SUPREME COURT OFFICERS (PENSIONS) BILL (Hansard, 3 June 1954)

§ THE LORD CHANCELLOR
My Lords, this Bill is as uncontroversial as the last, particularly inasmuch as, in large part, it owes its origin to the conception of the noble and learned Earl who now leads the Opposition, for, in truth, as to a large part of this Bill the matter has been under discussion for some years. The Bill deals substantially with two quite distinct matters. Its first object is the improvement of pension terms of official referees; its second is to make pensionable the clerks and secretaries of Her Majesty's Judges in England and the tipstaves in Northern Ireland. First of all, as to the pension terms of official referees. Official referees, as I may remind your Lordships, although the name is perhaps a somewhat misleading one, are high judicial officers. They try cases which are remitted to them by 1109 Judges of the High Court, often involving difficult questions of fact and accounting and large sums of money, but often too long and too detailed to occupy the time of the High Court Judge; and it is essential to get good men to perform those duties.
At present the pension terms of the official referees are these: they do not get their full pension until they have served for twenty-five years in the office of official referee. They retire at the age of seventy-two, unless their time is extended, and therefore, it is clear that they must be appointed as young as forty-seven if, within due limits, they are to earn their full pension. It may often happen that the man you want to appoint as an official referee will be more than forty-seven. It may be that a man you would like to appoint will be unwilling to take the post of official referee because he knows he will not earn his full pension in the time during which he can serve. The first proposal of this Bill is that he shall earn his full pension, which is half his salary, after fifteen years' service. In that respect, he is like a High Court Judge and like a county court judge; he is unlike a High Court Judge, but like a county court judge, in that he will earn as pension a fraction of his salary after a certain number of years of service. All this is set out in the Explanatory Memorandum to the Bill, arid I need not weary your Lordships with figures.
The provisions of Clause 1 of the Bill contain a good deal that is rather elaborate, because it is necessary to provide how the pensions of official referees are to be calculated if they serve in other offices as well; for instance as a master, or whatever it may be. I do not think it would be right to trouble your Lordships with those matters; they have been gone into carefully with the Treasury, and they are just and satisfactory. I do feel, however, that I ought to call attention to this—it is always right to call the attention of the House to any provision that is retrospective. Clause 1 (6) provides that the section shall be deemed to have effect from the beginning of the year 1954. The reason for that is that it was intended to bring in this Bill at an earlier date, but one accident after another supervened and it has been delayed until this moment. Unfortunately, one of the official referees, 1110 a man who has rendered long and distinguished service, was by force of age compelled to retire early this year. Accordingly, he would not fall within the benefits of this scheme unless we made the Bill retrospective to the 1st January, 1954. It is bare justice to make the Bill retrospective to that extent, and I hope your Lordships will approve of it.
The second part of the Bill deals with judges' clerks and secretaries. As to secretaries, I need say little. It is only the Lord Chief Justice, the Master of the Rolls and the President of the Probate Divorce and Admiralty Division who have secretaries as well as clerks. But all Judges have clerks, who stand in an intimate relationship to them; and as all those who have had judicial experience, and, indeed, all those who have had experience of the courts, know, much depends upon the Judges' clerks being men who are competent, tactful and efficient, to make the wheels of the administration of justice move smoothly. Up to to-day Judges' clerks have not been pensionable, and they have been placed in this awkward position: that if the Judge whom they follow retires—and it is usually a Judge to whom they have acted as clerk during his time at the Bar whom they have followed to the Bench—upon his retirement they find themselves stranded, without pension. The difficulty has always been—and I am sure I speak here of the knowledge of the noble and learned Earl, Lord Jowitt—to make Judges' clerks pensionable so long as the Judges retained the right of patronage. Accordingly, the Judges have agreed that they will give up that right of patronage if pensions can be secured for their clerks. That is something of a sacrifice, but they are prepared to do it.
The provisions of Clause 2 of this Bill which are somewhat elaborate provide for Judges' clerks becoming pensionable, but the appointment is made not by the Judge but by the Lord Chancellor. Let me say at once, because some fear has been expressed by barristers' clerks that the Lord Chancellor may travel outside the category of barristers' clerks, that, so far as this Lord Chancellor is concerned, that is most unlikely. It would riot be right to confine the selection to barristers' clerks, because it might be somebody else who was suitable, and not a barrister's clerk. That is an unlikely event, and I feel it is clear that in this administration it will 1111 always be the wish and, I think, the duty, of the Lord Chancellor to select Judges' clerks from amongst barristers' clerks.
As your Lordships see, Clause 2 of the Bill refers to Judges' clerks and the secretaries of the three high judicial authorities I have mentioned. Clause 2 (2) provides for the attaching of a secretary and a clerk to each of these three high Judges, and a clerk to each of the other Judges of the High Court and the Court of Appeal. Subsection (3) provides that they shall be appointed by the Lord Chancellor, and shall, as such, be officers of the Supreme Court. I emphasise that, because that alone is sufficient to make them eligible for pensions. I say that because the learned Attorney-General made a wrong statement about this in another place; he is a little perturbed about it and has asked me to correct it, if that is in order. Clause 2 (4) provides that the employment of a secretary or clerk appointed under this section shall be deemed for all purposes employment in the civil service of the State. It is desirable to put that in, but it is not that subsection which has the result of making them pensionable; that they are already, as officers of the Supreme Court; but they become for all purposes employed in the Civil Service, like certain other officials in the Supreme Court and like the staff of the county courts. Subsections (5) and (6) of Clause 2 deal with the part-time secretaries. I do not think it is necessary for me to say anything about that.
Clause 3 of the Bill makes provision for payment of salaries and gratuities to unestablished officers of the Supreme Court. It provides that:
Subsection (1) of section one hundred and nineteen of the Supreme Court of Judicature (Consolidation) Act, 1925 (which provides that, subject to exceptions, an officer of the Supreme Court shall not he entitled to a pension or salary unless admitted to his office with a certificate from the Civil Service Commissioners—

