force on a date determined by the Secretary of State but not before 1 December 2007. The reason is that the amendment would also require the Secretary of State to commission research from the Royal College of Veterinary Surgeons into the relative pain, suffering or distress caused to wild mammals by hunting with dogs compared to other methods of managing the wild mammal populations. The proposed delay in commencement would allow the completion of the research. It would also provide sufficient time for the registrar and the tribunal to be established and resourced. Three years is a reasonable time for setting up the registration process and for the research to be completed.
The need for such research is unquestioned and has been demonstrated or admitted in many quarters. It relates particularly to the test of least suffering in Clause 7. The present lack of such research into questions of relative suffering was highlighted in the Burns report. In the report, the noble Lord, Lord Burns, and his committee noted the "lack of firm information" on the issues. They drew attention especially to,
"the comparative welfare implications of different methods of killing foxes".
The noble Lord called for further research. We are responding to that call and proposing that such studies be done. I also note that, at Second Reading, the noble Lord, Lord Burns, stated:
"I find it difficult to accept the use of the Parliament Act in circumstances in which there is no clear scientific support for the animal welfare implications of a ban".—[Official Report, 12/10/04; col. 146.]
There are four legal methods of control: shooting, trapping, hunting with hounds and terrier work.
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Illegal methods, which were discussed earlier, include snares, gassing and, I believe, poisoning. We know from recent research that wounding by shooting often causes great suffering. Of the other methods, we have personal impressions but know too little about comparative suffering. In any case, different methods of control have variable suffering consequences, depending on the skills and competence of the individuals performing the control method.
I remind the House that the test of least suffering requires the applicant for registration to prove that another method to achieve the same ends would not be likely to cause significantly less pain, suffering and distress than the hunting method proposed by the applicant. In the absence of scientific research into relative suffering from the various methods, how can the registrar make a judgment? In that context of ignorance, it is right and a logical implication of the registration system, which this House has overwhelmingly supported, that necessary research is conducted by relevant experts: the Royal College can fulfil that requirement.
We note that the present Bill specifies three months for implementation; the House of Commons has suggested an alternative. But three months is a quite impossible target for the proposed system. It would not be possible even to appoint a registrar in that time, let alone establish the registration and tribunal process.
These amendments propose that appropriate research is conducted in order to enable the registrar to reach proper, evidence-based conclusions. They provide a reasonable time-frame for the research, as well as for the registrar and the tribunal to be established. I beg to move.
Baroness Byford: My Lords, I support these amendments. The noble Lord has clearly stated the reasons for tabling them. In addition, if there is a delay in implementation, it would give a longer time for hounds to conclude their natural life. Anything that helps animal welfare is an additional bonus, which is something that the noble Lord did not mention. A normal working hound's life would be seven or eight years. If the Government and other noble Lords are keen on animal welfare, that is an additional reason for us to consider the amendments. The noble Lord has clearly defined what is before us. As I said, I support the amendments.
Viscount Ullswater: My Lords, before the noble Lord decides whether he will press the amendment, and before the Minister has a chance to reply, I should like to say that in Committee I mentioned hare shooting. Because this Bill makes hare shooting an exempt form of hunting, I drew the Committee's attention to the amount of wounding that goes on at hare shoots. Many hares are shot in my part of the world, which is Norfolk.
No one would suggest that a rifle is the right weapon to control the hare population. Therefore, the shotgun is the favoured weapon. However, because of concern for the wounding rate, I, too, support this amendment,

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which calls for the concept of a report from the Royal College of Veterinary Surgeons. Therefore, I give it my blessing.
Lord Livsey of Talgarth: My Lords, I, too, support this amendment, which is eminently sensible in respect of research. It was quite clear from what the noble Lord, Lord Burns, said at Second Reading that currently the evidence does not exist. We need time to determine that through the correct channels, which the Royal College of Veterinary Surgeons seems to be, in order to establish relative pain, suffering or distress.
The whole issue has been covered extremely widely and competently by the noble Lord, Lord Donoughue. I agree with what he has said and subscribe to it.
Lord Whitty: My Lords, I would counsel the House against passing this amendment. In the context of a ban and the Bill that came to us from the House of Commons, your Lordships will be aware that the House of Commons is suggesting that we consider an amendment to delay until July 2006. We have not brought that before the House at this stage; we want to know the shape of the Bill that we will ultimately be considering. But to extend the time-frame to 2007 would be seen as a yet further move by this House away rather than towards any spirit of compromise.
As to the allocation of responsibility for deciding that to research emanating from the Royal College, noble Lords should hesitate in doing that. Effectively, that suggests that a general rule may be established, arising from research carried out by the Royal College, which would put it in the position of having a veto or otherwise on going ahead. However, if we go for registration the issue of least suffering would be decided—rightly in my view if we are discriminating between different forms of hunting—on a case-by-case basis. Linking a general assessment of least suffering to the timing of the implementation of legislation does not seem sensible. However, the first point is probably the political point that noble Lords should bear in mind if they are tempted to vote for this resolution.
Lord Donoughue: My Lords, I thank noble Lords for their support, except not surprisingly the Minister.
Lord Carlile of Berriew: My Lords, I am grateful to the noble Lord for allowing me to interrupt his closing remarks. Does he agree that the commissioning of a report from the Royal College of Veterinary Surgeons, contrary to what the Minister said, does not give the college a veto? It merely provides for a report to be obtained, which can be considered. It imposes no obligation on the Minister either to accept or to reject the report.
Lord Donoughue: My Lords, I am grateful for that intervention. It was the only point that I was going to make in relation to what the Minister said. But the noble Lord expressed it better than me. It just falls into a list of comments from the Front Bench, to which one
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sometimes finds it difficult to respond. In this situation, I am happy to seek the will of the House unless there is no opposition.
2.27 p.m.
On Question, Whether the said amendment (No. 19) shall be agreed to?
Their Lordships divided: Contents, 175; Not-Contents, 49.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Gardner of Parkes, B.

Alton of Liverpool, L.

Gavron, L.

Armstrong of Ilminster, L.

Geddes, L.

Arran, E.

Glenarthur, L.

Astor, V.

Golding, B.

Astor of Hever, L.

Gordon of Strathblane, L.

Ballyedmond, L.

Goschen, V.

Bell, L.

Greenway, L.

Biffen, L.

Hanham, B.

Blaker, L.

Hanningfield, L.

Blatch, B.

Henley, L.

Bledisloe, V.

Hogg, B.

Bragg, L.

Hooper, B.

Bridgeman, V.

Hooson, L.

Bridges, L.

Howard of Rising, L.

Brooke of Sutton Mandeville, L.

Howe of Idlicote, B.

Burnham, L.

Inglewood, L.

Buscombe, B.

Irvine of Lairg, L.

Byford, B.

Jellicoe, E.

Cameron of Dillington, L.

Jenkin of Roding, L.

Campbell of Alloway, L.

Jopling, L.

Carlile of Berriew, L.

Kimball, L.

Carlisle of Bucklow, L.

Kingsland, L.

Carnegy of Lour, B.

Knight of Collingtree, B.

Carrington, L.

Lament of Lerwick, L.

Chadlington, L.

Lewis of Newnham, L.

Chorley, L.

Lipsey, L.

Cobbold, L.

Listowel, E.

Cohen of Pimlico, B.

Livsey of Talgarth, L.

Colville of Culross, V.

Luke, L.

Colwyn, L.

Lyell, L.

Condon, L.

McColl of Dulwich, L.

Cooke of Islandreagh, L.

MacGregor of Pulham Market, L.

Cope of Berkeley, L.

Courtown, E.

MacKenzie of Culkein, L.

Crathorne, L.

Mackie of Benshie, L.

Crickhowell, L.

Maclennan of Rogart, L.

Cumberlege, B.

Mallalieu, B.

Darcy de Knayth, B.

Mancroft, L.

Dean of Harptree, L.

Marsh, L.

Dearing, L.

Masham of Ilton, B.

Denham, L.

Mayhew of Twysden, L.

Dixon-Smith, L.

Miller of Hendon, B.

Donaldson of Lymington, L.

Molyneaux of Killead, L.

Donoughue, L. [Teller]

Monro of Langholm, L. [Teller]

D'Souza, B.

Monson, L.

Eccles of Moulton, B.

Montagu of Beaulieu, L.

Eden of Winton, L.

Montrose, D.

Elis-Thomas, L.

Moore of Wolvercote, L.

Elles, B.

Moran, L.

Elliott of Morpeth, L.

Morris of Bolton, B.

Elton, L.

Mowbray and Stourton, L.

Falkender, B.

Murphy, B.

Falkner of Margravine, B.

Murton of Lindisfarne, L.

Feldman, L.

Naseby, L.

Ferrers, E.

Newton of Braintree, L.

Forsyth of Drumlean, L.

Noakes, B.

Fowler, L.

Norfolk, D.

Freeman, L.

Northbrook, L.

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Northesk, E.

Selsdon, L.

Norton of Louth, L.

Shaw of Northstead, L.

O'Cathain, B.

Shrewsbury, E.

Onslow, E.

Simon, V.

Ouseley, L.

Skelmersdale, L.

Park of Monmouth, B.

Smith of Clifton, L.

Peel, E.

Stoddart of Swindon, L.

Peterborough, Bp.

Strabolgi, L.

Phillips of Sudbury, L.

Strange, B.

Platt of Writtle, B.

Strathclyde, L.

Plumb, L.

Swinfen, L.

Plummer of St. Marylebone, L.

Tanlaw, L.

Prys-Davies, L.

Tenby, V.

Randall of St. Budeaux, L.

Thatcher, B.

Rea, L.

Thomas of Walliswood, B.

Reay, L.

Thomson of Monifieth, L.

Redesdale, L.

Tombs, L.

Rees, L.

Trenchard, V.

Renton, L.

Trumpington, B.

Richard, L.

Ullswater, V.

Roberts of Conwy, L.

Waddington, L.

Rogan, L.

Wakeham, L.

Rooker, L.

Walpole, L.

Rotherwick, L.

Warnock, B.

Ryder of Wensum, L.

Weatherill, L.

Saltoun of Abernethy, Ly.

Wilcox, B.

Sandberg, L.

Williams of Crosby, B.

Seccombe, B.

Willoughby de Broke, L.

Selborne, E.

Windlesham, L.

NOT-CONTENTS

Archer of Sandwell, L.

Laird, L.

Avebury, L.

McKenzie of Luton, L.

Bassam of Brighton, L.

Mar and Kellie, E.

Berkeley, L.

Massey of Darwen, B.

Bhattacharyya, L.

Maxton, L.

Campbell-Savours, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Morgan, L.

Clinton-Davis, L.

Morris of Manchester, L.

Corbett of Castle Vale, L.

Northover, B.

Dholakia, L.

Oakeshott of Seagrove Bay, L.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Parkside, L.

Rennard, L.

Faulkner of Worcester, L.

Roper, L.

Fookes, B.

Sheldon, L.

Gale, B. [Teller]

Stone of Blackheath, L.

Gibson of Market Rasen, B.

Thornton, B.

Gould of Potternewton, B.

Tomlinson, L.

Graham of Edmonton, L. [Teller]

Tope, L.

Tunnicliffe, L.

Grantchester, L.

Uddin, B.

Hamwee, B.

Wall of New Barnet, B.

Harris of Haringey, L.

Wallace of Saltaire, L.

Harris of Richmond, B.

Wedderburn of Charlton, L.

Hoyle, L.

Whitaker, B.

Jordan, L.

Williamson of Horton, L.

