Clause 9.—(CONSEQUENTIAL AMEND MENTS, ETC.) (Hansard, 3 December 1959)

§ Mr. Ross
I beg to move, in page 4, line 32, to leave out from "Court" to "subsection" in line 33.
Clause 9 (3) as it stands in the Bill reads: In relation to the person who holds the office of Chairman of the Scottish Land Court at the commencement of this Act, subsection (1) of section three of this Act shall have effect as if for the words 'one half' there were substituted the words 'nine-sixteenths'.
This is where the hon. Member for St. Ives (Mr. G. R. Howard), who is rather impatiently waiting for us to finish, should not be blaming us at all but the negligence of the Scottish Office, because on Second Reading I asked the question which I am about to ask again and I could not get an answer because there was no one here to give it. The Secretary of State for Scotland had made a fleeting intervention and then fled. I bet he wishes that he had done that yesterday, too. The Attorney-General was nowhere to be seen, and the Solicitor-General for Scotland was obviously keeping him company.
I asked the reasonable question why we should have the condition in the Clause that only to the present Chairman of the Scottish Land Court—and obviously from the wording this will not apply to anybody else after him—are the words "nine sixteenths" and not "one half" to apply. There may be a very simple explanation. I am perfectly sure there is, but if there is, someone ought to have been here to give it to us on Second Reading so that we should have been spared this inquiry.
The words … subsection (1) of section three of this Act… 1493 takes us way back to the First Schedule. We look at the First Schedule and we find that there is no mention of the gentleman we are talking about. Once again there must be a simple explanation but the Chairman of the Scottish Land Court is not mentioned in the First Schedule. Therefore, we come to ask once again pleadingly of the Solicitor-General for Scotland whether he will satisfy our curiosity and our desire for legislative purity and clarity and explain this in relation to Clause 9.

§ The Solicitor-General for Scotland
I will do my best to satisfy the hon. Member's desires and his curiosity.

§ Mr. Willis
We are all curious.

§ The Solicitor-General for Scotland
I know that the hon. Member for Edinburgh, East (Mr. Willis) is curious, but perhaps I am using the word in a sense different from that in which he is using it.
I do not think that the Amendment would have the effect which the hon. Member for Kilmarnock (Mr. Ross) thinks it would have, I would propose not to speak of what he thinks that it would do but to treat it on its merits, because I am sure that he would like me to do that.

§ Mr. Willis
rose—

§ The Solicitor-General for Scotland
Let me try to explain.

§ Mr. Willis
What does what the right hon. and learned Gentleman has just said mean?

§ The Solicitor-General for Scotland
I understood the hon. Member for Kilmarnock to have suggested that his Amendment was designed to give to future incumbents of the office of Chairman of the Scottish Land Court the option of the nine-sixteenths.

§ Mr. Ross
I did not say anything of the kind.

§ The Solicitor-General for Scotland
That was the deduction that I made from the slightly cagey set of remarks made by the hon. Member. If that is not the intended result of the Amendment, no doubt the hon. Member will say so, but I assumed that it was. As I understood, he complained that the present incum- 1494 bent received nine-sixteenths if he so opted and a future incumbent received only eight-sixteenths. I do not believe that the Amendment would achieve the object of giving future incumbents nine-sixteenths. I do not propose to go into that in detail because I prefer, and I think that the hon. Member and the Committee would prefer, that I should deal with the matter on the merits.
The position in regard to the chairman of the Scottish Land Court is that he held an office which started in 1911. Under the Act which created that office he then received a salary of £2,000 a year as compared with the salary then of an ordinary judge of the Court of Session of £3,600. It was laid down in the 1911 Act that he should rank in regard to pension under the same conditions—I think the words were "incidents and conditions" as judges of the Court of Session. Accordingly, he received three-quarters of £2,000 after the qualifying service, judges of the Court of Session receiving three-quarters of £3,600 equally after the qualifying service.
After 1911 and until 1954 the chairman of the Scottish Land Court received a number of increases in salary, bringing him up to the current rate of £4,100. That salary ranks wholly for pension whereas the ordinary judge of the Court of Session, who remained on £3,600 until 1954 when he received his increase—£3,000 in that year—got that increase on the basis that it did not count for pension purposes.
As hon. Members no doubt know, the three-quarters was reduced to the nine-sixteenths because of the widows' benefits and so on, but even with that, the result has been that the chairman of the Scottish Land Court is now entitled on qualification to a higher pension than a judge of the Court of Session—I can give the figures if anyone wants them. That is merely because his increases in salary have been all pensionable whereas the only increases which the judges of the Court of Session have had have not been pensionable.
In this Bill we are making the whole of the Court of Session judge's salary pensionable and, in fact, putting it back on the same basis as it was before 1954—

