§ Order for Second Reading read.
§ 8.45 p.m.
§ The Attorney-General (Sir Lionel Heald)
I beg to move, "That the Bill be now read a Second time."
This Bill has several different purposes in connection with pensions in the Supreme Court and one cannot therefore present it as having any single thread or purpose beyond that. The main provisions of this Bill affect two classes of officers—the official referees and the judges' clerks and secretaries. I think it is right to say a word about the nature and importance of the work of the official referees. It is well described in paragraph 102 of the Second Interim report of the Committee on Supreme Court Procedure and Practice, which puts it as follows:Official referees were established in 1873 by the Judicature Act of that year, and originally their duties consisted mainly in assessing damages after liability had been established at the trial, or in taking accounts. In recent years, however, the ambit of the matters referred to official referees has greatly increased and to day a large variety of matters are tried before them, in particular heavy and complicated cases involving matters of detail, e.g. cases arising out of building contracts, claims for possession of leasehold premises upon forfeiture for breach of covenant to repair and damages for breach, and claims for commission where a servant or agent is remunerated by commission.These are, of course, difficult and important matters, and the official referees are in fact constantly engaged in trying long and complicated High Court cases which frequently involve a large amount of money. Quite briefly the main purpose of this Bill, as far as they are concerned, is to provide an improved basis for the calculation of pensions in the case of official referees retiring after 1953 so that they may earn the maximum pension after 15 years' service instead of after 25 years' service. The provisions of Clause 1 are directed to that end, and there are a number of complicated matters in connection with it which I do not think the House would expect me to go into at this stage. But that is the basis of Clause 1.
Clause 2 deals with the secretaries and clerks for the judges. I think I should 1893 give a brief word of explanation. Hither to, provision has been made for the appointment and payment of these clerks but not for any pension. For some time there has been a considerable amount of discussion on the subject, and the view was taken generally that a pension ought to be provided for. The difficulty which arose was that hitherto on appointment to the bench a member of the bar has had the right of taking his clerk with him. When the question of pensions was raised, the point was at once taken that if these clerks were to be made pension able it was not possible any longer for the judge on his appointment to retain the right to nominate his own clerk and take him with him. There was a great deal of discussion on that matter, barristers' clerks not being anxious to have this system introduced, but in fact when one comes to consider it, it is clearly not possible to persuade those responsible to undertake the payment of pensions from public funds and to allow a system of what one might call personal nomination to exist.
I should say at once that the matter has been carefully considered. It was considered by the judges. The judges took the view that, in order to get the pensions for their clerks, which they were anxious to do, they were bound to give up their right of patronage or nomination. The Bar Council also considered the matter, and they came to the conclusion that, as a matter of argument and logic, it was not possible to maintain the present position. That is shortly one of the points that I have no doubt some hon. Members will have something to say about. All I can say is that, as I understand it, once one went into it it was almost impossible to maintain that one could have those two very different conceptions existing together. Now we shall have the position that one finds in the Bill.
I will refer quite briefly to Clause 2 (3). After provision has been made for secretaries or clerks to be attached to the judges, provision is made that they shall be appointed by the Lord Chancellor and shall be officers of the Supreme Court. I ought at once to point out that the language must be read carefully. They have to be appointed by the Lord Chancellor, and thereafter they become officers of the Supreme Court. I believe it 1894 has been suggested that that might be read as implying that they should be officers of the Supreme Court to start with. I can say that it certainly is not intended to mean that, and I should have thought that it was quite clear from the sequence and order of the wording that the appointment is the thing which, having taken place, makes them officers of the court, and thereafter they are for all purposes officers of the Supreme Court.
I should say at once that the barristers' clerks have been very rightly concerned that, at any rate in the future, those holding these offices should be barristers' clerks. They obviously have the training and experience which is desirable for the purpose. Hon. Members will see that the appointment is to be made by the Lord Chancellor, and I can say that the Lord Chancellor intends to appoint barristers' clerks to these positions, and he considers that it is most unlikely that any occasion would ever arise when they were not available. But quite clearly it would not be possible to provide that they must in all circumstances be barristers' clerks, because if one had a case where there were no barristers' clerks available obviously a difficulty would arise. But I can say that the Lord Chancellor does intend that they should be barristers' clerks. A fortiori there is no question of their being appointed from existing officers of the Supreme Court. They are to be chosen from amongst the barristers' clerks by the Lord Chancellor, and he intends to set up an appropriate selection board.
Another point which has been raised is what will be the position if a barrister who would in the normal course of events be able to take his clerk with him is appointed a judge. If there is not a vacancy at that moment, does the clerk thereby lose his chance for ever? The answer to that, as I hope one would expect, is the reasonable and sensible answer that there is nothing whatever to prevent that clerk from making an application the next time a vacancy arises, and in the ordinary and normal course of events one would expect that the Lord Chancellor or the Lord Chancellor's Committee would appoint him to the next vacancy. I think one can take it that that would be the position; and that hon. Members will agree that it is not really possible to put it in the Bill in any more positive terms.
1895 There may be some other minor matters arising, but I do not think I need trouble the House with them now. I ought to say, with regard to Scotland, that the clerks there have been pension able for a number of years. In Scotland these things are always attended to carefully, and that has been in hand there for some time.
Provision is made in the Bill in respect of Northern Ireland where these officers are called tipstaves. I thought that the plural of tipstaff was "tipstaffs" but I find that it is tipstaves. In this country the tipstaff is the gentleman who leads people away to be suitably dealt with after they have misbehaved themselves in court, or arranges for their presence if they are unwilling to be there otherwise. In Northern Ireland the tipstaff is a more peaceful and harmless person—the judge's clerk; so if Members were alarmed by that name, I can assure them that they need not be concerned.
There are one or two minor provisions, but I do not think that at this stage the House will wish me to enlarge upon them, although I can, if necessary, give explanations about them. For example, in Clause 3 there is a provision which dispenses with the necessity for a Civil Service certificate. It is a complicated point, but I do not think it is a matter which should really require elaboration at this stage.
It will, I think, be generally agreed that these are useful and desirable provisions, and I hope that the House will think it proper to give the Bill a Second Reading.
§ 8.57 p.m.
§ Sir Frank Soskice (Sheffield, Neepsend)
The Attorney-General has explained to the House the purposes of the Bill. Though it is small, it is of great interest and great importance to those of us who practise in the legal profession. I should certainly advise my hon. and right hon. Friends on this side of the House not to offer any opposition to the Bill. The Attorney-General adverted to a subject in connection with barristers' clerks and judges' clerks about which, as he knows, and as he has indicated, there is considerable interest and some controversy in the profession. I should like to say a few words about that in a moment from my own point of view.
1896 Before I come to that, however, and in order that I may take the matter in sequence, I should like to raise one point with the Attorney-General about Clause 1, and I should be glad if he would give to the House his observations upon it. He has explained that Clause 1 introduces better pension provisions for official referees. I, and I am sure all my brethren in both sides of the profession, would at once" pay tribute to the importance of the work of the official referees. It is, however the Clause to official referees.
I ask the Attorney-General whether it is not possible to include them within the framework of the Bill. Under the terms of the Bill, the official referees are enabled to reach their maximum pension rights after 15 years' service. In other words, the period is reduced from 25 years—the present period—to 15 years which is the period provided by the Bill. The masters of the Supreme Court are left by the Bill in the situation that they have to serve the full period of 25 years before they can reach their maximum pension provision. I simply put this before the Attorney-General. I think that I am right—and he may be able to correct me if I am wrong—when I say that civil servants in general reach their maximum pension rights—and I say "in general"—after 25 years' service.
A master, before he can become a master, has to practise for 10 years at the Bar; he has to be a barrister of 10 years' standing before he qualifies for appointment. Having passed through that period he has, under the present arrangements, to serve for a further 25 years before he can attain his maximum pension benefit. I should have thought it would have been fair—as indeed is done in the case of official referees—to say that, bearing in mind that 10 years' qualifying membership of the Bar, a master should also have to serve for only 15 years after that in order to attain his maximum pension rights. He would then be in the same position as the civil servant, the total period including the 10 years' membership at the Bar, being 25 years as in the case of the civil servant.
§ Sir F. Soskice
I referred to the provision with regard to official referees. The Attorney-General has pointed out the very serious and onerous duties placed upon the shoulders of official referees. I am sure that he would agree that very onerous duties, requiring great experience, great knowledge of the world, great tact and a very thorough understanding of legal principle, are incumbent in the office of the masters of the Supreme Court. Without elaborating the point further, I simply put it to the Attorney-General that it is perhaps a little anomalous that, although this provision is made for the official referees, no similar provision is made for the masters.
