§ Order for Second Reading read.
§ 3.58 p.m.
The Attorney-General (Sir Hartley, Shawcross)
I beg to move, "That the Bill be now read a Second time."
As the Title of this Bill indicates, it is to make better provision in regard to pensions arrangements of His Majesty's judges and certain other judicial officers. Perhaps I should say at the very outset in regard to the scope of the Bill that, as at present drafted, it applies to His Majesty's judges of all ranks in the United Kingdom and to the other judicial officers, including stipendiary magistrates, who are more particularly described in the Schedule to the Bill.
I should, perhaps, indicate that, by a clerical oversight, the name of my right hon. and learned Friend the Lord Advocate was omitted from the back of the Bill, but it is nevertheless supported by him and by the Secretary of State in regard to its application to Scotland and Northern Ireland. I should say this in regard to those two parts of the United Kingdom, that some of His Majesty's judges in Scotland and some of those in Ireland have raised questions about the Bill, not so much concerning their own position or the position of existing office holders, but in regard to the position of those who may be appointed hereafter.
We shall have to give careful thought to those matters on the Committee stage, and we shall have to see what is the right solution of the points which they raise. I mention it now merely because I was indicating that the Bill as at present drafted applies to the whole of the United Kingdom. If it turns out that in Northern Ireland or in Scotland there are considerations which lead the judges to take a different view from that taken by the judges in England, we must give full consideration to that matter in deciding what course to take.
That being the position, the Bill applies to a variety of persons receiving a variety of salaries, but all of them sharing two things in common. In the first place, they all occupy judicial offices in the discharge of which—and this, of course, goes quite 47 without saying—they must be, and they are, completely independent and immune from financial and other influences. I say that goes without saying, but it is ensured nowadays, I think, by the great tradition and by the high personal integrity of the office holders rather than by the financial emoluments which they receive.
In the second place—and this also is something that all those affected by the Bill share in common—whilst they all enjoy certain pension rights on their own retirement, for none of them is any special provision made in respect of their widows or children after their death whether they die whilst they are still holding their various offices or whether they die after retirement. That is, of course, a factor that adds to the financial anxieties of those concerned, and which must, I think, as time goes on—as the recruitment of judges has increasingly to be made from generations who in modern conditions have not had that opportunity of accumulating substantial savings out of their earnings which was enjoyed by busy practitioners in days gone by—consequently act as a certain deterrent, an increasing deterrent in the future, to those who otherwise would be the best qualified to be appointed to the Bench.
This Bill, consequently, has a twofold purpose. Firstly, it effects—and this it does without any additional cost to the State—a readjustment of the present arrangements in regard to the pensions in a manner which, whilst it is optional to the present judges to accept—they can opt out of the scheme if they are so advised —is, we think, likely in the changed circumstances of modern life to be more convenient and appropriate, at any rate for a considerable majority of them. Secondly, it provides—and this it does on the basis of a more or less fifty-fifty contribution by the State, on the one hand, and the judges and judicial officers on the other—a scheme for the provision of pensions for judges' widows and children.
That being the general scope and purpose of the Bill, there are just two other points which, perhaps, I should mention before I go into any detail—and my detail will in any event be short—about the actual machinery which the Bill sets up. The first point is this. This Bill does not deal with and is entirely without prejudice 48 to the question of judicial salaries. On that matter, on the one occasion in the year on which I can speak without attracting the doctrine of collective responsibility or involving my ministerial colleagues in any way—namely, when I address the Annual General Meeting of the Bar as head of the Bar, I did some years ago express my own personal view.
But whilst I personally would like—as I am sure many of us would like—to see some of these judicial salaries raised. I should also like—again, as I am sure many of us would like—to see the earnings of many thousands of lower paid citizens also raised above their minimum figures. Unfortunately, the financial circumstances of the country are still such that great restraint has to be shown, and sometimes even hardship suffered, by people in all walks of life.
I only advert to that matter now in order to emphasise—and it is fair, so far as His Majesty's judges are concerned, to emphasise—that this Bill is not the result of any bargain or compromise with the judges, that we are giving this instead of something else, or any arrangements of that kind. Many of the judges do, in fact, ardently desire this Bill. Those who do not of the present office holders will be able to opt out of it, but the argument in favour of the Bill is one quite unconnected with the question of salaries, and is not the result of any kind of bargain or arrangement with His Majesty's judges. That was the first point I wanted to make quite clear.
The other point, which I might mention in passing, is that this Bill does not provide for the judges' clerks. Under the existing law, the judges' clerks do not receive any pensions at all for themselves and still less for their widows or children. In the last day or two I have received representations from the judges' clerks in regard to the matter. That problem is one which is outside the scope of the present Bill, and I can only say in regard to it that I shall pass those representations on with my personal sympathy—though my personal sympathy may not be worth very much—to the appropriate quarter.
I say I shall pass the representations on with my personal sympathy, because I know that when a barrister becomes a judge and his clerk goes with him, the clerk is invariably involved in a financial 49 sacrifice, and sometimes quite a considerable financial sacrifice. I know, too, how very valuable the services of the judges' clerks are both to the judges and to the Bar in the general arrangement of the way of the courts.
Mr. Leslie Hale (Oldham)
Could my right hon. and learned Friend say why the Clerks of Assize are not in the Bill?
§ The Attorney-General
I think the Clerks of Assize are in the Bill. The whole list is set out in the First Schedule.
I beg my right hon. and learned Friend's pardon. They are in the Bill under the registrars, a funny place to find them.
§ The Attorney-General
They are, at all events, covered by the principle of the scheme.
Having said that about those two preliminary matters, may I turn quite shortly to the actual details of the Bill, and, firstly, to the elect of the Bill on the pensions paid on retirement. That is dealt with by the first two Clauses of the Bill, and, broadly, these two Clauses alter the type of pension which is paid from an annuity only an annuity of a smaller amount plus a lump sum on retirement, or to what is called a death gratuity in the event of death while still serving in the particular office. The short effect of that is that the existing pension rate is reduced by one-quarter and, by way of return or set-off against that, there is a lump sum payment.
But the general position with regard to pensions in these cases, at present, is that the maximum pension is two-thirds of the salary on retirement. Under the Bill, that two-thirds is cut down to one-half. If any hon. Members share my philosophic doubts about the science of arithmetic, I am instructed—and I certainly could not have worked out this by myself—that the difference between two-thirds and one-half is one-sixth, but that, of course, is one-sixth of the salary, and that is the same as one-quarter—
Mr. Leslie Hale
My right hon. and learned Friend is wrongly instructed. It is certainly one-quarter.
§ The Attorney-General
It is one-quarter of the pension of two-thirds of 50 the salary. I hope that is right, but I certainly will not undertake to argue it with my hon. Friend the Member for Oldham, West (Mr. Leslie Hale).
The lump sum, under Clause 2 of the Bill, which can be regarded as a quid pro quo for the reduction in the annuity, will equal twice the amount of the reduced annual pension. Perhaps I should add, with regard to that lump sum, that, in conformity with the general law, it will not attract tax.
I mention, in passing, a point which may have been noticed by some hon. Members, that some provisions of the Bill appear to be mandatory in form and some are discretionary. The provision which says the pension is to be cut down is mandatory. The further provision which says that a pension will be paid is discretionary. That is technical, but one of the reasons for it—and I do not think it has been appreciated by all of His Majesty's judges who have noticed the point—is that it results in an important concession with regard not to Income Tax but to estate duties and, therefore, the arrangement is entirely in the interests of those to whom payments have to be made.
§ Mr. Selwyn Lloyd (Wirral)
The Attorney-General said the lump sum was twice the annual amount of the reduced pension. Is he quite certain about that?
§ The Attorney-General
Yes, that is certainly my reading of the scheme. A county court judge, for instance, is now paid a salary of £2,000 a year and has a pension at the end of 15 years of £1,333. If he retires earlier, through ill-health, there is a proportionate reduction. That pension will be reduced to £1,000 and the lump sum that he will receive on retirement will be £2,000. I think that is right. That is the general principle, but, as I have said, if he retires earlier, or if any of these judicial officers retire earlier, the pension and lump sum will be proportionately less.
§ Mr. Hector Hughes (Aberdeen, North)
Does the same principle apply to sheriffs or sheriffs substitute in Scotland?
§ The Attorney-General
Yes, the same principle applies, throughout the Bill, to all judicial officers affected by it. Up to that point in the new arrangements, the change makes no difference actuarially either in the cost to the State or in the 51 benefit to the judges as a whole. It may make a difference to individual judges. Some with wife and children will be better off. Others may not be so well off as before, but actuarially, the position with regard to the judges and others is that there is really no difference; and whether it is advantageous or not in a particular case depends upon the circumstances of that particular case.
Existing office holders are given the option, under Clause 11, I think, of opting out of the scheme if they think the existing arrangements are more beneficial to them than the new ones that are to be brought into effect. The new arrangements are to apply to all appointed after the Bill comes into operation, but those appointed now, on the basis of existing terms, will be free to choose whether they go on as before or come into the new scheme. That is the first part of the Bill.
The main purpose and object of the change which is brought in by the first two Clauses of the Bill is to make it possible for the married man to make some provision for his wife and children in the case of his death. That is provided for by a contributory scheme which is established under Clauses 3 to 8 of the Bill. The contribution—and it will work out in a way throwing about half the total cost of the scheme upon the judges and half on the State—consists in forgoing part of the lump sum which would otherwise be paid. Here, broadly, the position is that the amount of this contribution will equal the amount of the annual pension save, I think, in the case where the judge's wife predeceased her husband while he was still holding his office, in which case there will be a proportionate reduction in the contribution.
The benefits, on the other hand, will be again, broadly, a pension to the widow of one-third the amount her husband would have had if he had lived and, in the case of children, a pension of one-sixth of what would have been the father's pension if there is only one child, rising to a maximum of one-third of what would have been the father's pension if there are three, or more, children.
Applying that, again, to the case of the county court judge, his lump sum on retirement would be reduced to £1,000. 52 In return his widow would receive, during her widowhood, £330 and, if there were also children, there would be a further addition to a maximum of another £330 if, in that case, there were four children or more. There, again, the question whether the scheme is advantageous or not depends, of course, on the circumstances of the particular judge or officer concerned. One with many children would get greater benefits than one with none, but there again, the existing office holders are given an option in regard to the matter.
Speaking, at all events, for the judges in England, both of the county court and of the High Court, there is no doubt that many of them do urgently desire that this provision should be made. Those who do not are free to opt out of it.
