§ 8.15 p.m.
§ Mr. Clinton DavisI beg to move Amendment No. 12, in page 14, line 24, leave out from 'by' to end of line 25 and insert 'Parliament'.
Mr. Deputy SpeakerIt will be convenient at the same time to discuss Amendments No. 13, in page 15, line 5, leave out from 'as' to end of line 16 and insert 'Parliament may'; No. 14, in Clause 19, page 15, line 9, leave out 'the Minister for the Civil Service' and insert 'Parliament'; No. 16, in page 16, line 542 25, leave out subsection (7); No. 46, in Schedule 2, page 44, line 25, leave out 'with the consent of the Minister for the Civil Service' and insert
'subject to the prior consent of Parliament';No. 47, in page 45, line 18, after 'Lord Chancellor', insert 'subject to the prior consent of Parliament'; and No. 50, in page 45, line 46, leave out 'consent of the Minister for the Civil Service' and insert 'prior consent of Parliament'.
§ Mr. DavisClause 18 is a bare-faced attempt to remove from the scrutiny of Parliament the question of the salaries of circuit judges. It was conceded in Committee that this was a departure in the law and that hitherto the salaries of high court and county court judges had been determined by an order subject to affirmative Resolution. What is the reason for this new proposal?
In Committee, I thought that the ingenuity of the Government and of the proponents of this proposal was taxed in the extreme in adducing valid reasons for the change. Most of all, it is designed to hide from the terror which has so frequently struck lawyers in this House when confronted with my hon. Friend the Member for West Ham, North (Mr. Arthur Lewis).
I would like to go through some of the reasons which were adduced in Committee and examine their validity. The Minister said, first of all, that there was never a right time to increase judges' salaries in the view of some hon. Members. But, although it is quite right that this matter has been debated from time to time, the fact remains that, whatever objections have been raised, the judges have always enjoyed the increases which have been proposed. At no time am I aware of any denial of those increases. Consequently, that argument has no validity.
Second, the Minister said that, in practice, the salaries of county court judges are linked with those of senior civil servants, which are not subject to Parliamentary scrutiny. But the method of determining circuit court judges' salaries is quite different from that of determining the salaries of senior civil servants. The proposal is that the Lord Chancellor and the Minister for the Civil Service shall have absolute discretion. So no link has been established between the two prin- 543 ciples, and none is intended, as the Minister said in Committee. So that argument does not seem to hold water either.
The third argument was that the judges should be independent of the Legislature. Has the fact that this House has always had the right to comment upon increases in judges' salaries ever affected the independence of the judges? In any event, the present proposal seeks to transfer the right to determine the remuneration of the judges to the Executive, so that they would not be independent, according to this argument, in any event. This could not possibly be an improvement upon the present situation.
Of course, the crux of the whole matter comes in the arguments which were then adduced, that this House has witnessed unseemly debate about the increases in judges' salaries. This proposal is in-tended to avoid that. Indeed, it is intended to avoid any debate. That represents the guts of the objection. It was suggested in Committee that we might be able to debate the matter on the Consolidated Fund Bill, but that is not so, and the Minister said that it was not so.
It is true that one would be able to debate this issue, if one were successful in the Ballot, on an Adjournment debate, but I scarcely think that that is very satisfactory. Very few people can intervene in most Adjournment debates.
The third possibility of questioning the subject of increases in judges' salaries would arise at Question Time. However, I suggest that that is not the best time at which to debate complex matters and that it does not give effective opportunities to Members of Parliament to question these matters.
Why should M.P.s be denied the opportunity of pointing to disparities between proposed increases for the judges, which can sometimes be substantial indeed, and the inadequate proposals, if any, for pensioners and others. Why should the House be denied the opportunity of commenting on the timing and scale of the increases? Sometimes comparison between the increases is grotesque and a totally different set of standards is applied. This is what I find objectionable in the Clause as drafted.
Why should the Government be so sensitive about debating judges' salaries? 544 To deny Parliament this right is to lend sustenance to the arguments of those hon. Members of the House who allege that lawyers are afraid to debate these issues. I do not believe that lawyers are afraid to debate them. It would be a sad reflection on lawyer Members of this House if that were the case. It is true that on some occasions in the past when debating judges' salaries some Members of Parliament have taken the opportunity to defame the legal profession. That is a matter to be deprecated, but it is totally irrelevant to the basic argument.
If hon. Members of the House wish to criticise any profession and it is germane to the debate, I do not see why they should be disfranchised from so doing. They have a right to say freely and fairly what they want to say about a profession. I believe that the legal profession is sufficiently well represented in this House—
§ Mr. Gerald Kaufman (Manchester, Ardwick)It is over-represented.
