Judicial Pensions and Retirement Bill [H.L.]

HL Deb 30 June 1992 vol 538 cc725-65

House again in Committee.

Clause 6 [Grant and payment of a children's pension]:

Lord Ackner moved Amendment No. 37: Page 6, line 39, leave out ("during his service in such office").

The noble and learned Lord said: Some decades ago, when my practice contained a small sprinkling of contested divorce cases mainly concerned with cruelty allegations, there was a doctrine that the allegations could be minor in themselves but if one added together a sufficiency of them one would establish one's case. It was rather like the effect of water dripping upon a stone—it would ultimately have some effect. My amendment to Clause 6 brings back those days because we have yet another example, if an example was needed, of an out-of-date concept which has been stitched into what is meant to be a current, acceptable and, I assume, modern scheme.

Under the ordinary modern scheme in practice a surviving child obtains the pension irrespective as to when the marriage took place. He merely has to establish that he is a surviving child just as in a modern scheme a widower or a widow has to establish that he or she is a surviving spouse. One does not ask when the marriage took place. One merely asks whether he or she is a surviving spouse or a surviving child. However, when we come to this piece of pension archaeology we find that the child has to be a child who is born as a result of a marriage which took place during the service of a judicial officer. That is completely out of date. In a modern, top executive pension scheme one merely inquires whether it is a surviving child. In fact it was suggested to me that in a modern scheme one does not even bother whether the child was the product of a marriage. However, I anticipate that that was asking much too much in suggesting a modern approach and therefore I have taken the somewhat old-fashioned idea of asking only that the child should be a child of a marriage rather than the child of a union.

That is the basis of my amendment. Despite the increased enthusiasm which a short break and the calorific intake provides, I have no doubt that it will receive a rather glum reply. I beg to move.

Lord Morton of Shuna

I support the amendment. If a child is born before the person was promoted or appointed to judicial office and the divorce takes place before appointment to that office under these provisions it appears that the child would have no entitlement to a pension even if the judicial office holder died when the child was perhaps eight or nine. That would be perfectly possible under these provisions and the rate of divorce from which we seem to suffer in society at the present time. I am not perhaps as cynical as my noble and learned friend Lord Ackner, but it seems to me that that is not what the noble and learned Lord the Lord Chancellor or the Government could possibly have intended. Therefore, I support the amendment.

Lord Benson

With the approval of the Committee, perhaps I may speak to Amendments Nos. 37, 38 and 39, as they are grouped together. The clause seems to provide that after a judge's death children's pensions will be paid to natural and to adopted children provided they came into being during the marriage and before retirement. Children's pensions will not be paid for natural children born after retirement. Children's pensions will not be paid for any adopted children unless adopted during marriage. Children's pensions will not be paid to adopted children if they were adopted after retirement. As I did Clause 5, I find the clause offensive. It seems both mean and penny-pinching.

Children have to be supported whether they were born before or after retirement. The date of birth or adoption is entirely irrelevant. There is the same implication that a judge will arrange his affairs so as to diddle pension entitlements out of the Treasury. It suggests that there is something evil in adopting a child or having a child after retirement. I hope that the amendments will be approved.

Lord Wigoder

Although I am reluctant to keep comparing the scheme proposed in the Bill with schemes in the private sector, because there are many fundamental differences, I certainly have never heard of a scheme in the private sector that contains such exclusions. I support the amendment.

The Lord Chancellor

The effect of the amendments would be to provide a children's pension in respect of, first, the children of any marriage the judicial officer may have entered into at any time before, during or after his service in a qualifying judicial office; secondly, the children adopted during any of the marriages in the first category above; and, thirdly, any other child who was wholly or mainly dependent on the deceased if the Treasury is satisfied that the deceased had formed the intention of adopting that child before any marriage in the first category above had terminated.

The question of who dependent children are is a difficult one and there is also the question of what range of children should be provided for. My noble and learned friend Lord Ackner said that he stopped short of requiring support for certain children. It is difficult to be certain what is the best basis for this matter. The proposals in the clause are as we proposed in the consultation paper. It is appropriate to try to make the provisions tailor as closely as we can to the circumstances of the judiciary generally. That is what has motivated these clauses in order that we should be able to use the money available in the best possible way. These amendments enlarge considerably the possible scope of children who may be supported without perhaps making a tremendous difference to the actual children who will be supported.

Lord Ackner

I am sure that the contributions that have been made with regard to this amendment will give my noble and learned friend food for thought during the forthcoming Recess. I hope that when we return to deal with Report stage we may find at least some movement towards modernity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

The Lord Chancellor moved Amendment No.40: Page 7, line 39, at end insert: ("( ) Where the deceased died while holding qualifying judicial office, his death shall be treated for the purposes of subsection (2) (b) above as his retirement from such office.").

The noble and learned Lord said: I have spoken to this amendment with Amendment No. 34. I beg to move.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8 [Rate of children's pension]:

[Amendment No. 41 not moved.]

Clause 8 agreed to.

Clause 9 [Contribution towards cost of surviving spouse's and children's pension]:

The Lord Chancellor moved Amendment No. 42: Page 9, line 42, leave out subsection (5).

The noble and learned Lord said: With this amendment I shall speak also to Amendment No. 44 which is similar in purpose and effect.

The purpose of these amendments is to delete two superfluous provisions whereby the regulation-making powers in Clauses 9 and 10 can be used to make consequential provision to other enactments. Clause 29(3) already permits regulations to make consequential (and transitional, supplementary and incidental) provisions, while Clause 29(4) permits such provisions to modify the operation of enactments. The existence of Clause 29(4) removes the need for the two provisions in Clauses 9 and 10. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 9, as amended, shall stand part of the Bill?

Lord Ackner

This is the last of my familiar refrains which are based upon this proposition: that there is a heavy onus on the Government, who have to resort to primary legislation, to ensure that that legislation is modern and up to date. In this regard it is not. Once more, I rely for support, first, upon the views as communicated by the Top Salaries Review Body to the Lord Chancellor in response to his consultative paper. I have already referred to the tax free lump sum which it put down as its first main point. Its second main point is as regards widows' and widowers' pensions. This is the comment it communicated to the Lord Chancellor following his publication of the Government's consultative paper: Widows' and widowers' pensions. Under the proposed scheme"— and that is the scheme with all its warts, including the concessions with regard to retained benefits— members will be required to contribute 3 per cent. of salary towards a widows' or a widowers' pension". I interpose here to say that I believe that the figure is 4 per cent. It continues: The Review Body considers this high for what it regards as the rather unimpressive benefits of ½ x the member's annual pension. Under modern private sector schemes, widowers' and widows' benefits are non-contributory. The Review Body believes that they should also be non-contributory under the proposed new judicial pension scheme". That is the TSRB's view.

One then comes to the independent consultant actuary who gave my noble and learned friend the Lord Chancellor his advice on the subject. He made this observation: The requirement to pay contributions purely for spouse's pensions is very rare in the private sector, where it is seen as outdated and potentially inequitable between male and female scheme members and at odds with the trend towards widening the class of beneficiaries to include financial dependants. It is however not uncommon in public sector schemes". In my respectful submission, it is a fairly damning commentary: it is seen as outdated and potentially inequitable between male and female scheme members". Once more, the Government are intent on primary legislation. My noble and learned friend says that he has done his best to achieve for the judiciary the best scheme that he can. This provides admirable ammunition for him to try yet harder. I hope that he will do so during the ensuing Recess.

8.45 p.m.

The Lord Chancellor

My noble and learned friend has read out passages with which I am rather familiar from the TSRB's comments on the consultation paper and the comment of the independent actuary. However, as they point out in those passages they are referring to private schemes, but we are dealing with the public sector. They point out that provisions of this kind are common in public sector schemes.

I suggest to the Committee that for this purpose public sector schemes are probably more germane as comparisons, if comparisons are to be made. The general provision in public sector schemes, even those which accrue over a 40-year period, is for contributions to be made. Over a 40-year period that is usually 1.5 per cent. of salary, which equates with 3 per cent. over a 20-year period as we are proposing in the Bill.

Clause 9 reflects analogous provisions in the Judicial Pensions Act 1981. That contains a power to deal with it through the lump sum. We consider that unnecessary now that the pension accrues evenly from the date of appointment.

suggest to the Committee that this clause announced in response to the consultation is reasonable in a public sector scheme of the type that we have here. I suggest to the Committee that Clause 9 should stand part of the Bill.

Lord Ackner

This is a contest in which it is quite impossible to make any headway. If the doctrine of conformity is to be applicable, if one does not comply with the public sector scheme one does not get home. However, if one complies with the public sector scheme, as we do in our submissions on three times the lump sum to which I referred on an earlier amendment, one still does not win.

There is apparently a settled policy that the judicial pension scheme should, on occasions, fail the public sector; on occasions fail the private sector; and on occasions fail both. Exactly what is the philosophy behind it, except to save money, I am quite incapable of assimilating. I hope that the vacation will add to both my noble and learned friend's ability and mine to assimilate some of the points. I shall not press my submissions pour mieux saucer after the summer Recess.

Clause 9 agreed to.

Clause 10 [Additional benefits from voluntary contributions]:

[Amendment No. 43 not moved.]

The Lord Chancellor moved Amendment No. 44: Page 10, line 38, leave out subsection (5).

The noble and learned Lord said: I spoke to this amendment at the same time as Amendment No. 42. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 10, as amended, shall stand part of the Bill?

Lord Renton

This clause enables regulations to be made which entitle judges and others to make voluntary contributions towards the cost of additional benefits. That is an admirable idea. The power contained in the clause—a power which earlier today I questioned on several occasions—is more acceptable in this clause by the deletion of subsection (5) at the instance of my noble and learned friend the Lord Chancellor.

I shall not divide the Committee. It is perhaps one of the rare occasions when regulations may be as good a way as any of achieving the purpose of the provision. However, I ask my noble and learned friend the Lord Chancellor why he needs the concurrence of the Treasury on the matter.

The Lord Chancellor

The Treasury's concurrence is required because of the nature of the regulations in question to allow judicial officers, under new pension arrangements, to make additional voluntary contributions towards the cost of the provision of additional benefits under those arrangements; that is, in order to enable a judicial officer to buy additional benefits. The precise terms on which that can be allowed depend on a number of considerations, many of which are in the Treasury's area of responsibility. It is only if we can obtain the basic tax benefits for the arrangements that they will be worth while. The consent of the Treasury is therefore appropriate in regulations of this kind.

Lord Renton

I am grateful for that explanation. Although I am always doubtful of the need for the head of the judiciary to require the concurrence of the Treasury on a matter affecting the judiciary, I nevertheless do not intend to press the matter.

Clause 10, as amended, agreed to.

Clause 11 [Provision against pensions under two or more judicial pension schemes]:

The Lord Chancellor moved Amendment No. 45: Page 11, line 15, leave out ("in") and insert ("of").