§ Mr. A. Edward Davies (Stoke-on-Trent, North)
May I ask what is meant by Clause 4 (2), line 36:The widow's pension shall determine on her death or remarriage …"?Surely it means "terminate"?
§ The Attorney-General
That is one of the ways in which legal drafting is made a little more difficult for us to understand. It means the same. It is a matter of conforming with drafting tradition, but I shall come to another point in this connection which did a little surprise me, though I shall leave it at the moment.
With regard to the option which existing office holders possess, even if they take advantage of the first part of the scheme in regard to lump sum payments, they are entitled to opt out of the second part of the scheme with regard to the widows' and children's pensions. Future holders of the office, on the other hand, will be bound, although if they have not been married at any time during their service they will not need to make any contribution out of their lump sum in respect of widows' or children's pensions. If they have been married but the wife has died earlier, before their own retirement, they will make a proportionate contribution because, of course, the fund will have been at risk during the period when the wife was living and, in addition, there may have been children to be provided for.
53 There will be no benefit in the case of marriage or re-marriage after retirement, nor in the case of a widow who re-marries, unless the second marriage comes to an end, in which case the Treasury will have a discretion as to what they should do about it. Nor, as Clause 5 (3) puts it, will there be any provision if a child is "conceived" by a father after retirement. Here I confess I was a little surprised by the drafting. I had always thought that the expression was "begotten" and that conception by a male person was physiologically unlikely, but I am assured that this is the correct drafting and I have no doubt that at all events the purpose of the provision will be fairly clear.
That, then is the.purpose of the Bill. I should tell the House that, while the first part of the scheme—the substitution of a reduced annuity plus a lump sum for a larger annuity without a lump sum—will involve no cost to the State, the second part is estimated to cost from £10,000 a year at the beginning of the operation of the scheme to a maximum of about £40,000 a year after the scheme has been in operation for something over 30 years. From that, one can see, actuarially speaking, that the judges as a whole, whatever may be the position in regard to particular individuals, will benefit in the long run to the extent of an additional contribution towards their pensions of as much as £40,000 in a year.
These are the substantial provisions of the Bill and I think, perhaps, I need add only this: it should not be thought that by this Bill we are introducing any new policy or principle in favour of the judges which has not previously been recognised in the favour of others. There is, of course, no relationship between the status, on the one hand, of His Majesty's judges and the other judicial officers who are affected by this Bill, occupying as they do a position of complete independence, complete separation from the Executive and, on the other hand, civil servants; nor would I wish to draw too close an analogy between the principles upon which judges and civil servants are remunerated; but the fact is that the principles of this Bill in relation to the lump sum payment and the widows' and children's allowances are closely similar to those which were embodied in a series of Acts, ending with the Superannuation Act of 1949, in regard to the Civil Service.
54 I hope that the House will think that the arrangements proposed by this Bill will be beneficial to judges as a whole and of a kind which it is in the public interest that this House should adopt.
§ 4.25 p.m.
§ Mr. Manningham-Buller (Northants, South)
The House has not had very much time to appreciate the full effect of this somewhat complicated Measure, and I am sure hon. Members on all sides are grateful to the right hon. and learned Gentleman for the explanation which he has given this afternoon. The object of the Bill is to provide for pensions for the widows and children of a wide variety of judicial officers. If the hon. Member for Oldham. West (Mr. Leslie Hale) has now consulted the first Schedule he will see that it not only includes clerks of assize but also ranges from Lord Chancellors, on the one hand, to legal visitors in lunacy on the other hand, from Lords of Appeal to registrars of county courts, and few, if any, in this House will object to provision being made for the widows and children of such officers.
It must be realised—and I think the right hon. and learned Gentleman did make it clear—that the Bill does not increase the attractiveness of any one of these offices. It does not provide for any increased pay or pensions except, perhaps, in connection with the payments for childrens' pensions in 10 to 20 years' time. The Explanatory Memorandum says quite clearly:The revised method of paying pensions will in the long run cost the State no more than the existing scheme,Then the Memorandum says—and the meaning of this puzzled me until I heard the right hon. and learned Gentleman speak:The net cost to the Exchequer in the first year may be of the order of £10,000.It says that after not less than 30 years the cost may be £40,000. I gather that that net cost is solely in relation to childrens' pensions.
§ Mr. Manningham-Buller
Even then, it must be realised that the financial benefits which this Bill proposes for widows and children of this large number of judicial officers will mainly, if not entirely, be provided by the holders of those offices. 55 The existing holders have the opportunity of electing whether they come into the scheme or not.
§ The Attorney-General
I am not quite sure whether I correctly understood what the hon. and learned Gentleman said. The cost of the new scheme in regard to widows and children will be met on a fifty-fifty basis; the judges will be contributing about half and the State about half.
§ Mr. Manningham-Buller
I must say that the Explanatory Memorandum could make things a little clearer. If I fall into an error from that, I do not think it is entirely my fault.
§ Mr. Manningham-Buller
Not on points like this. Any officer, whether he be a Judge or a Master in Lunacy or a Clerk of Assize will, under this Bill, give up a quarter of the pension to which he is entitled. So far as existing holders of those offices are concerned, it is optional to them whether they do so or not. They can consider for themselves whether the proposals in the Bill meet their own family circumstances. Bearing in mind that persons newly appointed to these offices will not have this right of election, I think we are under a particular duty to consider with very great care the effect this Bill will have upon them.
I am sorry that the opportunity has not been taken in this Bill, which is entitled the Administration of Justice Bill, to do something about the emoluments of those holding judicial offices, whether it were done by way of increase of pension or by way of increase of pay. It is all very well for the right hon. and learned Gentleman to refer, as he did, to the lower-paid, but there are few categories of workers in this country who have had no wage increase since 1831, and that is when the salaries of the High Court judges were fixed. There has been a considerable decrease in the value of money since then. I think county court judges have had one increase, but a strong case exists for an increase in the emoluments of both county court and High Court judges. If any decision had to be made between the relative claims of the two, I think perhaps the stronger case 56 could be made for county court judges, but both cases are strong, and that has been recognised both by the right hon. and learned Gentleman himself and by a former Financial Secretary to the Treasury.
The right hon. and learned Gentleman referred today to a speech he made at the annual general meeting of the Bar, but, of course, he has also uttered the same sentiments in this House when speaking in his official capacity. Perhaps I may remind him of what the then Financial Secretary said on 3rd May, 1949:Legislation will be necessary, and I think I can promise the House that that legislation will not be long delayed; it will certainly be this year."—[OFFICIAL REPORT. 3rd May, 1949; Vol. 464, c. 814.]That was, of course, in regard to this problem. A year later, in this House, the right hon. and learned Gentleman, speaking on the subject of the salaries of judges said:They are out of conformity, as I think I put it, with the general salaries structure of the country.A moment or two later he said:The salaries paid to judges ill-reflect the high status and complete independence of the judicial office."—[OFFICIAL REPORT, 3rd May, 1950; Vol. 474, c. 1758.]I entirely agree.
§ The Attorney-General
I do not wish to retire from what I said, but I think it is right to make it clear that I was expressing a personal opinion, as head of the Bar, and not involving the introduction of the responsibility of the Government.
§ Mr. Manningham-Buller
I read the right hon. Gentleman's speech last night and I must say that I gained the impression that he was speaking then, as he so often does speak, as a member of the Government. I entirely agree with the sentiments which he expressed, and I can only wish that he could do a little more to carry them into effect by the introduction of a Bill. I suppose that the omission to carry out the pledge given in May, 1949, indicates that there has been a change or a weakening of the Government's intention in that regard.
I think that in Committee, when this Bill has had its Second Reading, we shall have to consider most carefully the quid pro quo which these judicial 57 officers will receive before they surrender a quarter of the pension to which they are now entitled. It is not easy to judge that from the Bill. This talk of fractions I find always extremely confusing. So many pensions depend on length of service, that of county court judges, for example. I think it would be an assistance to the House if, when we go into Committee, the right hon. and learned Gentleman could, at some stage, publish a paper giving examples of the position in relation to a High Court judge and a county court judge after 10 years service, showing the financial results of the operation of the Bill for someone who has elected to come under the Bill. I think that would help our discussions on the Committee stage.
I agree with the right hon. and learned Gentleman that we have to consider the pensions provisions against the background that it is impossible nowadays under this Government for a professional man to save enough to provide for his retirement. The right hon. and learned Gentleman called it "modern conditions," but what he really means is "under this Government." Indeed, it is impossible for the holders of the majority of these offices to save much out of their pay. As I said, those now holding the offices can make an election, and I should like the right hon. Gentleman to consider very carefully between now and the Committee stage whether it would not be possible to give that same right of election to those who are appointed to these offices in the future.
Working it out as carefully as I can, and, I hope, accurately, it does seem to me that the provisions of this Bill are by no means beneficial to all judicial officers. I am very doubtful whether the benefits that are likely to be received by several of these officers are in any way proportionate to or commensurate with the sacrifice of a quarter of the pension. Let me take for an example the instance of a High Court judge. For a surrender of a quarter of his pension he will get a lump sum, a sum equivalent to twice that annual reduced pension. As I say, it is difficult to calculate the position of a county court judge, because the pension varies with length of service; but a High Court judge after 15 years gets £3,500. In future under this Bill that pension will be reduced to £2,625; but then he will 58 get this lump sum which I calculate will amount to £5,250.
I am glad to hear that that lump sum is going to be free from tax liability. I think it will be desirable, if I may suggest it, that some specific proposal to that effect should be included in the Bill; but that lump sum, as I understand it, is the only quid pro quo—which an unmarried office holder or a woman office holder will receive. I know that as yet we have not had a woman High Court judge in this country, but I am taking this example of the High Court judge because it is, perhaps, the easiest to follow through to see how it works out.
It does mean, if these figures are right, that the bachelor High Court judge who draws his reduced pension for six years will then have received exactly the same with the lump sum as if there had been no alteration in his pension, and after the sixth year he will still go on getting his reduced pension, and the Exchequer will gain for every single year of his subsequent retirement.
§ Mrs. Eirene White (Flint, East)
May I ask the hon. and learned Gentleman, is he in that calculation taking into account the freedom from tax? I think it may be a little more. My calculation makes it longer than six years.