My second point has indeed been canvassed by the Attorney-General him self. The right of a member of the Bar when appointed to the High Court bench to take with him the clerk who may have been with him for the whole of his pro fessional life is, of course, very highly prized by judges, and it is a privilege—or the expectation of a privilege—greatly valued by their clerks. For myself, I feel that it is a right which should not be taken away, unless it is unavoidable that it should be foregone in order that pensions can be given to barristers' clerks. The Bill deprives them of that right.
The Attorney-General says that, when it is considered, the matter becomes clear and that it cannot be gainsaid that if pensions are to be granted the right of patronage, as it 'is called, has to be taken away. I must confess that I do not understand why the two cannot co-exist. Why cannot a judge, as heretofore, take his clerk with him on to the bench, and the clerk, for whom already provision is made so far as payment of salary is concerned, become entitled to pension rights in addition to his ordinary salary or remuneration?
I think that the Attorney-General will have noticed from the sounds that have gone round the House on my making that observation that there is a great deal of feeling about it. If it is unavoidable that the right of patronage has to be foregone, so be it. It is a matter that everyone—and I am sure the Attorney-General himself—will greatly regret. But 1898 if it has to be, it must be. The barristers' clerks association will no doubt accept it, because the right to pension is regarded as of very great importance in these days. I ask the Attorney-General, in order to allay the disquiet in the matter, to indicate in some slightly greater detail why in his opinion it is axiomatic that, if there are pensions, the judge must forgo the right he has hitherto had of taking with him on appointment to the bench the clerk he has had throughout his professional life.
One observation that the Attorney-General made will, I am sure, give great satisfaction, and that was his observation that the Lord Chancellor will fill the panel from which judges' clerks will be chosen with persons who actually have experience as barristers' clerks. I think that everybody who has practised in the profession will feel a deep debt of gratitude to the barristers' clerks and the judges' clerks for the smoothness with which their professional engagements can be carried out. A great deal depends on the knowledge of, and the mutual co operation between, judges' clerks on the one side, with their knowledge of the practical workings of the profession, and barristers' clerks on the other.
It is, therefore, regarded as of great importance in the profession that those who serve as judges' clerks should be former barristers' clerks. The Attorney-General has given an assurance that the Lord Chancellor will, so far as possible, fill what I suppose will be a kind of panel from the ranks only of barristers' clerks. That, I feel will be a matter of great satisfaction, and will ensure the smooth working which has hitherto appertained to the carrying out of judicial business.
Those, I think, are the two points I would desire to raise on the Bill. The rest of the Bill, as the Attorney-General has pointed out, deals with machinery matters, except that similar provision is made in the case of the tipstaves in Northern Ireland. No doubt the problem in Northern Ireland is similar to the problem as we envisage it in this country. I feel grateful to the right hon. and learned Gentleman for explaining so clearly the purposes of the Bill, and, as I said, I would advise my hon. and right hon. Friends certainly not to oppose it, particularly in the circumstances of today when pensions are of the utmost importance to 1899 barristers' clerks. Indeed, they are of general importance. This Bill does secure those rights.
I would, however, ask the right hon. and learned Gentleman at the conclusion of the debate to say why it is that, as I have already indicated, he finds it so unavoidable that the right of patronage has to be forgone if pensions are to be granted. Those are the two points I desire to raise, and I shall be glad to hear what the right hon. and learned Gentleman may say in answer to them.
§ 9.7 p.m.
§ Sir Patrick Spens (Kensington, South)
I cannot let this Bill pass without saying a word myself. I stand in this position, that I cannot possibly now have any personal interest on behalf of my clerk or anybody else, whereas most of my hon. and learned Friends here have an indirect personal interest on behalf of their clerks. I want to re-enforce every word that the right hon. and learned Gentleman the Member for Neepsend (Sir F. Soskice) has said on behalf of the position of barristers' clerks. When members of the Bar are appointed to the bench they do find everything extraordinarily changed, and I can say from my own personal experience that it is of immense importance to them that they have, each as his one confidential person, someone whom they have known most of the years of their professional life. It does make the most enormous personal difference.
For the life of me, I cannot understand why the right of patronage has to be forgone if there is to be a pension from public funds for one's clerk. I am wholly unable to understand why a clerk appointed by the Lord Chancellor should be more entitled to a pension than a clerk nominated by someone who has been selected as one of Her Majesty's judges. I cannot see what the principle there, and I do not believe that the profession as a whole understands what the principle is.
Be that as it may, I can understand that some members of the Bar have clerks who are of some considerable age, and I realise that if they nominated a man as a clerk who is past middle age there might be difficulty in giving him an adequate pension. I can see that it may be necessary to safeguard to some extent that the 1900 clerk nominated by a judge shall be under a certain age.
I cannot see why there should be a total prohibition upon the judge taking his clerk with him, if the judge wishes to do so, even though it is impossible under Civil Service rules to allow the clerk to draw a pension. I cannot see why, nevertheless, the judge should not be allowed to take his clerk with him and at any rate have his salary while he is a cleric paid in the ordinary way, as provided at present, leaving the judge to provide through an insurance company or in some other way, if necessary, for or towards a pension in due course.
The Bill as worded at present makes it impossible for a judge to take his clerk with him unless the Lord Chancellor appoints the clerk at the judge's request, which I have no doubt the Lord Chancellor will endeavour to do as far as possible. The difficulty is that a certain number of clerks will survive the services of the judge whom they serve at present and the new judge will find that he has to take over the clerk of a previous judge. In some cases that may be greatly to his advantage, 'but on the other hand he may not like it and he may not want that man. Yet he will have to take him over.
While I am greatly comforted by a great deal of what the Attorney-General said about the intention of the Bill and how it is to be worked, even as drafted at present, nevertheless I think there is a serious grievance for both the clerk and for judges-to-be, of whom no doubt I see several around me at present, and I hope that the greatest effort will be made to make it possible for a judge in 'the future to take his clerk with him if he wishes to do so, knowing the man and relying on his services. In that way he will not find himself with a strange clerk.
§ Mr. W. R. Williams
I have tried to follow the right hon. and learned Gentleman's argument, and I am intrigued by the situation which arises if the judge retires or dies before his clerk. A new judge comes along and brings his own clerk, because that is only fair. What happens to the first clerk?
§ Sir P. Spens
I have not made myself clear. The point I was making is that it would not be possible for the new judge to take his clerk with him because 1901 there would already be in office 'the clerk of the dead judge. The new judge would have to take him over.
§ 9.15 p.m.
§ Mr. Scholefield Allen (Crewe)
I wish to welcome the Bill. Three or four years ago I raised in the House the question that official referees had to serve 25 years for their pension whereas Her Majesty's judges were entitled to their pensions after 15 years. My observations having been reported, I am glad to say that I received two letters from official referees thanking me for my efforts. I do not pretend that anything I said had an effect upon the Treasury and produced Clause 1, but nevertheless I welcome it, for it is a provision which I think ought to have been brought into operation some years ago.
Like my right hon. and learned Friend the Member for Neepsend (Sir F. Soskice) and the right hon. and learned Member for Kensington, South (Sir P. Spens), I am not so pleased with Clause 2, and I should like to support everything which these two right hon. and learned Gentlemen said. It is no doubt a privilege for the judge to take his clerk with him when he goes on to the bench, but those who practise at the Bar know the great work which barristers' clerks do and the relationship which often has extended over very many years. It is perhaps one of the most intimate relationships which exists either in the professions or in the world of commerce. I doubt whether there is a more intimate relationship than that which exists between the barrister and his clerk, and suddenly to sever it when the master goes on to the bench is deplorable.
In the past, the master has been allowed to take his clerk with him. I have not seen any argument to justify this privilege being taken away from newly-appointed judges. I can see the argument, although it has not been presented, and the argument is the Treasury. I am quite certain that is the argument. We all know that the Treasury has always been the nigger in the woodpile. They do not mind breaking this relationship and taking a stern line even with Her 1902 Majesty's judges in order to save a few hundred pounds a year or perhaps a pension in 10 years' time.