(a) so far as it relates to salary, shall cease to have effect; and

(b) so far as it relates to pension, shall not apply to payments which may, under the Superannuation Acts, 1834 to 1950, be made otherwise than in respect of a person's employment in an established capacity."

I want to put this on record, if your Lordships will forgive my reading a short 1112 passage. It is very complicated and I want to have it put right, because I am afraid again there was some inaccuracy in another place about it. Therefore I should like to have it in the OFFICIAL REPORT and on record. For a judge's clerk or secretary to be pensionable, it will be necessary for a Civil Service certificate to be issued. In this respect, these officers will be in the same position as all the other clerks of the Supreme Court (see Section 119 (1) of the Judicature Act) and, indeed, in the same position as ordinary civil servants.
It has been said that this requirement would enable the Civil Service Commissioners to veto the Lord Chancellor's appointment, but I do not think that that is the proper way of looking at this matter. The procedure by which permanent appointments to the public service are made only upon the issue of a certificate by the Civil Service Commissioners is designed to secure that only those persons are appointed who have the necessary qualifications in respect of intellectual ability, character and health. My object will be exactly the same as that of the Civil Service Commissioners—that is to say, to choose the best man for the appointment. It is my intention that there shall be a Selection Board comprising representatives of the Lord Chancellor, the Judges and the Civil Service Commissioners. This Board would consider any applicants for appointment and would advise me.
It has been customary for the Judges, who have hitherto by Statute had the right of patronage, to appoint barristers' clerks to be their clerks. This is not an accident, for experience has shown that barristers' clerks are most suitable for appointment as Judges' clerks. They are very familiar with the work of the courts and court procedure, and they have the skill and special knowledge which is required by Judges' clerks. It is essential that the Judges, who have a very heavy responsibility to bear, should be relieved of petty worries and that they should be well served by their clerks. There is nothing in the Bill to prevent my appointing to be a Judge's clerk anyone who has not been a barrister's clerk, but my experience leads me to think that barristers' clerks will be most suitable for these appointments. I do not think that anyone need fear that the requirement of 1113 a Civil Service certificate will prevent me from appointing the most suitable men to be Judges' clerks and secretaries.
I am obliged to your Lordships for allowing me to do something which I very seldom do, that is, to read to this House, but there have been some fears expressed as to how this right of patronage now to be vested in me will be exercised, and that is what I have to say about it. I am sure of this: that no sort of trouble will arise because the Civil Service Commissioners will be represented upon the Selection Board that advises me. It is, in fact, my duty to appoint a great number of officers in the Supreme Court and I often have the assistance of the Civil Service Commissioners. We shall work with the same co-operation with regard to this matter as we have in the past. I do not think there is anything else in the Bill. Your Lordships will find that Clause 4 deals with Northern Ireland and you will see that the plural of "tipstaff" is "tipstaves," according to the Parliamentary draftsmen, which I suppose is quite right. These in Northern Ireland are the same as Judges' clerks. They have not quite the aspect which tipstaves might have—I was going to say to some of your Lordships, but that would not be quite right. I think there is nothing in Clause 4 to which I need call special attention. I commend this Bill to your Lordships, and I beg to move that it be read a second time.