Resolved in the affirmative, and amendment agreed to accordingly.
2.37 p.m.
Clause 49 [Commencement]:
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 20:
Leave out Clause 49 and insert the following new Clause—
"COMMENCEMENT
(1) Parts 1 to 3 and section 46 shall come into force on a day appointed by order made by the Secretary of State by statutory instrument; and different days may be appointed for different purposes.
(2) The Secretary of State may not make an order under subsection (1) before 1st December 2007.
(3) The Secretary of State may not make an order under subsection (1) before he has received a report from the Royal College of Veterinary Surgeons commissioned by him on the relative pain, suffering or distress caused to wild mammals by hunting with dogs compared with other methods of controlling those wild mammals.
(4) The species of wild mammal included in the report under subsection (3) must include deer, fox, hare and mink."
On Question, amendment agreed to.
[Amendments Nos. 21 and 22 not moved.]
Schedule 1 [Exempt Hunting]:
[Amendment No. 23 not moved.]
Earl Peel Earl Peel moved Amendment No. 24:
Page 22, line 15, leave out from "(c. 69))" to end of line 16.
The noble Earl said: My Lords, Schedule 1 deals with exempt hunting. Paragraph 2 allows for the use of a dog underground to protect birds for shooting. This concession is warmly welcomed and acknowledges the Government's appreciation of the difficulties posed for gamekeepers when having to deal with predation by foxes.
The Government have gone further than acknowledging those difficulties when, after a recent visit to an upland estate in County Durham, Mr Ben Bradshaw, the Minister for nature conservation, said:
"My visit has confirmed to me that good management of moorland for grouse can have huge benefits for wildlife, landscape value and the rural economy".
I declare an interest as the owner of upland land where shooting takes place.
There is a perverse logic in allowing gamekeepers this concession for dealing with game birds, or wild birds which a person is keeping or preserving for the purpose of their being shot, but not for birds which are not going to be shot.
As I am sure your Lordships are aware, many upland birds are biodiversity action plan species and only survive in reasonable numbers where gamekeepers are employed. It is now a rare sight indeed to see a curlew, a golden plover, a green plover or a black grouse in any area which is not managed for sporting purposes. If we are to see the expansion of the range of such species into areas where the habitat is well suited but their paucity is due to unacceptable levels of predation, it would be idiotic to restrict the control of such a major predator as a fox—or, for that matter, a mink—to those involved in the protection only of birds to be shot.
Furthermore, it would be equally idiotic if, for example, a warden of a nature reserve was having difficulty with a fox predating birds in his care—let us say a colony of black-tailed godwits in East Anglia—and called in the local keeper to deal with the problem, but the keeper replied that he was unable to act under the law as he was permitted to put a dog underground only to protect game birds or wild birds which could be shot.
I shall speak also to Amendments Nos. 25 and 26. Amendment No. 25 would extend the permission to use a dog underground for the protection of livestock.

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Once again I suggest to your Lordships that it seems somewhat perverse that a dog can be used in such circumstances to protect game but not livestock. Where is the logic in a gamekeeper being allowed to do this and not a farmer?
Let me make it clear from the outset that in both amendments I am referring to terriers, which would flush out the fox, which would then be shot. This is not—I repeat not—in any way an attempt to extend hunting in the traditional sense of the term.
Livestock predation by foxes can be very severe, as any countryman knows. As to the meaning of "livestock", I refer to the definition in Section 8(1) of the Agricultural (Miscellaneous Provisions) Act 1968, which covers sheep, goats, lambs, pigs, poultry and rabbits. All are prone to mammalian predation, sometimes at intolerable levels. I was interested to read that in the report of the noble Lord, Lord Burns, it was noticed that in mid-Wales, for example, more than one-third of the cull of foxes was through terrier work.
I gather that the Minister, Alun Michael, in a letter to a certain David Thomas from Powys, maintained that predation of lambs by foxes is insufficiently significant to warrant permitting the use of dogs below ground to flush out foxes. The Minister referred to the inquiry of the noble Lord, Lord Burns, where it is estimated that foxes kill less than 2 per cent of viable lambs—but he conveniently passed over the Burns conclusion that,
"Levels of predation can be highly variable between farms and between different areas".
In other words, a farmer who may be suffering a 15 per cent level of lamb predation on one farm should be penalised because there was negligible predation on surrounding farms. That does not make much sense to me. Furthermore, it is highly likely that these figures could be grossly distorted in the event of any potentially damaging fox having been culled in advance.
2.45 p.m.
But ignoring that for the moment and returning to the figure of a 2 per cent lamb predation rate by foxes, this still amounts to around 340,000 lambs out of the 17 million lambs produced in England and Wales. This, I believe, involves a cost to the industry of £13.6 million—a figure which the Minister describes as being "insignificant".
It is worth recalling—I have already quoted this figure—that the National Farmers Union for Wales calculated that the cessation of foxhunting during the recent foot and mouth epidemic resulted in predation rates on lambs by foxes increasing by up to six times. Even taking a conservative figure of three times, that would mean a loss to the industry of £40 million a year. That is not insignificant. In this day and age, with the hill communities struggling as they are, this is a very real problem.
I hope that your Lordships will agree that the restriction on farmers being allowed to use a terrier underground to flush out a fox when a gamekeeper can do so is nothing short of daft. It is even dafter that the
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only defence a farmer would have when protecting his livestock in such a manner would be for him to start releasing game birds. That cannot be right.
Amendment No. 26 deals with stoats and weasels. Some noble Lords may recall that we had an interesting debate in Committee where several Members asked the Minister why rabbits and rats as opposed to hares and mice—and, indeed, foxes—should be exempt. There appeared to be no logic behind this decision and, with the greatest respect to the noble Lord, Lord Whitty, we were no wiser at the end of that debate.
I introduced an amendment in Committee which would have made mice exempt and would have brought them into the same category as the rat. But the Minister gave a sufficiently persuasive and helpful reply for me not to pursue that particular amendment again.
The noble Lord, Lord Whitty, has said—I paraphrase slightly—that if there was no intent on the part of the owner of the dogs to organise a pack and to hunt, that would be a reasonable defence. We should accept that response. It could have considerable ramifications so far as concerns the implementation of the Bill.
However, I have brought back my two other amendments in the same category which would allow the hunting of stoats and weasels. For convenience I have amalgamated the two amendments into one.
There are three good reasons for this. First, both stoats and weasels are deliberately killed by dogs. Secondly, to my way of thinking, there is absolutely no logic in treating these two species differently from rats. They have the same physiological properties and cannot be hunted in the traditional sense; both species would travel only relatively short distances before disappearing into a hole, a wall or a peat runner. So there is no logic why they should not be exempt and every practical reason why they should. Thirdly, both species are prodigious predators and account for a large number of birds. Indeed, as I mentioned in Committee, a recent survey showed that there were up to five times more waders—and, as I have explained, many of these are biodiversity action plan species—on uplands managed for grouse as opposed to those areas which are not managed in such a way.
There can be no doubt that one of the main reasons for that is the predator control carried out by gamekeepers. This, as I have already said, includes stoats and weasels. What is more, the Moorland Gamekeepers Association maintains that of all stoats killed, 25 per cent are taken by dogs. By dogs, I do not mean hounds.
So there is no intention on my part in this amendment to try and keep hunting alive by some sleight of hand, as was suggested by the noble Lord, Lord Hoyle. This amendment would simply ensure that gamekeepers can continue to carry out their hugely important responsibilities without being inadvertently caught by legislation designed to restrict hunting.
The noble Lord, Lord Whitty, said in Committee that he is not trying to prevent shooting. I take that in good faith. Equally, I am not attempting to encourage hunting but simply attempting to deal with an anomaly that, if

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not accepted by your Lordships, would affect the work of the gamekeeper, which I know the Government do not wish to do. I beg to move.
Viscount Bledisloe: My Lords, I support the amendment so ably moved by the noble Earl, Lord Peel. I join him in emphasising that we are not here talking about hunting in the traditional sense of the word, as something which other people do for pleasure; we are talking about using terriers to flush out animals which are causing serious damage. This is purely a practical, pest control activity to get rid of animals—foxes in particular—which are causing serious damage. As the noble Earl has said, the curious thing is that, at the moment, the exemption is restricted to serious damage to game birds or wild birds which are kept or preserved for the purposes of being shot. It does not include any form of livestock, particularly lambs, or highly desirable birds such as curlews and others that the noble Earl mentioned, which are preserved purely because they are admirable things to have and not for shooting.
This is a very curious distinction, as was pointed out in an admirable letter in Farmers Weekly last week. It said that it is all right to put a terrier underground to kill a fox to preserve his Lordship's pheasants, but it is not all right to put a terrier underground to preserve his tenant farmers' lambs—to which one could add, "or to preserve the RSPB's highly protected birds". Some people have suggested that the Bill is somewhat motivated by class prejudice, but it seems upside down that that class prejudice should now protect his Lordship's pheasants but not his tenant farmers' lambs. I speak as somebody who rears pheasants, but, thank goodness for my bank balance, no longer rears lambs.
The situation is, quite frankly, ridiculous, and these amendments must be right. The noble Earl quoted some figures. I venture to suggest to the Minister who wrote that letter that to say to any producer, "You can wear with equanimity the loss of 2 per cent of your gross product while doing nothing about it" is curious. The theory that we should sacrifice 360,000 lambs a year to protect a few foxes again seems a rather curious exercise in the protection of animals from cruelty or in terms of animal welfare.
I suggest that the logic of the amendments is overwhelming, and I commend them to your Lordships.
Lord Livsey of Talgarth: My Lords, I support the amendments very strongly, particularly the amendment dealing with stoats and weasels. Anybody who lives in the countryside is horrified at the damage that they do to wild ground-nesting birds. The curlew, as I mentioned in an earlier debate, has been completely wiped out of large parts of the United Kingdom. That is a great shame because it is a harbinger of spring. So I believe very strongly that stoats and weasels must be controlled in the way in which the noble Earl, Lord Peel, has described.
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I am particularly concerned about the use of dogs underground. In the uplands, that is often the only method of flushing out the foxes. The same applies in dense woodland. Lamb losses can be immense unless foxes are kept down or, rather, kept in balance—we are not looking at wiping out the fox population.
This is the most efficient method of control. As we know, more foxes are killed by shooting than in any other way. It is vital that this should continue; indeed, there will always be more foxes to be shot next season because there is a balance to be secured.
Baroness Byford: My Lords, I thank my noble friend for bringing back his amendments. It is important that we consider them very seriously. I hope that the House will support my noble friend if he puts the matter to a vote.
Many noble Lords have referred to the damage to lambs, and to the cost. As a former poultry producer, I am only too aware of the dangers and difficulties that foxes cause to those who breed poultry. We are being encouraged to have more and more free-range units. This difficulty will only increase, so I am grateful to my noble friend for bringing the amendments back. I do not have the figures for poultry, but they would be interesting.
I hope that the Minister will accept my noble friend's assurance that the amendment deals only with the use of terriers and would not extend hunting, as was suggested in Committee. Instead, it would specifically protect livestock and help control the spread of foxes, which is becoming an increasing problem to the livestock community.
The noble Lord, Lord Livsey, raised an important point, which he picked up from my noble friend. We have been working on our livestock and biodiversity plans for several years, and if the amendments are not accepted, that will make our work much more difficult. So I hope that the Minister will accept the amendment.
Lord Whitty: My Lords, the House will no doubt decide on the amendments. However, the ban on terrier work and the exemption thereto reflected a very strong concern in the Commons about the animal welfare effects of terriers. The House of Commons was, with some difficulty, persuaded that there should be an exemption because otherwise this would interfere substantially with the shooting sector. It was a very specific exemption, known generally as the gamekeepers' exemption, which the House of Commons was persuaded to accept. These wider issues would further antagonise the Commons because one could claim to use terrier work for the protection of any birds, not just game birds, and of any livestock. My view is that that is a much wider exemption than the Commons would be prepared to accept.
As for weasels and stoats, we are rather in Toad Hall territory here. As the noble Earl said, 25 per cent of stoats were caught by terriers. That indicates that 75 per cent are controlled by other means. Therefore, it is not essential to have dogs controlling the stoat population.

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In any case, if we are talking about a registration system, then the hunting of stoats and weasels could go through that system. So I am not at all sure that a convincing case is made for a blanket exemption in this area.
Lord Denham: My Lords, before the noble Lord sits down, will he tell the House whether he has consulted the officials in his department concerned with sheep farming as well as those concerned with this Bill on hunting? I think he will find that he will get a very different answer from the officials in Defra who know about rearing lambs.
3 p.m.
Lord Whitty: My Lords, I am responsible also for the sheep industry. Clearly, there is a problem of predation by foxes in the sheep industry, but it is not being particularly well controlled by hunting as it is. Therefore, any change to the situation is unlikely to have as dramatic an effect as noble Lords are claiming. The position that has been adopted in this Bill, as in other Bills, without revealing too much about the internal consultation and joined-upness—
Lord Denham: My Lords, has the Minister taken advice from the officials in his department who are responsible for sheep farming? Has he taken advice on that point?
Lord Whitty: My Lords, the advice of officials right across Defra is sought on all legislation. The noble Lord knows better than to press me on which official gave which particular bit of advice at any given time. Clearly, all officials in Defra are aware of the position that we are taking in the Bill. They are aware of the feeling of the Commons about terrier work and they are aware that in order not to undermine the position of shooting we would need to make an exemption at that point. As I have said, the situation of sheep farming is well known, but hunting as it is is not protecting sheep from the predation of foxes.
Earl Peel: My Lords, I am grateful to noble Lords who have supported the amendment. I was very grateful for the remarks of the noble Lord, Lord Livsey. He was right, but I would not want any noble Lord to think that biodiversity action plan species are found only in the hills. They are found throughout the United Kingdom. Certain birds are in serious decline for a number of reasons, but one of them is predation; I refer, for example, to waders in the Somerset Levels, where fox predation is a very serious problem. Without the use of a terrier underground, I would suggest to your Lordships that controlling foxes is going to be extremely difficult. The prospect of enhancing those species, which we all want to see, is going to be made very difficult indeed.
The Minister referred to the endorsement which the Government have given to shooting. As I have already said, I welcome that. However, I cannot see why a gamekeeper should be given powers by the Bill to be able to put a terrier underground to protect game birds—which, as I have said, I welcome enormously—
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and not a farmer who lives 100 yards down the road to protect his livestock. It is simply inequitable and it does not make any sense. As a consequence, I have no option but to seek the opinion of the House.
On Question, amendment agreed to.
Earl Peel Earl Peel moved Amendments Nos. 25 and 26:
Page 22, line 16, at end insert ", or livestock (within the meaning of section 8(1) of the Agriculture (Miscellaneous Provisions) Act 1968 (c. 34)."
Page 23, line 10, at end insert—
"Stoats and weasels
The hunting of stoats and weasels is exempt if it takes place on land—

(a) which belongs to the hunter, or

(b) which he has been given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs."