The noble and learned Lord said: This is a drafting amendment designed to correct the description of the Northern Ireland Civil Service in respect of provisions referred to. In moving the amendment I speak also to Amendments Nos. 46 and 70, which are tabled on the same basis.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 [Transfer of rights of persons holding qualifying judicial office before commencement]:

The Lord Chancellor moved Amendment No. 46: Page 12, line 4, leave out ("in") and insert ("or).

The noble and learned Lord said: I spoke to this amendment with an earlier amendment. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 12, as amended, shall stand part of the Bill?

Lord Renton

I tabled a Motion to oppose the question that Clause 12 shall stand part of the Bill because of the regulation-making power contained in subsection (2). That regulation-making power governs the application of the whole of the clause.

The clause as a whole deals with the transfer of rights of a person already holding qualifying judicial office before the Bill comes into force. That appears to make the clause retrospective by altering the pension rights of those already on the Bench. It does so simply by enabling regulations to be made with the concurrence of the Treasury. That does not seem to me to be right.

When we are dealing with the transfer of such rights it should be done essentially by primary legislation. Again, we find that the Treasury must give concurrence. It is difficult to believe that we need this regulation-making power as well as the others in the Bill. I shall be interested to hear what is said by my noble and learned friend the Lord Chancellor.

The Lord Chancellor

My noble friend wishes this clause to be deleted primarily because it depends on regulation-making powers. The regulation-making powers are intended to deal with quite detailed and complicated matters in regard to transfer values. They are not intended to affect the rights of existing holders of judicial office as members of existing schemes; it is on transfer that the provision will come into play.

The clause exists to ensure that those coming into a new pension scheme will be able to bring with them into the new scheme the pension rights accrued under a pre-Bill scheme. Valuing those rights will not be easy. It is obvious that actuarial advice will be required. I do not believe that it is feasible, within a reasonable space, to include the detail of that in relation to the Bill in advance of its passage. For instance, the nature of the valuation will depend on the final form of the scheme under the Bill. That is only one aspect of the matter.

Although I understand from what I have heard this afternoon that not all the current judiciary welcome the new scheme for their successors, there are some judicial officers who may consider it a significant advantage over their current arrangements. That is one of the reasons why the option to transfer to the new scheme was spread over such a long interval. The TSRB thought that to be important.

For instance, officers who are currently subject to 30- and 40-year pension schemes will obviously want to consider transferring to this scheme. Without Clause 12 and the detailed provisions, those who want to elect to come into the new scheme, as well as those who come into the new scheme on promotion or reappointment to the same office after retirement, will be disadvantaged.

It is clear from the nature of the detailed arrangements required that they would not be appropriate for primary legislation for, among other reasons, the reasons I have given. In the light of that explanation I hope that my noble friend will allow Clause 12 to stand part of the Bill.

9 p.m.

Lord Renton

I would if my noble and learned friend can give an assurance that the regulations will not have any kind of retrospective effect which is adverse to the citizen in this case.

The Lord Chancellor

No, certainly not. They will take effect on a transfer into the new scheme. The object of the regulations will be to bring into the currency of the new scheme as fairly as possible what the officer has already acquired under the former scheme.

Lord Renton

I am grateful to my noble and learned friend for his explanation. In the circumstances I shall not attempt to oppose the proposition that the clause shall stand part of the Bill. I merely express regret that once again the Treasury had to concur. It is so undesirable and unnecessary because the Lord Chancellor's Department is very efficient and fair-minded. I have made my points.

Clause 12, as amended, agreed to.

Clauses 13 to 15 agreed to.

Clause 16 [Disregard of abatement of pension under s.65 of the Social Security Act 1973 etc.]:

The Lord Chancellor moved Amendment No. 47: Page 14, line 18, after ("1973") insert (" (modification etc. of public service pension schemes) ").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 48 which has much the same purpose of providing a few words in parenthesis to explain the statutory provisions referred to in the clause. Those words will help the reader, I believe, to understand the drift of the clause. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 48: Page 14, line 20, after ("1975") insert (" (corresponding provision for Northern Ireland) ").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 agreed to.

Clause 18 [Continuity of tax treatment]:

On Question, Whether Clause 18 shall stand part of the Bill?

Lord Renton

We have already had references to this clause today. My noble and learned friend the Lord Chancellor expressed surprise that I had tabled a Motion to the effect that the clause shall not stand part of the Bill. I am glad that I did so. In the light of what we have heard, I am not so much worried about the substance of the clause, but I am very worried indeed about the form in which it is presented. One cannot say that this is the way to treat the users of statutes. They are entitled to be given a much stronger indication, even if it is a fairly broad one, of what the considerable legislation by reference in this clause really amounts to.

It is a rather glaring example of legislation by reference. Amendments to previous legislation should be done by the method of amending the text where that is possible and feasible. That is called a textual amendment. This matter is entirely non-textual. The Explanatory and Financial Memorandum merely repeats in very summary form what the clause itself says and gives no explanation of it whatever. It is clear from earlier discussion and from what my noble and learned friend said that the clause is very important. I believe that a Bill produced by my noble and learned friend the Lord Chancellor and his department should do better in order to help the user and reader of the Bill whether he or she is in Parliament or not. The clause states: For the purposes of Chapter I of Part XIV of the Income and Corporation Taxes Act 1988 (retirement benefit schemes)". That is a consolidation Act which covers nearly a thousand pages. I was on the Joint Consolidation Committee which considered the matter. It took a lot of time and trouble. Part XIV is on page 570 of the Act in the statutes at large. There we find that Chapter I runs to 17 pages. By reading the clause we find that, the provisions of this Part shall be regarded as amendments, for such persons as are mentioned in section 1(1)". In turn that depends on the people mentioned in Schedule 1 to the Bill. For such people this part of the Bill has to be seen in terms of amending Chapter I of Part XIV of the 1988 Act.

The mind trembles at having to work it through. It makes me realise how glad I am that I am not in practice at the Bar especially not in revenue practice. There is what I regard as a greater difficulty. Perhaps I have become too rusty. The statutory schemes constituted under the Judicial Pensions Act 1981 shall also be amended. I have a copy of the 1981 Act with me. It is an important Act, affecting judicial pensions. However, from beginning to end it has no reference to "schemes"—or none that I have been able to find. Therefore, one's difficulty in understanding Clause 18 is increased by the reference to statutory schemes … under the 1981 Act". Parliament should do better than this. I know that the answer, "It is very succinct", could well be given and that one could say, "It saves a lot in terms of setting out the previous provisions and their effects". But if that succinct way of doing it is the only feasible way—and I do not accept that it is—surely the Explanatory and Financial Memorandum should fulfil its purpose and explain what it all comes to, which is much more than I am capable of understanding—and I should have thought that that would apply to many other people, both in and out of Parliament.

That is why I have tabled the Motion that the clause should not stand part of the Bill. That is why I hope that any of your Lordships who have had the same sort of difficulties that I have had will join me in wondering why we are presented with a clause of this kind. That is also why I shall be very interested to hear such excuses as my noble and learned friend the Lord Chancellor can put forward in support of the clause.

Lord Mishcon

I have only one observation to make. When I read the clause I wondered whether the Committee should not make a ruling that any judge who is called upon to interpret it shall have a double pension.

The Lord Chancellor

All I can say is that that judge would have more chance of a double pension if the clause were left in the Bill than if it were taken out.

I have sought to explain—and I hope that my explanation has been reasonably clear—that substantial changes were made in the general law in respect of schemes taking effect after 14th March 1989 and in respect of those who joined schemes after that time. The purpose of Clause 18 is to make this scheme enjoy the tax treatment that was afforded to schemes that were in existence before 14th March 1989 and which were relevant statutory schemes for the purposes of that chapter.

I have no doubt that other ways of doing this could have been devised. Perhaps I should add that when I first arrived at the Lord Advocate's Department more years ago than I care to remember, having come from practice at the Bar, I thought that I should be able to simplify considerably the drafting of statutes. Perhaps others have had different experiences, but it is my experience that it is one thing to see the defects and complexities in existing drafting, but another to improve on that drafting. I know that some of my noble and learned friends have occasionally encountered difficulties in producing drafts that are universally comprehensible. I shall take my noble friend's injunction to try to do better, but this is our best effort. It is the best that we have been able to do so far.

Lord Renton

Can my noble and learned friend say why no adequate explanation was given in the explanatory memorandum in respect of Clause 18?

The Lord Chancellor

The benefit of the explanation given in the explanatory memorandum is that it is succinct. It could certainly never be described as misleading. The problem is that one must assume some degree of knowledge. If one was going to have an explanatory memorandum that attempted to explain the Bill's provisions in detail, the memorandum would be apt to be at least as long as the Bill. It is intended to be a short explanation in summary form. I have endeavoured to assist the Committee by putting out the "Notes on Clauses" in good time for this Committee. I hope that my noble friend has seen them. It is difficult succinctly to explain a clause such as this. The style of the explanatory memorandum is pretty much in accordance with the standard degree of explanation.

Clause 18 agreed to.

Clause 19 [Benefits in respect of earnings in excess of pension-capped salary]:

Lord Wilberforce moved Amendment No. 49: Page 15, line 7, after ("officer")") insert ("including a spouse's or children's pension").

The noble and learned Lord said: This is a modest amendment for the purposes of clarification and I recognise that it may not be necessary. The Committee will appreciate that Clause 19 is intended to introduce a separate statutory scheme in respect of earnings over the capped amount. There is no doubt that it is intended to provide a judicial officer with a pension related to half of his excess salary and to a lump sum on the same basis. I believe that there is equally no doubt that it is intended to provide spouse's and children's pensions on the same basis as relate to the pension-capped part of the judicial officer's salary. The trouble is that the clause does not refer to spouses or children. There is not a word in it about them. Therefore, one is left with a process of deduction to find out from the wording whether or not that is so. The words which apparently bring spouses and children into the scheme are "in respect or. Subsection (1) (a) refers to a "lump sum" which is payable, to or in respect of a person". Surely that is a somewhat slender thread on which to hang such an important right. Similarly, if one looks at subsection (3) it will be seen that it refers to "no contributions". Again, one would deduce that the section is referring to the pensions of the spouses and children. But there are other indications. Subsection (1) (b) refers only to, the judicial officer's pensionable pay". It does not refer to the pensions of widows or children. Further, subsection (2) states: Where this section applies, payments by way of pension or lump sum shall be made", and so on. Again, lump sums are made to the judicial officer—the retired judge—but not to a widow or to a child. It is possible that the clause makes the whole matter clear when one gets down to it—puts a towel around one's head and goes to a Chancery court to interpret it—but would it not be better to make it clear by the insertion of some explicit words? I venture to suggest to the noble and learned Lord that, first, he should state in explicit terms the fact that the clause does bring in spouses' and children's pensions on exactly the same basis as applies under Clauses 5 to 9 in respect of the capped portion. Secondly, I should be most grateful if he would consider with his draftsman whether it would be better to introduce additional words somewhere in the Bill referring to spouses and children.

