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Column 689Lord Chancellor (Salary)
That the draft Lord Chancellor's Salary Order 1989, which was laid before this House on 14th March, be approved.
The need for this order arises out of the link between the salaries of the Lord Chancellor and the Lord Chief Justice. The independent Top Salaries Review Body recommended in 1983 that the Lord Chancellor should be paid more than the Lord Chief Justice in recognition of his position as the head of the judiciary and of his wider responsibilities. The House accepted the principle of the TSRB recommendation, and has successively reaffirmed that with the approval of the Lord Chancellor's salary orders for the years 1984 to 1988.
An annual Lord Chancellor's salary order is necessary because the Lord Chief Justice's salary is set annually following the recommendations of the Top Salaries Review Body. This year the TSRB recommended a salary of £89,500 for the Lord Chief Justice--a 5 per cent. increase. The Government accepted that that figure be paid from the due date of 1 April 1989.
Is the right hon. Gentleman aware that there has been a lot of talk in the corridors from Tory Members of Parliament, barristers and others in the legal profession, who are fuming with the current Lord Chancellor--on his big fat salary of £91,500 a year--for trying to introduce those new measures and upsetting their cosy little existence? How many votes does the right hon. Gentleman expect to get tonight if there is a Division?
Mr. Wakeham : I was in here, too, earlier on. The debate was a much more balanced affair than the hon. Gentleman might have thought. The Lord Chancellor has a salary lead of £2,000. The House accepted this figure in 1983 and it has remained at that level since. Its real value has eroded since it was first established, but that is of little significance in itself and is not a valid reason for changing it. The lead exists because the Lord Chancellor is head of the judiciary, and that makes it right that an appropriate differential should exist between him and the Lord Chief Justice.
The order establishes the Lord Chancellor's salary at £91,500 from the day it comes into force. It cannot be made retrospective. The salary level derives directly from a TSRB report and embodies a principle established six years ago, which has been accepted by the House on six previous occasions. I hope that once again it will commend itself to the House this year.
I commend the order to the House.
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Sir Nicholas Fairbairn (Perth and Kinross) : It may be appropriate for me to comment, as a member of the Scots Bar, about the salary of a Lord Chancellor who appears determined to make alterations to the structure of the law of England that I regard as devastatingly improper in relation to the benefit of the client in England. I feel that I can say so for two reasons. First, as it is not my Bar and it will not affect me, nobody can say, "He would say that, wouldn't he?" [ Hon. Members :-- "He would say that wouldn't he?"] Those hon. Members may know that there is a consultation paper in Scotland that does not make the proposals which have been made by the Lord Chancellor for the law in England.
I know that the Leader of the House listened to parts of the debate in the other place on Friday. Some of us also heard large parts of that debate, including the remarks of the Lord Chief Justice and the Master of the Rolls. Whatever their language, it was clear to those of us who listened that they did not take the view that the Scottish Lord Chancellor, as head of the English judiciary, had consulted them. From the language of the Lord Chief Justice's speech I should have thought that the order, which provides for the Lord Chancellor to receive a £2,000 lead over the Lord Chief Justice, might have been irked in the circumstances.
There are three matters that I will put before the House for its consideration. The first is the allegation in the proposals in the Green Paper entitled
"The Work and Organisation of the Legal Profession."
that the changes will make it cheaper for the client.
When the Lord Chancellor was dean of the Faculty of Advocates in Scotland it was suggested that the costs of divorce would be reduced if divorce were transferred from the exclusive right of audience in the Court of Session to the sheriff court. Costs have doubled. The Green Paper says that barristers in England face the extraordinary difficulty of being unable to find chambers in the crowded facilities of the Inns of Court. The Lord Chancellor has a flat in the Inns of Court as well as a tithe cottage at the other end of this House.
Most important of all, if one removes from the people who have to go to law the right to choose a specialist one will not only remove the service that they should receive, but increase the price of that service. In addition, it will destroy what is most special about the difference between specialist advocates and general solicitors. The general solicitor has a symbolic relationship with his client whereas the relationship between the advocate and his client is singular and provides a service of excellence that is infinitely cheaper than would be the case were the system destroyed by the current proposals which have been poorly thought out. They are in contradistinction of the recommendations made by the Lord Chancellor when he was dean of the Faculty of Advocates which spoke of the essential requirement to keep the Bar intact and separate. I say that as a Scotsman. It is an ill-service to the law of England.