§ Mr. DavisMy hon. Friend says that the profession is over-represented in this House, but I cannot believe that that is right. However, the lawyers can well take care of themselves, and the legal profession and the judiciary no doubt will survive any such attacks. However, the attacks which may occur because of this attempt to prevent Parliament from debating these issues will be infinitely more damaging to the legal profession and, indeed, to Parliament, because both will be very much more vulnerable to attack.
The Clause suggests that circuit judges should be treated differently from High Court judges, because at present Parliament will still have the right to discuss any increases proposed by order in the salaries of High Court judges. This is a first step towards changing the system. This was an inference which we were entitled to draw from the comments made by the Under-Secretary of State. More might be said for this proposal if civil servants, judges, Members of Parliament, and, indeed, all servants of the State were to be treated in a similar manner. But that is not the case. It is not right that a piecemeal change should be introduced in this way into legislation. I have doubts whether it is right for these 545 other servants to be outside parliamentary scrutiny. Therefore, I feel that the Clause as it stands contains little merit.
I have great admiration for the British judiciary, which is an example in the Western world. We have a judiciary of which we can be proud. It is also right that those who attain high office in the judiciary should obtain salaries commensurate with their substantial responsibilities. It is also true, particularly among the higher echelons of the judiciary, that when appointed they have to give up substantial remuneration at the Bar. Indeed, we may now find that solicitors will have to give up substantial remuneration on being appointed to recorderships or to circuit judgeships.
There is much more to a judicial appointment than the salary. It is the attainment of the pinnacle of the legal profession; it offers important status and also imposes immense responsibility. But this is no reason why Parliament should be denied the opportunity to examine the orders which hitherto have been laid before Parliament in determining whether an increase should be granted, whether it is appropriate at any given time, and whether the political circumstances which are then current are such as to grant to one section of the community increases which are out of proportion to increases granted to other deserving people in our society. The Clause is dangerous since it seeks to deny to Parliament the right to examine and scrutinise matters which hitherto Parliament has carried out properly and fairly.
§ Mr. KaufmanI am sorry that I have to disagree with my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis) when he says that this provision which we seek to amend is "bare-faced". I differ from him entirely since I regard it as a sly little provision, which would have slipped through the House of Commons if it had not been for the vigilance of my hon. Friend and also of my hon. Friend the Member for Bradford, East (Mr. Edward Lyons).
The Under-Secretary of State in Committee admitted, in column 257, that Clause 18 introduces a departure in the law. He also admitted, in column 260, that the determination of salaries may in future be made "without parliamentary 546 approval". In seeking to justify this change in the law, he enunciated the extraordinary doctrine
Salaries of public servants are … better kept … away from parliamentary scrutiny, where that is possible."—[OFFICIAL REPORT, Standing Committee A, 16th February, 1971; c. 268.]We are to be allowed to authorise the payment of these salaries and any increases, but we are not to be allowed to scrutinise what these increases should be since apparently this is regarded as a somewhat tasteless exercise.What scrutiny would there be if this provision and the consequential provisions in Clause 19 and Schedule 2 were allowed to go through unamended? My hon. Friend has demolished the argument that it could be raised on the Consolidated Fund Bill, and he has also demolished the argument that it would be any use raising it on the Adjournment: one hon. Member speaking for a quarter of an hour, replied to by a Minister speaking for a quarter of an hour, and perhaps someone else getting in for a couple of minutes. He mentioned the unsatisfactory nature of the Parliamentary Question procedure: a few seconds of give-and-take, if one is lucky to get in an Oral Question, and under the proposals of the Lord President which we shall debate later this evening, getting in a supplementary question to one's own Question will be even more difficult than it now is.
8.30 p.m.
Yet we have here the only kind of scrutiny which would be available if the Bill went through unamended. Concentrated scrutiny of an Order requiring parliamentary assent is to be ruled out. But why should the salaries of circuit judges be kept from parliamentary or any other form of public scrutiny? The Under-Secretary spoke in Standing Committee about the undesirability of the salaries of public servants—his phrase—undergoing public scrutiny, but at this very moment the salaries of a whole group of public servants, the postmen, are having to undergo public scrutiny before a committee of settlement—not just a comfortable little fix between the postmen, the Minister of Posts and Telecommunications and the civil servants. The judges will have a little fix between themselves and the Lord Chancellor and 547 the civil servants, but these lower-paid public servants must have a committee of settlement.
Another group of public servants, the electricity workers, had to justify themselves very painfully before the Wilberforce court of inquiry. Another group of public servants—the Under-Secretary's phrase—who are anxious for and, in my view, highly deserving of a pay increase are the teachers, but the teachers have to justify themselves before Burnham.