§ Mr. Ross
That was three-quarters.

§ The Solicitor-General for Scotland
No, it was three-quarters before 1950. The increase of £3,000 was given in 1954. What we are doing in this Bill is to get back to the traditional relationship in regard to pension rights between the Chairman of the Scottish Land Court and the judges of the Court of Session which operated between 1911 and 1950. It got out of gear only because the Scottish Land Court increases in salary were all pensionable whereas those for judges of the Court of Session were not, and the traditional, long-standing method is one-half of the pension. Shall I put it another way: the traditional, long-standing method is the same fraction of the salary.
It would be unfair to the present incumbent, who is entitled to the nine-sixteenths, to bring him down to the eight-sixteenths because that has arisen only through force of circumstances. It seems to me that to give a future Chairman of the Land Court a right to nine-sixteenths would be unfair and illogical when we look at the history of the relationship between the Scottish Land Court and the Court of Session since 1911.
Quite apart from that—and this is perhaps the point that I would take on the more technical question as to whether the Amendment achieves its object—Clause 3 (1), and in fact the whole of Clause 3, deals solely with the option for existing judges. If we were to give the option to a future Chairman of the Scottish Land Court to, as it were, exercise his Clause 3 (1) rights, we should be doing something contrary to the general principle of the Bill. Indeed, if we did it effectively, he would not be subject to an age limit because he could opt out of the provisions of Clauses 1 and 2 and opt out of the age limit.
I do not put that forward as a major argument, because I appreciate the motives of the hon. Member for Kilmarnock in moving the Amendment, and I have tried to answer him in the spirit in which he did so. I cannot, however, recommend the Committee to accept the Amendment.

§ Mr. Ross
I think we would all agree that, whatever the merits of my Amendment, it was very well worth while putting forward. Look at the fascinating knowledge that has been given—the side- 1496 lights on Scottish legal history and on the struggle between the Chairman of the Scottish Land Court and the rest of the judges for supremacy of position in relation to pensions, fractions and so on. I think that is very satisfactory indeed. I can assure the Solicitor-General for Scotland that I was under no misapprehension that the Amendment would be accepted. He should know well, after his limited experience of Scottish Grand Committee, that one sometimes puts down an Amendment not to achieve its purpose but to make the Government justify what they are doing.

§ The Solicitor-General for Scotland
That is why I dealt with the Amendment in the way I did and took no technical points.