On Question, amendments agreed to.
[Amendments Nos. 27 and 28 not moved.]
Schedule 2 [The Hunting Tribunal]:
[Amendments Nos. 29 and 30 not moved.]

Constitutional Reform Bill [H.L.]
3.4 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]
Schedule 14 [The Judicial Appointments Coinmission: Relevant Offices and Enactments]:
Lord Maclennan of Rogart Lord Maclennan of Rogart moved Amendment No. 88CPZA:
Page 214, line 17, at end insert—

"Justices' clerk

Sections 2(1) and 27(1) of the Courts Act 2003 (c. 39)"

The noble Lord said The noble Lord said: The purpose of the amendment standing in my name and that of my noble friend Lord Goodhart is to take account of the concerns which have been expressed by justices' clerks about the impact on their independence which flows from the reorganisation of the court system and which they contend has failed adequately to appreciate that their principal duties now are in the field of giving advice to the magistrates and, in a number of specified circumstances, taking a judicial role.
They have pointed out most eloquently and most cogently that the balance of the hybridity in their role to which the Lord Chancellor has referred has moved

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from administration to matters more clearly cognate to that of a judge. The concerns of the 70 justices' clerks are not theirs alone; they are shared very widely by the magistrates, who have written in substantial numbers not only to the Lord Chancellor, but also to my noble friend Lord Goodhart to express their concern and their support for the amendment.
The matter might appear on the face of it to be hypothetical or abstract, but, in practice, it is much more than that. The justices' clerks' concern is that whereas they have hitherto been ultimately appointed by the highest judge—that is, the Lord Chancellor—the change that is proposed in the Bill will result in their appointment being in the hands of a political Minister who will be the head of the department. The consequences they fear will arise from that are not be viewed as purely hypothetical or abstract.
One might have taken that view, perhaps legitimately, had not the most cogent and persuasive evidence been given to the Select Committee by Mr Neil Clarke on behalf of the justices' clerks' committee. He spoke about, and was cross-examined on, evidence of administrative tampering with the role of justices' clerks, which is already in train. As the matter seems to be so important, I draw the attention of the Minister to that evidence, which was given in answer to a question from the noble and learned Lord, Lord Howe of Aberavon, to Mr Clarke. It was Question 1153 at page 313 of the minutes of evidence which were published in the House of Lords Paper 1252. I hope that the House will forgive me if I read the relevant passage. It is a very strong passage and it has not been answered. Mr Clarke said:
"the practice is that we have been receiving at the moment what are considered inappropriate approaches from both the Department and from regional government offices making suggestions that are at best interference beyond the line and at worst approaching illegality and that is before we go into this new situation of being civil servants".
Mr Clarke went on to give three examples of interference. He concluded:
"I think that sort of pressure is growing in the current system and when you go over to this new system when you become a civil servant and you are in the political process, for the first generation which knows freedom we will probably be quite robust but when it has been in place for a number of years and the culture is one of the Civil Service and promotion et cetera will be dependent upon performance as perceived by your line managers, there is a greater possibility for there to be abuse of the system".
Those concerns have been reiterated by a number of people—magistrates and justices' clerks alike—and seem to point to a need to go beyond the general prescriptions provided in Clause 1 as regards the independence of the judiciary, to providing particular reassurance that such actions would be inconceivable. I know that it is entirely within the Government's intention to strengthen the public perception of the independence of the judiciary through this Bill. That is what lies behind the Bill—that is its philosophical thrust. In a sense, this is an exception, but I cannot suggest that it is one that has been arrived at by inadvertence or oversight, for it has indeed been the subject of substantial correspondence. It is quite clear from the correspondence between the Justices' Clerks' Society and the Lord Chancellor that the Lord
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Chancellor has given considerable thought to the issue. I understand that he has it in mind to introduce two further amendments, as revealed in his letter of 2 October to the chief executive of the Justices' Clerks' Society.
My own judgment is that these proposed amendments do not go far enough to meet the concerns that have been expressed. They fail to recognise that, although it is true that the role of the justices' clerks is to some extent a hybrid one, with the new role of chief executive, the burden of administration has passed from the justices' clerks, and their pre-eminent role is a judicial one. That role would be vitiated if there were any thought at all that governments were seeking to ensure through favouring particular individuals that their own interpretations of the law were those which were grappled to the bosoms of the magistracy. That would have a distinctly corrupting effect. If that was perceived to be widespread, that could be thought to be undermining the judicial system at its very roots, since 97 per cent of criminal cases considered are handled by those magistrates' courts. While securing the top of the tree, allowing the roots to be undermined in that manner seems injudicious, and I ask the Government to reconsider.
I scarcely need to spell out in this House the role of the justices' clerks. They have an educational role, and an advice and training role. All those matters seem not to be susceptible to pressure from the Civil Service. While one understands the need for coherence in the unified administration, the independence which is characteristic of the justices' clerks in delivering their advice is something that the Government must give particular attention to over the other considerations, which seem to have carried the day.
3.15 p.m.
It is not sufficient to ensure provision for a consultative process before an appointment is made, which is the intention, although it is not expressed in the Bill. That enables the Lord Chief Justice to intervene. Candidly, that is taking a hammer to crack a nut; it is an improvement, but the wrong improvement. I also believe that the issue of reassignment should not be handled in that way either. These matters are best handled in the manner which the Government have in mind for the rest of the judiciary through the Judicial Appointments Commission.
I find it strange to be in this position, because on the whole I strongly support the Government's intentions and particular aspects of the Bill. However, on this occasion, I beseech the Minister to take the matter away and reconsider it. I beg to move.
Lord Kingsland: I support the speech made by the noble Lord, Lord Maclennan, from the Liberal Benches. As he rightly said, 97 per cent of all criminal cases in this country are heard in the magistrates' court. Apart from those times when they are heard by the person who used to be described, although no longer, as the stipendiary magistrate, they are heard by lay Benches, which depend for their understanding of the law entirely on the wisdom of the magistrates' clerk. In effect, therefore, the magistrates' clerk sits as a judge when he gives that legal advice.

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Like the noble Lord, I am totally bewildered by the Government's stance on this matter. They say that the principle lying behind this Bill is the principle of the separation of powers. They are eager to remove, as quickly as possible, noble and learned Lords from the House. And yet they totally fail to apply the logic of the principle of separation of powers to the relationship between Parliament and the executive.
The effect of their unwillingness to act on this matter will be to ensure that justices' clerks, who ought to sit as judges, independent of both the legislature and the executive, in effect, sit as members of the executive. In other words, the Government are turning the logic of the principle that they say underlines the Bill on its head.
If the present situation is allowed to stand, there will be no separation of powers between the executive and judiciary in relation to the legal advice that justices' clerks give to the magistrates' Bench; and the Government will have driven a coach and horses through the principles that underlie their own legislation. I hope that they will listen to the noble Lord, Lord Maclennan.
Baroness Ashton of Upholland: I am grateful to both noble Lords who have spoken, and recognise, as the noble Lord, Lord Maclennan, said, that he approaches the Bill from a similar philosophical standpoint to that of the Government. I also agree with him when he says that the position that the Government hold is not an oversight. We are not making these provisions having not thought them through—rather the opposite. As he said, there has been a great deal of correspondence and interest in this area, but we have come to a clear view.
To help the Committee, I shall spend a moment spelling the Government's precise position, not least because it is an opportunity for all of us as a Committee to reflect further on the matter. I also want to indicate what the Government propose to do further in terms of safeguards—although the noble Lord, Lord Maclennan, has done so to some extent—while not shifting from the position that we hold on where justices' clerks should sit.
I shall begin by setting out the steps that we want to take to achieve the right kind of protection to deal with some of the issues that both the noble Lords, Lord Kingsland and Lord Maclennan, raised in terms of appointment and reassignment of justices' clerks. I disagree with the noble Lord, Lord Maclennan, that we have approached this matter in an inappropriate way.
As both noble Lords will recognise, justices' clerks perform both an administrative and an independent function. I believe that is well understood. Their role in the magistrates' court is of critical importance. In that I agree completely with the noble Lord, Lord Kingsland. They hold a management responsibility. They provide, in terms of their non-judicial functions, pastoral support to lay justices, facilitating the lay Bench and its dealings with court users, secretarial support to the advisory committee and sub-committees, leading and managing their legal staff in their areas—that is a very important
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function—including training, development and assessment. They have a line management function in terms of courtroom and listing staff.
Therefore, they play, and will continue to play, a real part in the management of local areas. They currently do so and we wish them to continue to do so. We want to ensure too that the essential independent advisory role is respected. Noble Lords who participated in the Courts Bill will, of course, remember the extensive discussions and debates that took place on these issues during the passage of that Bill. I believe from my own reflections and, more importantly, from what I have been told, that a consensus was reached on the way forward. The Constitutional Reform Bill now provides for the transfer of existing judicial functions in primary legislation of the office of Lord Chancellor. These provisions follow the agreement set out in the concordat to which we have referred many times in the course of these Committee discussions.
It is right and proper that safeguards are in place to ensure the independence of justices' clerks in their judicial role when Her Majesty's Courts Service is established. To that extent I agree completely with the noble Lord, Lord Kingsland. In that respect Section 29 of the Courts Act is an unambiguous statement of the need to protect the independence of the advice of justices' clerks to magistrates. It provides that, when exercising these independent functions, a justices' clerk is not subject to any direction of the Lord Chancellor or, indeed, of any other person. Clause 1 of this Bill further enhances that by placing a duty on the Lord Chancellor, along with all Ministers, to uphold judicial independence and places on him a particular duty to have regard to the need to defend judicial independence.
I turn briefly to the amendments before us. As we have indicated, justices' clerks carry out an important role but they are not judges. As noble Lords will be more aware than I, they do not have formal judicial status. They do not conduct trials or sentence offenders and they do not take the judicial oath. The Judicial Appointments Commission will be set up to select judicial office holders and will have the skills and expertise to do so. I do not believe that it would be adequately equipped to select people for their administrative and managerial skills as well as their skills in giving legal advice.
Moreover, it would also not provide any opportunity for the justices' clerks' employer—that is, Her Majesty's Courts Service—to be involved in the selection process. The role of the employer in that process will be an important one—to ensure that candidates are found who can effectively balance both elements of this hybrid role, and that they are selected on that basis. It would also not be in anyone's best interest to exclude the body that employs and sets the terms and conditions for the office in the way this amendment proposes.
We believe it is appropriate for the power to appoint justices' clerks to rest with the Minister given his overall accountability to Parliament under Section 1 of the Courts Act 2003 for the administration of the