Opposition Members on the funny Benches frequently say that Scotland is being used as a guinea pig for the community charge. I do not like England being used as a guinea pig by a Scottish Lord Chancellor. If he wants freedom of choice and a legal profession that we can all afford, what about if he forgoes his salary until his case is proven?
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Mr. Ivan Lawrence (Burton) : The question is : is the Lord Chancellor doing such a fine job that he deserves a salary increase? What a pity that we have only one and a half hours in which to discuss this extremely important matter, because I have enough to say on the subject to make the four and a half hour speech that I dedicated to trying to stop the poisoning of our drinking water by the addition of fluoride seem like the twinkling of an eye. It is also a pity that we have only this golden one and a half hours once a year to exercise any control--or at any rate, any influence--over the Lord Chancellor's discharge of his political duties.
By what criteria should we presume to judge whether the work of so eminent a legal luminary, so highly regarded a judicial figure, so well-admired and well-liked a political person, is worthy of the accolade that we are asked to give him tonight, expressed in the sordid terminology of money? May I have the temerity to suggest a test? Is the Lord Chancellor going to improve the legal system of the United Kingdom so that it will better serve the people--not the lawyers--of Britain? Is he making the legal system cheaper and more accessible for the consumer? Will it be a service of higher quality for the consumer?
By these criteria, sadly I have to conclude that many people who know and understand these matters are by no means convinced that--however good, honourable and well-intentioned a man, however brilliant a Scottish lawyer and judge he may have been, however eminent and well loved he undoubtedly is to anyone who has been privileged to know him personally in his work-- the Lord Chancellor is the wrong man for this salary at this time.
No other Lord Chancellor in living memory, perhaps in our history, has succeeded in antagonising almost the entire legal profession throughout the land. Has there ever been a debate in the House of Lords, on a Friday of all days, in which 56 of their Lordships rose--nearly all of them in anger- -at his well-meaning but destructive proposals? They will pull up by the roots the legal profession as we know it, which--for all its faults--still works reasonably well and is the envy of the civilised world.
Are all the greatest legal minds of the land incensed for no reason? These include the Lord Chief Justice of England, two former Lord Chancellors, the Master of the Rolls, all nine Law Lords and a most distinguished former Attorney-General who threatened to resign the Conservative Whip. There is also an impressive list of non-lawyer luminaries--many from the Opposition side--including Lord Benson, chairman of the recent royal commission on legal services, Lord Rees-Mogg, the former editor of The Times, who felt so strongly that he used his maiden speech to speak against the proposals, Lord Murray of Epping Forest and Lord Longford. That is a long list of unquestioned authority and influence from Opposition as well as Conservative Benches and outside Parliament are the--
Mr. Robert N. Wareing (Liverpool, West Derby) rose
Column 692None of the people in the House of Lords have the slightest financial interest in seeing the proposals defeated and cannot conceivably be said to be speaking in self-interest. It is a great achievement for the Lord Chancellor to have set so many of the people in the land who are best qualified through experience and judgment to assess the likely effects of the proposals against the Government and against their proposals for legal reform.
Mr. Wareing : Does the hon. and learned Gentleman agree that what distinguishes the Lord Chancellor from all the other people he has mentioned is that the Lord Chancellor was chosen by the Prime Minister, and that none of the present Government of yes men and women would defy her? If the hon. and learned Gentleman is suggesting that the Lord Chancellor's salary should be decreased, at least in real terms, should not the same be done to the Prime Minister's salary? Should not the hon. and learned Gentleman direct his wrath against the Prime Minister and the Government, who consult no one?
