Clause 3.—(OPTION FOR EXISTING JUDGES.) (Hansard, 3 December 1959)

§ Mr. Ross

I beg to move, in page 2, line 8, to leave out from "him" to the end of line 11.

There were some questions asked about this matter during the Second Reading debate and it was then that the Solicitor-General fell from grace. I wonder whether, in a mood of penance, he read that speech? The hon. and learned Gentleman tried to explain what was meant by the words and in default of such an election". I have always looked upon the Solicitor-General as the perfect model of a Minister but I am not so sure after what happened that night. I can assure the hon. and learned Gentleman, as I am sure he realises, that he got into such a muddle then that he could not get out of it. It is true that his reputation has recovered a little today, but it seemed 1469 after that performance to have been built on good Departmental briefs rather than on his own ability to put a case across. The hon. and learned Gentleman is usually lucid as well as being courteous. It is true that he did not lose his courtesy the other night; in fact, he almost reached the point when we might co-opt him on to the Scottish Grand Committee.

This Amendment has been put down to give the Solicitor-General another chance to explain what is meant by the second part of Clause 3 (1). I notice that he has two Amendments down to it, so he probably realises that the subsection requires a certain amount of clarification. The subsection begins: The foregoing provisions of this Act shall not apply to any person who holds an office listed in the First Schedule … To the layman the words "The foregoing provisions" would appear to mean Clauses 1 and 2. Clause 1 raises the pension to half the salary. Clause 2 deals with the compulsory retiring age, which is 75. So, if a person elects not to have his pension calculated in relation to these things, one would have thought that these things would not apply to him that is to say, Clause 1 as well as Clause 2. The Committee will remember that the Bill applies to judges holding office at present and they are given this option. If I am right, such a judge can exercise his option and say, "I do not want Clauses 1 or 2 to apply to me". But the subsection continues: … and in default of such an election the annual amount of the pension which may be granted to him … shall in any case be one-half of his last annual salary.

If that is true, does it not make nonsense of the first words? Does it really mean Clauses 1 and 2 or does it mean subsections (1) and (2) of Clause 2? I hope we shall get a satisfactory explanation from the Solicitor-General tonight. I am sure his hon. and learned Friend the Member for Warwick and Leamington (Mr. Hobson), who was worried over this point, was not satisfied by the explanation given last week. Certainly I was not satisfied, so here is the Solicitor-General's chance to recover his reputation in the eyes of the Scots. The Scots are good judges of lawyers. Hitherto, we have held the hon. and learned Gentleman in high repute. Here is his 1470 chance to recover his reputation by convincing us not only of the clarity, but of the justice of this provision.

§ The Solicitor-General

I have an uneasy feeling that the hon. Gentleman's strictures are justified. Last week, I thought that my hon. and learned Friend the Member for Warwick and Learning-ton (Mr. Hobson) was advancing against this Clause the objection which I indicated when I moved the first of a series of Amendments this evening. It was that point, as I am sure the Committee realises, that I was answering then. Having read the OFFICIAL REPORT, I appreciate that the point my hon. and learned Friend was then making was the one made by this Amendment, and I owe an apology to the Committee for that mistake.

I need not clarify the point I was trying to make, which arose out of a misunderstanding of what my hon. and learned Friend was urging in his intervention, because I dealt with that point in moving the first Amendment this evening. Perhaps, however, I could answer the hon. Gentleman the Member for Kilmarnock (Mr. Ross) as to the relation of the second limb of the Clause with the first. The words The foregoing provisions of this Act apply, as he indicates, to Clauses 1 and 2. That means that they shall not apply to a judge who is serving at the moment, unless he elects that they shall apply. If he elects that they shall apply to him, then he attracts the whole of the provisions of Clauses 1 and 2: not only Clause 1 (2)—a pension of one-half of the annual salary after fifteen years—but also the provisions of Clause 1 (3) where the period of relevant service is less than fifteen years, and the provision of Clause 2 (1) of a retiring age of 75 and subsection (2) of that Clause whereby he can retire prematurely at 70 and get his graduated pension.

8.0 p.m.

All those provisions are attracted to a judge who elects to contract in under the first limb of Clause 3 (1). If he does not elect to contract in and attract those provisions to himself, the second limb, as we have sought to amend it, will read in this way: and in default of such an election the annual amount of the pension which may be granted 1471 under the relevant pension enactment to any such person who retires when qualified for such a pension shall be one half of his last annual salary. I hope that form of words is plainer than the form of words in the Bill as drafted, which I tried to explain on Second Reading.

The effect is that a judge who does not elect to attract to himself all the provisions of Clauses 1 and 2 will then attract to himself only the provision for a pension of one-half of his last annual salary. He will not be subject to a retiring age. He will not be able to retire at 70 and claim a graduated pension.

The hon. Gentleman asked me not only to explain the meaning of the Clause, which I hope I have succeeded in doing this time, but also the justice of it. The justice of it is this. There has been a long established principle that in amending legislation one should respect the legitimate expectations of people who are at present in office when there is a change in the conditions of service. It would be very unfair and a grave departure from that principle if we now said that a judge, unless he contracted into the foregoing provisions of the Bill, which are new provisions, and particularly the retiring age of 75, should have to forgo any increase in pension. It would be also contrary, I think, to the public interest in that it would be an inducement to judges not to retire, even though they had reached the point when the mental and physical faculties were starting to go. So, on general justice and on grounds of public expedience, it seems to me that that is a salutory and proper provision.