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courts. That power will, however, be delegated to Her Majesty's Courts Service under the Carltona principle in line with the appointment of all employees of that organisation. Appointments will be made in accordance with the code of the Civil Service Commissioners, which is based on the principle that appointments must be made on the basis of merit in fair and open competition. That, of course, underpins the maintenance of a politically impartial Civil Service, and very important it is too. There will, therefore, be no actual ministerial involvement in the appointment process.
The Lord Chancellor has discussed the matter of appointment of justices' clerks with the Lord Chief Justice, who I recognise takes this issue very seriously, and they have agreed that the Government should bring forward an amendment to the Bill on Report. As the noble Lord, Lord Maclennan, indicated, this will provide that the Minister should consult the Lord Chief Justice before designating and assigning a justices' clerk. In practice this will be achieved by including a judge or a magistrate on the local selection panel arranged by Her Majesty's Courts Service for any justices' clerks appointments. That will ensure direct judicial involvement in the selection process, which is important given the dual role of justices' clerks. We believe that this process is the most appropriate way forward and best reflects the role that justices' clerks play.
I refer to the evidence of Mr Clarke raised by the noble Lord, Lord Maclennan. Indeed, the Government have responded to the examples that were raised by the Justices' Clerks Society in its written evidence to the Select Committee, which forms part of the committee report. It is entirely right that where the judiciary considers that the initiatives that government take have implications which it feels would undermine its judicial independence or interfere with its work, it should, of course, point that out. That should then be considered and resolved. The judiciary should not be afraid to raise those issues relating to the independent aspects of its role. I understand that the Deputy Lord Chief Justice pointed that out when he spoke at the justices' clerks' last conference, as well as emphasising that, if necessary, any issues about their independence would be fought as determinedly as they would be if they related to the senior judiciary. I hope that that did a great deal to reassure justices' clerks.
We think it is right that we should look at whether further safeguards should be put in place to preserve the independence of justices' clerks in the advice they give to magistrates. In that context the Judicial Committee, chaired by the Deputy Chief Justice to whom I have just referred, proposed that an area judicial forum and justices' issues group should be established in each of the 42 management areas. These are now being set up in advance of the establishment of Her Majesty's Courts Service. They will provide the opportunity for justices' clerks to raise any matters relating to their work, including issues surrounding their independence, if they arise. We think that this will be a very effective mechanism for dealing with issues
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or concerns. As I have said, the Deputy Chief Justice has indicated his strong support to fight determinedly on behalf of justices' clerks if they felt their independence was being affected in any way.
The Lord Chancellor has also agreed with the Lord Chief Justice that he will bring forward an amendment to Section 27(4) of the Courts Act on Report to provide that any reassignment of justices' clerks should be with the concurrence of the Lord Chief Justice. This is in addition to the current provision of Section 27(4) which provides for consultation with the Bench chairmen, which was discussed during the passage of the Courts Act.
I believe that the Government have reflected very carefully on the best way forward for justices' clerks recognising the very important and valuable role that they play and the independence which they need to have. But having reflected we are quite clear that the proposals we have in place, with the safeguards I have indicated, and the proposals for Report stage, are the way forward.
I hope that, having spoken at length, I have reassured the noble Lords, Lord Maclennan and Lord Kingsland, and that the noble Lord, Lord Maclennan, will feel able to withdraw his amendment.
Lord Maclennan of Rogart: I begin by thanking the Minister for giving a full reply to my remarks. I have to say that I do not think that she introduced a new argument this afternoon in support of the Government's position. As the justices' clerks have already indicated their dissatisfaction with what the Government have in mind, I am reluctant to see the back of this issue.
This is not the final occasion on which it will be possible for this House to give consideration to these issues. I think that some further reflection and discussion—also involving the Government, I hope—may prove of value to test whether the Government's proposed safeguards, particularly about enabling the justices' clerks to complain in a timeless fashion about the sorts of pressure which have evidently been brought to bear upon them, can be properly ventilated so as to extirpate any meddling of this kind by a civil servant or a department, whether or not there is ministerial involvement. It would be rather unlikely that there would be. I cannot say that the Minister's answer entirely removes my anxieties. None the less, the pause for reflection is to be welcomed. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 14 agreed to.
3.30 p.m.
Clauses 72 and 73 agreed to.
Clause 74 [Report]:
[Amendment No. 88CPZB not moved.]
Clause 74 agreed to.
Clause 75 [The Minister's options]:
[Amendment No. 88CPZC not moved.]
Clause 75 agreed to.
Clauses 76 and 77 agreed to.
Clause 78 [Reconsideration of decision not to select]:
[Amendment No. 88CPZD not moved.]
Clause 78 agreed to.
Clauses 79 to 85 agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 88CPZE:
After Clause 85, insert the following new clause—
"REVIEW OF SELECTION PROCESS
(1) The Ombudsman must in each year review the process of selection under this Part by the Commission and selection panels to establish whether selections are being made in accordance with section 54 and any guidance given under section 55.
(2) The Ombudsman must prepare a report on the outcome of the review and send a copy of the report to the Minister and the Commission.
(3) The Minister must lay a copy of the report before each House of Parliament."
The noble Lord said The noble Lord said: The amendment proposes setting up a system to review the work of the Judicial Appointments Commission. In speaking to it, I shall speak also to Amendment No. 88CPZF. The amendments were suggested originally by the Commission for Judicial Appointments. I am afraid that the language is now somewhat confusing. The Commission for Judicial Appointments is, of course, an existing body, whose functions do not include the making or recommending of individual appointments, but whose job is to oversee the process of selection currently exercised by the Lord Chancellor and the Department for Constitutional Affairs. The amendments are supported by the Law Society.
The existing process has been much improved in recent years by the review of the process of appointment, both to the judiciary and to Silk, which has been carried out by the CJA. The CJA will cease to exist as such when the Bill comes into force, but the substitution of the new Judicial Appointments Commission for the Lord Chancellor and the appointments unit at the DCA will not necessarily mean that everything in the appointments system will be perfect. Indeed, the JAC may stick too rigidly to existing practices of appointment, some of which have already been found by the CJA to be unsatisfactory. The JAC may be overcautious in making appointments. For example, it may improve diversity of backgrounds among the judiciary but not diversity of personality. It may be unwilling to take a chance on individuals who do not fit into the mainstream. The noble and learned Lord, Lord Mackay of Clashfern, took a chance, extremely successfully. Without any kind of audit, the Judicial Appointments Commission may become slipshod or develop questionable practices of its own.
The Judicial Appointments Commission will be a body of enormous constitutional importance. It is therefore highly desirable that there be some form of continuing external oversight. The obvious person to
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exercise that oversight is the Judicial Appointments and Conduct Ombudsman, whose appointment is contained in the Bill. As the Bill stands, he will investigate individual complaints against the Judicial Appointments Commission by individuals who feel that the process has, in some respect, been improper when applied to them. If the investigation convinces the ombudsman that there is a systematic problem with the processes of the Judicial Appointments Commission, the report will obviously have to say so.
It is a desirable extension of the ombudsman's duties and powers to enable him or her to be proactive. He or she can then investigate the system, even if there are no complaints or, for example, if the complaint leads to a suspicion that there may be some systematic problem but it is impossible for the ombudsman to be sure without further investigation of the process. Of course there could be alternative methods of review, such as by the office of the Commissioner for Public Appointments. However, the fact that the Judicial Appointments and Conduct Ombudsman already has a duty to deal with individual complaints about defects in the appointments process makes him or her the obviously appropriate person to conduct the wider review.
The amendment will encourage good practice, help to detect flaws in the system, and increase public confidence in the process. It will do all that without adding greatly to the existing duties of the ombudsman under the Bill. The amendments deserve acceptance. I beg to move.
Lord Crickhowell: I hurried from the Chamber to fetch my copy of the report prepared by the committee that considered the Bill, because I wanted to refresh my memory about a later amendment tabled by the noble Viscount, Lord Bledisloe. As it happened, I then turned to the page on which the committee considered the proposition that the noble Lord has just advanced. It states:
"The Lord Chancellor disagreed with this proposal. He told us that the audit function will no longer be needed as the system is being made more transparent".
He went on to advance the argument rather further; the matter is covered in paragraph 296 of the report. I shall not read it all out, as I suspect that the Minister will advance exactly the same arguments when she winds up. However, I remind noble Lords that the committee agreed that no further provision in respect of audit of appointments need be made. The Liberal Democrat members of the committee believed that it should be, but that was not generally supported by others.
Baroness Ashton of Upholland: I am very grateful to the noble Lord, Lord Crickhowell. The timeliness of his speech means that I may be able to keep my remarks shorter. Both he and I can refer people to the report of the Select Committee, which is a very important document, particularly in this context.

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As the noble Lord, Lord Crickhowell, said, the basis on which we disagree with the amendment is that the system that we are putting in place is about transparency and openness. We have the existing provision because the system is seen to be in the hands of a single government Minister, and seen as closed and opaque. However wonderful and worthy it may be, that is the case. We wanted to make sure that we had some external guarantee of the integrity of that system.
We will have a non-departmental public body with 15 independent commissioners and its own staff, their role being to guarantee the independence and impartiality of the selection process and, as the noble Lord, Lord Goodhart, said, to increase public confidence in the system. They will be the Minister's prime source of expert advice on any issue relating to judicial appointments.
The difficulty with the amendment is that it would establish the ombudsman as a rival source of advice in addition to the Judicial Appointments Commission on general questions about the direction of judicial appointments or the manner in which competition should be run. We do not believe that there are any obvious reasons why the views of the ombudsman on these matters should prevail over those of the commission. Indeed, it is undesirable that they should. Otherwise the ombudsman would be placed in charge of the JAC and that would undermine the commission.
The role that we have envisaged for the ombudsman is set out in the concordat with the judges, but I shall examine carefully the noble Lord's comments. Perhaps the noble Lord and I might discuss these matters to ensure that the noble Lord recognises everything that we have done. But I fully agree with the noble Lord, Lord Crickhowell, and the Select Committee. We believe that what we have in place is appropriate. On that basis, I hope that the noble Lord will withdraw the amendment.
Lord Goodhart: I am grateful to the Minister for her comments, although they were not satisfactory. We were not suggesting that the views of the judicial ombudsman should prevail. It is desirable that there should be some form of external monitoring of what is done by this extraordinarily important committee. Particularly, since monitoring is provided for individual cases—because they can be referred to the judicial ombudsman if an individual were to complain about the way in which he or she had been treated by the JAC—it would be a small but sensible step to extend that more widely. I must admit that this would go somewhat beyond the line that we took at the time of the report of the Select Committee, but, subsequent to discussions with the CJA, I have found that its arguments were increasingly persuasive on this issue. It has a significant point.
However, this is not a matter which can be taken any further today. We will consider carefully whether this matter is or is not one that needs to be brought back at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Information]:
[Amendment No. 88CPZF not moved.]
Clause 86 agreed to.
Clause 87 agreed to.
Clause 88 [Confidentiality]:
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 88CPA:
Page 33, line 4, after "person" insert—
"(a)"
The noble Viscount said: In moving the amendment, I shall also speak to Amendments Nos. 88CPB, 88CPC and 88CPD.
These amendments relate to Clause 88 and the question of the confidentiality of proceedings and the workings of the appointments commission. It is universally agreed that when someone has applied for an appointment, that must be kept extremely confidential, as well as the views, favourable or unfavourable, of those who are consulted. I shall return to the importance of that in a moment.
Clause 88 imposes a duty of confidentiality only on a commissioner, a member of the commission staff or an agent of the commission. My amendments seek to extend that to a member of a panel of the commission and, most importantly, to those who are consulted or otherwise involved in the process.
Amendment No. 88CPD is slightly different. It also imposes a duty of confidentiality for the first time on the different commission that is responsible for the appointment of justices of the Supreme Court or Law Lords—whichever we end up with. At the moment, for some reason, that commission does not have any duty of confidentiality at all.
3.45 p.m.
Returning to the main substance of my amendments, the Select Committee heard evidence from Sir Colin Campbell, who said that he, "very, very strongly" emphasised that the confidentiality should be preserved. The same was said by Sir Hayden Phillips, the then Permanent Secretary of the Department for Constitutional Affairs, who, in a candid moment, stated:
"We all know in life there are … leaks and … gossip and those, I am afraid, the appointed authorities cannot always absolutely control".
There are certain noble Lords, including the Lord Chancellor, who know from one very unfortunate incident that occurred recently, how very true those words were. Her Majesty's judges may be wonderful people at their judicial affairs, but there are few more leaky or gossipy places than the Benches of the four Inns of Court. Such matters do get talked about with distressing regularity and with unfortunate consequences. Both the Law Society and the Bar Council in their evidence emphasised strongly that if people were to be expected to apply they had to be as certain as possible that those applications would be kept confidential. I know full well that it is very damaging to a barrister's practice if it is thought that