§ VISCOUNT HAILSHAM
My Lords, I hope your Lordships will forgive me if I add one note of regret to the approval which I otherwise give to this Bill. I think the Lord Chancellor knows what it is, because I wrote to him about it some little time ago. It is the omission from Clause 1 of this Bill of any reference to masters of the Supreme Court, and especially the Queen's Bench masters. They are, by Statute, pensionable on the same terms as official referees. They are an inconspicuous body of men who, none the less, do very useful work, and they happen to be appointed from junior barristers who require, by the very nature of the office—that is to say, the fact that it is in the Queen's Bench Division—an intimate knowledge of court procedure. Therefore, they tend to be appointed 1114 from people of more than forty years of age. As the Lord Chancellor explained in relation to official referees, that imposes a real hardship on a man who has to serve for twenty-five years in order to earn a pension. As a matter of fact, the masters of the Supreme Court try quite important issues as judges, and they also do invaluable work in the courts in interlocutory proceedings in both Divisions of the High Court. Therefore, I would express my regret that this Bill makes no provision at all with regard to the period of service they have to serve to earn a pension. When the time comes, as I am sure it will, when provision is made for judicial officers in other respects, I hope that the masters of the Supreme Court will not be forgotten.

§ EARL JOWITT
My Lords, I entirely agree with every word the Lord Chancellor has said. I congratulate him on being in a position to introduce this Bill. As he very kindly said, I laboured at it; I planted it, and perhaps I watered it. But the present Lord Chancellor has given the effective increase, and I am glad that he has. So far as the official referees are concerned, I believe the case was absolutely plainly established—I think there can be no doubt about that—and I lend rather a sympathetic ear to the observations which the noble Viscount opposite has made about masters of the Supreme Court whom we are not, of course, at the present moment considering. With regard to these barristers' clerks, I have felt this difficulty for a long time. Of course, it was impossible to ask the Treasury to sponsor a scheme of pensions so long as every judge was determined to appoint his particular man, and when that judge went the man might not necessarily be taken on by the next judge. The judges have realised that that does work a hardship to their clerks. That being so, with the full approval of the judges and, I gather, with the full approval of the clerks concerned, this Bill has been introduced, and I think it is a very satisfactory solution to the whole problem.
I should just like to add this word. I know that there is some heartburning about the necessity for getting a Civil Service certificate; but, of course, if you are going into a Civil Service pension scheme, you must have that—you cannot get away from it. This is a very 1115 complicated business. I noticed that even the Lord Chancellor found it desirable to read his remarks. I am not in the least surprised if the Attorney-General, as I rather gather he did, made some little slip in announcing the scheme, when perhaps he had not got it written out. But the Lord Chancellor has now made it perfectly plain. As I have nothing written out, I shall not say any more, except this. If it is of any value to know it, so far as the last Lord Chancellor was concerned, he would have entirely agreed with the present Lord Chancellor in thinking that it is manifest that the appropriate people to appoint to this particular job are men who have had experience as barristers' clerks. It is an odd little profession, but to do the work with any effectiveness at all it is essential to know pretty well the work of the courts and the people with whom you have to deal. I cannot imagine that anybody else, however brilliant he might be, without that knowledge could effectively discharge that duty. Neither of us can say what is going to happen to future Lord Chancellors, but at least we have the fact that the last Lord Chancellor and this Lord Chancellor agree wholeheartedly with this position, and I hope future Lord Chancellors will take the same view. I support the passage of this Bill.

§ THE LORD CHANCELLOR
My Lords, I rise, in reply, only to thank the noble and learned Earl most warmly for the support he has given to the Bill, and to say to the noble Viscount, Lord Hailsham, that I share his sympathies. But if one says "official referees and masters of the Queen's Bench" then one says "masters of the Queen's Bench and therefore somebody else"; and, if somebody else, therefore somebody else as well—there is an unending chain. In fact the official referees do, as I understand we all agree, stand in a very special position and we propose to do this for them. That does not preclude the possibility that at some future time, which I do not now foresee exactly, something may be done for other judicial officers as well. I need hardly say that I make no prophecy.