Mr. Lawrence : If I raised my wrath against the Prime Minister, I would be called out of order--would I not, Madam Deputy Speaker?--as this is a debate about the Lord Chancellor's salary. Since I have no complaint to make about our excellent Prime Minister, who, in every field of her endeavour as leader of the--
Mr. Lawrence : It is only out of deference to your ruling, Madam Deputy Speaker, that I forbear from dwelling even longer on the achievements of our Prime Minister, the great leader of the country, who, in the--
There are many reasons why the three Green Papers have been so angrily attacked. There are constitutional reasons and reasons of principle. I want to mention one particular sort of harm that will be done--the harm to the ordinary consumer of legal services. The claim that these proposals will be consumer-friendly is about as absurd as the claim that the salmonella scare will boost the sale of eggs. Let us consider the cost of legal services under the proposals. If a young man or woman wants to leave university and go into the legal profession now, he or she has the choice of going to the Bar, which will be slow in yielding its returns but which in due course will give the right of audience to the higher courts, the right to become a Queen's Counsel, and the right to become a High Court judge. If the proposals go through, the graduate wanting to enter the legal profession will find all those advantages in becoming a solicitor, because the solicitor will have the right of audience in the higher courts, the right to become a Queen's Counsel and the right to become a High Court judge.
On top of that, the graduate will be able, if he joins a solicitor's firm, to be guaranteed a pension, holidays with pay, a car, steady work and a roof over his head--the kind of attractions which the Bar does not offer. In those
Column 693circumstances, who in his right mind would choose the risks of the Bar in preference to the absence of risk involved in joining a solicitors' firm? Almost every graduate in his right mind will choose to become a solicitor, and very few--there may be some--will prefer the misery of going to the Bar to the luxury of becoming a solicitor. If such people want to become advocates, they will become solicitor advocates, and the supply of barristers of the independent Bar will dry up.
At the other end of the profession, there are people at the Bar who have spent 20 or 30 years running around Britain. They are the people who have to wait for two, three or four weeks for another case to come on stream after the case in which they were involved has collapsed. They would leap at the offer of an advocate solicitorship with a leading firm in the City with all the luxuries and the assurance of the steady income that would accrue. At that end of the profession the Bar would be depleted.
At the end of the day fewer people will come to the Bar, there will be fewer people at the top and a much smaller independent Bar. Anyone who wants to be represented by a Marshall Hall or by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) can go to the cab rank. People can go to the wonderful firm of solicitors of my hon. Friend the Member for Dorset, North (Mr. Baker). Someone seeking legal services can instruct my hon. and learned Friend the Member for Perth and Kinross and will get the best barrister in the land instructed by the best solicitor in the land. But if my hon. and learned Friend the Member for Perth and Kinross decided to join the firm of my hon. Friend the Member for Dorset, North, people who need the services of a barrister would have to go to that firm in London to get his specific representation in court. The cab rank principle will disappear, one of the achievements of the British Bar and the British legal system will be diminished, and the consumer will suffer.
If there is a smaller cab rank and the number of independent barristers is reduced, what will happen to the provincial solicitor? I am talking about the small two or three-man firm in the country areas--most of the areas of Britain. Most of our constituents employ small country solicitors who cannot afford to have an advocate partner but instruct barristers to represent the interests of their clients in the most effective and efficient way. If there is no cab rank and those solicitors cannot make a living because their conveyancing work has all gone to estate agents, building societies and finance houses in the high street, they will close down and go to the big towns and cities to make a living.
The smaller consumer who wants to seek legal advice from a solicitor in a small town will not be able to find one and will have to go to the big towns and cities and pay big city prices. If that is one of the likely results of the Green Papers, who will suffer because of the lack of legal advice and legal services, not just from the Bar but from solicitors? The ordinary consumer, the person who sends us to this House and expects us to vote for salary increases for Lord Chancellors who will improve legal services, will suffer. There is also the matter of quality. I accept that solicitors are inherently as capable as barristers. However, they are not specialists and they are not trained in court
Column 694work in the way that barristers are. They are unlikely to do the job as efficiently as barristers. Most of our solicitors deal with divorces, wills and conveyancing and with many kinds of problems, some of which are referred to us in our surgeries. Now and again they go to court and are expected to conduct an adequate defence of someone charged with rape, with running someone down or with killing a citizen through dangerous driving. If they are not doing that kind of work all the time, of course they are not as skilled.
I understand the points about monopoly and restrictive practices. We have a parallel in the medical profession. We would not expect the general practitioner who is advising Mrs. Bloggins about her cold, her varicose veins, her limp, her tiredness--a thousand different ills--to turn up and do a heart-lung transplant. We would, however, expect a surgeon who does heart-lung transplants, hip operations or lip operations day in, day out to be a skilled operator.