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he is about to go to the Bench, because obviously people do not wish to instruct him in case he will not be there to do those cases. The Law Society pointed out that the situation was even worse for a solicitor, because the last thing that one would want one's partners to know was that one might be jumping ship when one might not be given the appointment and might not be able to jump ship.
So confidentiality is essential and the Select Committee recognised that. It stated:
"The Committee agrees that a duty of confidentiality relating to the judicial appointments process should extend beyond the Commissioners and staff … to others involved in the appointments process. Amendments to that effect will be brought forward by the Lord Chancellor at a later stage in the bill".
They have not been brought forward thus far, but we hope that they will be forthcoming. Will the Minister assure me that those amendments will be forthcoming and that they will extend to cover the various categories of people I have included in these amendments? I shall not press the amendments today, but I ask for her assurance that it is recognised that it is essential to extend the duty to these further persons. I beg to move.
Lord Crickhowell: In moving the amendment, the noble Viscount referred to the evidence that Professor Sir Colin Campbell gave to the committee on 6 May and the strongly held views that he expressed. The noble Viscount also drew attention to the paragraph summarising the conclusion of the committee, which I would have referred to. Like him, I wait with interest to hear what amendments the Government intend to bring forward in accordance with the undertaking that they gave.
My specific point arises from the same piece of evidence and the question that I asked Sir Colin Campbell regarding the point that the consultation process involved the First Minister in Scotland and the Deputy First Minister in Northern Ireland, but the Welsh Assembly in Wales. As soon as I asked the question, our chairman, the noble Lord, Lord Richard, who, after all, had recently completed a substantial report on the work of the Welsh Assembly, intervened to say:
"Sorry, I have been obsessed with this recently, there is a problem with the Welsh Assembly, which Lord Crickhowell knows, which is effectively it is a corporate body. That is absurd under the existing Government of Wales Act, it should never have been that".
I said:
"This does raise the crucial question of confidentiality."
I do not think that I am being unkind if I say that if there are doubts regarding the confidentiality around the Inns of Court, then there are far greater doubts about confidentiality around the Welsh Assembly. Frankly, it is an appalling thought that individual Members of the Welsh Assembly might become involved in the process and that no absolute obligation of confidentiality should be imposed on them.
I hope that, when she replies, the Minister will be able to assure me that not only will a clause be brought forward on confidentiality generally but that she will
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ensure that the problem raised by the fact that the Welsh Assembly is consulted as a corporate body and not through its First Minister is adequately covered by that amendment.
Lord Carlisle of Bucklow: Having been on the committee which considered the Bill, I agree wholeheartedly with every word that the noble Viscount, Lord Bledisloe, and my noble friend Lord Crickhowell have said. There must be a clear duty of confidentiality on anyone who receives information regarding a possible appointment to the Bench at all levels. We are told that one desire of the Government is that those who are to go on the Bench will be drawn from a wider area than is currently the case. People will not come forward or apply to go on the Bench if they feel that there is a danger that the knowledge that they applied but failed will get out. Therefore, I hope very much that the Government will meet the point made by the noble Viscount, Lord Bledisloe.
Lord Kingsland: The noble Viscount, Lord Bledisloe, has summarised the issue with his customary cogency and comprehensiveness. He has therefore lightened my burden enormously. I wholly agree with what he said. His remarks about the undertakings given by the noble and learned Lord the Lord Chancellor to the Select Committee should be incentive enough to the noble Baroness to stand up and say that she concedes everything to the noble Viscount.
Baroness Ashton of Upholland: Thanks to the noble Viscount, Lord Bledisloe, I have some new insights into the incentive in terms of its leaky nature. I also have new insights into the views and thoughts of the noble Lord, Lord Crickhowell, and the Welsh Assembly. I agree, too, with what the noble Lord, Lord Carlisle, said, which was also reflected in the remarks of the noble Viscount. It is important that when people come forward they do so with a sense of confidentiality. I recognise entirely what has been said.
I have an enormous amount of sympathy with the amendments before us. As noble Lords know, at the moment the Bill has, in Clause 88, separate provisions in relation to the Judicial Appointments Commission and in relation to the Judicial Appointments and Conduct Ombudsman in Clause 99. I agree that the current provisions are not wholly satisfactory. Instead of provisions directed at particular bodies, we need provisions which guarantee confidentiality in relation to the appointments process and judicial disciplinary matters. Those provisions should cover all those involved in these processes and not only the Judicial Appointments Commission and the ombudsman. Therefore, it is our intention to move appropriate amendments on Report, and I give that commitment.
The last in this group of amendments—Amendment No. 88CPD—would, as the noble Viscount said, extend the confidentiality requirements of Clause 88 to the process of selecting Supreme Court justices. The Government believe that this provision does not belong in Part 3 of the Bill because the appointments are governed by Part 2. Therefore, we shall also

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endeavour to consider whether a provision needs to be added to Part 2 in order to protect the confidentiality of that process, as the noble Viscount indicated.
In response to the noble Lord, Lord Crickhowell, on the matter of the First Minister in Scotland and the corporate body of the Welsh Assembly, I understand that that was in relation to Supreme Court appointments and not the Judicial Appointments Commission. None the less, the Government are planning to change that to the First Minister in Wales, and I believe that that addresses the noble Lord's point.
On the basis that I accept the sentiments behind these amendments and that we are committed to bringing forward appropriate amendments on Report, I hope that the noble Viscount will feel able to withdraw his amendment.
Viscount Bledisloe: I am most grateful to all noble Lords who have spoken. The noble Lord, Lord Kingsland, will be well aware that flattery will get him everywhere. I am also extremely grateful to the Minister. I am delighted by what she said. So far as I am concerned, provided that I get the substance of the amendments, she can put them anywhere in the Bill that she likes, and I do not mind where they are. I am very grateful to her. Perhaps she and the noble and learned Lord the Lord Chancellor will consider whether it would be helpful for us to have a discussion at some point before we return to the matter on Report. I should be more than happy to take part in such a meeting. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CPB to 88CPD not moved.]
Clause 88 agreed to.
Clause 89 agreed to.
Clause 90 [Disciplinary powers]:
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 88CPE:
Page 34, line 26, after "but" insert "save in the case of advice given under subsection (3)(a) below"
The noble Viscount said: We now come to Clause 90, which concerns the question of disciplining all the office holders listed in Schedule 14. I emphasise that that includes judges of the High Court, who of course cannot be removed other than by an address of both Houses.
Amendment No. 88CPE deals with one small point. Under Section 90(3), the Lord Chief Justice can,
"give a judicial office holder any of the following for disciplinary purposes— … advice … a warning … [or] a formal reprimand",
but he cannot exercise any of those powers, save with the agreement of the Minister and after complying with prescribed procedures.
I suggest that applying that to "advice" is going bureaucratically mad. It was said that it was not intended that it would apply to advice where the Lord Chief Justice was speaking only somewhat robustly to the judge but nothing would go on the judge's record.
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With respect, that is a distinction that cannot be made. The judge receiving the advice is likely to be one of the more difficult of the judicial characters.
Perhaps I may take those who are dead as examples in order to avoid any offence—let us say Mr Justice Roxburgh or Mr Justice Hallett. If the Lord Chief Justice had tried to give them advice, the first thing that either of them would have said was, "Have you consulted the Lord Chancellor about this?". The Lord Chief Justice would say, "No, I'm only talking to you, old boy, and giving you a bit of advice". The judge would reply, "I don't care. You can't do that. Look at the Bill". Quite frankly, it is ridiculous to say that the Lord Chief Justice cannot give even serious advice to the judges for whom he is responsible without asking the Lord Chancellor. Until he hears their reaction, he will not know whether he is going to pat them on the back and say, "Oh dear, old boy, do try to avoid doing that again", or, if they take a recalcitrant attitude, whether he will say, "Well, I have to advise you formally that if you do that again, something serious will have to be done". He will not know.
In some cases, the Lord Chief Justice may want to consult the Lord Chancellor in advance because he may be considering something more serious, such as a warning or a reprimand. He may want to say, "Is it all right if I give him a reprimand if he is a recalcitrant or if I give him advice if he is very amenable and apologetic?". But where the worst that he can contemplate is giving advice, it is going far too far to say that that must go through the Lord Chancellor first. It will completely inhibit the freedom of the Lord Chief Justice to deal with matters at the initial stage reasonably informally and sensibly and without the pedantic and difficult judge making procedural points. I beg to move.
Lord Lloyd of Berwick: I support the amendment. It has been put so well and so strongly by the noble Viscount that I feel that I can add nothing other than my support.
4 p.m.
Lord Kingsland: I have very little to add to what the noble and learned Lord, Lord Lloyd, has said about the speech of the noble Viscount or about the substance of the amendment. I wonder whether the Minister has had a good look at the categories of office set out in Schedule 14. It contains a very large number of appointments, ranging from High Court judges to road-user charging adjudicators. Is it seriously intended that, before the Lord Chief Justice gives a warning to a road-user charging adjudicator about his or her conduct, he has to consult the Lord Chancellor?
Lord Carlisle of Bucklow: Before the Minister replies, perhaps I may ask one question on the amendment. I notice that not only is the Lord Chief Justice required to obtain the agreement of the Minister before giving

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advice, but he is also required to comply with prescribed procedures. I am not sure whether we have been told what are the "prescribed procedures". Perhaps the noble Baroness can add light to the phrase "complying with those prescribed procedures".
Baroness Ashton of Upholland: I shall endeavour to obtain an answer for the noble Lord, Lord Carlisle, as swiftly as possible. I say to the noble Viscount, Lord Bledisloe, that I shall be delighted to have discussions with him on the previous amendments and any others. That invitation is open to any noble Lord. As these amendments are prepared, it will be important for the noble Viscount to see them.
I express my sympathy with the spirit of the amendment. Of course, it must remain possible for the Lord Chief Justice to advise or to have an informal word with any of the judges without needing to have the approval of the Minister and without having to go through the formal disciplinary process.
The noble Viscount made reference to my answer that the provisions of Clause 90 are not intended in any way to restrict that. They are concerned with those cases that go through a formal disciplinary investigation and procedure. In those cases, it is agreed within the concordat between the Lord Chancellor and the Lord Chief Justice that they should both have to agree to any decision to impose a disciplinary sanction on a judge, including giving warning and advice.
We believe that we have addressed this matter. Having listened to what has been said, I believe that it is appropriate to consider the drafting of these provisions further to ensure that they do not have any unintended effect. If necessary, I shall commit to tabling an amendment on Report. Perhaps that could inform the basis of any discussion with the noble Viscount and with other noble Lords.
I have the answer to the noble Lord, Lord Carlisle. Prescribed procedures are rules made by the Lord Chief Justice under Clauses 92 and 94. It says here, "See Clause 100". I shall look at Clause 100 presently. On the basis of what I have indicated to the noble Viscount—that I shall ensure that there is nothing further we should be doing on this and endeavour to discuss that with the noble Viscount—I hope that he will feel able to withdraw the amendment.
Viscount Bledisloe: I am grateful to the noble Lord, Lord Carlisle, and to the Minister. On the basis of what she has said, I am delighted to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 88CPF:
Page 35, line 2, after "office," insert—
"() the person or body who or which had so determined under prescribed procedures had recommended that the office holders should be so suspended,"
The noble Viscount said: In moving Amendment No. 88CPF, I shall speak also to Amendments Nos. 88CPG, 88CPH, 88CPJ and 88CPK. They are all concerned with discipline and, in particular, with the very powerful power given to the Lord Chief Justice to,
"suspend a judicial office holder for any period during which any of the following applies … or for any period".
In relation to someone who cannot be removed, say, by special procedures, such as a puisne judge in relation to addresses of the House, we are giving powers to the Lord Chief Justice and the Lord Chancellor to suspend such a person for any period. That period could be for 90 per cent of his remaining serving time, which would virtually be getting rid of him almost entirely. The circumstances in which they can do that are very widely expressed.
First, Clause 90(5) deals with the issue of an officer having been convicted of a criminal offence and it being determined by the proper body that he should not be removed from that office but it appears to the Lord Chief Justice that a suspension is necessary for maintaining confidence in the judiciary. Amendment No. 88CPF suggests that the body that decides that he does not merit removal should also be the body that recommends a period of suspension.
It seems ridiculous to me that that body can say, "No, we shall not remove you because really there is nothing wrong and the criminal offence does not in any way render you unsuitable and you should go on sitting", but that that body can be second-guessed by the Lord Chief Justice who says, "No, I am going to suspend you for three years". Where it has been decided by that body, that body should also determine whether it recommends suspension.
Turning to the next amendments, the Lord Chief Justice can suspend the holder of an office, again for any period during which he is under investigation for any offence or is subject to any disciplinary proceedings. Surely, that should be a serious offence and there should be disciplinary proceedings which could reasonably lead to his removal or suspension. If the worst that can possibly happen or is likely to happen from those disciplinary proceedings is that he receives a wrap over the knuckles, it seems absolutely ridiculous that he should be suspended while the proceedings are pending.
Again, he can be suspended if he serves a sentence imposed in criminal proceedings. A sentence involves anything other than a fine. I suggest that having three points on his licence would hardly merit his indefinite suspension. The suggestion is that only a serious offence should lead to suspension.
Those are various points that in total amount to a suggestion that these powers are much too wide. I have every confidence that the Minister will say that they will be subject to review and that she and the noble and learned Lord will reconsider them. If 1 do hear that I shall be very happy. Again I hope that we can make progress. But I hope that the Committee will recognise that these