My amendment would bring in a reference to spouses and children in subsection (1) (a) of the clause, at line 7, page 15. I agree that it is not very elegant; indeed, there may be other ways of doing it. Perhaps a reference could be inserted in a definition section. I hope that the noble and learned Lord will be good enough to consider whether some explicit reference would help the process of judicial interpretation and save us from the necessity of referring to Hansard in future cases, even assuming that Members of the Committee decide that such a reference is admissible. I beg to move.

9.15 p.m.

The Lord Chancellor

The way in which the clause falls to be read is as follows: This section applies in any case where … a pension or lump sum is payable under Part I above to or in respect of a person to whom that Part applies". I suggest that what one should do is to look at Part I to see where a lump sum or a pension is payable in respect of a person. Wherever that arises, a corresponding liability to pay arises here in respect of subsection (2).

Lord Wilberforce

I beg the noble and learned Lord's pardon. I should have referred to that point. There is a reference in Clause 5(1). However, that refers to the deceased's service; it does not say that it applies to an officer. That introduces yet another ambiguity.

The Lord Chancellor

I was seeking to explain the way in which the clause has been constructed; for example, the payments in Clause 5 are payments in respect of the judicial officer where they are not payments to the officer. However, the point that I wish to make is that one must look in Part I at all places where a pension or lump sum is payable, to or in respect of a person to whom that Part applies". Then one should refer to subsection (2) which reads: Where this section applies,"— that is to say, where the cap is exceeded— payments by way of pension or lump sum shall be made to or in respect of the judicial officer amounting to the difference between"— and then separate provisions are made for the pension and the lump sum, adding to the corresponding figures given in the earlier part. I shall of course draw my noble and learned friend's anxieties to the attention of the draftsman and invite his view as to whether greater clarification is possible.

Lord Wilberforce

I am obliged to my noble and learned friend. On that basis, I have pleasure in seeking leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 50: Page 15, line 9, leave out from ("had") to end of line 10 and insert ("pension-capped salary fallen to be determined under section 3(3) (b) above, in his case, without the limit imposed by reference to the permitted maximum there mentioned.").

The noble and learned Lord said: With this amendment I should like to speak also to Amendment No. 51. The amendments cover a point that was raised by my noble and learned friend Lord Morton of Shuna in respect of the existing clause which he found difficult to understand. I referred his difficulties to the draftsman. It would be fair to the draftsman to say that he prefers his original formulation to any that we might put in its place. He has however attempted another version with the same effect, and that is what is proposed in Amendment No. 50. Out of my desire, to which the noble Lord, Lord Mishcon, referred at the outset of the proceedings, to try to please everyone —I have not succeeded fully so far—I have persuaded the draftsman to produce Amendments No. 50 and 51 in the hope that they will be more acceptable to my noble and learned friend Lord Morton of Shuna. I beg to move.

Lord Morton of Shuna

I am grateful to the noble and learned Lord. He, of course, has the advantage of being a mathematician of note. When one reaches the difficulty of whether a definite sum is less than an infinitely large sum, non-mathematicians become lost. What has been proposed by the noble and learned Lord is, at least to non-mathematicians like myself, much clearer. In other words, even I can understand it. It might look even better if the definite article were inserted at the front of each amendment, but that is a minor matter. I welcome the change.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 51: Page 15, line 19, leave out from ("had") to end of line 20 and insert ("pension-capped salary fallen to be determined under section 3(3) (b) above, in his case, without the limit imposed by reference to the permitted maximum there mentioned.").

On Question, amendment agreed to.

Lord Renton moved Amendment No. 52: Page 15, leave out lines 24 to 38.

The noble Lord said: The amendment covers subsections (4) and (5). This is the last of the provisions in the Bill containing a regulation-making power. I do not intend to divide the Committee, but it is worth drawing attention to the fact that on this occasion the appropriate Minister (the Lord Chancellor) may make regulations without the concurrence of the Treasury. That is good; but why should it be required on other occasions?

I do not understand the logic of requiring the concurrence of the Treasury on some occasions and not on others. I am sure that my noble and learned friend is capable of doing the right thing without the concurrence of the Treasury on all of those occasions. It will be interesting to have an explanation. Perhaps we could benefit on Report by acting accordingly and deleting "the concurrence of the Treasury" in places where it should not be required. I beg to move.

The Lord Chancellor

The purpose of the provision which my noble friend seeks to leave out through his amendment is to put in place the detail to give effect to the principle or purpose stated earlier in the clause. It is obvious that details are required which would not be appropriate for primary legislation.

My noble friend says, "Oh, the Lord Chancellor is able to make regulations without the concurrence of the Treasury". I am grateful for his confidence, but the responsibilities of the Lord Chancellor on the one hand and of the Treasury on the other are distinct. I have to pay attention to the Treasury's responsibilities.

This regulation is simply to give effect in detail to the primary legislative provisions which go before it. These are fairly pointed. The detail would be of less concern to the Treasury than matters which require its concurrence in earlier provisions which are much more directly its responsibilities.

Lord Renton

It seems to me that my noble and learned friend has made a distinction without a difference. However, I shall not pursue the matter now. I shall consider carefully what was said on this and on other occasions about the need for concurrence with the Treasury. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

Clause 21 [Application of the Pensions (Increase) Act 1971]:

The Lord Chancellor moved Amendment No. 53: Page 16, line 26, leave out subsection (1).

The noble and learned Lord said: The purpose of this amendment is to improve the drafting of the clause dealing with the Pensions (Increase) Act 1971. The first part of the clause is unnecessary. It was included as a matter of precaution but on closer examination it was found that the provision was unnecessary and should be omitted. A consequent amendment to subsection (2) is required.

The amendment to subsection (3) is a corresponding provision for Northern Ireland, with the wording included in the inserted text in subsection (2). I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 54 and 55: Page 16, line 28, leave out ("In Schedule 2 to that Act") and insert ("In the Pensions (Increase) Act 1971, in Schedule 2"). Page 16, line 37, after first ("Act") insert (", other than pensions payable under or by virtue of section 10 above").

The noble and learned Lord said: I have just spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 21, as amended, agreed to.

Clauses 22 to 24 agreed to.

Clause 25 [Retirement date for holders of certain judicial offices]:

9.30 p.m.

Lord Ackner moved Amendment No. 56: Page 17, line 30, leave Out subsection (2).

The noble and learned Lord said: I referred to this in my contribution to the debate on Second Reading and do not wish to weary the Committee with repetition. I seek to remove subsections (2), (3) and (4) because they provide what I respectfully submit is a potentially destructive mechanism of the compulsory retirement age of 70. The subsections pay lip service to the concept of everyone retiring at 70 and then give to the Lord Chancellor the right to continue in office for a given case or for a period of time not exceeding one year, or all the way up to five years.

At this stage of the evening the Committee will not be moved by ringing citations on the necessity to preserve judicial independence. However, I wish to make one quick quotation by Lord Simmons, who said: It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not, nor favours the executive". It may be immediately asked, surely everyone supports judicial independence? Probably there is no one better to reply to that than my noble and learned friend Lord Hailsham, who unfortunately is not present in the Chamber. He said in a public lecture in 1987 when he posed that very question: Oh, do they? Certainly not the public, or the backbenchers in the House of Commons who constantly revile, frequently from inconsistent standpoints, individual judges or particular decisions, or what they imagine to be judicial policies, and daily demand individual judges to be directed or rebuked (presumably by the Executive Government) to move in this direction or that, or even should be removed from office. Certainly not the Opposition, whichever party happens to be on the Speaker's left. Certainly not party conferences of any hue". I stress the following words: And, least of all, I may assure you, individual members of the Cabinet, whose Departmental interests from time to time basically conflict not only with the views of the judiciary, where they are entitled to differ, but in the provision of the means necessary to enable the Courts to discharge their functions". Those are cautionary observations which, in my respectful submission, wholly justify concern at any clause which may diminish the independence of the judiciary.

On Second Reading I instanced a case where it might be well thought that a judge on contract so to speak, having passed the retirement age, might not have made the courageous decision he did, or having made it might not be considered eligible by the appropriate Minister for reappointment for another year. This is not theoretical. Most of us know of two cases where both personalities are live and well but whose elevation to the Court of Appeal was substantially delayed because the government of the time disliked their particular decisions, not necessarily on legal matters but in relation to other matters which formed part of their previous office. It needed a change of government in one case to ensure the elevation and it needed a delegation from the senior judges to the then Lord Chancellor to put an end to the failure to elevate the particular judge to the Court of Appeal.

In my respectful submission, it is constitutionally unacceptable that the security of a judge should depend upon a decision of an appropriate Minister —the Lord Chancellor of the day—as to whether or not he should be continued in office. That matter is not purely theoretical. It is practical. It will run the serious risk of undermining the whole purpose of saying that the retirement age must come down to 70. We all know that by modern standards 70 is a senior age to continue in what is a demanding office. Those, in short, are my submissions to justify moving this amendment. I beg to move.

Lord Morton of Shuna

Everything has been said by my noble and learned friend Lord Ackner with much more vigour and clarity than I could achieve. I do not want to repeat what I said at Second Reading, but the position in Scotland is even more difficult than the constitutional position in England and Wales because the Secretary of State has different functions from the Lord Chancellor.

It seems to me also that the provision is totally unnecessary, standing the provision that one can use, if necessary, a retired judge up to the age of 75. I therefore can envisage no position in which it would be necessary to continue in office a particular judge, but perhaps the noble and learned Lord will be able to supply some theoretical explanation.

There are also other difficulties, although less important. What happens to the person continued in office? If the person continued in office had served for 12 years when he reached the age of 70 would he receive another year's pension if he served for another year, or would he not? That is not clear. It adds to the difficulty. If he was to receive another year's pension by persuading the Government to continue him in office it would be even more obnoxious to the public if he were to deal with a case in which the Government were a party. Therefore, it seems to me that that is a difficulty which should not arise, and I strongly support the amendment.

Lord Mishcon

I listened, as I always do, with the greatest of care to the noble and learned Lord, Lord Ackner. I wondered where the logic of his argument left me. If it is wrong for a member of the Government who is also Lord Chancellor—the Minister referred to —to have the power to extend the period of office of a judge beyond the age of 70 because that might give the appearance that some control of an improper kind was being exercised by the Minister, is it not logical to suggest that it must also be wrong for a Lord Chancellor, as a Minister, to make the original appointment?

It seems to me that there are many advocates who appear in cases and make submissions, especially on applications for judicial review, in which what they say may be very unpopular with a government and with a Cabinet. The logic of the noble and learned Lord's argument would lead him to say that in order that the public may realise that all appointments of judges and extensions of appointments of judges are made without political considerations there should be some form of judicial appointments board, in which the Lord Chancellor would no doubt play his part and would openly be seen to consult with others, not all of them lawyers, who would make the appointments. As that was advocated in certain discussions which were held during the general election I thought that I had a brother in the noble and learned Lord when he followed that line.