I have no doubt that the answer which will be given is, "Oh, well, every judge dies leaving a clerk and he is already on the rank; we shall have no work for that clerk to do." But that is not quite true, because there are several jobs such men can take and they would be taken on again as soon as need be. I am quite sure that vacancies so arise from time to time, and I do not think that this is an insuperable difficulty. I have taken the advantage of reading certain correspondence sent to members of the profession by the Barristers Clerks Association, and that reveals no real answer—
§ Mr. Scholefield Allen
I do not think that either was marked "confidential." Certain parts of them were marked "confidential," but I am quite sure that no real argument has yet been deployed, and I hope that we are not going to hear the only possible argument, namely, that it would cost the Treasury a bit of money.
§ 9.17 p.m.
§ Mr. Hylton-Foster (York)
I should like to join in the chorus of welcome given to this Bill and to congratulate my right hon. and learned Friend on the summit of his labours here in this matter of introducing it for Second Reading, and to thank him for putting up with in genial fashion a certain amount of persistence on my part.
I am very glad to hear that it is entirely non-party and has the support of both sides of the House. It always has had. The proposal relating to judges' clerks has the support of right hon. and hon. Members of all parties, and because we like the heritage of views expressed here, I should like at this moment to recall, on the basis of what they have said, that there are those not now with us for one reason or another who, I know, would be glad that this Bill has been at last introduced. I think that the late Sir Stafford Cripps, Sir Geoffrey Hutchinson and Mr. Conolly Gage and others, who are not with us now but who were all greatly respected Members of this House, were all supporters of proposals for pensions for judges' clerks.
1903 It is right that it should be a non-party proposition because the State has been a bad employer in respect of judges' clerks, and we have all to bear the responsibility. It may be that there was a time when a man who was appointed a judge could accumulate from his hard earned earnings enough money to make provision for his clerk himself, and it may be there was a time when a barristers' clerk could make enough money to provide for the education of his children, set them up and provide for his own old age. But these times have gone with modern taxation, and what has happened is that the judges' clerks have been left by all of us as the only officers employed about the law courts who get neither pension nor gratuity but only an ex-gratia payment equal to 14 days' payment, whatever length of service they have rendered. The time is overdue to put an end to that.
Like every member of the legal profession here, I attach the greatest importance to what my right hon. and learned Friend the Attorney-General has been saying about the intention with regard to people to be appointed under the Bill to the position of judges' clerks. It would be a public disaster if people other than ex-barristers' clerks were ever appointed to that position, but—I am not making a joke about gowns—considering the stuff of which Lord Chancellors are made, I do not believe there is any risk that they would not take the same view as all learned Members in this House take about the necessity of having them.
In the barrister's clerk's job, as in most others, one cannot compete with experience. Their experience as barristers' clerks is just what makes a good judge's clerk. I do not mean that no one could learn the job, but I can conceive of no way in which the art could be learnt except by being a barrister's clerk. We know what barristers' clerks do in smoothing out the difficulties of counsel, solicitors and litigants, making the work run smoothly, as the right hon. and learned Member for Neepsend (Sir F. Soskice) said—I am sure that the right hon. and learned Gentleman did not mean making a judge in good temper, because that is one of the functions of advocates rather than of the clerk—and arranging the list and knowing those little 1904 difficulties which experience learns and which make all the difference.
I do not altogether share the difficulty in understanding what, I suspect, is the Treasury point of view, which seems to have impelled the necessity for depriving the judges of the patronage they had before. I could not imagine, even before hearing my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens) speak, that one could induce anybody who had ever been a judge to part with that right of patronage except for very good reasons. I can conceive no relationship more important in its confidence and friendship than the relationship of the judge and his clerk has to be. But the fact remains that His Majesty's judges, as they were—not Her Majesty's judges—were persuaded that it was an unavoidable prerequisite to get pensions for the judges' clerks that they should give up their right of patronage, and they did.
§ Mr. Philip Bell (Bolton, East)
This is locking the stable after the horse has gone. Of course, the judges who have already appointed their own clerks say that that is a good thing. But the question is the Bar. We as members of the Bar, as my right hon. and learned Friend said, with diffidence, might hope that in some unexpected accident we might have an opportunity of appointing a clerk. We are the people who are concerned with giving up the right, and not Her Majesty's judges, who already hold that position.
§ Mr. Hylton-Foster
I have also read the correspondence marked "confidential" and did not fail to notice the point that the hon. and learned Member has been developing. But it was not the point I was on, which was that unless one assumes that His Majesty's judges completely missed the point, someone was cunning enough to persuade His Majesty's judges that there was a sound reason for saying that this was an unavoidable prerequisite if pensions were to be got for judges' clerks.
For my part, I would urge gentle hesitation lest an over-enthusiastic insistence on trying to restore the right of patronage which they were persuaded it was right to give up should have the effect of getting rid of pensions for judges' clerks, which are, after all, the summit of attainment in negotiations which have gone 1905 on under successive Governments. It would be a pity to waste that.
I share very much the regret expressed by the right hon. and learned Member for Neepsend that in connection with what is done in the Bill for the official referees it has not been possible to include others. A fair specimen is the Queen's Bench Division Masters. I say nothing about Chancery Masters because I do not understand the mysteries of that quarter. But it is a fulminatingly unattractive proposition to lay before a man that "I will appoint you probably after the age of 50. You will be compulsorily retired long before you get to 75, and you have yet to work 25 years to get your full pension." If that was not an attractive proposition for the official referees, it certainly is not for the Queen's Bench Masters. I am sorry that we will, no doubt, be precluded by the Financial Resolution from grumbling about the matter in connection with the Bill.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
Would the hon. and learned Gentleman agree that precisely the same observations apply in the case of barristers' clerks appointed as judges' clerks as the reference which he has made to official referees?
§ Mr. Hylton-Foster
No, I am not in a position to agree with the hon. and learned Gentleman, because I do not remember in detail what the Schedule of these pension schemes looks like, but as far as I remember it does not work out in the same way for the people that I have in mind. I was just saying—and I resume my sentence in the middle—that despite these minor observations I should like the House to be grateful for the mercies which are far from small which this Bill provides.
§ 9.26 p.m.
§ Mr. Hector Hughes (Aberdeen, North)
This Bill has much to recommend it, but one of its serious defects has been referred to. I hope that will be cured before the Bill becomes law. The learned Attorney-General referred to it, but not, I thought, with his usual persuasiveness. He seemed to speak of it with a guilty conscience and to anticipate the objections which are now being made to this particular part of the Bill.
The right hon. and learned Gentleman tried to explain away this evil feature 1906 which is criticised in Clause 2. It is curious that the Bill turns aside from its main purpose in order to injure a worthy and useful class of servants of justice. After all, I am sure that all lawyers in the House will agree with me when I say that barristers' clerks and judges' clerks are servants of justice, as indeed barristers and judges are also.
The curious thing is that this strange attack upon judges' clerks is irrelevant to the main purpose of the Bill. It is unnecessary, it is illogical and it is unjustifiable. It departs from the general tenor of the Bill in an invidious way to take away the rights and expectations of one class of servants of justice who are entitled to better treatment because they usefully serve the administration of justice.
Their case can be easily overstated, but I do not want to do that, because they have a good case. It has been the subject of consideration and correspondence for some years. I know I am right in saying that it has been the good will of the judges, of the Bar Council, of the Lord Chancellor's Department and of the Barristers' Clerks' Association. It is now being frustrated by this Bill at the instance of the Treasury in an unjustifiable and arbitrary manner and without reason assigned and without notice given to the persons most concerned. It seems to me an obvious case in which Parliament should exert itself to over-rule the Treasury to see that justice is done to this important class.
The harsh treatment of this worthy and useful class is inconsistent with justice. The purpose of the Bill is clearly expressed in the Preamble, but it is rather long because it relates to various other classes of persons with whom I am not here concerned. I propose to devote my few observations to judges' clerks as mentioned in Clause 2. For my argument it is sufficient to point out that the purpose of the Bill is expressed in these words from the Preamble:to confer pension rights on certain officers attached to Judges of the Supreme Court in England …to amend the law with respect to the appointment and conditions of employment of the said officers.I have no quarrel with this purpose, which is meritorious and just. My quarrel is with the invidious manner in which that purpose is implemented by the Bill. It is carried out in such a way 1907 as to attack the mode of appointment, the status, the salary and the superannuation of judges' clerks.