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are important points. Unsuitable persons in those offices could seriously undermine the independence of the judiciary. I beg to move.
Lord Donaldson of Lymington: Perhaps I may intervene for one moment. I have always been worried about the aspects of the Bill and the concordat in so far as they produce something in the nature of a service disciplinary attitude. One of the strengths of the puisne judges—and a fortiori a bit further up—is that they are highly responsible people who can be relied on, with very few exceptions, to act responsibly. Peer pressure has a considerable effect. An open suspension of any judicial officer of the rank or seniority—whatever you would like to call it—of a puisne judge would be immensely damaging to him. In fact, it would really force his resignation. It would not be necessary in some cases.
Some people may know the sort of background history which moves me. There was a case where a puisne judge suffered from a curious form of mental illness whereby for much of the time he was perfectly rational and at times he was not. That was dealt with by simply not providing him with work at moments when he was not as rational as he might be. It is perfectly true that on one occasion something escaped the system, but that was obviously a judicial administrative error.
The point remains that I do not believe that High Court judges and above—and it may go a little further sthan that—should be subject to disciplinary proceedings other than the ultimate sanction of a joint address of both Houses Parliament. I have not checked it again, but I believe that at one stage I found that it was open to the Lord Chief Justice to censure, suspend or give formal advice to the Master of the Rolls. I suggested to the present Lord Chief Justice that that was not a good idea. He persuaded me not to take up arms on the subject by saying that he could not conceive of any Lord Chief Justice trying it on. That may be so. It is not actually a very happy basis for legislation.
I believe that the independence of the higher judiciary, to some extent, depends on maintaining traditions and not backing them up with judicial processes. It was possible for the Lord Chief Justice—he did not—to have taken a view on some of the rather peculiar things that I as president of the National Industrial Relations Court was doing. I was dealing with a very peculiar world in which it had to be recognised that what was said in private bore little relation to what was said in public.
Some people might have taken the view that that was improper on my part. I did not take that view, nor in fact did the Lord Chief Justice. However, it would have undermined my independence very considerably if people had been able to give me formal advice not to conduct that court in the way I saw fit. Indeed, in that context I was asked by the noble Lord, Lord Carr, the then Secretary of State for Employment, whether I was responsible to the Lord Chief Justice. I said, "No, certainly not". He said: "Well, I suppose then that you
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are responsible to the Lord Chancellor". I said, "No, the essence of my job is that I am responsible to the law and to my conscience and to no one else". I was convinced, particularly at that period in my career, that my ability to approach things—I may have got it wrong—without any feeling of pressure was dependent on my view that I was responsible to no one other than my conscience. I am troubled about the whole basis of this part of the concordat.
Lord Goodhart: It seems to me that the noble Viscount, Lord Bledisloe, has raised a number of interesting and important points. Certainly, I should be grateful if the Minister would agree to take these matters away and to look at them again because I think they deserve it.
I have one question. Clause 91(2) of the Bill states:
"A judicial office holder is subject to criminal proceedings from the time when he is committed for trial on indictment for an offence".
Does that mean that criminal proceedings for the purposes of Clause 90 refers only to criminal proceedings on indictment? That of course would somewhat alter the position.
Lord Kingsland: I have just one small additional question. As I understand it, Clause 90 refers to all the judges in Schedule 14; that is to say, it includes puisne judges. Clause 91, however, which purports to interpret Clause 90, appears to exclude puisne judges by virtue of subsection (4)(b). By that I mean that a puisne judge's status changes from being a judicial officeholder, under Schedule 14, to a senior judge. Can the noble Baroness shed light on what implications that has for the interpretation of Clause 90 in relation to puisne judges?
4.15 p.m.
Baroness Ashton of Upholland: I am grateful to all noble Lords who have spoken in this important debate. I have a long answer and a short answer to give the noble Viscount, Lord Bledisloe. Having listened carefully to what he said, I shall stick with the short answer. My reason is that, rather than go through the specifics of each amendment, I take from the tenor of the debate and noble Lords' contributions that there is desire for me to say precisely what the Government will do—which, in a sense, is the short answer. We recognise that some of the provisions relating to judicial discipline require further refinement to bring them fully into line with the concordat. We intend to move amendments on Report following further discussions with the judiciary. In that context, I undertake to consider carefully the noble Viscount's amendments. Again, perhaps I could form part of the discussions.
The noble Viscount and the noble and learned Lord, Lord Donaldson, raised the issue of High Court judges. The power to suspend High Court judges will apply only while they are subject to parliamentary proceedings. But there should be the ability to consider complaints and, if necessary, to issue some form of reprimand. For example, in recent years, I understand, there has been a reprimand for delay in giving

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judgments. It is on such a basis that we are considering those matters. I would be delighted to hear more from the noble and learned Lord if there are other issues that he wishes us to think about in that context.
The noble Lord, Lord Goodhart, gets my prize of the evening; the issue of trial on indictment is a mistake. It should also apply to summary proceedings. The noble Lord is quite right; we will seek to amend the provision.
I cannot give a proper answer to the noble Lord, Lord Kingsland, on the relationship of Clause 91 with Clause 90, recognising the issue of puisne judges. I will write to him before Report and ensure that his question is answered appropriately and properly. On the basis of the commitment that I have given, I hope that the noble Viscount will feel able to withdraw his amendment.
Lord Donaldson of Lymington: If anything that the noble Baroness said constituted an invitation to me to put forward issues for consideration, perhaps I might suggest that it would be wrong to allow people, certainly at High Court level, to be censured over delays in judgments. As Master of the Rolls I was very concerned about it. I did two things. In jest I circulated to all Lords Justices a newspaper cutting in which a Chief Justice somewhere in the Far East said that it was intolerable that judgments should be delayed for 20 years or more. I made it clear that perhaps that was overdoing it.
More seriously, some judges, whether through conscientiousness or otherwise, take far too much time to prepare judgments. I dealt with it as I should have thought heads of division would deal with it: simply to say, "I understand that you have problems with this judgment. I propose to assist by not giving you work to do until you have done it". It would be very surprising if a judge at that level said, "Fine, I am off to play cricket".
Baroness Ashton of Upholland: The noble and learned Lord's points are well made. I did not wish to imply anything but wanted to give an instance of the reality of the situation. I will reflect as we look carefully at the concerns and amendments of the noble Viscount, Lord Bledisloe, and all that has been said by noble Lords on this particular amendment. I will take into account the noble and learned Lord's comments.
Viscount Bledisloe: Once again I am grateful to the noble Baroness for her very helpful and co-operative reply. I only hope that the appearance of the noble and learned Lord the Lord Chancellor to sit alongside her does not mean that this charming spirit of assistance and conciliation will be diminished.
I am also grateful to the noble Lord, Lord Goodhart, for his interesting point on Clause 91(2). If the criminal proceedings were only those on indictment, much of my worry would disappear. But the definition in Clause 91(2) relates only to any subject of criminal proceedings—that is to say, it relates to Clause 90(4)(a) and not 90(4)(b). If the provision could be adapted, that might solve quite a lot of our worries. I look forward to
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a helpful dialogue either with the noble Baroness or, if needs be, with the noble Baroness and her colleague. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CPG and 88CPH not moved.]
Clause 90 agreed to.
Clause 91 [Disciplinary powers: interpretation]:
[Amendments Nos. 88CPJ and 88CPK not moved.]
Clause 91 agreed to.
Clauses 92 to 100 agreed to.
Clause 101 [Parliamentary disqualification]:
[Amendment No. 88CQ not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 88CQA:
Page 40, line 8, at end insert—
"() A person who is a judge of the Supreme Court or a member of the supplementary panel under section 33 of the Constitutional Reform Act 2004 shall be a member of the House of Lords.
() A person who by reason of section 33(4) or 33(5) of this Act is no longer a judge of the Supreme Court or a member of the supplementary panel shall continue to be a member of the House of Lords."
The noble Lord said: I can move the amendment briefly. So far, the establishment of a Supreme Court has attracted great attention with regard to its new building. It has attracted less attention with respect to the designation of those intended to inhabit it. I thought it important, therefore, that the Committee should have an opportunity to consider the matter.
The basis on which the Government have proceeded with the Bill is, as we know, that the absence of a separate home for the final court of appeal has created confusion in the public mind. Accordingly, the Government have decided—with great reluctance, of course—that, in future, the final court of appeal should be renamed "the Supreme Court" and sit in a separate building.
The case as to whether or not those who are members of the Supreme Court should remain Members of the House of Lords has not been made out in any detail. Why should future members of the Supreme Court cease to become Members of this House? Wherein lies the confusion for the general public?
There can be no confusion about names. When one appears in front of, for example, a puisne judge in the High Court, one addresses him or her as "My Lord" or "My Lady". From the point of view of the general public, that judge might easily be a Member of the House of Lords. Thus, if there would be confusion if the members of the Supreme Court remained Members of the House of Lords, such confusion also applies to the Court of Appeal and the High Court. There must be some other reason why, in the Government's mind, it would be inappropriate for future members of the Supreme Court to become Members of the House of Lords. What could it be?
The issue of voting has already, in effect, been dealt with by convention. Lords of Appeal in Ordinary no longer vote in your Lordships' House, except with a few unintended exceptions.
Lord Goodhart: Is the noble Lord aware that two serving Law Lords voted in the principal Division on the Hunting Bill?
Lord Kingsland: I regard that as an entirely distinct matter. The vote on the Hunting Bill was a free vote and therefore did not engage the Law Lords' responsibilities politically; it simply engaged them in expressing their own view of a matter on which all noble Lords had a free vote. I am surprised that the noble Lord, Lord Goodhart, should have raised that matter in the context in which I was speaking.
I am sure that a new convention on speaking could be developed to guarantee that members of the Supreme Court who were also Members of this House would not speak on matters that could, in any way, embarrass them in their judicial activities. If such a convention could be developed, the plus side for having members of the Supreme Court remaining Members of your Lordships' House would, in my submission, be substantial.
The noble Lord, Lord Elton, has, in particular, in a number of debates in your Lordships' House, drawn attention to the important role that noble and learned Lords have played in the general work of your Lordships' House. Sub-Committee E of the European Union Committee has often been mentioned, but that is by no means the only example. It is for the Government to make out the case for members of the Supreme Court no longer being Members of your Lordships' House. I beg to move.
Lord Renton: These amendments, moved by my noble friend Lord Kingsland, are, in my opinion, the most important amendments moved to this Bill. I speak as one who has been a Queen's Counsel for 50 years and a Member of your Lordships' House for 25 years. There is no doubt that all Law Lords deserve to be made Peers and to remain Peers. But some of them, especially those who have retired, play a vital part in the work of this House, especially when we are legislating on constitutional matters and, indeed, on other legal matters as well.
The Government and Parliament would do a great disservice to our constitution if the Law Lords were expelled, as is proposed by the Government, or their successors—that is, the Supreme Court judges—were prevented from helping to improve legislation. Therefore, I hope that the Lord Chancellor, for whom I have some respect, will take very seriously what my noble friend Lord Kingsland has put before the Committee and that the Government will change their mind and allow either Law Lords or future Supreme Court judges to remain Peers.
Viscount Bledisloe: Amendments Nos. 88CR to 88CU, standing in my name, are not grouped with the amendments tabled by the noble Lord, Lord Kingsland. But the subject matters so overlap that, unless any Members of the Committee or anyone on the Front Bench object, it would be more convenient if I speak to them now. I certainly see the Whip encouraging me on the grounds that that means that we will get on quicker.
Some of those amendments were drafted in the expectation that we would have a vote on the Supreme Court, that the idea of the Supreme Court would have gone and that we would be back to our good, old and sensible Law Lords. Amendments Nos. 88CR and 88CT probably are not wholly applicable, but the principle is, and the other two are.
Clause 101(2) would disqualify any Member of this House who holds any judicial office from sitting or voting in this House or in any committee of this House. That is extreme and all wrong. Even if the Supreme Court is to go forward, there will still be a period until it takes effect, so there will still be some Law Lords who will be both Members of this House and members of that court. And, in future, it may well be that the Lord Chief Justice and the Master of the Rolls could also be Members of this House.
What I propose is this. Except that they cannot vote, thus encapsulating the convention in the Act—and excluding even the exception to it made by the noble Lord, Lord Kingsland—do not prevent them taking part in the proceedings of your Lordships' House either by speaking, and so giving us their tremendously important advice on constitutional matters, complicated points of law and so forth, or taking part in committees of your Lordships' House. As someone who has served twice on Sub-Committee E under three wonderful chairmen, all Lords of Appeal, do not deprive us of services of that sort. What possible objection can there be to the Law Lords sitting and speaking, provided that they are debarred from voting?
That is what I suggest should be done. I have chosen to speak to my amendments because they tie in closely with the topic raised by the noble Lord, Lord Kingsland.
4.30 p.m.
Lord Campbell of Alloway: I shall make a brief speech. Leaving aside the question of voting, to which reference has just been made, and in saying that I support the amendment moved by my noble friend Lord Kingsland, surely it is right that a Lord of Appeal in Ordinary, whether he serves on the Appellate Committee of your Lordships' House or what is supposed to be a Supreme Court, is neither here nor there. The point is that if he is in either, he should be entitled to a Writ of Summons to attend this House and to speak here. This House will be much the poorer if Lords of Appeal in Ordinary are not entitled to speak here.
For my part, I think that the entitlement to vote should be retained, but that is an extension of the argument. I have supported this contention on previous occasions, so I shall not repeat the