Clause 19 and Schedule 2 deal with pensions. What about ordinary pensioners—not judges retiring on superannuation, but retirement pensioners? They have to await, not a little fix, not even an Order, as the judges have at the moment and as the High Court judges will still have—but a Bill to be passed through both Houses of Parliament with full debate, and which will mean their waiting six months before getting their increase.
The retirement pensioners in my constituency would be delighted if the meagre £1 they are to be given in six months' time could be fixed quietly and quickly, at a stroke, between the National Association of Old-aged Pensioners in Great Britain and the Secretary of State for Social Services. That would please them very much, indeed. Instead, they have to wait for six months, by which time the £1 they will get will have had more than three-quarters of its purchasing power eaten away, according to an Answer I got from the Chancellor of the Exchequer today that, at the present rate, the value would be down to 23½ pence.
We can compare my pensioners with one Lancastrian, the Vice-Chancellor of the County Palatine of Lancaster, whose pension is dealt with in Schedule 2. He gets his pension increase at a stroke, because, although the pension is determined by a scale, that scale is linked with a salary increase which is decided quietly and peacefully behind the scenes between Ministers and the judges, with no argument at all.
That salary increase determines the pension of the Vice-Chancellor of the County Palatine and the circuit judges, who get what my retirement pensioners do not get, which is a genuine earnings-related pension with the earnings relation laid down in the Bill. But that is not to 548 happen to these people, who deserve a great deal more: it will happen to these judges and others who will get, not fifty measly pounds a year, eaten down to 13s. by the inflation which the party opposite has brought about. These people are getting an increase of £2,100 fixed up nicely and, in future, the Minister will not have to justify that £2,100—or more—to the House. He will just do it.
In the Standing Committee, the Under-Secretary said:
… we must try to ensure that judicial salaries keep pace with the salaries of people holding other important offices."—[OFFICIAL REPORT, Standing Committee A, 16th February. 1971; c. 258.]That is a nice, calm, humane viewpoint, but this is exactly the argument that two other groups of public servants—to use the Under-Secretary's phrase—are using at the moment. The postmen and the railwaymen are saying that if the men from Ford's get 32 per cent. increase over two years, they are entitled to it, and not to the much smaller increase which the Government grudgingly offer them. The Secretary of State for Employment has got into a great tantrum with the C.B.I., saying that other people must not follow, yet the Under-Secretary hives off—because the Government like hiving-off—the judges from this refusal to compare, and says that other people in important offices who get large increases must not leave the judges lagging behind.What matters to the Government is not whether one is a public servant—because postmen and railwaymen are public servants—but whether one is an expensive public servant on the old boy network or the club network. There is no doubt that the previous procedure, which the Government are attempting to eradicate, is an embarrassment to them. That was shown by the debate which we had in December on the two Statutory Instruments. The Government are now shiftily trying to rid themselves of this embarrassment, and the House ought not to allow them to do so.
§ The Attorney-GeneralThis series of linked Amendments seeks to impose parliamentary control in two respects, on allowances and pensions of judges, and to retain it in respect of pay. They seek to amend a Clause in the Bill, which was presented some time ago and which has been debated on Second Reading and in Committee, and which any hon. Gentle- 549 man who wishes to contribute to the debate obviously must have read and studied.
I refer first to the two other linked Amendments which we are discussing, namely, Amendments No. 13 and No. 14, because they deal with allowances and pensions, before I return to the master Amendment No. 12. Amendment No. 13 deals with the allowances which are to be paid to circuit judges. This would be an innovation. It would mean that there would be parliamentary control over what allowances should be given to a circuit judge for his subsistence, or what expenses should be paid as he travels from court to court by car. Amendment No. 14 deals with pensions. At present there is no parliamentary control over pensions, but a simple mathematical formula is set out in Clause 19(2).
The master Amendment No. 12 deals with pay, and here the Government, as is categorically set out in the Clause, have taken the opportunity to put all of these judges, some of whose salaries are already fixed administratively, in the same position as the equivalent judges in Scotland have been since 1907. The Scottish judges of equivalent rank could not be considered to be less independent or more dependent than the English judges. It is to put them in the same position as other public servants, such as the chairmen of nationalised industries, senior officers of the Services and senior civil servants, and to put those persons who work and serve in a public sector where there is no negotiating machinery into the same category and under the same conditions, subject to a review body.
At present, the salaries of the official referees, the City Judges, the chairmen of quarter sessions and deputy chairmen of quarter sessions are all fixed administratively. We are seeking to put all the circuit judges into the same position. By so doing we shall not in any way affect their independence, and may, I suggest,
§ preserve their independence the better for not having to rely upon Government initiative to deal with salaries or control them by under-paying. That is a mere debating point which at this stage I shall not go into much further.