§ Mr. Manningham-Buller
I have worked it out on the basis of six years. I may have fallen into the same error as some others, though I hope not. It may be that as the lump sum will not attract tax, the period will be a little more extended than six years. But the time will come, quite clearly in the case of the bachelor judge or of a woman office holder, when the amount received by way of lump sum will be more than offset by the reduced pension that that office holder will continue to receive.
I want to take the other case, of the married man with children. I hope I have made that clear. It may be that it will be after seven years. It may be six. I think it is six.
§ Mr. Manningham-Buller
I doubt that very much. The effect of tax is very great, but I rather doubt whether it is 16.
If the office-holder is married, and with children, as the right hon. and learned Gentleman has pointed out, that lump sum is really half, because half is paid away straightaway in a contribution. Then the office holder will get a lump sum of £2,625, and if he leaves a widow she will get a pension of £875. If he leaves children under 16 or under full-time instruction—four of them—then again the pension is £875. I find it difficult to calculate or form any view of the number of cases in which children are likely to qualify for a children's pension under this Bill. I think it is right. of course, that provision should be made for widows and children, but I do feel very considerable doubt whether the holders of these pensions will not find it extremely difficult, notwithstanding the lump sum, in these days during their retirement, to maintain themselves and their families properly on three-quarters of the existing pension.
After all, assuming that the man lives for some years after his retirement, assuming that he has a wife and children, it is much more likely that the burden of the full-time instruction of those children will fall during the man's lifetime, and that those children will be under 16 during his lifetime, than after his death. I find it extremely difficult, therefore, to calculate or form any view as to the number of cases in which children's pension could enure.
In this connection I should like to draw the right hon. and learned Gentleman's attention to Clause 7 (4). It may be that this is a point which could be more appropriately raised in Committee, but I want to draw attention to it now to give the right hon. and learned Gentleman time to consider it, in the hope that he will alter it. I would not challenge the proposition that if the widow of an office holder remarries, the pension payable to her should cease; but it does seem to be wrong that if the widow remarries, the children's pension should also determine unless the Treasury otherwise decide. It does seem to me that that is quite wrong. After all, the new husband will have no 60 legal obligation towards his step-children. I should like to ask the right hon. and learned Gentleman to give further consideration to that subsection, before the Committee stage.
§ The Attorney-General
The hon. and learned Gentleman may like to know that we have followed there the precedent set by Section 5 (4) of the Superannuation Act, 1949.
§ Mr. Manningham-Buller
I was aware of that, and I think objection was raised to that from these benches at that time, so I think we are all being consistent. I must say that I am not at all sure that it would not be better in this Bill—and I think that the Financial Resolution would permit us to do it—to provide for a smaller portion of the office holder's pension to be sacrificed. I know that that would place a slightly heavier burden upon the Exchequer. One cannot form any calculation of that burden. It would be interesting if we could be told what would be the result as far as the Exchequer is concerned. If first of all the lump sum and secondly the widows' and children's contributions were estimated, taken separately, what would be the extra cost of each to the Exchequer on the assumption that there was no reduction in the pension to which people are now, under the existing law, or may become under the existing law, entitled.
The right hon. and learned Gentleman, at the outset of his speech, referred to the views expressed by judges in Northern Ireland and by judges in Scotland. I am not in the least surprised to hear that they take—or that some of them take—objection to the benefits contained in this Bill. I am a little surprised to hear that no such objections have been raised in England, for while I can well see that certain individuals may be suited by these provisions, at the same time I doubt if they suit everyone even in England. It is for that reason that I think it is very important that we should, if possible, continue the right of election, and extend it to future holders of these offices.
My right hon. and gallant Friend the Member for Kelvingrove (Lieut.-Colonel Elliot) may desire to say something further on the Scottish position, on which I am not competent to express an opinion; but one can hardly regard a Measure of this sort as satisfactory in 61 its present form when the Attorney-General, in moving its Second Reading, has to announce that judges of Northern Ireland and judges of Scotland both dislike its provisions which are intended for the benefit of their widows and children—the degree of provision which is being made.
In moving the Second Reading, the right hon. and learned Gentleman referred to one other defect—the forgotten class of public servants—that well-deserving class—judges' clerks. They now receive a salary of £650 a year. They are comparable in position to second class clerks of the Supreme Court. A second class clerk gets a pension on retirement and a gratuity. A judge's clerk gets neither pension nor gratuity.
§ Mr. Manningham-Buller
He gets neither pension nor gratuity. He stands to lose his employment when the judge retires, dies, or is promoted to the House of Lords. I venture to think that, perhaps, judges' clerks are the only class of civil servant in that category who stand such risks in their employment.
I would remind the right hon. and learned Gentleman that Sir Stafford Cripps in 1938 made some observations on this point, and I should like to remind the House of them. He was dealing with the Supreme Court of Judicature (Amendment) (No. 2) Bill, and he said:The second matter is one of omission, and it is one of those perhaps comparatively small matters which consequently are often overlooked. But small injustices are just as serious as large injustices to those people who suffer from them. I refer to the omission to do anything for the judges' clerks. Those judges' clerks are servants of the State, paid by the Treasury, and are doing admirable, essential, and useful work in the administration of justice, and I believe that they are almost the only public servants in this country who have no pensions provisions whatsoever made for them at the present time. It is all the more peculiar and boring to the judges' clerks in England because the judges' clerks in Scotland do get pensions. They, perhaps owing to their nationality, at the time when the old method of payment by fees was discontinued got provisions made for the setting-up of a pensions fund, out of which they are now pensionable."—[OFFICIAL REPORT, 14th July, 1938; Vol. 338. 1659.]The right hon. and learned Member for Montgomery (Mr. C. Davies) on the same occasion made a very powerful speech in favour of provision being made for judges' 62 clerks, and he drew attention then to the pathetic case of one who had had to retire suddenly and was left extremely badly off. I do not think it is possible myself to make any alteration to this Bill to make provision for judges' clerks—I wish it were the case that one could—but I do ask the right hon. and learned Gentleman, who stated that he is fully in support of the plea put forward on their behalf, to see whether a Bill could not be brought in to give them some sort of pension and some gratuity.
If that could be done, then it would be easy, by amending the First Schedule of the Bill, to bring them within the scope of this Measure that is to say, assuming that the Bill dealing with the judges' clerks could be introduced without undue delay. After all, it would be a very suitable Bill for this Parliament—entirely non-controversial, not likely to put a great strain upon the Chief Patronage Secretary or upon the Government's supporters—and I am sure that a provision of that sort would he welcomed in all parts of the House.
We shall require to consider the provisions of this Bill most carefully in Committee. I hope that we shall have a little time before the Committee stage to consider the Bill in more detail than we have had the opportunity of doing since its introduction to this House. We, on this side of the House, would like to make the Bill as good as possible, and we are sure that it is capable of a good deal of improvement. It is in the belief that it is capable of improvement, in one way or another, that we shall give this Bill an unopposed Second Reading.
§ 4.52 p.m.
§ Mr. Leslie Hale (Oldham, West)
I should like to say at once that there was one sentence in the speech of the hon. and learned Member for Daventry (Mr. Manningham-Buller) with which I wholeheartedly agree, and that is that judges' clerks have been the neglected Cinderellas of the legal system. That they have ever had a remuneration is, I think, due to this Government. Previously, the judges were expected to make some provision for them, and that was a very undesirable method.
Everyone who takes part in this Debate will need to remember one or two things. He will need to remember that 63 we are dealing with the judiciary who, in general, are supposed to abstain from political comment. He will, therefore, want to speak temperately and with a due sense of the very high service rendered to the nation in general by the judiciary, which is certainly the envy and admiration of the world.
I anticipated that the introduction of this Bill might provoke a constitutional crisis of some magnitude, because in 1931, when His Majesty's Government announced that the salaries of the High Court judges were to be submitted to the same cuts as high officers and civil servants, the judges announced that Parliament had no right to interfere with their terms of employment. The matter was ultimately settled by the judges agreeing that they should voluntarily submit to a reduction, and the Government acknowledged with appreciation that voluntary co-operation.
When Parliament proposed to increase the salaries of the county court judges, they were unanimously of the opinion that it was constitutionally practicable to do so. I, personally, have had experience of both these authorities, and I think that the county court judges are right, as they very often are, and I accept the fact that we are not inviting a constitutional crisis in embarking on this course. There are, however, some points of very real difficulty about it, and I think that we ought to consider them. I personally rather regret, although I appreciate the reasons for it—and they are very good reasons—that a matter of this kind is not part of a larger Measure.
There are some grave matters which require an answer. There is a very grave issue in the position of the Lord Chancellor himself—and here I am making no reference to my noble Friend on the Woolsack, who has done more for law reform during the period which he has been in office than any previous occupant of that office in our history. I have pleasure in recalling that in my limited professional experience since I have been in this House most of the major legal grievances have been removed one by one.
During the last 25 years or so, a Lord Chancellor retired after a short period of office on full pension, and he publicly announced that he was not going to take 64 part in any of the judicial duties normally binding on that office. He commenced writing advertisements for foreign goods in industry, and embarked on a remunerative journalistic career. We always understood that some opportunity would be taken at least to make some regulations or some qualifications for a future occupant of the Woolsack. So far as I know, it is the only office which does not require any legal qualification of any kind, and he is the only person who sits within the vicinity of the House of Lords who does not have to be a peer. I think that is one of the matters that might have been considered.
It is right to remember some things about these figures relating to Lord Chancellors. First of all, the hon. and learned Member for Daventry referred to the fact that this is the only occupation in which the salary of the holder of that office has not been substantially increased for the last 150 years. I rather regret that statement. If the hon. and learned Gentleman had taken the trouble to indulge in a little research into the way in which salaries came to be fixed at that time, and compared them with what they were before, he would not have had recourse to that argument. They were fixed in the days of very high patronage, and for a special reason. It is just as relevant for me to say that high court judges were paid £6 14s. a year in the reign of Henry III—and a very good bench it was in those days—as to refer to what the salary was when fixed in 1809. When it was fixed in 1809, it was fixed entirely on the grounds that the Battle of Trafalgar had increased the price of food; that there was a war on and the cost of necessities had gone up—and if the price of rabbits had increased in the same way as they have in the last week or two, there must have been a double cost on ermine, as well as the additional cost of nutriment—and on those grounds there was a substantial increase.