We do not say, "Let us abolish the rank of consultant" or "Let us abolish the rank of surgeon" because the general practitioner is as able as any surgeon or consultant to operate or give detailed advice. That would be nonsense, and we should adopt the same approach to solicitors and barristers. The barrister is the surgeon who operates in court ; the barrister is the consultant. The solicitor is the general practitioner. That is the system which the Lord Chancellor is seeking to overthrow, and that is the reason why we should seriously consider whether his salary ought to be paid at all, let alone increased.
Mr. David Martin (Portsmouth, South) : Can my hon. and learned Friend explain why in Truro and Barnstaple rights of audience are already equal for solicitors and barristers? Are people in those areas getting a poor service from solicitors?
Madam Deputy Speaker : Order. I should be obliged if the hon. and learned Gentleman would not go down that path. The scope of the debate is very narrow. May I remind the House that it should be addressed to the merits of the increased salary levels specified in the draft order?
Mr. Lawrence : I have those guidelines constantly in mind, Madam Deputy Speaker, but to save time I will not repeat them every time I start a new sentence. I am saying that any changes in the visiting system whereby solicitors can take statements from witnesses and barristers cannot--which means that the present way of conducting criminal trials in particular is the best way of achieving high quality and high representation--should not be changed by the Lord Chancellor. When we decide whether his salary is appropriate, we must give that matter consideration.
Barristers are forbidden to take statements directly from witnesses. If a solicitor were able to appear in the higher court and take statements directly from witnesses, the temptation to tarnish the purity of a legal system,
Column 695which means that the integrity with which we conduct our criminal trials is of the highest, is a risk simply not worth taking. A ruthless professional code maintains the integrity of our Bar. The barrister is watched by the solicitor, and by the judge ; he dare not do anything wrong. But no one will know whether the high street solicitor who is taking a statement from the witness is doing wrong or right.
The integrity of that aspect of the system has nothing to do with the inherent integrity of a barrister and that of a solicitor, but everything to do with a system that encourages the right approach ; and that system is under threat. The professionals--the judges in their Lordships' House--know the dangers of the proposed changes. Many things are wrong with the legal system. Much could be done to improve it, but tearing the legal profession up by the roots will not solve any of the problems that face our constituents as consumers. They want greater access to legal aid, and to be able to go to a court on a particular day for a particular case and be sure that it will come on. If we want to achieve that, we need computers everywhere, and we need to make sure that the Lord Chancellor's office improves the administration of our courts. Those are the solutions to the problems that concern our people.
Nothing that is suggested in the Green Papers--whether it is replacing the system of payment by a win at all costs proposal, or stripping conveyancing away from the country solicitors so that they are no longer available, or taking away the independence of the Bar by shrinking it so that it is not available or is available only at increased costs, because those costs have to include pensions, overheads, holidays with pay and a car--will set right what is wrong with our legal system.
Because the Lord Chancellor is proposing destructive measures rather than such constructive measures as the extension of the legal aid system to those who need it or the improvement of the administration of our courts, I invite my colleagues on both sides of the House to consider carefully whether this is not the moment to show the Lord Chancellor that we are not as enthusiastic about his Green Papers as he appears to be. He is so enthusiastic that precious little time is being given for consultation--
Madam Deputy Speaker : Order. This is the third time that I have got to my feet to remind the hon. and learned Gentleman that this is not a debate on the Green Papers. For the third time, I am telling him that he must contain himself and speak to the order before us, and not stray from it.
Mr. Lawrence : The order concerns an increase in the salary of the Lord Chancellor. If he is making proposals that will make legal services less available to the consumers and at a higher cost and lower quality, surely we are able to say that he ought not to be entitled to this increase in salary, and so I say.
Madam Deputy Speaker : Order. Not in this debate. The hon. and learned Gentleman has made an extensive speech, and covered a great deal of ground. Other hon. Members wish to speak, so I should be glad if he would refer to the order.
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Mr. Bob Cryer (Bradford, South) : The hon. and learned Member for Burton (Mr. Lawrence) will have an opportunity to vote against the order, and it will be interesting to see what action he and other barristers in the House take.