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arguments. I also support the contention that the Lord Chancellor must be a Member of this House. At a later stage I propose to return to that in a more formal manner, so I shall not take up the time of the Committee at the moment.
Lord Lloyd of Berwick: I had intended to move Amendment No. 88CR in due course, but I note that my noble friend Lord Bledisloe has to a certain extent already jumped the gun. I am very happy to jump the gun as well so as to avoid a separate debate later. The key amendment in the group is Amendment No. 88CS, the effect of which would be to enable the Law Lords, if they continue to exist as Law Lords, to continue to sit and take part in the proceedings of this House, but not to vote.
I should have thought it must be common ground that, over the years, the Law Lords have made an enormously valuable contribution to the proceedings of this House while still serving as Law Lords. We all remember Lord Wilberforce, Lord Scarman and, I suspect, a particular speech made by Lord Taylor when he was Lord Chief Justice. It would be the greatest of pities to deprive ourselves of the opportunity of hearing contributions of that calibre by what, in effect, amounts to only a theoretical argument. Moreover, as has already been mentioned, Law Lords make a particular contribution to House of Lords committees, one that I should say is unpaid. Unlike other members of such committees, Law Lords are not paid.
My personal view is that Law Lords should also be allowed to vote. It seems in a sense artificial to allow them—as I hope we shall—to take part in debates and express their views but then not to allow them to back those views in the Lobbies. I accept what the noble Lord, Lord Goodhart, said earlier, but very occasionally the Law Lords do vote. However, I simply cannot accept that by doing so they would disqualify themselves under the European Convention on Human Rights from sitting on an appeal totally unrelated to the matter on which they had voted. Indeed, at an earlier stage in Committee I drew attention to a recent decision of the European Court of Human Rights—I think from Finland—which has decided that very point: there is no automatic disqualification.
I should like to see the law remain exactly as it is with the Law Lords continuing, not very often but occasionally, to take part in debates—I hope with some effect—and also being allowed to vote, as they do very occasionally. I am sure that we can rely on the Law Lords to exercise wise discretion in the matters in which they take part and vote.
I suspect that in the minds of some Members of the House the issue of voting raises a particular problem. It is for that reason that I have brought forward the amendments in the hope that they might provide a compromise. I would like the Law Lords to continue to sit and vote but, as a form of compromise, I would be happy if they were allowed to speak but not vote. We cannot afford to do without them.
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Amendment No. 88CT is simply consequential if Amendment No. 88CS is accepted. Again, that has already been explained.
Lord Goodhart: I think that noble Lords and noble and learned Lords who have spoken so far will not be surprised to learn that I am unable to support Amendments Nos. 88CQA or 88CTA. The amendments in the following group which have been spoken to would arise only in the event that the proposal to set up a Supreme Court is defeated. I therefore do not wish to speak to those amendments on this occasion.
So far as Amendments Nos. 88CQA and 88CTA are concerned—
Viscount Bledisloe: The noble Lord, Lord Goodhart, is not correct. Amendment No. 88CS, which refers to sitting, would apply even if the Supreme Court is set up. There will be a number of people who are Lords and members of the Supreme Court. The Lord Chief Justice, the Master of the Rolls and various other people will be covered whether or not there is a Supreme Court.
Lord Goodhart: That seems to me to be something of a second order question and I do not wish to take up the time of the Committee discussing it.
It seems inappropriate that the members of the Supreme Court should also ex officio continue to be Members of your Lordships' House. The post of Lord of Appeal in Ordinary was created in order to facilitate the appointment of people who were to be members of the Appellate Committee of your Lordships' House. They were appointed for the specific purpose of acting as judges—although, of course, under the terms of their appointment, they remain for life. After they have ceased to hold the office of Lord of Appeal in Ordinary they remain Members of your Lordships' House.
In the event of a Supreme Court being created, I can see no reason why that membership should be continued. As the noble and learned Lord, Lord Bingham of Cornhill, said, the Law Lords arc judges and not legislators. While they remain Members of your Lordships' House there is indeed a case for saying that they should be entitled to speak—although I have much more difficulty in saying that they should have any right to vote—but, once they have moved out of this building, different considerations apply. I do not believe that the historic link should be continued.
I think there is a case—I am not saying necessarily that I agree with it—for saying that a small number of senior members of the judiciary should be Members of your Lordships' House in order to represent the views of the judiciary. They would be the Lord Chief Justice, the President of the Supreme Court, the Lord President, the Lord Chief Justice of Northern Ireland and possibly the Master of the Rolls.
There can be no justification for saying that all 12 members—justices of the Supreme Court—should, ex officio, become Members of your Lordships' House. That number of judges cannot be justified on

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the basis that they represent the opinions of the judiciary. I can see no justification for saying that they should have the right, speaking as individuals, to express their views on the political issues that come before your Lordships' House. Therefore, I feel unable to support the amendments.
Lord Carlisle of Bucklow: In some ways, this debate is out of time in the Bill. As I understand it, we have not yet voted or decided on whether we are to have a Supreme Court. If, as I hope, the decision is taken not to proceed with a Supreme Court and to continue with the Judicial Committee of the House of Lords, then presumably the present Law Lords will continue, and any new appointment will be a further Law Lord.
As I understand the Government's position, should they win the vote and set up a Supreme Court, those who are existing Law Lords and become members of the Supreme Court will of course continue to be Lords, whereas it is not intended that any new appointment to the Supreme Court will be made a Lord. Would that not lead to the position that the noble and learned Lord, Lord Bingham, described as the worst of all, with a Supreme Court made up of half or more Members of your Lordships' House, who are existing Lords, and the new members of the Supreme Court not being made Members of the House of Lords? As I understood his evidence, the noble and learned Lord was very critical of the suggestion and said that anything that led to such a result must be wrong.
The Government have said at some stage that members of the Supreme Court could be made Lords when they had completed their period of service on the Supreme Court. I am not sure whether that is not worse. Do you make every single one of them automatically a Law Lord, or do you pick and choose those whom you make Law Lords at the end of their period of service on the Supreme Court? I do not believe that that would be at all suitable.
Several of those existing Law Lords who gave evidence explained the great advantage that they got out of membership of this House. As members of the Committee, we all accepted the advantage to the House of their membership and chairmanship of Select Committees and matters of that kind.
I hope, therefore, that this matter will be looked at again, even were the Government to win on the issue of the Supreme Court, and that the principle of the amendment will be supported.
The Earl of Onslow: I should like to reminisce, if I may. Many years ago, I sat on Sub-Committee E, the law committee of the European Select Committee. I cannot remember anything as stimulating or as exciting as being chaired by the noble and learned Lord, Lord Scarman. He was incredibly complimentary to me. He said that not only did he like having somebody on his committee who was learned in the law—which obviously he and most of the others were—he liked having somebody who was not learned in the law because they brought a fresh mind to matters. I would suggest to your Lordships that to have Sub-Committee E with only me on it would be stupid
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and to have Sub-Committee E with only the noble and learned Lord, Lord Scarman, on it would lack another dimension. I would suggest to your Lordships that we should really keep the Law Lords doing those sorts of jobs because of the contribution that they make to the House and the mixture they bring to it.
4.45 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): I welcome the suggestion of the noble Viscount, Lord Bledisloe, that we deal with the group of amendments which contains Amendment No. 88CQA with the group which contains Amendment No. 88CR. I took the fact that the noble and learned Lord, Lord Lloyd, spoke on the group containing Amendments Nos. 88CR, 88CS and 88CT as indicative of his acquiescence in that approach.
Amendment No. 88CQA would amend Clause 101 to require Supreme Court judges and members of the supplementary panel to be Members of the House of Lords if they are not Members already and to allow them to remain Members notwithstanding resignation or retirement from the court or panel. Amendment No. 88CTA would lift from members of the supplementary panel only the bar on sitting and voting in the House or on its committees or joint committees.
The debate has revealed two separate strands of argument in support of Supreme Court members being Members of the House of Lords as well. The first strand, which was touched on by the noble Lord, Lord Kingsland, and developed by the noble Lord, Lord Carlisle, related to the issue of inequality between those who are already Members of the House of Lords and those who, if we had a Supreme Court, would not be made Members of the House of Lords, but simply Justices of the Supreme Court. The first strand of argument proceeds from the view that there should not be a situation where some of the judges are Peers and some are not. I assume that it is also said that there should not be any similar difference between permanent judges and members of the supplementary panel.
Oddly, that argument does not appear to be extended to existing members of the highest judicial offices below the Supreme Court; that is, Master of the Rolls, Lord Chief Justice and Lord President. The amendments would leave them eligible under Clause 32 to act as acting judges in the Supreme Court regardless of whether they were Members of the House of Lords.
The second strand of argument is that irrespective of inequality, but as a matter of principle, members of the final Court of Appeal should be Members of the House of Lords because of the huge contribution that Members of the final Court of Appeal have made as legislative Members of the House of Lords. Those are the two arguments that are primarily advanced. I understand them and I accept the great contribution that has been made by Members of the House of Lords who are judicial members to legislative business. In the same way, I imagine that the Cabinet Secretary, if he were a Member of the House of Lords, would make an equally good contribution.

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However, the amendments are contrary to one of the key principles behind our proposals; that is, the functional separation of the judiciary from the legislature. As I stated on 11 October, it is the Government's conviction that the Supreme Court must be, and must be demonstrably, independent of Parliament's Upper Chamber. That cannot be achieved—indeed, we would be moving in precisely the opposite direction—if all of the Members of the court must be Members of the House of Lords, although the first Justices of the Supreme Court, being the current Lords of Appeal, will retain their peerages.
The fact that they retain their peerages during a transitionary period does not obviate the need for this House to address the following principle: if we set up a Supreme Court, as we should and will press to set up, with the purpose of separating it from the legislature, we would be wrong to make the members of that Supreme Court Members of this House.
Lord Renton: Under our constitution, the final Court of Appeal has for years and generations consisted of Members of the House of Lords. I have never heard it suggested that their decisions have been politically influenced or influenced merely by their membership of this House. Is the noble and learned Lord suggesting that that has happened?
Lord Falconer of Thoroton: No, I am not suggesting that, but I do suggest that the time has come for the final court of appeal in this country to be separate, and identifiably separate, from the legislature. The court system and the vindication of rights should be clearly separate from the activities of the legislature, both because of the perception and because being separate creates a different atmosphere in which a court sits.
I defer to many Law Lords, but many noble Lords will have read the comments of the noble and learned Baroness, Lady Hale, who describes the House of Lords as an "intensely political" place. I deduce that the atmosphere in the House of Lords is very different from that which prevails in the Royal Courts of Justice. I would think it extremely unlikely that that atmosphere does not have an effect on the approach. I make it absolutely clear, however, that I fully accept every word that the noble Lord, Lord Renton, said and that there is no political bias in the decisions that have been made. But if it is a right approach that there should be separation, and a functional separation, between the legislative chamber and the final court of appeal, it would be wrong, and wrong in principle, to make Supreme Court justices Members of this House.
As for the transitional position, if Parliament decides that we should make the move to have a Supreme Court, there will inevitably be a transitonary period. But the direction of travel in that transitonary period should be in favour of moving away from a connection, rather than continuing it.
Those remarks were primarily addressed to the issue of full-time members of the Supreme Court. The issue of the supplementary panellists is a different one. Once those supplementary panellists are retired, like the
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noble and learned Lord, Lord Lloyd, but are still from time to time willing to sit, and in fact sitting, as members of the final court of appeal, should that activity bar them—assuming that we have a Supreme Court—from participating in the House of Lords? That is an issue that we need to reflect on. But I have absolutely no doubt that, if we are setting up a Supreme Court, we must say "no" to the members of that court being Members of this House.
In relation to the points made by the noble Viscount, Lord Bledisloe, Amendment No. 88CR adds Lords of Appeal in Ordinary and those qualified to sit as Lords of Appeal to those who are not eligible to vote in the House of Lords or in any parliamentary committees. Amendment No. 88CS removes the words "sitting or" from subsection (2) of Clause 101, which presently bars holders of certain judicial offices from sitting and voting. I understand the effect that the noble Viscount wishes to achieve is that that would allow Lords of Appeal in Ordinary and all other Peers who are holders of full-time judicial office to sit and indeed speak and participate in debates in this House as long as they do not vote.
I do not need to deal with Amendment No. 88CT, for reasons that the noble and learned Lord, Lord Lloyd, gave. The intention is, plainly, only to prevent those people from voting, but to let them participate. I assume, again, that we are dealing with full-time members of the Supreme Court, and that in the transitional period they would be Members of the House of Lords who have moved to the Supreme Court or people appointed Supreme Court judges. In relation to those newly appointed, if the intention is to make the separation, it would be wrong to let them participate.
We can all identify people of great standing in our society who would make a very valuable contribution to this House. But if the principle is accepted that the Supreme Court is separate from this House, it is wrong in principle that people such as those sitting in the final court of appeal should be able to bring their experience here until after they have sat as Supreme Court justices. That is because, again, the principle underlying the proposal for the Supreme Court is that the final court should be separate from the legislature. For that reason, with respect, I reject the proposal made by the noble Viscount in relation to full-time Supreme Court justices, including those who are Lords of Appeal in Ordinary when the transition occurs.
We need to reflect on the position of supplementary panellists. The issue in that case is one of proportionality: whether a complete or partial bar is necessary. In those circumstances, I invite the noble Lord to withdraw his amendment.
Viscount Bledisloe: First, I apologise to the noble and learned Lord, Lord Lloyd, for hijacking his amendment. In the heat of having done about four previously I had forgotten that that one was in his name and not in mine.