It may be suggested that it is perfectly all right for the person who makes the original appointment to be the Minister, making a recommendation on his own, openly in the public view, although most of us know that consultations of a sensible nature take place. If the argument is that it is the Minister on his own and he does not consult at all openly, I should have thought that the argument must be that that Minister should not even make the original appointment.

Lord Donaldson of Lymington

It is very rare indeed that I am driven to my feet by an impelling feeling that I must disagree with the noble Lord, Lord Mishcon, but that is the case on this occasion.

First, it is not the Lord Chancellor who appoints the higher judiciary; it is Her Majesty the Queen. It is true that in respect of some appointments he makes the recommendation; others are made by the Prime Minister. But that may be regarded as a pure technicality.

I particularly disagree with the noble Lord when he says that if it is objectionable that a judge's term of office should be extended by a Minister it must equally be objectionable that the recommendation is made in view of the submissions which potential candidates may have been making as counsel. That cannot be right. He must know that the submissions which counsel make on behalf of their clients bear no necessary relationship to what counsel themselves think. The only relevance of submissions made by counsel would be if they were professionally improper, in which case there would be a case for not appointing and not recommending.

The fundamental difference between recommending the appointment of a judge and extending year by year is that one invites the candidate to become a judge. He accepts, and one has under the existing system 15 years and under the proposed system 20 years in which to regret that the invitation was ever extended. There is nothing to be done about it. But at the other end of the term of office the man is theoretically under one's thumb. One says to him, "Right, you can have 12 months extension and I shall look at it again at the end of 12 months." The difference in terms of apparent control over the judge is enormous. When it comes to the four designated judges it is, if I may say so, quite ludicrous that a Minister of the Crown should be able to say to one of those judges, who have their special responsibilities under the Courts and Legal Services Act 1990, "Well, I am giving a good deal of thought to whether your period of office should be extended." It is quite unacceptable. I support the amendment.

Lord Wigoder

I come to the same conclusion on these amendments as did the noble and learned Lord, Lord Ackner, but with a slightly different perspective. These are not party political matters and it is my view that the age of 70 is an appropriate retiring age for the judiciary. Just as throughout the public sector the trend has been towards earlier retirement during the past few generations, so it should now apply in the case of the judiciary.

I believe that when retirement age has been reached a person should retire and not seek to take further part in his previous activities. I speak with some feeling on this matter, having myself retired from my occupation at 1.30 this afternoon. I feel strongly that the younger generation should be given their chance. I am not impressed by the argument that there are doctors over the age of 65 or judges over the age of 80 who are perfectly capable of carrying out their tasks. That is not the point. One cannot distinguish between individuals and it is quite invidious to seek to do so.

I want to make two other points. I may well have misread the clause but it seems to me that the only power that is sought to be given is a power to continue a judge's term of office after he has reached the age of 70. There does not appear to be any power to allow a judge to retire at the age of 70 and to bring him back afterwards. I do not know whether it was the intention to include that in the Bill. If so, I should be very much against that proposition.

The other observation which I make, not entirely flippantly, is that if there is to be a retirement age of 70, or any retirement age, should there not be some provision whereby, as a matter of routine, a judge who embarked on a piece of judicial business before he reached his birthday (his retirement age) is allowed to complete that business without the necessity for any particular order by the Lord Chancellor or anybody else?

When I was a very young man at the Bar the story was often repeated of a judge of the King's Bench Division (as it then was) who reached his retirement age in the course of a long case. Without informing anybody he simply withdrew to his farm in Ireland over the weekend and left the parties to assemble on the Monday morning wondering what on earth had happened to the judge who was trying the case.

I have no intention of being flippant about what is a serious matter. There should be some provision to allow a judge who has embarked on a commission of inquiry or a substantial case as a matter of routine to complete it even if his retirement age occurs in the middle of the proceedings.

9.45 p.m.

Lord Benson

I wish to follow the argument of the noble Lord, Lord Wigoder. I suggest that it is imprudent to bring a person back after a compulsory retirement age because his attitude changes from the time of compulsory retirement; in fact it begins to change about a year before that date. On the compulsory retirement date other changes occur. Not only does his attitude of mind change but he does not have his previous back-up of accommodation, reference books, secretaries and so on. In addition, for all those reasons his ideas become out of date very quickly. That doctrine is fully accepted in other walks of life. I see no reason why it is not accepted in the case of the judiciary.

I wish to draw attention to one of the consequences which is almost bound to happen. Sooner or later a judge who is brought back from retirement will make a mistake. Everyone makes mistakes. But someone who is brought back and whose ideas are out of date is much more likely to make a mistake than those in full office. When that occurs one can envisage exactly what will happen. The banner headline of the newspaper will be, "Blunder by aged judge rescued from retirement". The next line will be, "Judicial system propped up by has-beens because of the shortage of judges". These are not exaggerations. At present the judiciary is a target for the press. There is just a sufficient grain of truth in what the press states to make such comment possible. I suggest that Clauses 2, 3 and 4 are withdrawn from the Bill.

Lord Taylor of Gosforth

In this context perhaps I may repeat a suggestion that I made at Second Reading. At the present time the Lord Chancellor consults with the Heads of Divisions and others before he makes any appointment of judges. That is done informally and one hopes that it produces a very satisfactory result. However, I endorse what my noble and learned friend the Master of the Rolls has said: that there is a distinction between appointing judges and, as is proposed in the clauses, extending a judge. Again I would expect that my noble and learned friend the Lord Chancellor would consult with Heads of Divisions. But would it not be a good idea, at the very minimum for the sake of constitutional cosmetics (if I may so call it), to have built into the Bill that the Lord Chancellor should consult with the Heads of Division in this regard?

The Lord Chancellor

There are a number of different matters to be dealt with in the three amendments. The first question is whether there should be any power to extend a judicial officer's appointment beyond 70, given that 70 is to be the retiring age.

The purpose of the provisions of this clause is to enable a person to be continued in office. This is not a situation, as the noble Lord, Lord Benson, was figuring, of someone who has retired being brought back without back-up. The idea of the clause is that a person would be continued in office beyond the age of 70 from year to year to a maximum age of 75. This is not a new provision so far as concerns the judiciary as a whole, although it is a new provision so far as concerns High Court judges. The Circuit Bench has had a provision of this kind for quite a long time. I have exercised this power from time to time without, so far as I know, any complaint whatsoever and certainly without any of the headlines to which the noble Lord, Lord Benson, referred.

I take the view that it is to happen only where the public interest requires it. For example, in recent times in regard to the Circuit Bench I have found it less and less necessary, because of the improved recruitment pattern, to exercise the power. I would certainly hope, as I said at Second Reading, that the power will be exercised only very sparingly in the future in respect of the higher judiciary and indeed the judiciary generally.

The first question is whether there should be any power at all to continue in office. I take the sense of what my noble and learned friend the Lord Chief Justice said as being in favour of a power to extend. I think I am right in saying that my noble and learned friend the Master of the Rolls was also of that view or certainly has been of that view. This would embrace the kind of situation to which the noble Lord, Lord Wigoder, referred in which a judge was sitting on a case which lasted longer than expected, but it would not be confined to such a situation. I have sought to put the provision into the Bill because when making a change from 75 to 70 in a fairly long-established system it is wise to have some flexibility in case of unforeseen developments or developments that might be difficult to handle.

Assuming that there is to be a power, what conditions should apply? I believe very strongly that the office that I have presently the honour to hold is one that has gained the confidence of the public generally that appointments are made on the basis of competence and suitability. I would take my noble and learned friend Lord Ackner to be referring to some time before I was in office. I have been the subject of some criticism from my noble and learned friend in a number of ways from time to time but not particularly, I think, on that aspect.

Lord Ackner

I can give an emphatic confirmation that it certainly occurred long before my noble and learned friend ascended to his office.

The Lord Chancellor

I am grateful for that. I felt certain that that was so. Considerations of the kind to which my noble and learned friend referred would enter into no decision of mine in relation to judicial appointments. My noble and learned friend referred to what my noble and learned friend Lord Hailsham said in a lecture delivered shortly after he ceased to hold the office of Lord Chancellor. I am less conscious than he appeared to be of the kind of reaction to which he referred. I am conscious of unfair criticism of the judiciary which one tries to meet wisely as these criticisms develop. On the question of judicial independence, that concept is valued not only by me but by many with whom I associate, including my colleagues in Cabinet. Of course, judicial independence does not mean only independence from the Executive. It means independence one judge from another, each judge being independent.

Assuming that power were to be exercised, I should consult the appropriate judges; namely, the heads of division in the case of High Court judges and, in respect of Members of the House of Lords, it would be appropriate to consult the senior Lords of Appeal in Ordinary. I am not certain, although I am open to invitations to consider this matter further, that it is necessarily wise that that consultation should be put on the face of the statute. I certainly believe that it is wise to hold that consultation and I give an undertaking to that effect.

The reasons why I am not certain that it is wise to put it on the face of the statute are, first, that there is no such provision in respect of circuit judges, although I appreciate that that is a different situation, and, secondly, because of the kind of attack to which the noble Lord, Lord Benson, referred. On the whole, it is better that the responsibility for extending an appointment should be seen as the responsibility of the Lord Chancellor in the case of England and Wales. The reason for that is that if on the face of the statute any of my judicial colleagues were expressly involved they would be thought by the public to share a responsibility in respect of any disaster. That may not be wise. My judicial colleagues may be able to exercise influence better and without any responsibility in that sense—public accountability for it—without being named. However, as I say, I am open to an invitation to consider that further.

Certainly I believe, from what has been said, that there is a degree of difference of view about this matter. I feel fairly strongly that in making the kind of change that we are in the retirement age, the provision for extension is wise. I agree that the terms on which the extension should be granted and exactly how that should be organised require careful consideration, and I have tried to give it such consideration. I should like to leave my views on this matter before the Committee. I apprehend that my noble and learned friend does not intend to reach a final decision on the matter this evening.

My noble and learned friend Lord Morton referred to the Scottish position; that is, that the Secretary of State has responsibility as the appropriate Minister. As I understand it, the convention is that in matters of this kind the Secretary of State acts on the advice of the Lord Advocate. As regards judicial appointments in Scotland, which are made on the nomination of the Secretary of State, the same traditions to which I have referred affecting the office of the Lord Advocate apply to the office of the Secretary of State for Scotland in respect of that particular and all-important function.

Lord Morton of Shuna

Before the noble and learned Lord sits down, I think he gave an indication by nodding his head but he has not said anything as regards my question as to whether pensions continue to build up after the age of 70.

The Lord Chancellor

I forgot that point in the heat of trying to deal with the important point of principle. My noble and learned friend says that the position is not clear, although I thought it was. My understanding is that if a person continues in office that will be pensionable service and will count for pension purposes.