Clause 2, the objectionable Clause, is long, involved and, in my submission, unworkable for the reasons I am suggesting. Under it various anomalies arise. A judge who heretofore has been able to appoint his own clerk is to appoint his own clerk no longer. The person who may be appointed by the Lord Chancellor need not necessarily be a person of legal experience as heretofore and may be a complete stranger, uncongenial to the work and uncongenial to the judge. In my submission, that is a departure from tradition, is bad, is wrong, and should not be allowed to pass into legislation.
The Bill alters for the worse an historic and traditional practice which for many generations was found useful and satisfactory and under which each new judge was free to appoint, and in fact did appoint, his own clerk, whose experience he knew and whose qualifications he had tested in the practice of the legal profession. This long-standing practice today has statutory recognition in the Supreme Court of Judicature (Consolidation) Act, 1925, Section 21. It arose from the intimate and professional relation between barrister and clerk, whose skill, knowledge and experience were gained together over many years. Up to the present it has served well the administration of justice and today it is an important and useful element in legal life and administration.
Now, suddenly and without notice, it is proposed to change all this, to take away the power of a new judge to appoint his experienced clerk as heretofore. Under this Bill the new judge's clerk need not have the experience, need not have the specialised training, need only belong to a pool of civil servants into which will dip not the judge, whose clerk is required, but the Lord Chancellor, whose clerk is not required. The essential personal relation will have been destroyed and the skilled and specialised clerks will disappear, with loss to the administration of justice and to the community. The present proposal is a bureaucratic extravaganza.
§ Mr. W. R. Williams rose—1908
§ Mr. Williams
If my hon. and learned Friend has finished his sentence, because I am trying to follow the argument carefully, will he inform me who asked for this Bill? Was it the Treasury or was it the legal profession?
§ Mr. Hughes
I am not the promoter of the Bill and I know not who asked for it, but I do know that the legal profession does not want it—
§ Mr. Hughes
And the clerks do not want it. The idea seems to be to create a kind of pool of potential clerks, and to fish out these submarine creations ad hoc in place of the skilled and experienced clerks now used for the purpose.
§ Mr. Hughes
There is no reason given for this arbitrary and unexplained departure from the settled and useful practice recognised by the Supreme Court of Judicature (Consolidation) Acts of 1925 and which has been working successfully under that Act since that time.
There are many and cogent reasons for continuing the prevailing practice and I shall mention three. First, the high proportion of judges who on appointment took their own clerks with them; secondly, the low proportion of judges who did not; and thirdly, the great number of judges who have praised the usefulness of the present system and eulogised the skill, faithfulness and great service of their clerks.
I have heard no adequate reason why this radical change should be made in the legal profession, why the clerks should not be selected and appointed as they have been heretofore. I submit that the provision in Clause 2 is bad. I hope that it will not commend itself to this House and that it will be changed in such a way as to leave still working that good system which has operated so well up to the present.
§ 9.36 p.m.
§ Mr. Philip Bell (Bolton, East)
I propose to make a few observations about the melancholy provisions of this Bill. They are melancholy because of all this 1909 talk about Government pensions, and how much pension, and when someone shall get a pension. In an old-fashioned, Tory way I prefer private property, and therefore I find all this discussion about when one should get a pension and how one should get a pension extremely melancholy. However, one must take things as they are.
I wish to make a few observations about the proposals regarding the official referees and to say something about the clerks to the judges. When I saw that the position of the official referees was to be improved, being a lawyer, my first instinct was to think how happy it was. I then had to consider what was an official referee. He seems to have been created in 1925—though I may be wrong—and his job mostly was to attend to those more complicated matters of detail that the High Court judges have not the time or the patience to deal with. He is a permanent official, appointed by the Lord Chancellor and holds office during good behaviour. He is removable by the Lord Chancellor. He retires, if he survives the ordeals of his office, at the age of 72. Whitaker's Almanack—which is not as accurate as I thought—tells me that his salary is £2,500, but I am told from other sources that it has been increased to £2,800.
The qualification for this responsible office is 10 years' standing as a barrister. In that he is not unique for, as a right hen. Gentleman opposite pointed out, the qualifications for masters in the Queen's Bench and indeed in the Chancery Division is also 10 years and their tenure of office is in all respects the same as that of the official referee. Therefore, one wonders why, of those officers of the court, the official referee should have been picked out. It would seem true that he is, in some senses, a more responsible official, though the only difference I can find in fact is that at the moment appeals go from him on certain points of law to the Court of Appeal, while, of course, from Masters in the Queen's Bench and Chancery Division they normally go to the courts. His standing, at any rate in 1925, was exactly the same as that of about 13 other officials. He was in the gay company of the Master in Lunacy, the Legal Visitor in Lunacy, the Registrar of the High Court in Bankruptcy and the Taxing Master. In 1925 something like eight other officials received 1910 the same amount of salary as that which he received.
If it be true that his salary has now increased, as I am told it has, he is still on equality with a number of people who appear in the Schedule to the Supreme Court of Judicature (Consolidation) Act, 1925. Why, then, has he been singled out? Why has he had his pension rate altered from 25 years to 15? He has already had the advantage of an increase in salary. That may be explicable by his duties, but we have seen from the Evershed Report that it is proposed to give additional and more onerous duties to the masters in the Queen's Bench and in Chancery. Therefore, I wonder why he has been picked out for this favour.
Indeed, it is a favour because after 15 years the master will not be getting even half what the official referee is getting. It is only after 25 years that he reaches that standing. One might easily accept the proposal for the official referee if one were convinced that there was some great urge that he should be distinguished from what were his colleagues, at any rate up to 1925. I confess that I am not aware—it may be through sheer ignorance—of the reason why he should have this signal advantage over those who were his colleagues.
It is quite ludicrous, as has been pointed out, because it is almost impossible for the master of the Queen's Bench Division to qualify for full pension. During the last 15 years the average of the age of appointment in the Queen's Bench Division has been 50½. He cannot reach his 25-year full pension, as some complicated arithmetic will convince us, because 25 years cannot run between the age of 50 and the retiring age of 72. I hope that we shall not forget entirely the position of the near relations of the official referee.
I should like to say a few words about judges' clerks. I cannot describe the horror and disappointment which I felt when I heard my hon. and learned Friend the Member for York (Mr. Hylton-Foster) endeavour to put a pistol at our heads. What is this threat about pension or patronage? Why have we to say, "If you retain the patronage you cannot have the pension"? It seems to me a very evasive argument. Happily we are a people governed a great deal by tradition. 1911 It has long been tradition at the Bar for relationships between clerks and practitioners at the Bar to be intimate and personal. For these reasons, it was the tradition that when a member of the Bar was promoted to the bench he took with him the advantage of that intimacy. He took with him his clerk. That was, so to speak, recognised by the Supreme Court of Judicature (Consolidation) Act, 1925, and the salaries were provided for by the Acts of 1937 and 1938.
That was the position. It is found necessary, for reasons which I confess that I have not yet appreciated, to say that if a man is made a civil servant that right of patronage should go. If I can understand the argument which would be in favour of that, it would be this. If we have a pool of clerks, we do not want that pool increased by the addition of new clerks when a judge is appointed, because we may have enough clerks on the establishment. On the face of it that seems true, but let us look at it in practice. What has happened about judges' clerks in the last 25 years? Have we found them going penniless when they were not on the strength? Have we found that when a new judge was appointed and took his clerk with him some unhappy judge's clerk was made destitute?
§ Mr. Hylton-Foster
Does my hon. and learned Friend remember any of the distressing cases of hardship which have given rise to the agitation for pensions? Does he recall the judge's clerk who, after a considerable number of years' service, was reduced to going to the National Assistance Board in order to survive before he could get another job?
§ Mr. Bell
I should think that it is now not clerks but barristers who are seeking National Assistance. I am not aware of one case of the type which my hon. and learned Friend has mentioned. There are always cases of someone being displaced, but let us take the broad view. Perhaps the Attorney-General can help us here. Has it happened during the last 20 years that when a judge has been appointed and has brought his clerk with him, the clerk of another judge dying or retiring has been out of work and could not be fitted in anywhere else? If it has 1912 not happened, the danger of allowing new judges to appoint their own clerks is a very small one. If when a judge brings his own clerk in there is not such dislocation that he cannot be absorbed in the system, then we have nothing to fear by retaining the right of patronage.