The whole basis of the Bills which were passed in the reigns of George IV and William IV was on the grounds of the judges surrendering the patronage which they had exercised over the years. Lord Chancellor Eldon had £24,000 a year in patronage nearly all of which he gave to his son. Notwithstanding this self abnegation, he left an estate of £240,000. Lord Chief Justice Ellen-borough had at the same time about 65 £16,000 in patronage, and it is recorded of him that hearing, while riding in the park, that a great and remunerative office in his disposition had fallen vacant, he at once, with true judicial caution, dismounted from his horse, entered a nearby house and wrote out an appointment of himself to the vacancy. In these circumstances, it may well be thought that he had every opportunity of making provision for his family.
The hon. and learned Member for Daventry asked for some specific example as to how the proposals would work. I will take such an example. Lord Chancellor Lyndhurst, who was a very distinguished Lord Chancellor, became entitled to a pension under the 1832 Act. In 1837, he married again. He is reported as having lived happily for 25 years with his second widow—[An HON. MEMBER: "Wife."] Yes, his second wife. During that time he drew his pension and his widow survived him for 39 years. I tried to work out roughly the amount that under this Act he and his widow would draw, leaving out children's allowances, and it comes to £150,000 pension, which is, on the whole, not an insignificant item.
§ The Attorney-General
To reproduce those circumstances, the judge would have to marry before he retired under this Bill.
§ Mr. Hale
In future, as I understand it. But Lord Chancellor Lyndhurst did qualify by going on the Woolsack on two subsequent occasions after his second marriage.
I do not accept the fact that these salaries are low. In saying that, I do not want to introduce into this discussion one touch of unnecessary prejudice. It would be out of order to refer to a speech which recently came from the Gallery. I would not refer to it for one moment, but there was something in the sentiment for which I have a certain sympathy. In my constituency, I am somewhat concerned in discussing the very real problem of the taxation on old age pensions. The weavers and cotton spinners in Oldham, who are being paid 26s. a week by way of contributory pensions, find that their pensions are subject to tax if they come within the taxation limits. On the other hand, the payments being made under this Bill are discretionary, which certainly 66 avoids Estate Duty on the lump sum. I ask, bluntly, whether these payments have been made discretionary so as to avoid the payment of Income Tax, and whether, in fact, the payment of Income Tax can be avoided.
§ The Attorney-General
The payments are discretionary in both cases, but the pension is subject to Income Tax and the lump sum is not, although that is not because of the provisions of this Bill.
§ Mr. Hale
The fact remains that the lump sum will avoid the payment of Estate Duty if it is paid after death.
It is rather unusual for the Government to enter into discussions with the judges and to come to an arrangement to avoid Estate Duty. I would rather give the judges more than introduce a sort of dodge which may be a precedent for the future. I ask my right hon. and learned Friend to look into this question of Income Tax, because a voluntary payment is not normally liable to Income Tax if it is made at the will of the donor. There is a covenant in, in regard to annuities under the Lord Chancellor's Pensions Act, 1832, which undoubtedly would be liable to tax. The Lord Chancellor is not entitled, as a right, to a pension, it being at the discretion of the Throne. In point of fact, it has always been automatic, being executed under the Sign Manual of the Crown and charged to the Consolidated Fund.
There are one or two matters in regard to which I wish to make more specific reference. In so far as this represents, on behalf of members of the judiciary and others holding semi-judicial offices, an effort to dispose of the pensions to which they are entitled under Acts of Parliament in such measure as they collectively think best, it is an admirable scheme. Indeed, I hope that it will be a model for future schemes. But this question of superannuation is one of very great importance. I deplore the fact that the Government have not paid more attention to considering contributory schemes for everyone, especially for the middle classes who are left out, schemes which should make adequate and proper provision.
It is surely something quite new to say that there shall be a pension for a widow which ceases on her re-marriage but starts again if her husband divorces her. That is really remarkable. As far as pensions 67 for orphans are concerned, they can go on for life. There is no limit during which a pension can be paid, so long as the person concerned qualifies by receiving some education or training and is not in receipt of payment of more than £13 a year.
§ Mr. Marlowe (Hove)
If the hon. Member looks at Clause 6, he will see that there is a considerable limitation in time.
§ Mr. Hale
Yes, Sir, but it can go on for the whole of the person's life. If he is receiving special training and is not in receipt of more than £13 a year, he can receive the pension until he is 50 or 60. That is something new, which seems to me to be entirely indefensible. In Committee I shall suggest that some reasonable limitation be inserted. If we are laying down a Parliamentary precedent for superannuation purposes, this seems to me to be something which should not be permitted.
§ The Attorney-General
It follows the 1949 Act. My hon. Friend will appreciate that the payment is discretionary. If it were found that full-time education was being pursued after the age of 25, I have no doubt that the discretion would be exercised.
§ Mr. Hale
I was making the point that these discretionary payments go back to the time when the office of Chafe-Wax was abolished, the office under which a man received many thousands a year for heating the Great Seal to the right temperature. There is something that is quite archaic in quoting precedents on the matter.
I wish to return now to a matter I wished to raise earlier, but from which I have been diverted. If it is a question of reconsideration of judicial salaries, then I think that the county court judges and the stipendary magistrates have had rather a raw deal. Everyone knows that these are horses drawn from the same stable, there being a great deal of luck in who goes to one position and who goes to the other. No one will dispute the fact that the office of a county court judge is a very arduous one. Generally speaking, some of the most successful members of the judiciary are to be found amongst the county court judges and the stipendary magistrates. We see precisely the same type of material occupying the position 68 of stipendiary magistrates in London as on High Court Bench.
Subject to this, I suggest that the Government Actuary has taken a somewhat optimistic view in his calculations. He has overlooked the fact that, happily, judges have a habit of living to a great age, and are not immune from marrying a second time towards the end of their lives. If we take these facts into account, it may be found that a somewhat optimistic view has been taken of the cost. That does not mean, however, that we shall not have to look into the question of taxation during the Committee stage, which seems to me to be a singularly objectionable feature of this proposal. Subject to that, I am prepared to give these proposals that hearty blessing which I have tried to make clear in my remarks to the House.
§ 5.8 p.m.
§ Mr. Selwyn Lloyd (Wirral)
It was my intention to offer a measure of welcome to this Bill from the back benches. I must say that it is very difficult indeed to engage upon a non-controversial subject with the hon. Member for Oldham, West (Mr. Leslie Hale), without a measure of controversy being introduced. He did his best to bring into the still waters a certain amount of controversy. As a bachelor, I am grateful to the hon. Member for the prospect of being able to live with one's widow, which opens up a vista of great hope.
As far as the suggestion that this Bill should form part of a wider measure is concerned, I am in agreement. I am in agreement with making reconsideration of salaries more general. The hon. Member for Oldham, West embarked upon the field of controversy when he referred to what a former Lord Chancellor had done and said how wrong it was for him to draw his pension. It has to be remembered that these men have given up enormous earnings to undertake the obligations of their office.
§ Mr. Selwyn Lloyd
The salary for the office of Lord Chancellor is very much less than these men could earn at the Bar. In the particular case to which he has referred, the person concerned gave up earnings of more than £25,000 at the Bar. In 69 almost every case, the occupant of the Lord Chancellor's office has received very much less than his current earnings at the Bar. It is not, therefore, unreasonable that he should draw a salary at the end of his term of office, which in all probability has "put paid" to his term at the Bar.
The other controversial statement made by the hon. Member for Oldham, West, was that in which he attempted to dispute the statement of my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller), that there had been no increase in salary since 1832. That is a fact, and the hon. Member cannot get away from it, however the salaries might have been fixed at that time. If we consider how other remunerations have increased during the last 50 years or so, it is true to say that the salaries of judges are not what they should be, having regard to the responsibilities of the position. I think the hon. Member for Oldham, West, will agree that, if we are to revise the salaries in one instance, it is probably the county court judges who at the moment have the chief grounds for complaint. It is true to say that most are able to supplement their incomes as well as doing the work of High Court Judge, but that is not always the case, which is a greater reason for the remuneration being on a sounder basis.
So far as taxation is concerned, it is for the Attorney-General to defend the Bill. If it is true that these provisions have been devised in order to avoid taxation, it only proves how iniquitous the burden of taxation is at the present time.
§ Mr. Sydney Silverman (Nelson and Colne)
Does the hon. and learned Member really mean that anyone, judge or anyone else, who engages in a piece of taxation evasion, is only proving how iniquitous is the taxation?
§ The Attorney-General
I want to make it clear that there is no question of tax evasion by judges or anyone else. This provision is not the result of any arrangement or bargaining with the judges. We are following the precedent that has been established over a period of years, more recently by the 1949 Act. There is no question of tax evasion. Taxation is payable on the pension, but it is not payable on the lump sum, which 70 is an ordinary principle of our Income Tax law.
§ Mr. Selwyn Lloyd
I was hoping that the Attorney-General would say that. I would repeat, however, that it is only when taxation is excessive that the question of tax evasion arises. That suspicion can hardly be avoided, in view of the fact that the hon. Member for Oldham, West, has accused the Attorney-General of having introduced a Bill which gives effect to it. The burden of taxation on the professional classes is such that they are unable to save, and therefore this sort of provision has to be made for them.
One cannot look a gift horse in the mouth, but let us consider what sort of measure is being put before us. Clauses 1 and 2 impose no charge on the taxpayer, and therefore they confer no benefit on the judges, although they admit of a sort of actuarial rearrangement as between pensions and lump sums. If I understand the Financial Memorandum aright, this will not cost the taxpayer anything. Clauses 3 to 7, apparently, will involve a charge that ultimately may rise to £40,000. Therefore, this is a very modest attempt to improve the conditions of service of those covered by the Bill. It is unbecoming to be ungrateful, even when a small benefit is being conferred. Because this Bill goes some distance in the right direction, I shall not oppose it.
§ 5.14 p.m.
§ Mrs. Eirene White (Flint, East)
Although I am not a member of this most honourable and learned profession, I am interested in the Bill for two reasons. The first is a general one, namely, that it is an extension of pension provision for widows and children of a professional class, which I very much welcome. With our present rate of taxation, which I and my hon. Friends think is entirely justifiable for our own social purposes, it is clearly not satisfactory to have nothing except a flat rate National Insurance contribution and a flat rate national pension. It is a most urgent matter for the professional classes and also for the higher paid manual workers that we should consider differential pensions with corresponding differential contributions. I hope that the Government will consider this seriously within the next few years. Because it is a step in that direction for a limited section of the professional classes, I welcome the Bill.