I do not accept the view that that creates any particular additional pressure. It is important that the appropriate Minister would require to be convinced that the appointment was in the public interest and not merely because of the fact that only by granting an extension would the judge receive a full pension. The purpose of the extension would be to serve the public interest in some other way.

I was asked for practical illustrations. The most likely illustration is perhaps the scarcity of a particular specialty—a specialty which requires a good deal of planning in advance to ensure that when the judge holding the specialty retires another judge is available to replace him. With all the planning in the world it may be that somebody with the required specialty may not be available quickly. In that situation it may be right to extend the time of the existing judge. That is an illustration which occurs to me. On the circuit Bench it has occurred quite often, though less frequently than at one time.

10 p.m.

Lord Donaldson of Lymington

I understand the illustration given by the noble and learned Lord. However, does he not agree that if the judiciary are to be seen to be independent—I mean by that the whole-time professional judiciary, accepting, of course, that he is the head of the judiciary—in a matter of this kind they must be prepared to accept responsibility and stand up and be counted? It is no answer to say that the Lord Chancellor is answerable to Parliament and that the whole-time judiciary should not become involved. Does he not agree that the fact that they are not involved casts doubt upon their independence?

The Lord Chancellor

One aspect of judicial independence which is not always fully appreciated is that judges are independent of one another. The fact that one of the independent judiciary is involved on the face of the Bill means that they carry responsibility. However, they carry it in a way that is perhaps more difficult for them to handle than is the responsibility of a Minister directly answerable to Parliament. After all, if I am criticised by somebody in Parliament, I have the chance directly to answer.

I do not give that answer as a means of avoiding the issue. I simply put it forward as a consideration. I have read in perceptive pieces on related subjects that one must be careful. I am anxious to do what I can to preserve the independence of the judiciary; I am therefore content to consider whether some clause in regard to formal consultation should be included on the face of the Bill. However, I draw attention to the fact that the considerations for that are not necessarily all one way.

Lord Mishcon

I believe that this is the end of discussion on the matter. Will the noble and learned Lord consider that whereas if on the face of the Bill it is the Minister who makes a decision, criticism could be made publicly that political considerations have entered into the matter; if there is consultation with elements of the judiciary on the face of the Bill, that criticism could never fairly be made.

Lord Ackner

My noble and learned friend is right. I would not dream of asking the Committee to reach a final decision on this important matter at this time of night. However, I ask that we concentrate at this stage on whether or not there should be any power at all.

Thanks to the wisdom of my noble friend Lord Benson, Amendments Nos. 58 and 60A—to which I added my name after some slight redrafting—deal with the terms of the power if it should exist. I can turn to that in a moment. On the basis of whether or not the power should exist at all I make only the following points.

First, the same problem arose in Scotland when what became the Scottish Law Reform (Miscellaneous Provisions) Act 1987 was introduced. The age at that time was 75. The principle was exactly the same. Parliament decided, and the Government introduced the clause, under pressure, that at 75 the chopper came down and that was an end of it. There was therefore no problem in reaching a firm conclusion in Scotland where the shortage of judges may be even more acute because of the size of the judiciary.

The reason the chopper came down under Section 22 of the Act was quite simply one of principle. If Parliament says that 75, or now 70, is the retirement age, it should not be played around with. That should be the end of the matter.

The next amendment deals with the terms, if the power is to exist. I shall not dwell on that for the moment. Comparable jurisdictions are always worth looking to. We become over-insular in our approach. I have already made one or two comparative points. The only two jurisdictions comparable to ours which I have discovered are the United States and Canada, where there is a power to opt for senior judge status. But the option is made by the judge. Having opted for that status he is available for what use the chief justice or the judiciary wish to make of him, it being understood that he is not expected to work full-time. But the judge opts whether he wants that status. It is not somebody else's decision offering him that particular entitlement. I believe that that is again because of the constitutional principle that the independence of the judiciary involves security of tenure which is not dependent on the Executive.

At Second Reading I referred to other countries with hotter climes. In the Far East there have been very good indications of how a Bench is weakened in fact and in the public perception by this yearly renewal. Quite a high proportion of the judiciary were on contract. It was a thoroughly bad system. I do not believe that it continues as much as it did. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Benson moved Amendment No. 57: Page 17, line 30, leave out subsection (2) and insert: ("(2) Subsections (3) and (4) below shall be regarded as a temporary measure which shall not apply after 3Ist December 1997 and any person who, prior to that date, was authorised to hold office under subsections (3) and (4) shall cease to hold office on 31st December 1997.").

The noble Lord said: If subsections (2), (3) and (4) remain in the Bill then this amendment is relevant. So far as I know, the only reason for employing judges after the retirement age is because of the shortage of judges. I have never heard of any other reason being given. I believe that that shortage has existed for a long time. It is a bad situation, which should be corrected. Lay persons do not understand how it is possible for a shortage of judges to continue. Why is the situation in the judiciary not corrected? It could not exist in the private sector because it would not be supported by the shareholders and the public. Why have judges not been appointed?

The purpose of this amendment gives the Government five years to clean up the situation, which should be time enough. In that time they should be able to find enough judges and to remove the backlog. The amendment has one other advantage—namely, that it prevents this bad situation being continued after 1997. The Committee may be sure that if this amendment is not passed there will be a shortage of judges in perpetuity. I beg to move.

The Lord Chancellor

I believe that the prophecy that the noble Lord, Lord Benson, has just uttered is not justified by the existence of this power with the Circuit Bench. As I mentioned earlier, this power has existed for some time with the Circuit Bench. In recent times it has been possible to use it only rarely so the existence of such power does not necessarily perpetuate a shortage. As I said when speaking to the last amendment, Circuit Bench recruitment has improved in such a way that I have been able not to exercise that power in quite a number of recent cases.

I understand the purpose of the amendment, and it is certainly worthy of consideration. It raises the question of whether the power should be time-limited if it is given. It is difficult for us to foresee the exact position in the future, given the proposed changes. It will always be possible for Parliament to remove the power in the light of developing experience or—and perhaps this is more likely —the relevant Minister, the Lord Chancellor in a case that I take as typical, would not find it necessary to use the power, except possibly in exceptional circumstances such as I indicated a moment ago. I submit that we cannot see sufficiently into the future to fix a definite date in this way. But the Committee may feel that this is an option which is worthy of consideration.

Lord Ackner

The figure that I have been supplied by the noble and learned Lord's department in relation to the number of circuit judges who sat over the age of 72 was 562 in 1991. To use a phrase that perhaps one should not use in this House, that is hardly peanuts when one considers the use made of retired judges.

The Lord Chancellor

I am not certain whether the noble and learned Lord, Lord Ackner, is referring to those who have been continued in office under the power or to those who are sitting as deputies, having retired.

Lord Ackner

Only to those who are sitting as retired.

The Lord Chancellor

If the noble and learned Lord is referring to those who are sitting as retired, that explains why his figures and those that I have in mind are rather different. I am talking about the exercise of the power to continue judges in office, which is what the amendment which has been tabled by the noble Lord, Lord Benson, is directed to, as I understand it.

Lord Benson

The noble and learned Lord the Lord Chancellor has said that the amendment is worthy of consideration. I am pleased to hear that, and I hope that the consideration will be successful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Lord Ackner moved Amendment No. 58A: Page 17, line 34, leave out from ("applies") to ("office") in line 37, and insert ("the Lord Chief Justice or the Lord President with the consent of the appropriate Minister considers there is a shortage of relevant officers for the time being specified in either Part of Schedule 5 to this Act he may as a temporary measure to facilitate the disposal of business authorise the holder of a relevant office to continue in that office after his compulsory retirement date").

The noble and learned Lord said: I owe this amendment essentially to the wisdom of the noble Lord, Lord Benson, but I have altered the wording. The amendment is designed to tag on to the limited five-year period. During the five-year period, these are the terms upon which the scheme should operate. As the wording of the amendment has some relevance, perhaps I may read it out. It states: the Lord Chief Justice or the Lord President with the consent of the appropriate Minister considers there is a shortage of relevant officers for the time being specified in either Part of Schedule 5 to this Act he may as a temporary measure to facilitate the disposal of business authorise the holder of a relevant office to continue in that office after his compulsory retirement date".

These are the points of note. If the wording that I have suggested proves acceptable, the Lord Chief Justice himself cannot be continued in office beyond the age of 70. I think that that is quite right. It is in order that it is never to be possible to say that the Lord Chief Justice has been continued because of the way in which he operates in the eyes of the Executive. I think that that is absolutely right. The Lord Chief Justice therefore has nothing to gain by the way in which he operates the system. It is then for him—or the Lord President, who is in the same position—with the consent of the Lord Chancellor in England, only where there is a shortage of relevant officers and only as a temporary measure, to facilitate the disposal of business. The Lord Chancellor will still be properly answerable in the House because, ex hypothesi, he has not only been consulted, but his concurrence is required. If it is thought that there is something novel about the proposal I should point out that I have lifted almost the entirety of that language straight from Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which reads as follows: If it appears to the Lord President of the Court of Session that it is expedient as a temporary measure to make an appointment under this section in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary he may, with the consent of the Secretary of State". This is my last amendment tonight. I am delighted to find that it can be put forward so harmoniously not only with the concurrence of Parliament mutatis mutandis seven years ago, but also in relation to the Scots jurisdiction to which we are quite properly referred from time to time as providing the common sense and wise solution to many of our problems. I beg to move.

10.15 p.m.

The Lord Chancellor

My noble and learned friend approached the amendment in a way which makes it especially difficult for me to say too much about it in principle. However, that will not deter me very much. The Scottish provision was set in place against the background of the Scottish situation. Of course, there is no reference there to the Lord Chancellor or the Lord Chief Justice. Against the background of the English situation and the nature of the constitution of the English court, I believe that the proposal that the Lord Chancellor should have the primary responsibility, after consulting the Lord Chief Justice and the other Heads of Divisions as appropriate, would be more in keeping with the way in which the court here is structured.

As I said earlier, assuming that the power is granted the conditions require careful consideration. However, I do not believe that this is necessarily a case where the Scottish provision is quite the right one for the jurisdiction involved. As has already been said, the Secretary of State does not occupy the position that the Lord Chancellor holds. Moreover, as my noble and learned friend well knows, the Lord Chancellor is President of the Supreme Court and that cannot be said of the Secretary of State for Scotland in respect of any jurisdiction there. The appropriate form is one that we want further to consider. I believe that my noble and learned friend has indicated that he regards it as something which may take a little time.

Lord Morton of Shuna

Before the noble and learned Lord sat down he indicated that the position of Scotland is different from that of England. That is something that I have, no doubt inarticulately, tried to say both on Second Reading and earlier this evening. The position of the Secretary of State is wholly different from that of the noble and learned Lord in their respective jurisdictions. It is possible that the appropriate course—that is, if the clause is to continue to exist at all—is to have separate provisions for England and Scotland. I hope that that suggestion will also be considered as an alternative.