§ Mr. Ross
The right hon. and learned Gentleman is quite right on that one. I thought that it was right to put down the Amendment so that at the first opportunity information could be given to people who read the Bill and who want to know why things are in it. Is there any reason why this information could not have been given when it was first asked for? I hope that in future the Scottish Law Office, and the Scottish Home Department, if it is at all interested, will at least supply someone who will be able to answer questions asked by hon. Members on both sides of the House.
The right hon. and learned Gentleman said that it would be unfair and illogical to continue with this fraction of nine-sixteenths in relation to the Chairman of the Scottish Land Court. Is he really honest about that? He said that we must get back to the original fraction, and he then said, "Not to the original fraction—we must see that they both have the same fraction". We have departed from it for quite a number of years, and it was not for very long—1911–1930—that we had it. He now says in the fair name of logic and justice, we must not have eight-sixteenths; we must have nine-sixteenths. After all the tortuous and interesting story that he has told us on all that has happened in relation to these pensions, I am not satisfied that logic is being served by departing from nine-sixteenths. I thank him, however, for his explanation which was quite clear and could be understood, but I still do not think that he is justified in view of what is actually happening to 1497 future Chairmen of the Scottish Land Court. I am still not satisfied about the logic of returning to the same fraction—the argument that each should have half of whatever was his salary in his final year by way of pension.
I am not going to withdraw the Amendment yet; I still hope to be convinced by the Solicitor-General for Scotland. I am sure that he has much more to tell us about the position of the Scottish Land Court. He has not explained for the benefit of Scottish Members why, when their attention is drawn to Clause 3, they find, having read ponderously through that Clause, that they are sent off to the First Schedule and then, when they read the First Schedule, they find no reference at all to the Chairman of the Scottish Land Court. Before I withdraw the Amendment the Solicitor-General for Scotland must at least explain, for the benefit of English Members if not for Scottish Members, why this gentleman is missing from the Schedule in which he is supposed to appear?

§ Mr. Willis
I am still unable to understand whether the Clause provides that the Chairman of the Land Court shall have an increase in pension or whether his pension is maintained at its present level. I hope that the Solicitor-General for Scotland will be able to tell us. If it is true that the present Chairman of the Land Court receives an increase in his pension, will the next Chairman receive a lower pension than the present one? That seems to be the effect of the Clause. If so, it would seem to be quite wrong. I wanted to bring this point out when I put my name to the Amendment which has been moved by my hon. Friend the Member for Kilmarnock (Mr. Ross). I am surprised at the Solicitor-General for Scotland permitting this injustice to Scotland. I do not notice English people allowing any of their pensions to be reduced. Why, then, should we allow a reduction to apply in the case of the Chairman of the Scottish Land Court?
The explanations given by the right hon. and learned Gentleman provide no reason why the pension of the next holder of tile office should be smaller than that of present one. He says, "We are trying to tidy up things so that the relationship between the pension of the Chairman of 1498 the Land Court and those of the judges will be the same as it was some years ago." But that is no reason for providing the next Chairman of the Land Court with a pension smaller than that of the present holder of that office. Is this a new policy of the Tory Government? Is their new programme to be based on a reduction of pensions? Is this what happens under the Clause? We should be told this before we part with it.

§ The Solicitor-General for Scotland
There are three points here. The first, I think, is a drafting point. I have been asked why the Chairman of the Land Court is not mentioned in the First Schedule. The answer is that he could have been mentioned, but when one mentions Senators of the College of Justice in Scotland for pension purposes, that automatically attracts, if I might use that word in technical sense, the Chairman of the Land Court by virtue of the provisions of the 1911 Act to which I referred earlier. He is given the status of a Senator of the College of Justice and the same pension rights. When one mentions the other judges, one brings him in too.
The other question asked was whether there is to be any increase in his pension under the Bill. The answer is no. By preserving his nine-sixteenths, we are keeping his pension on the present basis. If he came under the general principle of the Bill he would suffer a reduction. The reason is that his increases in salary carried pension rights, whereas the judges' increases in salary did not. That is why he has, as it were, got out of gear. We are not putting him back because that would be unfair, but his successor will be put into gear again, probably within the simple principle of the Bill, on what I call the 50 per cent. basis. That seems to be perfectly fair. The successor, unless he were successful in getting an increase in salary, would eventually get a smaller pension than the existing incumbent.