71 My other interest in the Bill is as a woman. The Bill says that women should be entirely exempt from contribution but it also says that they should be entirely exempt from benefit. As far as I know there is at the moment no woman who aspires to be Lord Chancellor. I was interested to hear what my hon. Friend the Member for Oldham, West (Mr. Leslie Hale) had to say about the Lord Chancellor who was not a peer—
§ Mrs. White
The point interested me because if we had such a person, I wondered whether she would be able to sit in another place. We have women who are eligible for various offices, such as metropolitan police magistrates, and have held them. It is not impossible for a woman to have a dependent child, but under the Bill a woman who may have a dependent child, is not given any option to contribute in order to provide for the child in the case of her death. It is true that the number of cases might be very small, but, as a matter of principle, a woman with a dependent child should be able to make provision for its future if she so wishes. As I understand the Bill, a woman would not be able to contribute, nor would she be in any way eligible for a pension on behalf of a dependent child in the case of her death.
§ The Attorney-General
I will certainly make sure about this. I will make sure that the rule which provides that the interpretation of the masculine gender shall include the feminine, applies to the Bill. We should not wish to exclude women from the benefits of the Bill.
§ Mrs. White
Clause 3 specifically refers to a male person, and it is so specific that I should have thought that it could hardly have been interpreted in any other way.
§ The Attorney-General
My hon. Friend has made a very formidable case and I will certainly look into it. I believe that there is only one case to which the Bill would apply at the moment, but I hope 72 that it will apply to many more cases as time goes on.
§ Mrs. White
If my right hon. and learned Friend will do that, I shall be very happy. He will find that Clause 8 states that no contribution shall be received in the case of a woman.
I also want to refer to the position of a widow with children who are receiving a pension. In that case it is left to the discretion of the Treasury whether or not the children shall continue to receive the pension. That seems to be an injustice. If the law officer has earned the pension for his children, he is the person responsible for their wellbeing and not the man whom the widow may subsequently marry. In such a case the children should receive the pension as of right and not merely at the discretion of the Treasury. These are small points, but they are matters of principle and it is right to raise them now. I hope that they will be further discussed on the Committee stage.
§ 5.20 p.m.
§ Mr. Marlowe (Hove)
I congratulate the hon. Member for Flint, East (Mrs. White) upon her ingenuity in making a very good feminist speech on a Bill which, as far as I can judge, does practically nothing at all for women. As the right hon. and learned Gentleman the Attorney-General has promised to look into that point, I shall not pursue it further.
§ Mr. Marlowe
I appreciate that, but at the same time pension benefits are cut. In the case of the woman who is the one judicial office holder at the moment there would be a cut of one-quarter of the present entitlement.
The hon. Member for Oldham, West (Mr. Leslie Hale) referred to the fact that judges' clerks had had no State salary before the Socialist Government came into Office in 1945. The hon. Gentleman seems to be suffering from the common delusion that the world began only when the Socialist Government came into power. Judges' clerks had a state salary long before 1945.
§ Mr. Silverman
My hon. Friend the Member for Oldham, West (Mr. Leslie Hale), was referring to salaries paid by the State to judges' clerks. They do not date back to anything like that year.
§ Mr. Marlowe
I was also referring to salaries paid by the State. I cannot vouch for the date which I gave, but it was certainly a long time before 1945, and that is the important point.
§ The Attorney-General
It is a pity that the Conservative Party did not adopt the suggestion made by Sir Stafford Cripps in 1938.
§ Mr. Marlowe
The right hon. and learned Gentleman has had a longer opportunity in which to do it than was provided for the Conservative Party between 1938 and 1939.
I should like to know what is the genesis of the Bill. There seems to be some mystery about it. The right hon. and learned Gentleman has not told us—he is not obliged to—what its origin was. Was there any demand for it from the majority of those affected? I rather suspect that the demand, if there was any, came from the lower ranks of those affected, such as the county court judge level, and not so much from the High Court level. I should be grateful if the right hon. and learned Gentleman could give the House some information on that point. One has no means of informing oneself on these matters, although one may get individual opinions, but a collective view cannot be got. Probably the right hon. and learned Gentleman is in a difficulty in this matter because those who will mainly be affected do not belong to a body which he can consult.
The existing High Court Bench has the right to opt out and therefore its interest would not be very strong. Those who will in future be compelled to submit to the scheme are not yet there. I appreciate that the right hon. and learned Gentleman has no formed body he can consult, but it is usual to take some soundings in such a matter, and I should like the House to be told what is the general view of the High Court Bench at the moment. Although they are not greatly affected, they are persons who are in a position to have some opinion about the matter. I should like to know what their opinion was.
74 If what pressure there was came from the lower ranks of the bench it would seem probable that the High Court judges have been brought into the scheme whether they like it or not because they can provide a large part of the contribution. As the contribution is half the lump sum which is paid on retiring, the amount which they will contribute will be considerably higher than that of any other beneficiary in the scheme. I should like to know how the Bill came to be born. Obviously somebody must have decided that it was a scheme which ought to be introduced; yet I am, so far, completely in the dark as to who took that view.
The judges will receive three general benefits under the Bill—the lump sum, the widows' benefits, and the children's benefit. In return for that they will surrender half their lump sum and a quarter of their present pension entitlement. The children's benefit does not appear to be of any great advantage. Could we be told the actuarial expectation in these matters? The hon. Member for Oldham, West, perhaps rather lightheartedly, referred to the possibility of a children's pension going on indefinitely. That could not happen in practice because under Clause 6 the beneficiary has to be either under 16 or undergoing training at a university or training as an apprentice, and the payment is discretionary. If any fraudulent attempt were made by a so-called child by pretending at the age of 50 or 60 still to be serving as an apprentice or to be receiving training at a university, it is unlikely that discretion would be exercised in his favour. The children's benefit is to a large extent an illusion for it is unlikely that there will be many children who will qualify for it. Not many judges retiring at about 70 will have sixteen-year-old children.
Another so-called benefit is the lump sum. It ought clearly to be understood that the lump sum is halved at once, because, as always happens nowadays with any payment which is received, when our present rulers hand us anything with one hand they take back the greater part of it with the other. In this case, half the lump sum is immediately handed back by way of contribution, and, therefore, the lump sum is not two years' reduced pension but one year's reduced pension. Therefore, the case made by the Attorney-General of these benefits which were to be received—the lump sum 75 and the children's pension—seemed to be not worth a very great deal. That is why I am interested in the question of who really wants the Bill and who supports it.
My final point concerns salaries, which have an important relation in this matter. Obviously the amount of salary a person receives is important in relation to the amount of pension he may wish to receive when his salary ends. I have dealt with this matter in the House before and it is not necessary to go over all the ground again, but the Attorney-General said in effect that there was a case for making an increase—at least, he drew attention to the fact that on another less official occasion he had called attention to the case for an increase. My hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller), also has pointed out that the right hon. and learned Gentleman said something to that effect during a previous Debate. Both today and on that occasion, the Attorney-General took the line that although that case existed it could not possibly be granted while there were other cases which also did not receive an increase.
That is an irrelevant point. The other cases have largely been met, although, of course, not all of them; there are many cases still outstanding where we should all like to see increases in pay and salary. It is not enough, however, merely to say that other cases exist and, therefore, this one cannot be met. Each case has to be taken on its merits. Since these salaries were fixed in 1831, other increases have been effected. There is no doubt that the other cases have since been met and that, although bishops, perhaps, have not benefited, there have been increases in almost every walk of life.
Therefore, the argument is not met merely by saying that other cases exist in which there is hardship. I agree that that is so, however, and all of us would like to see greatly increased wages in many quarters, but the present case, one which has been admitted both by the Attorney-General and by the previous Financial Secretary to the Treasury when he said that it ought to be met, cannot be dealt with merely by saying that other cases exist. I hope that in the near future the Government will reconsider this matter, because they have given their pledge. It was agreed by the right hon. 76 and learned Gentleman that it is a pledge which, when the opportunity offers, should be honoured, and I hope the Attorney-General will think that the time for honouring it is not far off.
§ 5.33 p.m.
§ Mr. E. L. Mallalieu (Brigg)
The hon. and learned Member for Hove (Mr. Marlowe) seemed to be in some difficulty to find a reason for the introduction of the Bill, and at the same time he was congratulating my hon. Friend the Member for Flint, East (Mrs. White), on the ground that she had managed to support the Bill on feminist grounds when it did nothing at all for women. I cross swords with the hon. and learned Member on both those points. It is precisely because the Bill does something, as it seems to me, for women that I am supporting it; and that is an excellent reason for its being introduced. The hon. and learned Member, therefore, is wrong on both grounds.
§ Mr. Mallalieu
The hon. and learned Member says that the Bill does very little for women, but if it provides any sort of security which previously they did not have, it does something which is well worth doing.
I am glad that in all the stress of political vicissitudes and the pressure of world events, the Government have found time to introduce this legislation, and I should like to offer two words of welcome for the good which I believe the Bill does. It was in some ways characteristic of former times that generally, in legislation with regard to the marriage contract, the legislature laid most stress upon the male partner to that contract.
There is a tendency now towards a more generous consideration for the other party to that contract. This move is by no means before it's time, because in present day circumstances—and this would apply no matter what Government were in power—it is far more difficult than ever before for a professional man to make, for his wife and dependents after his death, the sort of provision to which they had been entitled during his life. It is as well therefore that we have adopted a rather more considerate attitude towards this section of the community, the wives 77 and dependents of those engaged in professional occupations, than was shown before.
Already, as has been pointed out, the Government have in other spheres—by the 1949 Superannuation Act, for example—brought security to a very large section of wives and dependants—those of civil servants—by just such legislation as the Measure we are now discussing. I am aware, of course, that for historical reasons one must not draw too close a parallel between the judiciary and the Civil Service, but because the judiciary happens to be so to speak, outside the main stream of political activity, that is no reason why we should at the same time keep them outside the main stream of political progress. I am very glad, therefore, that this legislation with regard to the judiciary has been brought into line with other progressive legislation which has been introduced by the present Government in regard to the Civil Service.
This legislation is all in keeping with the progressive line which the Government have adopted in trying to provide greater security for the greatest possible number of people. The fact that the women and dependants with whom the Bill deals happen to be of a kind who are not vocal, who are small in number, and who do not constitute a great electoral pressure group, is no reason at all why the Government should ignore them: and I am very pleased that, although they have very little to gain electorally by this piece of legislation, the Government have in fact introduced it.