Lord Wigoder

When in due course the noble and learned Lord the Lord Chancellor considers the wording of this part of the Bill, I respectfully ask him to consider making it clear that any extension of a term of office beyond the age of 70 will be a temporary measure to deal with an emergency situation.

The Lord Chancellor

The nature of the power here conferred is one that applies from year to year. The principal reason why I suggested that form of power was that there should not be an extension up to the age of 75, as it were. The extension can be granted for a year at a time only. On each extension the public interest would need to be considered.

The special circumstances mentioned by the noble Lord, Lord Wigoder, of a case not being completed is referred to, at least in certain circumstances, in Clause 25(6) (e). The intention is that the measure should be a temporary one in the sense that it is a year-to-year measure which is required to be reconsidered on each occasion.

Lord Mishcon

Only so that, in my view at all events, one deals tidily with the point raised by the noble Lord, Lord Wigoder, and just answered by the noble and learned Lord the Lord Chancellor, I, peculiarly enough, appreciated the relevance of paragraph (e) to which the noble and learned Lord has just referred. In case we forget, he will realise that automatically—we shall come to this point—all powers cease at the age of 75. Paragraph (e) is followed by the words: except that nothing in any of those provisions shall authorise a person to do anything after the day on which he attains the age of 75". I have never come across in an Act of Parliament anything which is so unsympathetic to the aged as those words. The person is not to do anything. I hope the noble and learned Lord will not forget that paragraph (e) will not apply to someone who has reached the age of 75 having reserved judgment at the age of 74¾.

The Lord Chancellor

I shall not forget that point. On the assumption that the 75 arrangement stands—there are amendments still to be considered in relation to that point—that is a matter which one will wish to consider. If someone reaches the age of 74 and one was considering extending his term of office, one would have to have that point in mind. The reason for the strong words to which the noble Lord, Lord Mishcon, referred is the principle behind this part of the Bill: there should be no more judicial work, either temporary or by continuation in office, after the age of 75.

Lord Ackner

Obviously, once more, there can he no final decision on this point tonight. I ask my noble and learned friend to consider—if he does not wish to incorporate the whole of the Scots drafting—what possible criticism there could be of including in the Bill the words "temporary measure" which it was thought fit to put in for Scotland. To employ someone from year to year from 70 to 75 does not sound to me like a temporary measure. It will not sound like one to the public.

There is a further point to consider: the possible invidious decisions which will have to be made. Am to be continued in office? It is different once one retires and is asked to return to sit from time to time to the continuation in office as an office-holder with the back-up —the room, the clerk and the very name of Master of the Rolls or President of the Family Division. It creates an invidious position when a person is not continued in office, whereas the automatic cessation at 70 produces a clean break. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 had been withdrawn from the Marshalled List.]

[Amendments Nos. 60 and 60A not moved.]

[Amendment No. 61 had been withdrawn from the Marshalled List.]

Lord Donaldson of Lymington moved Amendment No. 62: Page 18, line 8, leave out subsection (5).

The noble and learned Lord said: We now move from the full-time office holder to the retired judge who is brought back. Quite different considerations apply to him, as my noble and learned friend Lord Ackner has just said. The lettered paragraphs, with the exception of paragraph (b), to which special considerations apply, are all provisions relating to people coming back as part-timers. They provide a cut-off age of 75.

We all know that there is no magic about 75, and I shall not rehearse the arguments that some people over the age of 75 are as bright as a button while some under 70 ought not to be given house room. No doubt it will be said by my noble and learned friend, "That is true but there must be a cut-off point at some time. It is bound to be arbitrary, but 75 is as good as we shall get". With all respect to my noble and learned friend, the answer is that we do not need a cut-off point at all. He could enforce the policy, or give it life, tomorrow simply by sending a note to the Lord Chief Justice, myself and other Heads of Division and to those who are responsible for the employment of retired county court judges, saying, "I don't think you ought to go on employing these judges. Please stop as soon as you can". Then we shall do it. On the other hand, we may protest about a lack of judges, but that is another matter. We shall do what is required and the policy can be given effect.

Therefore, what is the purpose of the provision? It is quite unnecessary in order to create change on the ground. The purpose can only be to tie the hands of a future Lord Chancellor. I cannot see its point. A crisis could well arise in which the only available judge happened to be over 75, who might he required to get us out of an enormous temporary crisis.

I am congenitally opposed to circumscribing anyone's jurisdiction ever to do anything. By all means exercise discretion not to do something, but, particularly in primary legislation, never say, "You cannot do it". It is an invitation to the gods to create a situation in which one feels one must do it. Accordingly, I hope that the noble and learned Lord will either agree to withdraw the provision or at least to consider it seriously. I beg to move.

The Chairman of Committees

I should remind the Committee that if Amendment No. 62 is agreed to I shall be unable to call Amendment No. 64.

Lord Bridge of Harwich

It is in no spirit of high optimism that I speak in support of the amendment to a somewhat sparsely populated Chamber at a late hour, especially having heard what has been said earlier. It is invidious that, as a retired Law Lord already past the present retiring age of 75. I should speak to it at all. I hope the Committee will give me credit in supposing that at least I do not speak purely out of self interest.

I believe that whether or not subsection (5) remains in the Bill is of importance; not perhaps as concerns trial judges but judges exercising appellate jurisdiction. I hope it is right, and it may be common ground, that those who have had the good fortune to start as puisne judges and then have a career as Appellate Judges, or come to your Lordships' House and have a second and different career as a different kind of Appellate Judge, are not as susceptible to the vices which have been referred to as staleness, cynicism and impatience. Those vices afflict some trial judges who do the same boring job year after year. If they are susceptible to those vices, it soon becomes apparent to their colleagues and they will never be invited to sit as retired judges.

One has three quite different careers if one finishes in the House of Lords as a Law Lord. There is the career as a puisne judge, the career in the Court of Appeal and a quite different career here. Ever since the age limit of 75 was introduced the Court of Appeal has largely had to rely on calling retired judges back to sit because the number of regular Appellate Judges available to do the work that has to be done inevitably varies. Lord Justices of Appeal fall ill like anyone else and they are called upon to preside over public inquiries and to undertake all kinds of other responsibilities. A fortiori in this Chamber there is always someone like the noble and learned Lord, Lord Griffiths, who is hardly ever available because he is busy presiding over the Lord Chancellor's advisory committee and performing other important functions.

Law Lords go away to give lecture tours in foreign countries, and that is approved and considered, from a public relations point of view, to be proper. Yet the Chamber, as far as I know, has never had an establishment of more than 10 regular salaried Lords of Appeal in Ordinary. The statutory number is 11. However, at the moment there are 10 regular salaried Lords of Appeal in Ordinary. When I first came here, there were only nine. Yet the Chamber normally manages to sit two committees, one here and one in the Privy Council, or two committees here, or occasionally even three committees. That call only be done if, when the occasion arises—it only arises every now and again—retired Law Lords or other qualified people can be called upon to sit. If that is to be done away with, the establishment will have to be enormously increased and a large number of Law Lords—I think the same would apply to the Court of Appeal—will find themselves with little to do half the time. Is that really sensible? In particular, is it sensible when—my noble and learned friend the Master of the Rolls has pointed this out—a statutory ban is not required?

I invite my noble and learned friend the Lord Chancellor, when he replies, to indicate what the real purpose behind this statutory provision is. That it has a useful, perhaps a necessary public relations function to perform, I fully understand. If it is thought worth adopting from that point of view, so be it. But I particularly ask the question: what other important function can this statutory ban perform which could not equally well be achieved by the exercise of discretion by the Lord Chancellor, whether or not in consultation with the regular judiciary, as to whether any particular retired judge, or any particular category of retired judges, should or should not be asked to sit occasionally when that is needed?

10.30 p.m.

Lord Hacking

I did not have the opportunity to speak on Second Reading and I arrive at this Committee somewhat late in the evening. I ask the Committee's forgiveness for my late intervention particularly to oppose this amendment. I rise merely having listened to the argument to find myself contrary to that argument. It seems to me that the basic defect of this amendment is that it restricts the appointment of judges to all levels of the High Court of the judiciary. The most important matter of all is that there should be a sufficient number of judges at all levels of the judiciary below the retirement age fully able to discharge those duties.

The Lord Chancellor

The purpose of the subsection that is sought to be removed by this amendment is to place a statutory age limit on those who can perform judicial functions. I wish to stress how grateful I am to those retired judges, including distinguished Members of this Chamber, who have continued diligently to devote themselves to the public service and to make a valuable contribution to the administration of justice after their retirement from full-time office. I have come to the conclusion that it is no longer fair to them, or entirely consistent with public expectations, to enable them to do so indefinitely. I have therefore thought it appropriate for the first time, at least in England and Wales, to impose an overriding age limit on such sittings. The Bill as it stands provides for that limit to be 75.

These are very much matters of balance and of judgment and I can see the argument for simply leaving the matter to the Lord Chancellor's discretion. I certainly agree that I could, by my own action, achieve that result for the time being. However, this is a very important change. After all, judges over the age of 75 have been sitting from time to time in this jurisdiction for quite a long period after the 75 years age limit was introduced. I feel that it is right that the matter should be discussed in Parliament and decided by Parliament rather than simply by fiat of the Lord Chancellor.

I believe that the provisions strike a balance. There is the ordinary retirement age of 70; the possibility of continuation in office beyond 70 or of sitting as a judge between the ages of 70 and 75, having retired; and then at 75 the option to sit will no longer be open.

Of course I am particularly appreciative of the services of some who will be affected by this particular clause, if and when it comes into operation. It is not without a good deal of personal regret in respect of those individuals that I have thought it right to put the clause forward. However, the very considerations which move me personally in that respect are likely to move any successor also. It is as well that Parliament should decide the matter and make a definite provision. That is the basis on which the provision which the amendment seeks to remove has been put forward. There are perhaps refinements to the provision which we shall have an opportunity of considering in a moment.

Lord Mishcon

I rise with the utmost fear, having summoned such courage as one can summon at this late hour, merely to ask with extreme respect of the noble and learned Lord, why, in the light of that reasoning, there is an exception in the case of the President of the Supreme Court—namely, the Lord Chancellor—when those under his presidency are not allowed to continue beyond the age of 75.

The Lord Chancellor

I have thought it right to leave that matter, not because I contemplate for one moment being in that position personally but because the Lord Chancellor holds office entirely at the discretion of Her Majesty. Obviously, if Her Majesty in her wisdom thought it right to appoint a Lord Chancellor who was 77 or so, it would be right that he should perform those functions. However, it is my feeling that once this provision is in place the chances of that happening would be remote.

Lord Donaldson of Lymington

I regret the answer given by the noble and learned Lord, but in view of the lateness of the hour I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wilberforce moved Amendment No. 64: Page 18, leave out lines 12 to 14, and insert: ("(b) be a member of an Appellate Committee of the House of Lords;").

The noble and learned Lord said: The amendment arises on the assumption that subsection (5) remains part of the clause. Perhaps I should defer the matter until we decide the fate of subsection (5), but I shall move it briefly in order that we may see the whole clause in perspective.