§ Mr. Willis
This is quite objectionable. Hon. Gentlemen opposite would have something to say if some members of the English legal profession were to suffer a loss in their pension. When it comes to a matter affecting the English Bar, hon. Gentlemen opposite are great chums together and there are no great reductions in pensions. We do not have 1499 any lawyers on this side of the House to look after Scottish lawyers and it is therefore left to a simple layman, who once had the privilege of representing a great number of them, to put forward our case.
It is wrong that the pension in respect of the Chairman of the Land Court is to be reduced. This is supposed to be a Bill to increase pensions, not to make them smaller. I am shocked at the Lord Advocate's Department allowing the Government to put this one over on it. What is wrong with the Department? I said some harsh words about it in the Scottish Grand Committee the other morning, and I am beginning to think that there was more truth in what I said than I thought there was at the time.
Surely, it is wrong that, as time passes, the pension of the Chairman of the Land Court will get smaller. This is being done by a Government that intended to double the standard of life in the next twenty-five years. One of the things that they are doing in the process of doubling the standard of life is to say that in this case the pension shall get smaller as time goes by. That is quite wrong. I should like to record my disappointment—nay, my dissent—because I cannot accept this as being fair to the next incumbent.

§ Mr. Ross
As I understand, the position is that between 1911, when the salary was £2,000 for the Chairman of the Land Court, and 1954 there have been various changes, the last rise in salary bringing the figure up to £4,100. I presume that when the change was made under the 1950 Act in relation to provision for widows and dependants the three-quarters in relation to the Chairman of the Land Court was reduced to nine-sixteenths. Therefore, as from 1950 there has been the nine-sixteenths, and from 1954 the Chairman of the Land Court, or anyone looking towards that office as successor to the present Chairman, could have expected a pension of nine-sixteenths of £4,100—

§ The Solicitor-General for Scotland
I should, perhaps, have given the figures in more detail. The sum was £2,000 in 1911, and is now £4,100, but up to July, 1951, the salary was only £2,200. In April, 1957, it was increased to £3,600. If the hon. Gentleman works it out he will see that anyone, even in 1957, who 1500 was thinking of becoming an ultimate incumbent of the office would be better of on the eight-sixteenths of £4,100 than on the nine-sixteenths of the then salary.

§ Mr. Ross
What my hon. Friend the Member for Edinburgh, East (Mr. Willis) has said is substantially true. Here we have a Bill which, the Explanatory and Financial Memorandum says, will apply in England, Scotland and Northern Ireland, and that is … (including increases in the pensions of retired judges) … Was it not worth mentioning that it was intended to reduce the pension of one of the future senators of the College of Justice when appointed to the Scottish Land Court? Was it not worth mentioning that while we think it right to give nine-sixteenths of the salary to the present Chairman the pension of the future incumbent will be reduced by one-sixteenth?
That takes a bit of swallowing, especially when it is put to us in the cause of justice and logic. Will the right hon. and learned Gentleman look again at this justice and logic? As I said earlier, I do not feel satisfied that justice and logic are being complied with when, of all those persons whose pensions are to be increased, a future incumbent is to have a reduced pension.
Will the Solicitor-General for Scotland have another look at this? I do not think that he is doing any great service to himself or to the Government, and certainly not to Scotland. Can we be assured of a further word from him on this on Report? I must press the Government on this matter. What pension will the present Chairman of the Land Court get, and what will be the pension to which his successor will be entitled?

§ The Solicitor-General for Scotland
I have worked out the actual difference, which is, presumably, the figure that the hon. Gentleman seeks, and it works out at £256 5s. per annum.

§ Mr. Willis
I hope that after my hon. Friend's very eloquent plea the hon. and learned Gentleman will look at this again. Surely he will not tolerate the reduction in status of this individual in a Bill that is supposed to give these people better pensions. It does not require a great deal of strain for him to say that he will look at the matter again.

§ The Solicitor-General for Scotland
As the hon. Gentleman knows, I am always prepared to look at anything—and sometimes, I do a great deal of looking at rather curious things. But I understand that the Report stage is being taken tonight.