I have not had the experience which my hon. and learned Friend has had about the one sad case which has impressed him. I am sure that it is true, and it is very sad. However, I obtained some information today from a senior clerk who said that during his 29 years' experience he knew of only three or four cases of judges' clerks who were displaced because their judges had retired or died and there was no other place for them. He says that it is very rare for the clerk not to be absorbed by the establishment. If that be true, the risk of allowing patronage to remain with the judges when appointed, as a result of which there may be three or four supernumerary clerks, is not a risk which would justify the legislature in removing it. There are occasions when clerks are ill, and there has to be a sort of reserve. There may be some dispute as to what that reserve should be. However, taking it on balance, is it not being a little parsimonious to try to save a few hundred pounds, thereby destroying this very intimate relationship?
I do not ask the Attorney-General to take the whole of the question of patronage, but could there not be some compromise so that on his first appointment, when he is most nervous and most needs the advice of his clerk, a judge should have the opportunity of patronage or nomination of patronage, provided that the circumstances were not so overwhelming that the Chancellor said that unemployed clerks must be used?
I am diffident about mentioning these things before my learned and more distinguished colleagues, but they cannot be balanced in the Treasury. These matters of association with judges are things on which a few hundred pounds might be ill-spent if they were merely saved for general taxation purposes. I imagine that the judge, when appointed, is in a strange position. His friends are often diffident about telling him of the mistakes he is making, and his colleagues perhaps are not very interested. There is probably in the whole world only one person who 1913 could do so—the man who saw him as a struggling junior, who remembers his mistakes when he was a promising "silk" and all his struggles, and who could go to him and say, "You are not doing so well in this case; you are putting your foot in it. That is not the way that Mr. Justice So-and-So used to behave." Perhaps he is the one man in the world who could speak in that way to that young judge on his first appointment.
If we take a civil servant, picked out of a pool, who probably served a man who hated him, does anybody think that he could give the young judge that assistance? Indeed, I know that the learned Attorney-General, with his great experience and great affection for the Bar, in his heart believes what we believe.
§ Mr. Bell
He believes, in fact, that there is only one man who is in a position to help that judge over those first few nervous years. If the Treasury has to pay a few extra pounds for that, it will really be paying for the administration of justice in the traditional English manner.
I hope that, when we come to the Committee stage, some of us may get together and at any rate give a little more security or relief for the newly-appointed judge in order that he shall not be denied his guide, philosopher and friend.
§ 9.52 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
The matter which arouses the widest interest in this debate is the effect the Bill will have upon judges' clerks, and the point whether, if it is necessary that they should be pensionable, they should be nominated by the Lord Chancellor out of a Civil Service panel. But there is one other matter to which I should like to refer.
The Bill provides for the appointment of secretaries for the Lord Chief Justice, the Master of the Rolls and the President of the Probate, Divorce and Admiralty Division, and its provision in that respect differs from the provision in the 1925 Act, in that it contemplates that the appointment will be whole-time. I appreciate that that necessity arises from the very laudable desire to make a secretary, 1914 who is, in fact, occupied whole-time, a pensionable officer. He seems to be employed as a Civil Servant, and, therefore, he gets his pension accordingly.
That is very fair, and I raise no objection to it, but it does mark another step in the process of the encroachment of the Civil Service, with Civil Service jargon, system, methods and bureaucratic conceptions, into fields which hitherto have been entirely free from them. I think it will be a great pity if that change passed without comment this evening in this House and without an expression of regret that it should be so.
I speak with feeling about this matter, because, if I may introduce a personal note, before the war I held the office of secretary to the then Lord Chief Justice, and I held it for five years. Of course, it was undoubtedly a very great honour and privilege for me, but it had none of the characteristics of a Civil Service appointment. Far from it. It was far from being whole-time, and I was free, while I held the appointment, to practise at the Bar, and, in fact, did so during that period.
I venture to think that the arrangements which existed then under the provisions of the 1925 Judicature Act was of a kind acceptable to the judges concerned. It was acceptable to them to have an association with the junior members of the Bar ready to take an opportunity that presented itself to help them in the hundred and one matters which arise for them to give such help. This Bill will put an end to that kind of appointment and association.
§ Mr. Irvine
I see the right hon. and learned Gentleman shaking his head. He may have in mind a provision in the Bill which provides that, with the consent of the Lord Chancellor, a barrister may be appointed to carry out the duties of these offices part-time. It is true that that provision occurs in the Bill, and it is valuable as far as it goes, but I very much fear that the upshot will be that little advantage will be taken of it.
I think that the whole nature of this thing is such that, once this is to be an appointment which can be whole-time and pensionable, it will be found, in 1915 practice, that it will be always treated as such, and that the people appointed will be whole-time persons who are pensionable, and, for all practical purposes, Civil Servants. I wished to make those observations about that part of the Bill because it has its interest. Undoubtedly, the matter of wider importance is that which has been dealt with by other right hon. and learned and hon. Gentlemen about the effect this has on the clerks. On that issue there is not very much left for me to add.
Undoubtedly it is true, and perhaps bears repetition, that when a member of the Bar was appointed a judge and took his clerk with him to the bench it was an arrangement that was of very wide importance and very great advantage indeed. It suited the judge; it suited the clerk, and a circumstance which deserves special emphasis is that it had great practical administrative advantage. It facilitated to a degree that was marked, although not readily measurable, much of the administration of the court, such as the determination of the timetable and the progress of the judge's business, because the barristers' clerks knew his clerk of old, and they knew his ways, and how he handled things.
Undoubtedly, that had great practical advantages, which will now be lost in spite of the concession that the members of the panel will be former barristers' clerks. That only goes half-way to meeting the point. Once again we are informed that this is to be arranged because it is felt desired to make the position of the judge's clerk pensionable. That is a laudable and proper motive, but we have not received, and are far from receiving, any satisfactory explanation why it should be so.
I share the objections which have been raised by my hon. Friends on that point. No explanation has been given. Judges are pensionable, and yet it is a sacred constitutional right that the one thing in this world that they are not is civil servants. If judges can be in receipt of pensions and yet cannot, above all things, be civil servants, one asks the question to which, with all possible respect, one expects an answer: what is the objection to judges' clerks being pensionable, and at the same time not upon any Civil Service establishment?
1916 It was put forward from the benches opposite that the judges appeared to have accepted the offer. I agree. That carries weight. It suggests undoubtedly to my mind that there is a formidable argument which must have gone a long way towards persuading them. But if that formidable argument exists, it is entirely open to the right hon. and learned Gentleman the Attorney-General to present it to the House, and one hopes that he will do so.
I should like to support the views which have been expressed on both sides of the House that this matter deserves reconsideration. If the difficulty is still insisted upon that judges' clerks to be pensionable must be deemed to be civil servants, then undoubtedly I should have thought that there is very great force in the proposal which has been made that judges on appointment should still continue to -take their clerks to be judges' clerks after appointment, and that the clerks should be at first supernumerary to the panel. The proposal was made by the Barristers' Clerks Association, and it is a good one, and I gather that by some mysterious actuarial calculation it is not expected that there will ever be a greater number of judges' clerks supernumerary to the panel than three. So the question of cost involved is not considerable.
§ Mr. Irvine
I am asked how I can say that, and I have some difficulty in answering it, but it has been worked out, though not by me. The argument has been met. Even so I do not at all base this argument upon any calculation of that kind, but I maintain that in the ordinary course of events the number of clerks supernumerary to the panel will not be large. That can be safely said.
Attempts have been made to make a calculation, but if there is difficulty in accepting such calculation there is no doubt that the number will not be large. Consequently the expense will not be great. I look forward in Committee to receiving a concession upon this point, and, so far as this evening's labours are concerned, we are still hopeful of hearing from the right hon. and learned Gentleman what is in the last analysis, the objection to judges' clerks being pensionable and at the same time not civil servants.
§ 10.4 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I think that the answer to the question posed by the right hon. and learned Member for Neepsend (Sir F. Soskice), the ton. Member for Edge Hill (Mr. A. J. Irvine) and others—that is to say, why should there be this connection between the abandonment of patronage and the right to a pension?—is surely this, and it was touched upon by my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens). So long as judges can appoint their own clerks, they may appoint them when they are relatively old and have not much time in the public service in which to earn their pension. As far as the Civil Service is concerned, as we have heard from these varying figures of 15 to 25 years, at least 10 or 15 years are considered necessary before a pension is earned.
§ Mr. W. R. Williams
Will the hon. Gentleman take it from me that the bulk of civil servants, in order to get their full pensions, have to serve 40 years and not 10, 15 or 25 years. I am a bit fed up listening to all this talk about 10 and 15 years.