I am not opposed to the order on the ground that the activities of the Lord Chancellor are necessarily wrong. I do not share the view of the vested interest expressed by the hon. and learned Gentleman. I am opposed to it because it proposes a salary of £91,500 for an individual, which is far too much. It demonstrates the massive inequality in our society when one bears in mind that, about 12 months ago, the House passed orders cutting housing benefit and income support, and that child benefit has been frozen for two years. Someone who has the patronage of the Prime Minister, who has been endorsed and appointed by the Prime Minister, is to be given such a salary because there must be a differential of £2,000 over the salary of the Lord Chief Justice. What a load of nonsense it is to the millions of people who are suffering under this Government because of cuts in a wide range of supplementary benefits, and because pensioners were so badly hit by the cuts--
Madam Deputy Speaker : Order. I shall call any hon. Member to order, whether he speaks from the Government or the Opposition Benches, if he or she strays. I ask the hon. Member for Bradford, South (Mr. Cryer) to confine himself to the order that is before the House, which concerns the merits of the proposed increase for the Lord Chancellor.
Mr. Cryer : I am getting back my breath after hearing the rude noises that have come from the hon. Member for Lancaster (Dame E. Kellett- Bowman), who has been shouting at you, Madam Deputy Speaker, in what I would describe as an undignified way. I would like to defend you against these incursions, Madam Deputy Speaker.
Dame Elaine Kellett-Bowman : May I say with respect, Madam Deputy Speaker, that, while you were quite properly speaking to the Clerk, I was seeking to draw attention to the fact that the hon. Member for Bradford, South (Mr. Cryer) was straying vastly from the point? That is what I was seeking to bring to your notice, Madam Deputy Speaker.
Mr. Cryer : I was seeking to clarify your useful ruling, Madam Deputy Speaker, by referring to the massive inequalities that are imposed on the poorest of our people by the Government. That can be referred to in passing by way of explanation. Having done so, I wish only to say that the Lord Chancellor is not worth £91,500. It is an outrage and a disgrace that anyone who secured his job through patronage should be paid such a sum. The Lord Chancellor's job was not advertised and he did not go through the interview process to which ordinary people have to subject themselves. It is because he happens to
Column 697have the beneficial eye of the Prime Minister upon him that it is proposed to pay a massive sum to keep him ahead of the salary of the Lord Chief Justice. That shows to ordinary people that we are engaged in the economics of the mad house.
I propose to divide the House on the order when the Question is put. All those, including the hon. and learned Member for Burton, who wish to vote against it will have that opportunity. We shall see what the outcome is.
Mr. Ivor Stanbrook (Orpington) : It would be wrong and deplorable if it were thought by the public that the sentiments of the Bar were adequately conveyed by the remarks of my hon. and learned Friend the Member for Burton (Mr. Lawrence). Many members of the Bar support what the Lord Chancellor is attempting to do.
I have been a member of the English Bar for nearly 30 years during which time there have been five or six Lord Chancellors. Every one of them until the present one has sat on proposals for reform. The Bar knows that reform is urgent and that its privileges rather than its excellence sustain its position and status in society. As time has passed that has become increasingly the position. The only thing that should guarantee the status of the independent Bar of England is its quality and its excellence. It does not need the artificial privileges which it has secured over the years because of the way in which it has been able to persuade Lord Chancellors and other judges.
It is said by those such as my hon. and learned Friend the Member for Burton that the Bar is opposed to the Lord Chancellor and what he wishes to do by way of reform. The present Lord Chancellor came to us like a breath of fresh air in a fetid atmosphere. He is proposing to do something which previous Lord Chancellors have not had the courage to do. He is worth every penny of the proposed increase.
Mr. Alex Carlile (Montgomery) : Before the Lord Chancellor can be worth an increase in salary, he should put his house in order. I am speaking not about anything to do with the legal profession but about the processes of the courts and of the Lord Chancellor's Department. The legal profession is sometimes accused, rightly--usually the blame falls on solicitors--of holding up the process of justice. However, many of the most worrying delays in that process are caused in the courts administered by the Lord Chancellor. For example, a constituent of mine, a boy with no previous convictions aged about 19, was convicted of an offence of arson. He applied for leave to appeal against his sentence, which was 15 months youth custody. By the time his application for leave to appeal had been rejected in what is not much more than a paper procedure carried out by a single judge, he was one month from his parole. It is unforgiveable that such delays should exist in the administration of justice.