§ Mr. Willis
We can always put in a manuscript Amendment on Report if that stage is to be taken tonight. If the right hon. and learned Gentleman handed in a manuscript Amendment to the Chair on behalf of the Government, it would be accepted. If he does not care to put in a manuscript Amendment to the Chair, will he consider accepting my hon. Friend's Amendment?

§ Mr. Willis
Will the right hon. and learned Gentleman consider amending this in the House of Lords? He should not be frightened of all his English colleagues sitting behind him and of the Treasury over a mere £256. It is a most cowardly attitude on the part of the Government or the Scottish Office to say that they will accept that in this case the pension is to be reduced. It cannot be fair now to start considering reducing pensions.

§ Mr. Ross
We have been generous. With scarcely a word, certainly without an angry word, we have let the Lord Chancellor have his pension increased from £3,500 to £5,000. The Lord Chancellor caused considerable offence to us as members of the Labour Party not so long ago.
The Chairman of the Land Court is dedicated to the service of Scotland. I hope that the Leader of the Liberal Party will speak about this, because there was a time when the land was dear to the Liberal Party. The history of this post is very interesting. I do not desire to try the patience of hon. Members opposite, but I should be very happy to explain to the Solicitor-General for Scotland why the post was created in 1911. Is it not very silly that in a Bill which is proclaimed for a specific purpose the Government go out of their way to say that they do not like nine-sixteenths and that everything will look beautiful if it is one-half?

§ Mr. Willis
Down with uniformity.

§ Mr. Ross
The Government say that there will be no injustice to a man who is serving Scotland well, because they are preserving the nine-sixteenths pension for the present incumbent. If the Government had reduced the pension for this man, they would have been denying him justice. Why do the Government go out of their way in the subsection to ensure that only the present incumbent will be covered by the nine-sixteenths and thus saved from a reduction in pension? The necessity for uniformity will involve the next incumbent in a reduction of £256.

§ Mr. Willis
And 5s.

§ Mr. Ross
I do not bother with 5s., but it has come to that with this Government.
I appeal to the Solicitor-General for England, who must be getting worried about whether he will get his Bill and reach Report stage tonight. Will he give this matter more thought? He has plenty of opportunity to do it in another place. If he promises to do so, we will be glad to let him have the Clause.

§ Mr. Willis
Surely we are to be given some answer by the right hon. and learned Gentleman. I can see that the hon. Member for Edinburgh, South (Mr. Clark Hutchison) is dying to make a speech. If he does, he will probably convince the right hon. and learned Gentleman that something should be done. Although the Solicitor-General for Scotland has considered this, I do not think that he has done so in a mature fashion. He has not followed all the details. The hon. Member for Edinburgh, South, who always likes to see fair play and justice done, will not tolerate a position in which the pension of future Chairmen of the Land Court is to be reduced. I do not think that he understood the position, and I am sure he would like to say something about it. Will not the hon. and learned Gentleman give us a better answer?

§ The Solicitor-General
I do not like to intervene in a debate which concerns a Scottish office, but as hon. Members opposite made a specific appeal to me, as the Minister in charge of the Bill, I think that it is right to say this. I 1503 do not feel justified in saying that we can reconsider this matter, because it might mislead the Committee into thinking that we regarded it as an open point. I think that it would be much more candid with the Committee to say that this is a matter to which we gave consideration in drafting the Bill. I think, therefore, that it would be wrong of me even to be as forthcoming as hon. Members have asked me to be.

Hon. Members
Divide.

§ Mr. Ross
I will tell hon. Members why I do not propose to divide the Committee. It is for the simple reason that the Amendment would not affect the matter which we have been pursuing in the last few minutes. In view of that, while thanking the Solicitor-General for his belated explanation, making clear to the people of Scotland the Government's intentions, I beg to ask leave to withdraw the Amendment.