This is a friendly amendment designed to assist the Government by way of change. It has nothing to do with the Treasury. It is motivated by the fact that subsection (5) (b) on the one hand does not achieve what it is intended to achieve and on the other hand may have undesirable results which it is not intended to achieve.

On the first limb, the intention is to prevent anybody from exercising judicial functions in the House of Lords after attaining the age of 75. It acts by reference to a section in the Appellate Jurisdiction Act. However, that is a pure quorum section, which says roughly that there must be three Lords of Appeal to hear any appeal. All that paragraph (b) would do is to say that after the age of 75 one cannot count towards the quorum. But if one can get a quorum otherwise, it would not prevent anybody of 75, 80 or 90 from sitting as a judge in the House of Lords. In any case, the paragraph is defective.

My amendment is much simpler. It takes the direct route of saying that after the age of 75 one cannot sit as a member of an Appellate Committee in the House of Lords. It does that directly following the pattern in paragraph (a) which states: be a member of the Judicial Committee of the Privy Council". One should do it in the same way in both connections. That is the first limb. The Bill does not do what is wanted and my suggested amendment is simpler.

Paragraph (b) may produce some undesirable results in relation to the non-judicial functions of Lords of Appeal. As the Committee will know, they are called upon to perform a number of functions in connection with the business of this Chamber. The Committee for Privileges requires the presence of a number of Lords and not less than four Lords of Appeal. It has never been the position in my time in this Chamber, which is quite some time, that one was disqualified from sitting because one was retired. On the contrary, it is desirable that retired Law Lords should be able to sit; otherwise too much time is taken up at the expense of active members. Some of the committee hearings are quite long.

There is no age limit on the other members of the committee: indeed, it may be said that, as regards that particular committee, age, so far from being a disqualification, ought to be a positive qualification by reason of experience in these matters. That deals with the Committee for Privileges. There is also the Personal Bills Committee which requires a Lord of Appeal. Again, the same point is made. One does not always want to dislocate the appellate business of the Chamber by drawing upon an active Law Lord. There is no reason why someone retired up to any age should not function. In any case, it is not the function of this Bill to interfere with the non-judicial business of the Chamber. I am sure the necessary consultations have not taken place. It seems better to leave matters. My amendment avoids any difficulty in that direction. There remain three points. The first comes back to the position of the Lord Chancellor. It is a very difficult matter. There is an exemption in favour of the Lord Chancellor under paragraph (a). Should there be one under paragraph (b)? I leave aside the policy questions. I assume that it is desirable that a Lord Chancellor up to the age of 90, if there is such a person, should be able to sit. Should it be necessary to make a specific exemption in favour of a 90 year-old Lord Chancellor? It is a difficult question which I have not been able to solve.

The jurisdiction of the Lord Chancellor in matters of appeal is a very old and constitutional one. It is much older than the Appellate Jurisdiction Act 1876 and one hesitates to interfere with it. Moreover, if one looks back to the beginning of the clause, there is a reference to persons holding relevant offices. Going to the schedule, one finds that the Lord Chancellor is exempted from the subsection. So again he appears to be treated as being in a special position.

I have in the end taken the cowardly course of not putting in a specific mention of the Lord Chancellor, leaving it to the distinguished holder of that office to express his own view. If he thinks it right to make an exemption in favour of the Lord Chancellor, of course that should be done.

My second point is that there is no reference in my amendment to Appeal Committees of the House of Lords as distinct from Appellate Committees. I deliberately did not mention them because it has never been the practice of retired Lords of Appeal to sit on Appeal Committees. It did not seem necessary to make a specific mention. Indeed, paragraph (b) as drafted does not deal with Appeal Committees. It deals only with substantive appeals. Again, if a different view were taken, it would be quite easy to put a reference to an Appeal Committee into my amendment side by side with an Appellate Committee.

Thirdly—this is a technical point—there is a reference to this section in Schedule 6 to the Bill at page 46. It introduces an amendment to it. If my amendment were accepted, that would become superfluous and it would be quite simple to delete the provision in Schedule 6 at page 46 at Report or some later stage.

I move the amendment as a simplification, as an aid to the Government and as avoiding some of the difficulties which may be posed by paragraph (b) at present. I beg to move.

10.45 p.m.

Lord Bridge of Harwich

Perhaps I may ask my noble and learned friend Lord Wilberforce how the amendment applies when the judicial function of the House is being exercised in the Chamber, as it is in the first week of October normally before the House resumes, not by an Appellate Committee but by the House.

Lord Wilberforce

That is a nasty one. I had not thought about that. I may have to extend the amendment to apply to that case.

The Lord Chancellor

I am grateful to my noble and learned friend Lord Wilberforce for the trouble he has taken. The question that my noble and learned friend Lord Bridge of Harwich raised in a sense shows how difficult the matter is. My noble and learned friend Lord Wilberforce has shown me how difficult my drafting is too.

I should like to consider carefully what my noble and learned friend Lord Wilberforce said. It is important. My impression is that it is wise for the Lords of Appeal in Ordinary to sit in the House so far as possible. Obviously there are constraints, but, generally speaking, where possible I believe it wise that they should do so. For example, during the dissolution of Parliament it is highly wise that they should sit in the House.

Perhaps I have said sufficient for the present. I shall take advice from Parliamentary Counsel in the light of the very kind explanation that my noble and learned friend Lord Wilberforce gave for his amendment. I shall have to consider carefully the position of the Lord Chancellor.

Lord Wilberforce

I am grateful to the noble and learned Lord. On that basis, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Donaldson of Lymington moved Amendment No. 65: Page 18, leave out lines 37 and 38.

The noble and learned Lord said: The amendment refers to the paragraphs that the noble Lord, Lord Wigoder, looked for. They are what I would describe as Magnus Magnusson clauses: "You have begun so you may finish", to use the words of "Mastermind".

I do not understand why there has to be a cut-off date. I do not refer only to paragraph (e). The provisions are all the same. For example, Section 9(7) of the Supreme Court Act 1981 provides that, Notwithstanding he expiry of any period"— allowing a judge to act as judge in a particular court— he may attend at that court for the purpose of continuing to deal with, giving judgment in, or dealing with any ancillary matter relating to, any case begun before him while acting as a judge of that court".

It is merely a carry over if by any chance he does not finish his case by the time he has to retire.

It may be said that in the great new era we shall not employ anyone who is anywhere near 75. That may be right. The trouble is that one may have a case which is started by a judge who is 73; it is referred to the European Court, or some even worse crisis occurs, if that be imaginable, and cannot be resumed until a time when he nears his retirement age. I do not believe that the public relations spin-off advantage of the clause is worth it. As one who is a manager in the judicial field, I should be much happier—should I have got it wrong and started a judge on a case which, contrary to all expectation, he could not complete by his 75th birthday—to be able to have him for an extra week to finish the case rather than start all over again.

Lord Mishcon

That must be right. It would be quite ridiculous if one came across a situation of a judge trying a case which was supposed to last for about six months to a year but which, as has happened recently in several long cases—certainly criminal cases—has lasted an uncivilised length of time.

I wish to raise one point that occurred to me. The noble and learned Lord may think that it is not a worthy point to raise, in which case I shall accept his rebuke with humility. The wording of paragraph (e) covers, any ancillary matter relating to, any case which may have been begun before him at a time when he was holding that office". As the next words are that, nothing…shall authorise a person to do anything after the day on which he attains the age of 75", what would be our present position in regard to a mandatory life sentence where the judge is consulted—he may certainly be over the age of 75—by the Home Secretary to ask what his views really were in regard to the case which he tried and whether or not there should be a reduction in sentence or, in the case of a life sentence, freedom on parole? Would that not be doing something ancillary to any case which had been before him at a time when he was holding office before the age of 75? Are not these words—they struck me as being so stern—that nothing should be done despite all those provisions most unhelpful?

The Lord Chancellor

They are helpful in promoting the policy that judicial activity should stop at the age of 75. The caution comes on at 70 and the anticipation is that by the time 75 arrives the judge has to stop. The noble Lord gave an example of the opinion of the judge being sought in relation to a case that the judge had tried. I would doubt whether that is authorised under any statutory provision dealing with service in the judiciary. However, it is a point that we should look at carefully. My understanding of the practice is that the view is given shortly after the trial by the trial judge. One would hope that that would happen some considerable time before he or she was 75.

The purpose of the provision is to make effective and show that effect is to be given to the general idea that by 75 judicial activity should stop. As a manager I share the feeling of liking to have maximum freedom. On the other hand, one wants to operate properly within a reasonably defined structure, and this is part of the definition. However, as with the other considerations dealing with the age of 75, I would certainly wish to consider this matter further.

Lord Renton

Will my noble and learned friend consider the wording between now and Report stage? It is strange that a person should not do anything after the age of 75. Is he to stay in bed for the rest of his life?

The Lord Chancellor

My noble friend is reading a little too short. The subsection states that, nothing in any of those provisions shall authorise a person to do anything". Nothing in these provisions authorises a good number of activities that would be open to my noble friend without confining himself to bed. One has to read the whole provision as a matter of statutory construction. Therefore, the particular difficulty that my noble friend envisages does not realistically arise.

Lord Donaldson of Lymington

I thank my noble and learned friend for saying that he will look at this matter again. In the spirit of helpfulness that is prevailing in the Committee at this hour and in the absence of the Lord Chief Justice, perhaps I may say, sotto voce, that he is wrong about the Parole Board. We certainly write to the Home Secretary at the time, or it may be that that is done more formally nowadays. However, one receives follow-up inquiries years afterwards. Within only the past two months I have received an inquiry about a potential parolee whom I sentenced to life imprisonment 15 years ago, or something of that order.

I take the point that my noble and learned friend makes. I do not believe that I need statutory authority to respond to an inquiry from the Parole Board, the Home Secretary, the Lord Chancellor or anybody else. In the absence of statutory authority, and assuming that I am not enjoined from doing so, I shall continue to write to anybody who writes a sensible and courteous letter to me.

I am delighted that at last I have partially won one point in the sense that the matter will be looked at again. It is delightful to end the evening on that note. I am happy to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 had been withdrawn from the Marshalled List.]

Lord Renton moved Amendment No. 67: Page 19, line 3, leave out subsection (10).

The noble Lord said: I draw attention to this matter because of the obscurity caused by the legislation by reference.

This clause invokes Schedule 6, which is seven-and-a-half pages long and very properly makes textual amendments to about 15 statutes. One wishes that the matter could rest there but even those amendments are to have effect subject to various subsections that have gone before and to Clause 27.