I shall give another example of why, before tearing the profession apart, the Lord Chancellor should rip up some of his procedures in his Department and the courts and start again. In most magistrates courts, because of the blockage of work, both an accused person who chooses, as is his right, to have contested committal proceedings in a
Column 698criminal case, and the prosecution--they are affected equally--will have to wait months for the proceedings to take place.
What are the consequences? Every case that comes before a jury depends on a question something like, "Who killed Cock Robin?" Who was standing at the bus stop at half-past five on the afternoon in question? Who signed the document in question? What was in his mind at that time? It all depends on the credibility of witnesses. If these cases have to linger before they are heard, how can juries be expected to make reliable judgments on the credibility of witnesses? The Lord Chancellor's salary, like, apparently, the salaries of everyone else at which the Government look closely, should be related in some way to his Department's efficiency and performance. Despite the considerable efforts of the Lord Chief Justice, the Master of the Rolls, Lord Justice Watkins and the judge in charge of the civil lists to hasten proceedings, the efficiency of the Lord Chancellor's Department as expressed through the speed of the courts is not very good and certainly does not justify such a large increase in salary. The Lord Chancellor's aim, and presumably the justification for increasing his salary, on the ground that he is becoming more effective, is to make the law more accessible to the consumer. The hon. and learned Member for Burton (Mr. Lawrence) started on an interesting little list when he was talking about the provincial solicitor. He said that the provincial solicitor advises the consumer on all sorts of matters--I think that the hon. and learned Gentleman mentioned probate, matrimonial law, conveyancing
Then the hon. and learned Gentleman ran out of subjects. He did so because the Lord Chancellor in his Government is failing in the most obvious method of bringing the law closer to the consumer. The consumer should be able to obtain a solicitor's advice if he is sacked from his job and wants to go to an industrial tribunal. The consumer should be able to obtain a solicitor's advice freely if he has problems with the Department of Social Security. Those are just two examples.
The consumer should be entitled to legal aid if he has been defamed. We can test the Lord Chancellor's efficiency by the accessibility to the courts that he is giving the ordinary consumer. An obvious way of achieving that, which would earn him a much bigger increase in salary, would be to change the mingy legal regulations that the Government are imposing, rather than tearing up the professions.
Sir Nicholas Fairbairn : I do not wish to stray from the matter, but I must point out that legal aid provisions are nothing to do with the Lord Chancellor's Department. Matrimonial law is to do with the law of marriage and children and the law of divorce is called consistorial law.
Now let us assume for a moment that the Green Papers are turned into legislation in some way in the next Session.
Column 699Despite what I have said so far, in that event it seems that the Lord Chancellor will be given far too small a salary increase. If the Green Papers become law, he should be given far more ; for look at the extra burden that he is taking upon himself. He is taking control of the ethics of the legal profession. No Government in the history of the country--apart for the Government of Oliver Cromwell, if they merit the name Government--have sought to take control of the ethics of the legal profession. If the Lord Chancellor is to take that responsibility on himself and if the Government intend to destroy the independence of the Bar and other advocates by telling the profession what its professional ethics should be, he probably merits £10,000 more a year in his salary for the extra responsibility involved. I venture to suggest that when there has been mature reflection, the Government and the Lord Chancellor--who is a thoughtful man--will decide that it would be a dangerous step for the Government to dictate to lawyers whether, for example, they can cross-examine police officers, or whether they will be able to exercise the independence shown in the constituency of the hon. Member for Bolsover (Mr. Skinner) during the miners' strike, as independence that barristers exercised so effectively in cases concerning miners. The hon. Gentleman knows that well.
Mr. Carlile : I can name barristers who stood for the independence of the people whom his union supported in the miners' strike--such as Ms. Lang, a member of my chambers--and who supported by their independent advocacy the miners of his constituency. If the Government take over the professional ethical code of lawyers--
Mr. Carlile : I may give way to the hon. Gentleman if he shows some evidence of listening. If the Government take over the professional ethics of barristers, that is one step down the road of tyranny. It may be a tyranny that the hon. Gentleman's brand of Socialism will welcome. I am very suspicious about it and I am surprised that real Tories are willing to go down that road.