Even private enterprise has made provision for women and dependents in its pension schemes for employees, and it would be a very bad thing indeed if the Government were to fall behind in some such way as this. I should like, in fact, as my hon. Friend the Member for Oldham, West (Mr. Leslie Hale), said, the greatest and widest possible measure of security for dependants to be introduced by this Government. The Bill does not cover a large section of the community but I am glad, and very proud, that it should have been a Labour Government which made this so considerable a step in such an excellent direction.
§ 5.38 p.m.
§ Mr. Gerald Howard (Cambridgeshire)
I desire to say a few words on a matter which was mentioned by the Attorney-General with regard to the position of judges' clerks and to support the plea of my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) that something a little more sustaining than sympathy, from however exalted a quarter it may come, should at the earliest possible moment be provided to do something to ameliorate their present precarious financial position.
As the Attorney-General said, judges' clerks perform, albeit unobtrusively, a most important work in the day by day administration of justice. Those of us who have any experience of circuits know that a first-class judge's clerk goes a long way in ensuring the smooth running of our circuit system. They help and advise litigants, solicitors and counsel, and it seems to me of the highest possible importance that there should be attaching to this post conditions which will attract men of experience and ability. As hon. Members opposite have indicated, the financial position of judges' clerks has grown much worse with the passage of the years. In days gone by, most judges made provision for their clerks in case they should retire or die. Under present circumstances that is impossible, and the clerk himself, upon a salary which, I am told, is approximately the same as it was in 1873, is quite incapable of making adequate provision.
It is for those reasons that I venture to hope that something may be done to relieve a great burden of anxiety from a devoted band of public servants. Although they are only small in number—their total, I think, is about 48 or 50—the danger will be that unless something is done, men of experience and ability will be unable to risk the financial sacrifice which is so often entailed by a judge's clerk when he goes with his master to the bench. I sincerely hope that some plan may be devised so that they may be provided with some kind of pension to relieve the existing load of anxiety from their minds and to maintain that quality which up to now has existed.
§ 5.42 p.m.
§ Mr. Hector Hughes (Aberdeen, North)
This is a good Bill, with good objects and good methods, but it has one serious defect, in that it applies the same principle 79 of assessment to people with large salaries as it does to those who have small salaries. I think that that is wrong. The Bill is designed to deal with a great variety of judicial officers, with a great variety of salaries, some large and some small, and I think it is wrong that the same principle of assessment should be applied to all those different types of salary. The particular instance I have in mind is that of the sheriffs and sheriffs substitute in Scotland. In status they are equivalent to English county court judges. In jurisdiction they have a wider range, and in work they have a greater variety, but their salaries and pensions are smaller, and under the Bill their pensions will remain small.
My right hon. and learned Friend the Attorney-General has said that the Bill introduces no new principle. That is a pity, for the reason I have indicated. I think that it should introduce a principle of differential pensions, so that those with smaller salaries should have their pensions calculated upon a different basis to those with large salaries. After all, for what purpose is a pension designed? It is designed to give a decent retiring allowance to the person in receipt of the pension, whether he be a High Court judge or a minor judicial officer.
I am very sorry that the Bill does nothing about salaries. In this direction there would have been an opportunity of dealing with the anomaly to which I have referred in the case of sheriffs and sheriffs substitutes in Scotland. Their work, as I have said, is of greater variety and extent than that of the English county court judges, yet they get smaller salaries and pensions. Under the Bill, their pensions will remain small. A High Court judge in either England or Scotland receives a pension designed to enable him to spend his retirement according to a certain standard or scale. An English county court judge on his smaller pension can do it, but with difficulty. But sheriffs and sheriffs substitute in Scotland, with a smaller basis of salary and smaller basis of assessment, have still greater difficulties. Here is an anomaly with which I think this Bill should have dealt, and I hope that before it leaves the Committee stage, the Minister will take care to see that justice is done to sheriffs and sheriffs substitute in Scotland.
§ 5.46 p.m.
§ Mr. T. G. D. Galbraith (Glasgow, Hillhead)
I find myself very largely in agreement with what has been said by the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes). I have never been able to understand why there should be a tremendous difference in the salaries paid to judicial officers, judges and sheriffs in Scotland and their counterparts in England. I should think it would come very well from the present Government, who believe in equality, to level out these differences, not so much by reducing the salaries in England as by bringing up those in Scotland. I ask the Lord Advocate, who I believe is to reply to the Debate, what is the general opinion in Scottish legal circles on this matter; what the judicial bench think about it and what the sheriffs and sheriffs-substitute think? Are they all equally in favour, or are there any differences of opinion on the matter? However much we may welcome a Bill such as this, which gives a certain degree of security to the widows and children of judges, it would have been much more welcome if at the same time some increase could have been given in salaries. There is one aspect of this matter in regard to Scotland which I have never been able to understand. I gather that in England a subsistence allowance is given to judges when they go on circuit while the expenses necessarily incurred by judges on circuit in Scotland have to be met out of their ordinary salaries which I do not think is fair.
The hon. and learned Member for Aberdeen, North, said that the idea behind a pension was that the widow, or the judge, as the case may be, might continue to live on a standard suitable to the office previously held. I thought that was recognised in the Navy in the old days when the pension paid to a junior naval officer on retirement was sometimes larger than the salary he obtained while serving. I wish to ask why freedom to opt whether to accept the new scheme or not is restricted to those who are at present judges or sheriffs. I ask the Lord Advocate why this freedom cannot be extended to future occupants of the benches or sheriffs' substituteships? If that could be included in the Bill, it would make it very much better and would remove a great deal of the unpleasantness and lack of enthusiasm which is felt in some quarters.
§ 5.50 p.m.
§ Mr. Geoffrey Hutchinson (Ilford, North)
The hon. Member for Brigg (Mr. E. L. Mallalieu) said that it had become very difficult if not impossible for a person engaged in the professions or occupying one of the judicial or official posts to which the Bill relates to make provision for his dependants. That is perfectly true. The reason is not difficult to find. Indeed, the need for this Bill arises from the fact that judges and judicial officers to whom it relates are no longer able to make adequate provision for their dependants. The reason is the penal and crippling rate of taxation which they in common with other taxpayers have to carry under the present Government.
I agree with my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) in doubting whether this Bill is going to be of the advantage to the judges and other officers concerned which the Attorney-General invited the House to think it would be. However that may be, I hope that when the right hon. and learned Gentleman replies he will make it perfectly plain that there is no foundation whatever for the suggestion made by the hon. Member for Nelson and Colne (Mr. S. Silverman) that this Bill represents some attempt at evasion of tax on the part of those which it is intended to benefit.
Like my hon. and learned Friend the Member for Northants, South, I also regret that the opportunity was not taken to revise the salaries of judges and judicial officers. I should have thought the present would have been a particularly appropriate time to take that course. I understand the Government have announced their intention of carrying the report of the Chorley Committee into effect. That will increase the salaries of senior members of the Civil Service. It may be considered that increases in salaries ought to wait a little longer; but if it has been decided that increases in salaries in that group of public servants were appropriate it might also have been thought that the present time was suitable to increase the emoluments of judges which, as has been said, have remained fixed for a very long period.
I wish to say a few words about the judge's clerk. The right hon. and learned Gentleman said it was a pity that a Conservative Government of that time did not 82 take the advice given by Sir Stafford Cripps and make the office of judges' clerks a pensionable office. The answer is very simple. In those days it was not so necessary because at that time judges were in a better position to make provision for their clerks after retirement than they are in today. This brings us back to the rather melancholy reflection that this Bill and indeed, all Bills of this sort, as well as the suggestion made from both sides of the House that judges' clerks should now be included amongst the pensionable officers, have their origin in the fact that the crippling burden of taxation today has made it impossible for the judges to do what they were accustomed to do in the past.
There is another matter which I wish to put to the right hon. and learned Gentleman. It is perhaps a rather minor one. I have looked as carefully as I can through the list of judicial officers to be included in the provisions of this Bill. As far as I can see the Admiralty registrar has been omitted. He is not an officer who plays any very conspicuous part in the public eye but he performs very valuable service and in war-time, when he is usually the Registrar of the Prize Court as well, he discharges very important functions. I am sure he must have been omitted from the provisions of the Bill by an oversight or for good reasons which I have not been able to ascertain. If not, there seems to be no reason why he should not have the advantages which are given to other officers of the same type.
§ Mr. I. J. Pitman (Bath)
I should like to ask one question of the Lord Advocate in the belief that he may be able to help my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller). As I understand, since this is a vote on the Consolidated Fund he is perfectly in order in moving an Amendment at a later stage so that he could bring forward a suggestion that the Scottish sheriffs should be remunerated, in pension, at any rate, on the same basis as the judges of the High Court in England.
§ 5.53 p.m.
§ Lieut.-Colonel Elliot (Glasgow, Kelvingrove)
There are two aspects of the Bill before us—the general position as to the fall in the value of money, and the necessity of bringing in measures of one kind or another which will in some way make 83 up to high salaried officers, or officers who previously enjoyed high salaries, for the combined effect of the lower value of money and of high taxation in making impossible the provision they themselves were able to make in former years for their later years and for their dependants. Then there are special problems affecting the other parts of the United Kingdom with which the Attorney-General dealt briefly, but with which the Lord Advocate may be able to deal at some greater length.
The difficulties of the general position have been discussed by my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller), and I have nothing to add to what he said in that matter, the more so as that general position was discussed in a fairly non-controversial atmosphere by most of the speakers who succeeded him. But the position is particularly acute as regards the northern Kingdom. The Attorney-General said that some of the judges did not entirely agree with the proposals which are now brought forward. My information is that all the judges disagreed except one—[Interruption.] I am dealing at the moment with the High Court judges and judges of the Court of Session.
I understand that 14 out of 14 of the High Court Judges are not in agreement at present with the proposals put forward. Indeed, the correspondence on this matter runs up to the 17th day of the present month. They had an inquiry from the Secretary of State as recently as the 7th of this month as to whether the Measure found general acceptance with them and their answer dates as recently as the 17th.
§ The Lord Advocate (Mr. John Wheatley)
I am sure the right hon. and gallant Gentleman does not wish to mislead the House, but he will agree that the letter of 7th November was one of a series and that correspondence had been going on several weeks prior to that.