I need only deal with subsection (6) but I invite the attention of3, the Committee to it because the subsection states: This section is without prejudice to", and it then refers to the Courts Act 1971, the Judicature (Northern Ireland) Act 1978, the Supreme Court Act 1981 and the County Courts Act 1984. So far that is not too bad. One could turn up those detailed provisions and to perhaps find how the amendments made by the schedule affect them. But we then come to paragraph (e) of subsection (6) which states: any provision of any other Act or instrument under or by virtue of which a person who has ceased to hold a judicial office may continue to deal with, give judgment in, or deal with any ancillary matter relating to, any case which may have been begun before him at a time when he was holding that office". No doubt it is necessary to have a provision like that but I find it strange that the amendments made by Schedule 6 should be subject to that very broad qualification.

However, the matter does not end there because one must go to Clause 27 and one finds that the same provisions as are in Clause 25 refer to recorders and certain other periodical appointments. That may not be so serious but Clause 25(10) rather turns in upon itself. It states: and no amendment made by Schedule 6 to this Act, shall affect the continuing validity of that exercise of that power in relation to that person". We refer back in the subsection to the continuation power which is expressed to he other than under subsections (2) and (4).

I wonder whether such a convoluted provision is unavoidable in this important Bill. I refer to it in the hope that the drafting may be simplified by Report stage. I beg to move.

11 p.m.

The Lord Chancellor

I shall certainly look again at Clause 25(10) and the schedule. The difficulty is to try to make a simple provision which creates new rules for the future at the same time as preserving the position of those already in post at the time the provisions come into effect. That is the problem the provision faces. The last thing I want to do is retrospectively to damage the position of anyone who is in post at the time the Act comes into force.

Having said that, I am grateful to my noble friend for drawing attention to the matter, and shall want to reconsider the schedule in some detail in the light of his observations.

Lord Renton

I am grateful to my noble and learned friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clauses 26 to 28 agreed to.

Clause 29 [Regulations curd orders]:

The Lord Chancellor moved Amendment No. 68: Page 22, line 35, leave out ("appears") and insert ("may appear").

The noble and learned Lord said: I have attempted to improve the grammar of the provision by this amendment. I beg to move.

On Question, amendment agreed to.

Lord Renton moved Amendment No. 69: Page 22, line 38, leave out subsection (4).

The noble Lord said: Clause 29 is the familiar clause that so often governs the way in which a regulation-making power in a statute shall be exercised. They are common form provisions. However, subsection (4) is a Henry VIII clause. It would enable the operation of this Act, or any other Act, to be modified by regulation.

I ask whether it is necessary to have such a wide power in the Bill, especially in view of what has been said on a number of occasions during this Committee stage in regard to the independence of the judiciary. For that reason, I beg to move.

The Lord Chancellor

Subsection (4) is entirely subsidiary to subsection (3), which provides that regulations or orders made under the Bill may include, such transitional, consequential, supplementary or incidental provision or savings as appears…to be necessary or expedient". Accordingly, it is only if such transitional, consequential and so on provisions appear to be necessary or expedient that subsection (4) can come into operation. All that subsection (4) permits is for such transitional and consequential provisions to modify the operation of the Bill or other enactment. In other words, it is not a power to amend the text of enactments, which is the true Henry VIII power—though that is a compendious phrase whose scope is perhaps not self-evident—but rather one to modify the operation of those enactments for the purpose of the transitional or consequential provision.

The sort of case where a power to modify the operation of primary legislation will be important is where a new class of judicial officer becomes entitled to participate in the new pensions arrangements and is added to the list of officers in Schedule 1 to the Bill. It will be necessary to ensure that the Bill applies to the new class as it does to classes already in the Bill. A power, along the lines of subsection (4), to modify the operation of the new legislation may well be essential if the new class of judicial officer is to be properly incorporated.

It is a subordinate type of modification and I suggest to my noble friend that it is justified in the circumstances of this case. I believe I briefly referred to it in my Second Reading speech.

Lord Renton

The terms of subsection (3) are familiar and have from time to time been widely used. For example, the word "supplementary" enables considerable extensions of primary legislation to be made by means of subordinate legislation. I believe that we would do better without that kind of thing. I regret that we have subsection (4) even when it has to be read subject to subsection (3). However, at this late hour I shall say no more. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29, as amended, agreed to.

Clause 30 [Interpretation]:

The Lord Chancellor moved Amendment No. 70: Page 23, line 41, leave out ("in") and insert ("of").

The noble and learned Lord said: This is a drafting amendment and the purpose of it is to correct the description of the Northern Ireland Civil Service. I have mentioned a similar instance already. Amendment No. 71 is also a drafting amendment in order to correct a reference to the Social Security Administration (Northern Ireland) Act 1992. I beg to move.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 agreed to.

Schedule 1 [Qualifying judicial offices]:

The Lord Chancellor moved Amendment No.71: Page 26, line 16, leave out ("50") and insert ("49").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Transfer of accrued benefits]:

Lord Renton moved Amendment No. 72: Page 31, line 38, leave out paragraph 13.

The noble Lord said: This amendment concerns the making of regulations in pursuance of this schedule dealing with the transfer of accrued benefits. In paragraph (2) we find that the regulations for the purpose of the schedule will be made with the concurrence of the Treasury by the Lord Chancellor or, in relation to Scotland, the Secretary of State. I concede that on this occasion the regulations will be matters of considerable detail. I am sorry to have wasted the time of the Committee even by moving the amendment. It is yet another example of the use of regulations in this Bill. I beg to move.

The Lord Chancellor

The option is either to have very lengthy primary legislation which needs constant amendment or to have a balance of regulation-making power to make detailed provisions which are an implement of the main provisions and policy of the Bill. I am grateful to my noble friend for recognising that this particular provision is very much of that character. It would spoil our primary legislation if we had to put all these matters in in detail, even assuming that we could manage it. I believe that, if we did so, experience would soon show that detailed amendments would be called for and the legislative programme would, sadly, be even heavier than it is.

Lord Renton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Schedule 3 agreed to.

Schedule 4 [Pensions for senior public investigative officers]:

The Lord Chancellor moved Amendment No. 73: Page 37, line 44, leave out (" 5(4) (b)") and insert (" 5(4) (0").

The noble and learned Lord said: Amendments Nos. 73, 74 and 75 are drafting amendments to correct minor drafting errors. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 74 and 75: Page 39, line 32, leave out ("this Act") and insert ("the Superannuation Act 1972"). Page 40, line 40, leave out (" 5(4) (b)") and insert (' 5(4) (c)").

On Question, amendments agreed to.

Lord Renton moved Amendment No. 76: Page 41, line 11, leave out paragraph 8.

The noble Lord said: The Committee will be glad to know that this is not only my last amendment in this Committee stage, but the last item on the Marshalled List. Before I 'speak to it I cannot forbear from saying how much I admire the stamina and the patience of my noble and learned friend the Lord Chancellor. I have frequently not been convinced by what he has said, but I nevertheless greatly admire the grasp that he has shown of the subject as he sees it.

The peg on which to hang the substance of what I wish to say is that we should leave out paragraph 8 of Schedule 4, which deals with pensions for senior public investigative officers. Again—and this is the last occasion in the Bill—we have the power to make regulations, but several questions arise on this occasion. The first arises in the first sub-paragraph which states: The Treasury may make regulations for purposes supplementary to the other provisions of this Schedule. On all previous occasions it has been the Lord Chancellor who is the Minister responsible, with or without the concurrence of the Treasury, but here the Treasury alone has the responsibility. May I ask why?

Sub-paragraph (2) (b) refers to what is called "the 1992 scheme". Perhaps I have read things too quickly or have not been alert enough but I cannot find a reference to "the 1992 scheme" except at line 33 of page 36, in paragraph (1) (b). However, as there are to be various schemes under the Act I am wondering whether that, and the one that follows on page 46, are the only references to what is intended to be the 1992 scheme. Are there other references in the Bill? That might be rather difficult for my noble and learned friend to answer at this late hour, but I find it a little difficult to follow.

My only other point is this. Under sub-paragraph (4) of paragraph 8 we find that Any statutory instrument made by virtue of this Schedule"— that is, any regulation— shall be subject to annulment in pursuance of a resolution of the House of Commons". Why is it only another place when the Minister responsible —the Lord Chancellor—is a member of your Lordships' House and when there is more expertise among the noble and learned Lords in this House than can be found in the whole of the 650 Members of another place put together? It is quite extraordinary that suddenly, towards the end of the Bill, we find that it is the Treasury, and not my noble and learned friend, who will be making the regulations; and that there shall be annulments subject only to the resolution of another place. I vehemently beg to move.

The Lord Chancellor

My noble friend will appreciate that Part II of Schedule 4 deals with the Parliamentary Commissioner for Administration, who is essentially an officer of the House of Commons. What we are doing is amending the Parliamentary Commissioner Act 1967 because the commissioner has functions which are quite like judicial functions in many ways. It is right that he should have his pension arrangements on terms similar to those in the scheme which is in the 1992 Act.

Members of the Committee should look, first, at paragraph 1(b), which is in the substituted schedule. It refers to, the scheme of pensions and other benefits constituted by Part I of the 1992 Act ('the 1992 scheme')". That is the definition of the 1992 scheme for the purposes of the Parliamentary Commissioner Act 1967. That is to be substituted for the existing schedule. The reason that the Treasury makes the regulations in respect of the Parliamentary Commissioner for Administration is that that is the present position under the Parliamentary Commissioner Act. The Chancellor of the Exchequer is the Minister responsible in relation to the Parliamentary Commissioner for Administration. Therefore, he is not one of the people for whom the Lord Chancellor has responsibility. It is right that he should have his pension arrangements subject to regulations made by the Treasury on the same lines as paragraph 4 of Schedule 1 to the 1967 Act, exercisable in similar circumstances and able to be annulled by similar authority.

It may not be thought modest of me to join too closely with what my noble friend said about expertise. Obviously there is also great expertise in the other place which I should like to acknowledge—certainly expertise relevant to the consideration of regulations about the Parliamentary Commissioner for Administration.

Lord Mishcon

Before the noble and learned Lord sits down, perhaps I may from this side of the Chamber associate myself completely with the remarks made by the noble Lord, Lord Renton, about the conduct of the Committee stage from the Government Front Bench by the noble and learned Lord. He is a model of courtesy and patience. It reminds me of the hopeless task that some bowlers may have in the game of cricket when they toss up a ball which they think to be remarkably good—a googly, a leg break or an off break—but inevitably the ball is returned with a straight bat.

Lord Hacking

As a very late arrival in the Chamber for this Committee stage but as the last surviving Cross-Bencher this evening, I should also like to associate myself with the remarks made by both the noble Lord, Lord Renton, and the noble Lord, Lord Mishcon.

The Lord Chancellor

I am extremely grateful for the remarks that have been expressed. The help that Members of the Committee give so evidently throughout the discussions obviously sustains me in doing what I have to do—so apparently to the satisfaction of noble Lords.

Lord Renton

In withdrawing the amendment I shall continue with the cricketing analogy. I do not admit to having been clean bowled but I do admit to having been caught in the slips. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4, as amended, agreed to.

Remaining schedules agreed to.

House resumed.