§ Mr. Fletcher-Cooke
That may well be, but it makes me even more frightened, and I am obliged to the hon. Member for his intervention.
What I am afraid of is that under the new arrangements that have been come to, judges' clerks will be appointed much younger and retire at a much younger age. From the public interest point of view, that will be very bad. I am very glad we have with us tonight my right hon. and learned Friend the Minister of Labour, because he is constantly urging upon the country the necessity for keeping people in the sort of jobs which they can do when they are getting on in life, and of all the jobs one can think of, that of a judge's clerk is one of the most suitable.
Although great experience is necessary, and great knowledge of humanity, it is not a particularly arduous job physically. It is a job which many judges' clerks have gone on doing into their 70s and even their 80s quite satisfactorily. It is one of those tapering-off jobs, as they are sometimes called, which are normally so difficult to find and which happen to have arisen in practice in this sphere.
1918 I should be very much obliged to the Attorney-General if, when he replies, he could tell us whether the retiring age of civil servants, whatever it may be, is to apply for judges' clerks under the new dispensation, because if it is, that seems to me to be a very retrograde step. It will mean that they will have to be appointed much younger, when they ought to have gone on in the heat of the day, instead of going into this distinguished but not very arduous position of a judge's clerk. It means that 10 to 15 years of their more active service will be withdrawn and they will be, so to speak, put out to grass much too soon. That is one of the dangers of trying to fit a very special sort of employment into the national structure of the Civil Service.
I very much hope that my fears in this regard will prove to be groundless, because I speak here not so much from the professional point of view as from the point of view of the wider public interest. It is very important, even in small matters like this, that we should be constantly watching, as watchdogs, to see that people are not going to be compulsorily retired or that younger men are not put into jobs which have so satisfactorily been done by older men and ought to go on being done by older men if the policy of the Ministry of Labour is to mean anything more than mere exhortation.
§ 10.8 p.m.
§ Mr. Roderic Bowen (Cardigan)
What has tempted me to intervene in this debate has been the observations of my hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell). He dealt first of all with Clause 1, which relates to official referees. Unlike him, I welcome the provision of an improved scale for calculating their pensions. The fact that the group of people for whom these provisions are to apply might well be wider is no reason for not welcoming the granting of a measure of justice to official referees. It will be up to my hon. and learned Friend to continue to put forward the claims of those who will then be, to use his own phrase, the poor relations of our official referees, and in doing so he will have my support.
§ Mr. Philip Bell
I welcome the provision for the official referees, but I should like to see more benefit.
§ Mr. Bowen
I am glad that my hon. and learned Friend has made his position perfectly clear in that respect.
There is little I can usefully add to what has been said already on the Clause relating to judges' clerks. If the Attorney-General was in any doubt as to the sentiments held on that subject by Members of the Bar, I am sure he certainly is not now. Subject to the qualification in relation to pension rights, I should say that the present position of judges' clerks, both as to manner of appointment and subsequently, is generally satisfactory. Again, in contrast to the hon. and learned Member for Bolton, East, I am satisfied that among judges' clerks and barristers' clerks alike there is a feeling that the provision of a pensions scheme is long overdue. I believe that it would be creating an entirely false impression to suggest that there was not that strong feeling amongst both judges' clerks and others as to the need for adequate pension provisions.
The only doubt that arises is as to whether the price demanded for the granting of pension rights is one which has to be demanded at all. It is not a question of whether the price is too high. I think that the Attorney-General will be fully aware now that this House is far from satisfied at present that an adequate explanation has been supplied by him as to why this change in former appointment is required in order that pension rights may be granted.
If it is not possible to amend the position in Committee so as to provide that, apart from the pension, the position should remain substantially the same, as it is today, at least some safeguards should be introduced. Whether or not any substantial change is made in the provisions of Clause 2, I believe that if the sentiments expressed on both sides of the House are respected in practice, there is no reason why there should be any violent departure from the present position. Otherwise we shall do great harm to an office which plays an important part hi the administration of justice in this country and do great disservice to Her Majesty's judges, whom these clerks serve.
§ 10.13 p.m.
§ Mr. W. R. Williams (Droylsden)
As a completely non-legal man, I feel very hesitant about taking part in this very 1920 legalistic debate. I do not think that I have ever listened to a debate in which so many of the brighter luminaries of the Bar have taken part at the same time. Passing through my mind is the sincere hope that from now to the end of my days I do nothing wrong in law, because it seems that here I have not only my potential judges but my potential prosecutors.
I do not know for whom to be more sorry—the judges' clerks or the judges. I cannot make up my mind. Should I feel sorrier for the poor judge who, for the rest of his life, has to stick a clerk who knows all his weaknesses, who knows all his faults and all his misdemeanours, and to whom he is, in the words of the poet, a complete nonentity? Or should it be the clerk who has to stick "the old man" for the rest of his life?
It has not become clear to me yet for which of them to be the sorrier, but of one thing I am certain. There are certain things in this Bill which the bulk of civil servants would be very pleased indeed to get. There has been a good deal of talk tonight about conditions in the Civil Service. I have heard people talking about 15 or 20 years' service for the bulk of civil servants. That is just nonsense. The bulk of them have to go on for 40 years. I do not mind judges' clerks and others getting pensions. I am going to support the Bill, because I am in favour of people having the best possible pensions at the end of their service. I only wish that the Financial Secretary would go back to the Chancellor of the Exchequer and say that we want better pension provisions for postmen and others.
I am going to suggest, on the other hand, that if the Treasury have to pay some of these things, they are entitled to have certain safeguards in regard to their establishments. It really amuses and surprises me to hear hon. Members on both sides of the House talking about this question of establishment as if it did not matter at all. One of my hon. and learned Friends said we could have supernumeraries, but start talking about supernumeraries in the clerical and executive grades and everybody laughs.
The simple issue is that here a grade is to be built up to meet the rights to pension. There will be a certain number of people who will be entitled to be in 1921 that grade. If, because of the whims of judges, that number should be exceeded beyond the fixed establishment, what will happen? Having heard all that has been said tonight about the judges' clerks, it would seem to me that we could short—circuit the judicial structure and make the judges' clerks into the judges, and save a transaction, because they seem to know all there is to know and as much as the judges themselves.
We must have a sense of proportion in these things. As an old civil servant I ask myself why, if a lawyer can have his adviser and assistant with him always, a civil servant cannot take his clerk with him from one Department to another, or as he progresses in the Service. There is as good a case there as here. In the Civil Service there are grades, and if we can get a grading amongst the barristers' and judges' clerks of men who are extremely capable and able to advise and guide Her Majesty's judges, what right have we to refuse it in the Civil Service generally?
Some of my hon. and learned Friends have not wanted the judges' clerks to be referred to as civil servants, though personally I should be very proud to be called a civil servant, having regard to the traditions of the Civil Service. One of my hon. Friends said that their jargon is nonsensical.
§ Mr. A. J. Irvine
I should like to make it clear to my hon. Friend that I entirely agree with what he has just said, and when I referred to Civil Service jargon the last thing I desired was to be in the least degree disrespectful to the Civil Service, and if my hon. Friend dislikes my expression so much, I shall withdraw it. However, although it is true that we have the best Civil Service in the world, some of the expressions the civil servants use in their business are not always what some of us would always desire.
§ Mr. Williams
I accept my hon. Friend's apology unreservedly, but in fairness to the Civil Service I must say that some of the legal jargon not only in this House but in the courts baffles me absolutely. It not only baffles me but sometimes baffles juries and the Court of Appeal and even the House of Lords. So, perhaps, we are even.
§ Mr. Williams
Yes, but my hon. and learned Friends must not reflect on other people who earn their living in an honest way.
However, I think the Bill is a good step forward, as I think that the judges' clerks would agree. I have no objection to the masters' clerks coming in, too, if they give the same sort of service and are as indispensable.
In as far as the Bill deals with pensions, it is an extraordinary good Bill. I have never seen anything like it in the Civil Service or in the private sector of industry, and anybody who says anything to the contrary does not "know his onions." If it is a good Bill, we do not mind trying to improve it in Committee, but I could not listen in silence tonight to some of the comments made against the Bill.