§ Lieut.-Colonel Elliot
Oh, undoubtedly. I do not wish to embark upon the correspondence in general because I have no knowledge of how much would be regarded as confidential and how much not confidential. This is part of a lengthy correspondence. But that really 84 strengthens my point, that a long correspondence had been going on and that this was not sprung on the Secretary of State for Scotland in any way. The letter of the 7th was at the end of a long correspondence but the answer—10 days later on the 17th, which is not an undue delay—was to the effect that the judges of the Court of Session of Scotland would prefer to be altogether excluded rather than to be brought under the terms of this Bill.
Under these circumstances, that the Bill should be so introduced, without the Secretary of State for Scotland or the Lord Advocate having any place upon it, seems to indicate certain lack of co-ordination which one could scarcely have expected; all the more so since the Secretary of State for Scotland, as the Lord Advocate will agree, is in a special position. He is heir to the quasi-position of the Lord Chancellor. He is the Keeper of the Great Seal of Scotland, and, as a consequence of that, as both learned Gentleman opposite know, is frequently brought into Acts of Parliament in a position as opposite number to the Lord Chancellor of England.
On this we have often had discussion before, because in some ways a purely party appointment such as the Secretary of State for Scotland is somewhat inadvisable for such a point which as against the Lord Chancellor who is understood to take a more detached view of these matters. The position of the Secretary of State for Scotland as Keeper of the Great Seal is so well recognised that he actually takes the Great Seal of Scotland itself on the death of a Sovereign, a position which I think is only enjoyed by the Lord Chancellor in the case of England. Is it not strange that the Keeper of the Great Seal should not have been able to come to any further agreement with the High Court of Scotland than the position which we now find?
My hon. and learned Friend the Member for Northants, South, has said that it might be a good thing in the case of the other judges if a continuing right of option were allowed. It certainly seems it would be very necessary in the case of Scottish judges because actually in some cases their remuneration is to be reduced—[Interruption]—I mean their emoluments, their return for accepting this position. This is not in any way favouring the rich 85 that the high judges of the land should be in a position keenly sought after by the best men in the profession, and that position, once it is attained, should be above the minor strains of life.
That is much more advantageous to the poorest members of the community than to the richest members of the community. The judge must be placed above temptations of one kind or another which great wealth or influence may place in his way. Above all men, the poor man is the man who must see his judge is placed above the position of the casual rich man who may have acquired wealth or indeed those holding honour of an hereditary place and power. This is not in any kind of way a suggestion that the rich should be given more money. It is a position that the poor may be given the utmost possible protection. In so far as the position of the judge is diminished, the position of the poor man is weakened. Therefore, we should go into this whole question in the most careful fashion possible.
As I say, the desire of the Scottish judges must be carefully taken into account. I was glad, and I am sure the whole House will be glad, of the promise of the learned Attorney-General that that consideration would be given. May I reiterate the requests made by my hon. and learned Friend the Member for Northants, South that adequate time should be given before this Bill is taken in Committee? It will, no doubt, be taken in Committee on the Floor of the House so that we shall all have an opportunity of making our contribution. The learned Attorney-General, with disarming frankness, indicated that, in his view, arithmetic was a matter of philosophical doubt. He also, did not wish to dogmatise about the exact position of half a half as equalling in some circumstances a quarter. Indeed the mental arithmetic which with some distress he underwent during interrogation by his own Front Bench would seem to be clear evidence that in this matter he, as we have to do when we listen to him, was relying on the authoritative expression of opinion given by those in a better position to judge.
If the learned Attorney-General, with all his advantages, was in a difficulty, conceive the difficulties of those of us in the House, and particularly those of us who will subsequently have to account to our 86 constituents in considering the difficult position which has arisen between the Court of Session judges and the sponsors of this Bill. I trust he will be able to give us adequate time for consideration and that the Government will not attempt to be too niggardly in the acceptance of Committee points which we put forward. Certainly this Bill is in its initial stages. There is a good deal of pulling about to be done by the House before it reaches the Statute Book.
We are not in a position to dogmatise as whether or not this is the occasion to discuss the question of higher salaries of judges. On the face of it, I think it would be an inappropriate thing to do. But that the position of His Majesty's judges has certainly diminished vis-à-vis other members of the community is beyond all doubt. How far that process can be allowed to go is a matter which this House should seriously search its conscience upon; because nothing is easier, especially during a period of inflation, than to postpone those readjustments in the case of people who are not immediately going to take vigorous action of one kind or another because their standard of living has fallen or is actually in some cases making it impossible for highly skilled people to take on certain positions. But make no mistake about it, it is all the more necessary that this House should deal with these matters frankly and freely and before the pressure becomes too great.
At present we are in the position of discussing it in a non-party atmosphere. Nothing would be easier than to find ourselves slipping off the rails to one side or another; more particularly if the argument about whether a highly paid officer should have a lower pension than a lowly paid officer is brought in. These emoluments are not given for the benefit of the rich, but for the protection of the poor, and the maximum efficiency of our system of justice.
§ 6.9 p.m.
§ Sir Herbert Williams (Croydon, East)
I was glad to hear from the last two or three speakers that thought is being devoted, as it was when we had the Bill before us in the early part of the last Session, to the problem of adequate remuneration of judges. I agree entirely with what my right hon. and gallant Friend has just said about the proper 87 remuneration of judges as a great safeguard for the whole community. We have always regarded British judges as persons completely beyond any possibility of corruption and one reason was that, originally, their salary was a good one. With £5,000 a year and Income Tax at 8d. in the pound they were very comfortable. That is not so today, and I suppose that a judge would look rather shabby in court but for his robe.
That is a disreputable position to be in, and I hope that the time will come when this or some other Government will devote its attention to what is, in fact, a great problem. I am interested in this discussion on the remuneration of Scottish and English judges and the effect on their pension. As the Government have conveniently set forth in the financial accounts of the United Kingdom—on pages 40 and if anyone wishes to check the figures—a High Court judge gets £5,000 a year and Scottish judges, there are 12 of them, get £3.600 each and pensions are proportionately reduced.
There is one point I would like to put to my Scottish friends and that is, why it is that in England where we have a population of 44 million, or something like it, we can do the job with only 43 judges, whereas Scotland, with a population of less than five million, needs 14? I do not know whether they are very much fonder of litigation than we are—
§ Lieut.-Colonel Elliot
Since the question is directly asked, and since perhaps it is appropriate that it should be answered by a layman rather than by one who himself, at no distant date, may easily occupy such a post, I would say, first, that the position is an historical position, to which, as a Conservative, I am sure my hon. Friend will give full weight. Second, the Scottish legal system is no child or "by-blow" of the English legal system but is derived directly from great fountains of law from which the English system never drew. Last, my hon. Friend will also remember the point raised by the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) that the lower salaries of sheriffs and sheriff substitutes have to be brought in to balance up the larger proportionate numbers of judges in Scotland.
§ Sir H. Williams
An Englishman, of course, works harder. I knew that the 88 Scottish law is so involved that it requires more judges per thousand, or per acre, or whatever it is. As regards sheriffs and sheriff substitutes, Scotland has a much smaller area population. It is about half the size of England and yet in Scotland they have 12 sheriffs and 47 sheriff substitutes—that is, 59. In England we have 60 county court judges and I believe that the sheriffs and sheriff substitutes are the equivalent of our county court judges. Why do they want 59 compared with our 60? If they reduced the numbers there would be a bit more money to go round.
So far as I can make out, any person who is called to the Scottish Bar, and who has any kind of practice at all, is bound to finish up as a judge, and have the title of "Lord," which is not employed by an English judge but which is a kind of compensation for a reduced salary. Despite the picture of Queen Anne receiving the Act of Union which we see in St. Stephen's Hall, it would be useful to find out whether or not Scotland is rather "over-judged," if that is the right phrase to use. Perhaps the Lord Advocate would tell me why he requires so much more assistance in Scotland than is required in England.
§ 6.14 p.m.
§ The Lord Advocate (Mr. John Wheatley)
Throughout the cross currents of opinion which have been bandied across the Floor of the House, I think that, on the whole, there is general acceptance of the purpose and principle of this Bill. It is true there is some qualification in relation to the judges of the Court of Session in Scotland and the High Court in Northern Ireland and with that I shall deal later. But I am confident that there is general acceptance of the principle and purpose to provide security to the judges and other judicial officers in respect of their dependants which hitherto was never the case.
I think I am entitled to say that apart from the two exceptions to which I have referred the various judges and judicial officers affected by this Bill welcome the propositions contained in it. It is, I think, trite to say that when a Government does things it meets with a great deal of criticism, but when a Government does nothing it does not meet with anything like the same criticism and there are often many injustices left untouched over a long 89 period of years. It is right to expect that when a Bill of this nature is introduced, and a scheme for improvements is brought forward, further improvements will be mooted from both sides of the House, perhaps particularly from the opposite side of the House.
I do not want to get controversial on that matter, but may I say that many of the points which have been raised as worthy of correction, because they point to injustice, were matters which could have been rectified a long time ago. I need only to point to one or two instances. In the case of the judges' clerks, to which the hon. and learned Member for Northants, South (Mr. Manningham-Buller) referred, in 1938, that particular injustice could have been rectified prior to that date, but it was not even rectified then. So, too, with the question of judges' salaries. I agree entirely with the right hon. and gallant Gentleman when he said he did not think this was the appropriate time to consider this vexed and difficult question.
§ Lieut.-Colonel Elliot
I am sure the learned Lord Advocate does not wish to misrepresent me. I said this Bill was not the appropriate place.
§ The Lord Advocate
I used the word "time" in the sense of this Parliamentary discussion. The principle underlying this pensions scheme which, in the opinion of many of the people affected by it, is an advantage to them in planning their future, would be equally applicable and equally sound or unsound irrespective of whether or not there was any alteration in the salaries of the persons concerned. The formula which has been devised will apply to existing salaries and to any future salaries which may be the subject of revision.
In view of the fact that Scotland and Northern Ireland have been mentioned, I should indicate to the House that, so far as Scotland is concerned, it is only the judges of the Court of Session who have indicated their lack of desire that this scheme should be applied to them. That opinion was expressed by 13 out of 14, but every other judge in Scotland affected by this Bill is in favour of it. The sheriffs substitute, the full-time sheriffs of Lanarkshire and the Lothians, the Sheriff of Aberdeen—who is the only part-time sheriff affected by the Bill—the Chairman of the Land Court—all have 90 accepted the principle of the Bill. It would be unfortunate if the impression went forth from this Debate, however unwittingly, that the judges of Scotland as a whole were opposed to the principle and policy of this Bill. I shall deal with that matter further at a later stage. Accordingly, I hope that we can consider this question, at this and at subsequent stages of the Bill, divorced from the question of salaries.