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Secondly, I am sorry that, just as I anticipated, when the noble and learned Lord the Lord Chancellor comes to the Dispatch Box we are treated to just as much charm but much less satisfactory answers. Perhaps in future he might entrench himself, and the noble Baroness, Lady Ashton of Upholland, can continue to satisfy us as well as charm us.
Lord Kingsland: I shall not say anything about the noble and learned Lord's charm.
I will thank the noble and learned Lord the Lord Chancellor for a very full and, if I may say so, straight reply to my amendment. The noble and learned Lord has made his position perfectly clear. I am grateful to him for that. It is a matter to which I expect we will return on Report. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CR to 88CU not moved.]
Clause 101 agreed to.
Clause 102 agreed to.
Schedule 15 [Repeals and revocations]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 88CV:
Page 221, line 34, at end insert—
"For section 18 substitute—
"18 APPOINTMENT OF REGISTRAR
(1) Her Majesty may, under her sign manual, appoint any person to be the registrar of the said privy council, as regards the purposes of this Act, and direct what duties shall be performed by the registrar.
(2) A recommendation to Her Majesty to exercise any power under subsection (1) may be made only after consultation with the President of the Supreme Court of the United Kingdom.""
The noble Baroness said: This amendment provides for the sovereign to appoint a registrar only after consultation with the President of the Supreme Court. As the Committee will be fully aware, the registrar is in effect the Clerk of the Judicial Committee and is empowered to examine witnesses, take affidavits and depositions in matters coming before the Privy Council and the Judicial Committee.
Currently the sovereign appoints the registrar by convention after receiving advice from the President of the Privy Council. These new arrangements provide for formal judicial input into the decision to appoint the registrar.
These provisions reflect those already in Schedule 15 of the Bill which revise the arrangements for the appointment of an acting registrar to include consultation with the President of the Supreme Court. I beg to move.
On Question, amendment agreed to.
[Amendment No. 88CW not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 89:
Page 222, line 14, at end insert—
"Judicial Committee Act 1881 (c. 3)
The Judicial Committee Act 1881 ceases to have effect."
The noble Baroness said: With Amendment No. 89 I should like to speak also to Amendments Nos. 93 and 97. As the Committee will appreciate, these are tidying up amendments in relation to repeals relating to the Judicial Committee of the Privy Council. They make no substantive change.
Amendment No. 89 repeals the Judicial Committee Act 1881 which provided for Lord Justices of Appeal who were also members of the Privy Council to sit on the Judicial Committee. This provision has, in effect, been overtaken by the changes in paragraph 2 to Schedule 15 of the Bill which provides for membership of the Judicial Committee of the Privy Council to include those Privy Counsellors who have held high judicial office (as defined in Part 2 of the Bill), so making the Judicial Committee Act 1881 redundant.
Amendments Nos. 93 and 97 are technical in nature, setting out in one group all of those repeals arising from Schedule 15. I beg to move.
On Question, amendment agreed to.
Schedule 15, as amended, agreed to.
Clause 103 agreed to.
5 p.m.
Clause 104 [Interpretation]:
Lord Kingsland Lord Kingsland moved Amendment No. 89A:
Page 40, line 32, leave out "Secretary of State for Constitutional Affairs" and insert "Lord High Chancellor of Great Britain"
The noble Lord said: I beg to move.
Baroness Ashton of Upholland: I shall be brief. I agree entirely with the principle of the amendment. However, we need the wording to be consistent with that of Clause 1(4); that is, Clause 104 should refer to the Lord Chancellor rather than the Lord High Chancellor of Great Britain. Schedule 1 to the Interpretation Act 1978 already provides that Lord Chancellor means Lord High Chancellor of Great Britain, so it is unnecessary to use his full title in defining "the Minister". For those reasons, I am prepared to accept the principle of the amendment, and I ask that it be withdrawn on the undertaking that I shall table an appropriate amendment on Report.
Lord Campbell of Alloway: Is that an undertaking that the Government will introduce the amendment to Clause 1(4) of their own volition?
Baroness Ashton of Upholland: It is. I was merely indicating how I would do so.
Lord Kingsland: I am most grateful for the noble Baroness's correction. In those circumstances, I am content to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 90:
Page 40, line 32, at end insert—
""Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26)."
On Question, amendment agreed to.
Clause 104, as amended, agreed to.
Clause 105 agreed to.
Clause 106 [Orders and regulations]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 91:
Page 41, line 26, leave out "the Minister" and insert "a Minister of the Crown"
On Question, amendment agreed to.
[Amendment No. 91A not moved.]
Clause 106, as amended, agreed to.
Clause 107 agreed to.
Schedule 16 [Minor and consequential amendments]:
[Amendment No. 91B not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 91C to 91G:
Page 224, line 4, at end insert—
"Ecclesiastical Jurisdiction Measure 1963 (No. 1)
(1) The Ecclesiastical Jurisdiction Measure 1963 is amended as follows.
(2) In section 11 (review of commissions of convocation or Court of Ecclesiastical Causes Reserved) for "Lords of Appeal (within the meaning of the Appellate Jurisdiction Act 1876)" substitute "judges of the Supreme Court, or members of the supplementary panel under section 33 of the Constitutional Reform Act 2004,".
(3) In section 66(1) (interpretation) for the definition of "high judicial office" substitute—
""high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;"."
Page 224, line 15, leave out sub-paragraph (3) and insert—
"() In section 12 (retirement of higher judiciary in event of incapacity)—

(a) in subsection (1)—

(i)omit "as Lord of Appeal in Ordinary, or";

(ii) for "subsections (2) to (4)" substitute "subsection (4)";

(b) omit subsection (2)."

Page 225, line 13, at end insert—
"Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No. 3)
In the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, in section 31(1) (interpretation) for the definition of "high judicial office" substitute—
""high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;"."
Page 226, line 3, leave out paragraph (c) and insert—
"() paragraphs 1(1)(a) and 2(2) of Schedule 3 (the Tribunal),"
Page 226, line 37, at end insert—
"Clergy Discipline Measure 2003 (No. 3)
In the Clergy Discipline Measure 2003, in section 43(1) (interpretation) for the definition of "high judicial office" substitute—
""high judicial office" means such office within the meaning of Part 2 of the Constitutional Reform Act 2004 or membership of the Judicial Committee of the Privy Council;"."
On Question, amendments agreed to.
Schedule 16, as amended, agreed to.
Clause 108 agreed to.
Schedule 17 [Repeals and revocations]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 92:
Page 227, line 17, at end insert—

"Courts Act 1971 (c. 23)

In section 24(1)—

(a) ", he may";

(b) in paragraph (a), "or" in the last place where it occurs.

Child Support Act 1991 (c. 48)

In section 53, "the Lord Chancellor or"."

The noble Baroness said: These are minor technical amendments relating to Schedule 17, which lists repeals and revocations of statutory provisions made in other parts of the Bill. Amendment No. 92 is a technical amendment to add references to Section 24(1) of the Courts Act 1971 and Section 53 of the Child Support Act 1991 to part 1 of Schedule 17.
Section 24(1) of the Courts Act 1971 is amended by paragraph 25 of part 2 of Schedule 4, which deals with appointments to be made by the Minister. That paragraph omits some of the existing words of Section 24(1), and a reference therefore needs to be added to the list of repeals and revocations in Schedule 17. Section 53 of the Child Support Act 1991 is amended by paragraph 25 of Schedule 5, which deals with other functions of the Lord Chancellor. Again, this is a consequential amendment resulting from that paragraph. As noble Lords are aware, on 13 July the House voted that Schedule 5 should not be agreed to. However, to preserve that part of the amendment which relates to the Courts Act, I would ask that this amendment be accepted as a whole, subject to my undertaking to correct the Child Support Act reference at Report stage.
Amendments Nos. 95 and 96 remove Sections 2(1)(a) and 2A(2)(c) of the Civil Procedure Act 1997 and Section 71(2) of the Courts Act 2003 from the list of repeals and revocations in Part 2 of Schedule 17. These provisions are not being repealed but are being either amended or substituted by paragraphs 327, 328 and 434(3) of Schedule 1 respectively. The references, therefore, need to be removed from Schedule 17. I beg to move.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 93:
Page 227, leave out lines 36 and 37.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 94:
Page 228, leave out lines 2 and 3.
The noble Baroness said: The amendment is technical and corrects an instance of duplication. Schedule 17 provides for repeals in other legislation consequential on substantive clauses in the Bill. The amendment deletes from Part 1 of the schedule a repeal of Part 1 of the Appellate Jurisdiction Act 1947, which is superfluous, because the 1947 Act, as a whole, is repealed by Part 7 of the schedule. The amendment is minor and technical, and I trust that the Committee will have no difficulty in accepting it. I beg to move.
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 95 and 96:
Page 230, column 2, leave out lines 2 and 3.
Page 230, column 2, leave out line 18.
On Question, amendments agreed to.
[Amendment No. 96A not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 96B to 96D:
Page 232, column 2, leave out line 32 and insert—

"In section 12, in subsection (1) "as Lord of Appeal in Ordinary, or" and subsection (2)."

Page 232, line 34, column 2, at end insert—

"In Schedule 5, in Part 2 the entry relating to the Appellate Jurisdiction Act 1876."

Page 233, line 18, column 2 at beginning insert—

"In section 36(6)(a) "(other than a Lord of Appeal in Ordinary)"."

On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 97:
Page 233, line 26, at end insert—

PART 8
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Court of Chancery Act 1851 (c. 83)

In section 16, the words from ", exclusive of" to the end.

Oxford University Act 1862 (c. 26)

In section 7, ", not including the Lord President,".

Public Schools Act 1868 (c. 118)

In Section 9, ", not including the Lord President,".

Judicial Committee Act 1881 (c. 3)

The whole Act.

Judicial Committee Act 1915 (c. 92)

In section 1, "and the Lord President of the Council"."

On Question, amendment agreed to.
Schedule 17, as amended, agreed to.
Clause 109 [Extent]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 98:
Page 42, line 7, leave out subsection (1) and insert—
"(1) Sections 2, 4 and 5 extend to England and Wales only."
On Question, amendment agreed to.
Clause 109, as amended, agreed to.
Clause 110 [Commencement]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 99:
Page 42, line 18, at end insert—
"() section (Guarantee of continued judicial independence: Northern Ireland);"
On Question, amendment agreed to.
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 100:
Page 42, line 22, at end insert—
"() Section (Guarantee of continued judicial independence: Northern Ireland) comes into force in accordance with provision to be made by the Secretary of State by order."
On Question, amendment agreed to.
Clause 110, as amended, agreed to.
Clause 111 agreed to.
In the Title:
Lord Kingsland Lord Kingsland moved Amendment No. 101:
Line 1, leave out from "for" to first "to" in line 2 and insert "modifying the office of Lord Chancellor, and to make provision relating to the functions of that office"
The noble Lord said: I must be careful about how I promote this amendment. Subject to any observations by the noble Baroness, I propose to move the amendment, but I shall pause before I do so to see whether she has something to say to me.
Baroness Ashton of Upholland: I am very happy to accept the noble Lord's amendment on the understanding that the Long Title may require further attention in the light of further revisions to the Bill that we shall propose on Report.
Lord Kingsland: In that case, I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 102 to 104 not moved.]
Title, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at eleven minutes past five o'clock.