My hon. and learned Friends and others have suggested that the Bill is unfair towards people. In my opinion, it is a good Bill for those people. With other hon. Members, I shall seek to improve it, within reason, in Committee, but I should have thought that the legal profession would at least have dealt with some of the very good points in that Bill. Not one of them—and this includes my hon. and learned Friends—has dealt with the good points. They have simply dwelt upon what they would like to get in the form of privilege for some old tradition in the legal profession which they are serving so well.
§ 10.22 p.m.
§ Mr. Graeme Finlay (Epping)
I should like to add to the chorus of welcome to the Bill, but I want to speak briefly about the position of Queen's Bench masters. While I unreservedly applaud the intention to improve the pensions rights of official referees, who are important judicial officers, I think there are heavy public grounds for saying that the masters of the Queen's Bench—I know little of the Chancery Division—should share in these benefits as well, because the public is looking for more economical and more rapid litigation, which is a very difficult thing to accomplish.
The Evershed Committee, after six years of ramification and exploration, has reached the conclusion that one of the 1923 best ways to achieve this is to have what it calls robust summons for directions which must be employed energetically by robust masters. If the masters look at this Supreme Court Officers (Pensions) Bill, they will quickly feel very sick and weak and will not be able to do their work well.
For those reasons, I want to underline what has been said in the debate. If the Evershed Report is to be seriously tackled by officers in the correct background, properly pensioned and properly paid, and these heavy duties accomplished and the law speeded up and made more economical, this matter will have to be attended to, and it is a great pity that it is not being attended to now.
§ 10.24 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
There have been, for a legal debate, a large number of speeches in a comparatively short time. I should very much like to identify myself with the speeches made by my right hon. and learned Friend the Member for Neepsend (Sir F. Soskice) and the right hon. and learned Member for Kensington, South (Sir P. Spens).
There are two parts of the Bill which call for particular attention, the first dealing with official referees and the second dealing with judges' clerks. Personally, I welcome most strongly the provisions made for official referees. I think they have an extremely arduous job, and I believe it is high time that the judicial functions which they perform should be recognised and dealt with in the way in which the Bill deals with them.
When I heard his speech, I regretted what the hon. and learned Member for Bolton, East (Mr. Philip Bell) said, because it seemed to me, as it seemed to the hon. and learned Member for Cardigan (Mr. Bowen) that he was hoping almost that the official referees would not be given the advantages of Clause 2 unless those advantages were also given to masters. I was very glad indeed that he corrected that false impression when he had an opportunity to do so. Of course, I hope that the masters will be given the same privilege, but I must disagree with the speech of the hon. Member for Epping (Mr. Finlay) and warn him that if there is a movement to give Queen's Bench masters a privilege which is not 1924 being given to Chancery masters, he is asking for trouble.
§ Mr. Scholefield Allen
When my hon. and learned Friend is talking about masters, both Queen's Bench masters and Chancery masters, there is this difficulty: in the provinces those offices are often held by solicitors, who are called registrars, who exercise the functions of masters. Is it proposed to include them?
§ Sir L. Ungoed-Thomas
That is an interest which my hon. and learned Friend perhaps has at heart. Of course, the Chancery masters are always chosen from the solicitors' profession and not from the Bar.
I come to the more controversial part of the Bill, which deals with judges' clerks. Like everyone else, I very much welcome the statement made by the Attorney—General, and his assurance that the judges' clerks would be chosen from among barristers' clerks. I am quite sure that all of us welcome that assurance. I am, however, a little concerned, as some other hon. Members were, about the possible limitations that may arise from that assurance. May I, therefore, ask the Attorney—General, as one of his Back Benchers did, whether there will be an age limit, first, on the time of appointment of these clerks, and, second, on their retirement age.
§ Sir L. Ungoed-Thomas
I am glad to hear that. Will the clerks who are to be appointed be appointed with a view to their possible expectation of life lasting beyond the period which would be necessary to qualify for a pension under the Civil Service arrangements?
I say quite frankly that I was not surprised to hear the observations made by my hon. Friend the Member for Droylsden (Mr. W. R. Williams) about some of the speeches which have been made in this debate. I personally—and I say so quite frankly and bluntly—have no sympathy whatever with the attitude that we are dealing here with a right of patronage, and that as an additional right of patronage it might be preserved. I have no use for that argument.
What does concern me about this is not that at all. It is the essential part that the personal relationship of judge 1925 and clerk plays in the administration of justice. It is not good enough, from the point of view of the efficient administration of justice, if the clerks from whom the judges' clerks are to be appointed are young clerks, secondary clerks in barristers' chambers, who have not the confidence of other clerks, and who have not had the long experience of the clerks who, in the past, have been appointed as judges' clerks; and who will not, therefore, fulfil the vitally useful personal function which judges' clerks do perform now in the administration of justice in the courts.
Therefore, I feel, much as I welcome the assurance given by the Attorney—General, a little doubtful as to whether or not it will ensure that the clerks who will be appointed as Judges' clerks are the senior clerks, who are the only clerks who have the confidence of the barristers' clerks at large and of the judges in particular to whom they are appointed.
Quite obviously, the barrister's clerk who has only been a barrister's clerk for three, four, five or six years cannot possibly have either the experience or the personal relationship of a judge's clerk of very much greater experience. This was brought out clearly in the speeches of the right hon. and learned Member for Kensington, South and the hon. and learned Member for Bolton, East. That, therefore, is really the crux of the matter. This is where I personally disagree most strongly, if I may say so with respect, with my hon. Friend the Member for Droylsden. He did a very valuable service to the debate in bringing forward the Civil Service point of view in approaching this problem, and it is a point of view with which I am personally in complete disagreement.
He rightly asked—and no doubt that is the Civil Service point of view—how can there be supernumeraries, and so on, when the problem is to have a grading which is decided with a view to pension rights? That, of course, is the whole gravamen of the charge which we make against this Bill. We are afraid that that is precisely what will happen, that the judges' clerks wil be chosen, not with a view to the personal relationship, ability and service which they can render because of their personal relationship with other barristers' clerks and judges, but because of their quite accidental quail- 1926 fication by reason of their juniority, if I may use the word, in age for grading for pension rights.
We say that the criterion for the efficient administration of justice in the courts of this country does not depend upon grading for pension rights, but upon the personal relationship of the clerks with the judges and with the other barristers' clerks.
§ Mr. W. R. Williams
The point I was putting was that if people are brought into a scheme, that creates grades. When that is done, there are a sufficient number of people in the grade or grades to do the work, no more and no less.
§ Sir L. Ungoed-Thomas
The speech of my hon. Friend impressed me very much, because it was very valuable to have a Civil Service point of view on this matter. I remember his words very well, and I am not sure that there is any difference between my interpretation of what he said and what he now says he said.
I wish to emphasise this personal relationship, not as a matter of patronage, with which I have absolutely no sympathy, but as a matter of an essential contribution to the working of our courts. Here, I think, we come to the very crux of the problem. I am deeply convinced, as I am sure is the Attorney-General, that the high reputation which this country enjoys for the administration of justice depends very largely—not entirely, but very largely—upon the fact that judges know barristers, that barristers know judges, that barristers can depend on their clerks, that barristers' clerks know judges' clerks and that everyone is thoroughly known and thoroughly assisted in the administration of justice.
That is one reason why I should be strongly opposed to a fusion of the two branches of the profession. I think that that personal relationship is a vital element in the administration of justice in this country; and I am afraid that this Bill, in so far as the value of the contribution made by judges' and barristers' clerks is concerned, will to some extent impinge upon that personal and valuable contribution upon which the administration of justice in this country is so largely based.
The matter can be dealt with in a different way. My right hon. and learned Friend the Member for Neepsend referred to pension rights and to the 1927 practical and essential requirement of having pensions, and I entirely agree with him. What we wish to impress upon the Attorney-General is this. Cannot some arrangement be made whereby these pension rights can be dealt with in rather an elastic way and be made subsidiary to this essential feature of preserving the personal nexus? That is the line on which I suggest we should investigate the proposal in the Bill.
It can be dealt with in different ways. It can be dealt with as my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine) suggested, by having supernumeraries, and three was suggested. Three supernumeraries is on the basis of experience of what has actually happened. They would not be out of occupation. They would be required for commissioners of assize, and also they could act when judges' clerks are ill, and on other occasions. They would not be unoccupied. That would be one way of dealing with the matter and maintaining a Civil Service structure for pensions.