The hon. and learned Member for Wirral (Mr. Selwyn Lloyd) made what I regard as rather an unfair criticism of the first two Clauses, when he said that nothing was being given by the Treasury in return for the sacrifices referred to in those Clauses. That statement pays no regard to the benefits conferred under the Bill because, by the reduction of the pension by one-quarter, there flows from that the right to the widow's pension and to the children's pension, subject of course to the other additional payment, equal to one year's pension at the reduced rate. Therefore Clauses 1 and 2 merely pave the way for the quid pro quo, in return for which there are given the widow's pension and the children's pension.
§ Commander Galbraith (Glasgow, Pollok)
Can the right hon. and learned Gentleman tell us exactly what is the actuarial value of the new contributions as against the benefits received? I think the learned Attorney-General said it was about half and half, but is that the actuarial finding on the matter?
§ The Lord Advocate
As the hon. and gallant Gentleman will appreciate, it will vary according to the circumstances of each case, but the broad, general actuarial calculation is that it will be borne half and half.
Questions were raised under these Clauses in relation to the capital sum which will be paid, equivalent in some cases to two years' pension and in other cases to one year's pension, according to the option exercised by existing office holders. Of course the lump sum which is paid will not be subject to Income Tax. The reason for that is that the judges who come within this scheme, and who fall within the formula, are giving up part of their pension rights in return for, inter alia, the lump sum they receive. Accordingly it is treated as capital and not as income, and under a recent decision of the House of Lords is not subject to tax.
91 With regard to the other benefits conferred, I think it right to state categorically that the lump sums payable on death and the widow's pensions, are not included in the estate of the deceased judge or judicial officer for Death Duty purposes. These are points which were giving a certain amount of concern to those immediately interested in the proposals, and that assurance is given because it conforms with the taxation principles.
§ Mr. Marlowe
Is the right hon. and learned Gentleman prepared to consider incorporating that in the Bill? He will remember that on a previous occasion when the tax law favoured the subject, the Government by retrospective legislation altered the law in the middle of the proceedings.
§ The Lord Advocate
No, I do not think it is necessary because that is the law as it stands. If it were desirable to have a declaratory provision, the proper vehicle for it would be a Finance Bill, not this Bill. I do not see that it is necessary to include in every Bill a declaratory provision of the law appertaining to the subject in question.
We cannot ignore the possibility that some people covered by this Bill will not benefit. We all appreciate that, and examples have been given. Of course there will be no reduction in salary, but there will be a reduction in pension for those existing office holders who opt to come within the scheme. No such option will be given to future appointees. It may be that in the particular circumstances of an office holder he will not enjoy benefits to the same extent as he would have done if this Bill had not been passed. However, as far as one can judge, the majority of the people covered by this Bill will benefit.
The hon. and learned Member for Northants, South (Mr. Manningham-Buller), asked whether in this instance, since the existing office holders can opt out of the scheme, we should not give a similar right to new appointees. That is a matter to which we would not close our minds completely, but the hon. and learned Gentleman will appreciate that actuarially it might make the running of this scheme difficult. While one can take actuarial advice in relation to existing office holders, it is difficult to get any 92 actuarial scheme or advice which can be based on any degree of assurance when the number of people who will be coming within a scheme is not known.
If we are planning for the future under this Bill and trying to take into account exactly what the respective cost will be, both to the individual and to the Treasury, any calculation may be quite impossible if at the time we institute the scheme we cannot say how many people in the future will be embraced by it, and how many will opt out. I am sure that, with a full sense of responsibility, the hon. and learned Gentleman will appreciate that difficulty and recognise that, although I have given an assurance that we shall look at the matter carefully. I can give no guarantee or undertaking that we will necessarily accede to that request.
The hon. and learned Member for Hove (Mr. Marlowe) suggested that the children's benefits conferred by the scheme were largely illusionary, arguing that it was unlikely that a judge would have children to satisfy the conditions set out in Clause 6 of the Bill.
§ The Lord Advocate
The hon. and learned Gentleman will appreciate that as long as a judge has a wife during his period of relevant service, it does not matter how late in that relevant service he gets that wife. According to the best advice that I can obtain—and the right hon. and gallant Gentleman the Member for Kelvingrove (Lieut.-Colonel Elliot), with his great medical knowledge can correct me if I am wrong—there is no reason why a judge should not produce the necessary people to qualify under Clause 6. It is one of the Clauses which was introduced after the initial proposals were brought forward on the initiative of the Government to cover cases of this nature which might arise, and has given a great deal of satisfaction to the people who have been consulted.
My hon. Friend the Member for Oldham, West (Mr. Leslie Hale), queried the definition of children within this Clause. This is as set out in the Income Tax Acts and it has a precedent in the Superannuation Act, to which my right hon. and learned Friend the Attorney-General referred.
§ Mr. Leslie Hale
Does that mean that someone can go on staying at a university until he is at least 50 in certain circumstances?
§ The Lord Advocate
The point is that this pension is a discretionary pension, and, in the first place, the circumstances suggested by my hon. Friend are very unlikely; and, secondly, if someone tried to drive a coach and pair through the Act by continuing his university career until he reached the age of 50, and graduating amid cries of "Old soldiers never die," the Treasury would take that position into account when determining whether it would be an appropriate pension to pay. Even so, in those circumstances it would be very unlikely that the person would qualify under the provisions of this section of the Bill.
My right hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes), suggested that there should be differential rates of pension according to the salaries of the particular judges, and that a higher proportion of salary should be given by way of pension to the lower paid judges than is given to the higher paid judges. The existing proportion of the salary payable to any particular judge is regulated by Statute. It varies from the status of judge to the status of judge, and I do not think that anyone can cavil very much about Scotland, because the pension payable to a Court of Session judge is payable after 15 years service, or if he retires on a medical certificate not having completed the 15 years. My recollection is that it is two-thirds of the salary that is paid by way of pension.
§ The Lord Advocate
That is three-quarters of his salary. On the other hand the sheriff substitute pension is determined on whether he retires after 10, 15 or 20 years when he reaches 65, and he gets one-third, two-thirds or three-quarters of his salary respectively. These pensions are related to the service provided by the particular judge, and I do not think that the scheme calls for any revision.
The hon. Member for Hillhead (Mr. T. G. D. Galbraith) raised the question of travelling and subsistence allowances for Scottish judges. I am sorry to harp 94 so much on the Scottish position, but am dealing with the various points in the order that they were raised. In 1887 the Government of the day, for reasons which they thought fit at the time, fixed a consolidated salary of £5,000 per annum to the Lord President of the Court of Session, £4,800 to the Lord Justices Clerk and £3,600 to the other judges of the Court of Session, and these salaries embraced travelling and subsistence allowances. In the Act of 1887 it is specifically laid down that the judges' salaries include what was formerly given by way of expenses for travelling and subsistence. Therefore, the position has been as it is now since 1887. This is a matter that should appropriately be left to the time when judicial salaries can be reviewed, because it is an integral part of any question of a review of judicial salaries.
The hon. and learned Member for Ilford, North (Mr. Hutchinson) raised the point regarding the Admiralty Registrar. He is included in the Probate Registrar, and, therefore, there is no omission in the first Schedule of the Bill.
I have dealt with the various points raised in the discussion apart from the point raised by the right hon. and gallant Gentleman the Member for Kelvingrove (Lieut.-Colonel Elliot) about the judges of the Court of Session indicating their unwillingness to participate in the scheme. I am rather sorry that the voice of Northern Ireland has not been heard, but I think that we shall deal with the Irish judges as we will deal with the judges of the Court of Session. It is true that representations have been made on behalf of a majority of the judges of the Court of Session to the effect that they desire to be left out of this scheme. I should like to point out, however, that they are not doing so on their own behalf, because as individuals they can opt out of the scheme. They are doing so in order to preserve the position of future appointees, because they feel that as the situation under the Bill is, that while a majority of future judges would benefit under the scheme a minority might suffer detriment, it would not be right to give their approval to a scheme which had that result.
One can appreciate the motive underlying that declaration, but having regard to the fact that they are not personally 95 involved and are merely trying to safeguard the position of posterity, I am not sure that we can accept their word as the last word on the subject. One would like to consult the views of the people who might be affected in the future, because they have a greater interest than existing judges, who have the right to opt out of the scheme. I should like an opportunity of consulting other parties more directly interested, because I do not think this should be in any way related to the demand for an increase of salary. I do not think that this House would regard it as proper to make the existence of this scheme a sine qua non for an increase in salary; or to put the matter in reverse fashion, to make a declaration of increase of salary a sine qua non of the acceptance of the scheme. This scheme should be judged on its merits and on its merits alone.
While we will look at the matter between now and the Committee stage, and while we shall consult not only the judges but any other interested parties whom we think it right and proper to be consulted in this matter, I can give no undertaking about the ultimate result, because naturally until these further consultations have taken place and the results are known, the Government cannot make up their minds as to what the actual decision will be. I pointed out that even supposing there had not been this objection, and supposing there had been in the case of one or two appointees an overall loss on accepting this scheme, it is one thing to impose a scheme on existing judges with the option of opting out of the scheme, and another thing to make the scheme a part of the terms and conditions of a new appointment, about which a person knows before accepting the appointment.
That is a fundamental point, which we must bear in mind. It is one thing to alter the conditions of the existing holder; it is another thing to introduce new terms and conditions when offering appointments to future holders of the office. I can assure the House that the undertakings that have been given will be implemented and all the necessary consultations will take place. I think it would be a pity if there were any differentiation between sections of the judges in Scotland, Northern Ireland or 96 anywhere else. The purpose underlying this Bill is one which must commend itself to the House, and I invite the House to give it a Second Reading.
§ Sir H. Williams
Could the right hon. and learned Gentleman tell us why are all these sheriff substitutes necessary in Scotland?
§ The Lord Advocate
I hardly think it worth while to occupy the time of the House by telling the hon. Gentleman the reason for that, but he can ascertain the necessity for it if he goes to the Library and studies the subject. I doubt if this is the place in which to give a tutorial lecture on Scottish law and customs. I invite the hon. Gentleman either to consult the authorities in the Library or to consult me outside, but I do not think that it is a germane consideration to the Bill before the House.
§ Question put, and agreed to.
§ Bill read a Second. time.
§ Committed to a Committee of the whole House Committee Tomorrow.—[Mr. Hannan.]