§ But there are certain unfairnesses in the present position about pay. There is the inability to back-date it, and the delay which is sometimes imposed—when, perhaps, salaries ought to have been increased—through the parliamentary timetable. So it has been a categorical decision, as set out in the Bill, that these judges will have their salaries dealt with by the Lord Chancellor, with the consent of the Minister for the Civil Service.
§ As has been pointed out by the Leader of the House, and as, indeed, there will be a statement made by my right hon. Friend the Prime Minister tomorrow, they will come within the purview of the Review Body, whose report will be published in the normal way. The Review Body will be advisory to the Government. Its findings will not be binding, admittedly, on the Lord Chancellor, but advisory. It may be that the Review Body will advise that there should be a link between this category of judge and, perhaps, the Civil Service, or whatever it may be. That Review Body will frame the recommendations made to the Lord Chancellor. The recommendations will not be binding upon him but he will at least take them into account when settling the salaries. Clause 18 sets out a categorical decision which has been taken, and I recommend the House to reject the Amendment.
§ Mr. Clinton DavisBefore the right hon. Gentleman sits down—
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)Order. Does the right hon. Gentleman give way?
§ The Attorney-GeneralI have finished.
§ Question put, That the Amendment he made:—
§ The House divided: Ayes 15, Noes 79.
551| Division No. 340.] | AYES | [8.41 p.m. |
| Bidwell, Sydney | Garrett, W. E. | Lawson, George |
| Booth, Albert | Grant, George (Morpeth) | McNamara, J. Kevin |
| Clark, David (Colne Valley) | Hamilton, William (Fife, W.) | Wilson, William (Coventry, S.) |
| Cohen, Stanley | Heffer, Eric S. | |
| Doig, Peter | John, Brynmor | TELLERS FOR THE AYES: |
| Driberg, Tom | Kerr, Russell | Mr. Clinton Davis and |
| Mr. Gerald Kaufman | ||
| NOES | ||
| Benyon, W. | Hannam, John (Exeter) | Pounder, Rafton |
| Boardman, Tom (Leicester, S.W.) | Harrison, Col. Sir Harwood (Eye) | Pym, Rt. Hn. Francis |
| Boscawen, Robert | Heseltine, Michael | Ramsden, Rt. Hn. James |
| Bowden, Andrew | Hicks, Robert | Rawlinson, Rt. Hn. Sir Peter |
| Boyd-Carpenter, Rt. Hn. John | Hilt, John E. B. (Norfolk, S.) | Reed, Laurance (Bolton, E.) |
| Bray, Ronald | Holt, Miss Mary | Rees, Peter (Dover) |
| Butler, Adam (Bosworth) | Hordern, Peter | Rees-Davies, W. R. |
| Carlisle, Mark | Hornsby-Smith, Rt. Hn. Dame Patricia | Renton, Rt. Hn. Sir David |
| Cary, Sir Robert | Howell, David (Guildford) | Roberts, Wyn (Conway) |
| Chapman, Sydney | James, David | Rodgers, Sir John (Sevenoaks) |
| Churchill, W. S. | Kaberry, Sir Donald | Russell, Sir Ronald |
| Clegg, Walter | Kinsey, J. R. | Shelton, William (Clapham) |
| Coombs, Derek | Knox, David | Spence, John |
| Cormack, Patrick | Longden, Gilbert | Stanbrook, Ivor |
| Crowder, F. P. | MacArthur, Ian | Stuttaford, Dr. Tom |
| Curran, Charles | McNair-Wilson, Michael | Turton, Rt. Hn. R. H. |
| Dodds-Parker, Douglas | Mather, Carol | van Straubenzee, W. R. |
| Edwards, Nicholas (Pembroke) | Meyer, Sir Anthony | Waddington, David |
| Fenner, Mrs. Peggy | Moate, Roger | Walder, David (Clitheroe) |
| Fowler, Norman | Molyneaux, James | Ward, Dame Irene |
| Fox, Marcus | Monks, Mrs. Connie | Whitelaw, Rt. Hn. William |
| Gower, Raymond | Morrison, Charles (Devizes) | Wiggin, Jerry |
| Grant, Anthony (Harrow, C.) | Mudd, David | Worsley, Marcus |
| Green, Alan | Onslow, Cranley | |
| Gummer, Selwyn | Osborn, John | TELLERS FOR THE NOES: |
| Hall, Miss Joan (Keighley) | Owen, Idris (Stockport, N.) | Mr. Bernard Weatherill and |
| Hall-Davis, A. G. F. | Page, Graham (Crosby) | Mr. Keith Speed. |
| Hamilton, Michael (Salisbury) | Percival, Ian |