Another method would be to have the judge's clerk appointed for the duration of the life of the judge, or so long as he remains on the Bench. He becomes a clerk to the judge when the judge is appointed, and if the judge retires and the clerk goes with him, his rights would be comparatively, or could be made comparatively, the same as the judge's rights on the basis of the 15-year scale or, if he retires earlier, on a comparatively reduced term. Another method would be to say that if it were found that when a judge retired and the clerk continued until another appointment is made because of a judge's clerk dying or retiring then the judge should have the right of selection.
Any of these schemes would help far more to preserve the personal nexus than the scheme brought forward by the Bill. We do not know what Civil Service scheme would apply to the judges' clerks under the Bill, or what the qualifying period would be, or how it would work. What we are concerned with here is the problem of reconciling any such modification as may be necessary in pension rights with the right of personal appointment. I do not want to press the Attorney-General to deal with this matter in detail now. I realise perfectly well that if he is to reply tonight in response to urgent pressure he 1928 will have to give a comparatively negative answer. We all know that perfectly well.
I do hope that he will look at this matter benignly. I do not want to pursue any crusade against the Treasury, nor do I want to deal with this matter in any hostile manner, but I appeal to the right hon. and learned Gentleman not to give a categorical answer tonight to the points put to him. He has made perfectly clear in his opening remarks what lies behind the Bill. What we do press for, and we are not pressing for it in any hostile manner, as I am sure the Attorney-General realises, is that, having heard the remarks in the debate and the almost complete unanimity of the observations from all sides of the House, he will consider those observations and see whether or not it is possible, by some modified scheme, to reconcile pension rights with the preservation of the personal nexus which is so vital to the workings of the profession. I would much rather he did that than that he should give any kind of categorical answer this evening.
§ 10.45 p.m.
§ The Attorney-General
If I may speak again, by leave of the House, I would observe that one or two hon. Members have rather complained that I did not give judgment when I moved the Second Reading of the Bill but I thought that it would be better and perhaps more courteous to the House if I listened to the arguments, partly because I might be more helpful to the House and partly because some of the arguments in debate have a way of cancelling each other out. It saves time if one does not have to deal with a matter.
I am sure that the House has been entertained to hear the varying styles of advocacy and the different way in which the same case can be put by different advocates. The hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) adopted the method of Boanerges in describing this Bill as an imposition on a deserving body of men. He said that it was done without the slightest notice, and he said it without mentioning that the correspondence to which he referred was dated June, 1951. He went so far as to say that there was danger that men would be appointed who would be personally uncongenial to the judges, because they 1929 would be appointed personally by the Lord Chancellor, who is not a judge. That seems to be one way of putting the case. I am not complaining about that.
I should like to thank the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) for the very moderate and helpful way in which he put the case. He said something with which we are all in agreement, and which had been said already by the hon. and learned Member for Cardigan (Mr. Bowen). I think that I should take up at once what the hon. and learned Member for Cardigan said because I entirely agree with it. He said that if we could be assured that as far as practicable the present spirit was to continue that would go a long way towards removing his anxieties.
I can certainly say that that is the intention and that there is no intention whatever of any such thing as taking advantage of the age of the clerk to save money, or anything of that kind. I should have thought that all hon. and learned Gentlemen who have spoken would have known my noble Friend sufficiently well not to suspect him of being a party to anything of that kind. I remind the House that under the terms of Clause 2 (3) it is the Lord Chancellor who is personally responsible for these appointments, and therefore I think that we must give him some credit for the way in which he will approach the matter and the way in which, in fact, he has already approached it.
After having said that, I should like to turn to the more practical side of the subject and remind the House for a moment of what is the situation. It is that, after the matter had been put forward by hon. Members in this House and representations had been made outside, it was carefully considered, first by the judges. I will not mention his name, but I do not think that one of my hon. Friends could have been very serious when he said, "Well it was only the judges who had clerks already appointed who said it. They were not thinking of anybody else." That is another example of the forensic way of putting the point.
The judges came up against the point of view which was put forward by the hon. Member for Droylsden (Mr. W. R. Williams) in a way with which I would 1930 not venture to compete or repeat, because he speaks from a great knowledge of the subject. The sort of considerations they had in mind are very clear after the brief but extremely cogent remarks of the hon. Gentleman.
One must remember, for example, that money will be provided out of public funds to pension a class of men who are normally far beyond the age of men who benefit from pensions schemes provided out of public funds. I have no right to speak for them, but it is clear that that was a point of great importance in the minds of the judges. Another point, or another way of putting it, is that the idea of appointment to the public service, by authorities not responsible to Parliament, of persons who are going to become pensionable at the public expense is something of which we ought to be very careful. I say that because I am sure that hon. Members agree that that is entirely out of accord with modern constitutional ideas.
To hear some hon. and learned Members who have spoken, one would think that judges' clerks were mentioned in the Act of Settlement and that one would have to have a Resolution passed by both Houses before one could remove them. I do ask hon. Members to have a sense of proportion, making all allowances for the fact that they are doing a very fine job for their clerks. The right hon. and learned Member for Kensington, South (Sir P. Spens) declined to say much about that, but I did observe, with some interest, that he said there were difficulties about it. He referred, for instance, to the question of age, and said that that would create difficulties; and he mentioned waiting lists, and remarked how some other employment might have to be found.
But he was supporting exactly what I have ventured to suggest to the House is the proper point of view. One cannot have cast-iron rules, but there can be a normal pension system, and one can have faith that the Lord Chancellor will be able to administer this scheme so as to preserve those features of the present system which we think ought, so far as is possible, to be preserved. So, I should like to accept the invitation—if I may say so, the wise and helpful invitation—of the hon. and learned Member for 1931 Leicester, North-East (Sir L. Ungoed-Thomas), who has just spoken and say that we shall certainly, when we come to the Committee stage, consider if it is at all possible, dealing with the actual working of the system in such a way that we shall preserve those desirable features. I cannot promise that we shall succeed, but we shall try.
What I cannot say is that we shall adopt a combination of two inconsistent things; appointment by individuals not subject to Parliament on the one hand, and on the other, of the application to those appointed of a Government pension scheme. That we cannot do. The only other point to which I would refer in this part of the Bill is that, from the views which have been expressed by some hon. Members, it almost appeared that the view was held in some quarters that there should be no pension scheme at all. That really is not a reasonable proposition.
In these days we really must provide for these judges' clerks. My hon. and learned Friend the Member for Bolton, East (Mr. Philip Bell) asked, in effect, how many of the clerks were destitute. We hope that there are very, very few. but unless we do something about the matter, there will certainly be cases where people will be very near the limit.
§ Mr. Philip Bell
I should not like it to go on the record that I have said anything to suggest that I am opposed to the question of pensions. I said there would be very few supernumaries and that, therefore, there would be no greater charge on the Exchequer if a new judge brought in a new clerk and there was no job for the existing clerk.
§ The Attorney-General
I am sure the hon. and learned Member has made his position quite clear. I would only say in that connection that we hope sincerely that in a large number of cases the position would work out in exactly the same way as it does now. That is what we want it to do.
I should like to mention briefly the other aspect, the question of the Queen's Bench masters. The hon. and learned Member for Cardigan put it very helpfully. He said that this controversy had been going on for some years, that the 1932 position of the official referees had been under consideration for quite a long time, and that the Government had managed to screw themselves up to the point of giving them this improvement in their position. Let us be thankful for that, and then let hon. and learned Members devote their admirable energies and eloquence, which, we know from this evening, they have available in large measure, to persuading the Government to give the Queen's Bench masters the same rights.
I certainly am not saying anything contrary to that, but I say this, and I hope it will not be considered flippant at this time of night. If we have succeeded in putting before the House and before hon. and learned Members a proposition which enables, at any rate, some of the judicial officers to be better off, had they not better be thankful for that and continue to hope for better things in the future?
It would not be wise for me to enter into further detailed arguments. I agree that there is nothing in the Bill with regard to the actual details of the scheme. I said with regard to the retiring age—I interrupted to point this out because I thought it would be helpful at that point—that there is no question of having any cast-iron retiring age. I certainly should decline to have anything to do with the operation of a scheme which took into account saving money rather than providing the best clerks and the best possible scheme.
The hon. and learned Member for Leicester, North-East was kind enough to acknowledge that I cannot give any undertaking, and I cannot give any undertaking beyond saying that if, when we reach the Committee stage, it is possible within the bounds of the Bill to frame any more concrete provisions as regards the actual terms of the pensions scheme and its operation, we shall have an open mind about it.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Sir C. Drewe.]
§ Committee upon Monday next.