JUDICIAL OFFICES (SALARIES) ORDER, 1963

HL Deb 26 November 1963 vol 253 cc588-601

2.58 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that the Judicial Offices (Salaries) Order, 1963, be approved. The object of the Order is to increase the salaries of the Recorders of Liverpool and Manchester, the County Court Judges and the Metropolitan Magistrates following on the recent increases in the salaries of the Higher Civil Service resulting from the recommendations of the Standing Advisory Committee on the Pay of the Higher Civil Service under the chairmanship of Lord Franks. The Financial Secretary to the Treasury announced on September 19 the Government's acceptance of the recommendations of Lord Franks and his colleagues.

Your Lordships will remember that the power to increase these judicial salaries by order was introduced by the Judicial Offices (Salaries and Pensions) Act, 1957. Prior to that Act, these salaries could be changed only by legislation which led to considerable delays before increases in salary could be made after increases had been made in equivalent salaries in the Civil Service. The salaries of the Recorders of Liverpool and Manchester, the County Court Judges, and the Chief Metropolitan Magistrate were fixed at their present figures by the Judicial Offices (Salaries) Order, 1959, and those of the other Metropolitan Magistrates by the Judicial Offices (Salaries) Order, 1960. The Government have decided that the considerations which led to the Standing Advisory Committee's recent recommendations for the Civil Service justify similar increases in salary for the lower Judiciary on this occasion.

My Lords, I do not think that your Lordships will need me to go into any further detail about the Order, but if any of your Lordships has any questions, I shall, of course, do my best to answer them. I beg to move.

Moved, That the Judicial Offices (Salaries) Order, 1963, be approved.—(The Lord Chancellor.)

3.0 p.m.

LORD MORRISON OF LAMBETH

My Lords, I must say this does not seem to be much of an exposition of an Order which proposes to grant substantial increases of salaries, but before we go any further I want to raise a question of Order. This is wholly concerned with public expenditure. I will admit straight away that the Lord Chancellor makes the appointments and is very much concerned with what salaries should be paid. But before we come to any discussion of substance I want to submit that this is wholly expenditure of Exchequer money, and that therefore this Order ought not to start in your Lordships' House, but ought to start in the House of Commons, which is the principal guardian, in fact the guardian, of public expenditure. I therefore think that we ought to adjourn this debate in order that the Lord Chancellor may think about it and submit this Order in the first instance to the House of Commons, which is the body which deals with public expenditure.

This is the second time the Lord Chancellor has taken this course. We had earlier (I think it was in the last Session of Parliament) to challenge him on a Bill which was concerned with public expenditure, and in the end we persuaded him, or persuaded the House—the House would have persuaded him by itself, I think, if he had not given way—to withdraw the Bill and let it start in another place. It is true that this is an Order, but it is a statutory Order which has the force of law once it is carried by both Houses. Therefore, I submit that it is in the same category as a Parliamentary Bill would be and must be judged by the same standards. I think it is quite wrong on the part of the Lord Chancellor—who is, it is true, fairly new to this House, but is not new to another place. I submit it is wrong and he should know better than to bring it here in the first instance. I do not like this House to deal with public expenditure before it has been dealt with by another place, and, in the circumstances, I beg to move that the debate be now adjourned.

Moved, That the Debate be now adjourned.—(Lord Morrison of Lambeth.)

THE LORD CHANCELLOR

My Lords, I think I can reply quite shortly to the noble Lord. He seems to be under the impression that procedure in relation to an Order such as this is similar to the procedure upon a Bill. There is no question of our approving this Order and then of its going with our approval to the other place. The position is, as I think the noble Lord must know, that when an Order like this is laid, it is laid before Parliament and then has to be approved independently by each House of Parliament. I think it is an entirely new constitutional doctrine to say that the Order, having been laid before Parliament, has first to be approved before the Commons House. That, I think, is something entirely novel. The practice, once an Order has been laid before Parliament, has been for each House to give it consideration at a time which is convenient to each House. The noble Lord seems to be under the impression that the procedure in relation to an Order such as this which is laid before Parliament is analogous to the procedure for a Bill. Therefore, with the greatest respect, I think that he is in error. Consequently, I ask the noble Lord to withdraw his Amendment.

LORD MORRISON OF LAMBETH

My Lords, further to the point, may I submit to the noble and learned Lord the Lord Chancellor and the House that there is no difference in principle between this Order and a Bill? A Bill has to go to another House as well as to this place, and it is because we were anxious to protect the rights of the House of Commons over money that we obtained the withdrawal of the Bill referred to previously. This Order has to be taken in another place as well. Our argument is that it should start in another place, and then come to your Lordships' House for the House to decide in the light of what the House of Commons has done. I still think, with great respect, that we are right and that this debate should be adjourned.

THE LORD CHANCELLOR

My Lords, may I just add a further word to the noble Lord? He again, I suggest, exposed the fallacy of his argument. He talks about this Order starting in another place and then coming here. The fact is that the Order is laid before Parliament; the Motion for its approval has to be passed by each House independently; and it is, I understand, to be considered by another place on Thursday of this week. It is a matter of convenience for each House, I should have thought, according to the order of their own Business.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, I must say that I protest against that. I think that in matters which are affected by a basic Statute there is a question of behaviour between the two Houses; and the practice in regard to a basic Statute is that you recognise the actual approval of money expenditure only when it has been given by the House of Commons. I should have thought it was reasonable, in spite of what the noble and learned Lord the Lord Chancellor has said, that the two usual channels in the two Houses of Parliament could quite easily arrange that a Statutory Order involving large expenditure on behalf of the State, although laid before both Houses at the same time, was always taken, out of courtesy to the other House, and in view of established practice, in the other place a day or two before being taken here. I strongly support my noble friend in his Amendment.

LORD JESSEL

My Lords, as a Member of the Special Orders Committee which considered this Order last Wednesday, I am surprised that the Opposition suddenly thought this one up. No word of this kind was raised at the Special Orders Committee, where several distinguished members of the Opposition were present, so it really comes as a great surprise to me and other members of the Committee that this matter has been raised as it has been today.

LORD SHEPHERD

My Lords, in reply to the noble Lord opposite, and as a member of this particular Committee, I am sure that he will recognise that this Special Orders Committee is not responsible for when legislation or Orders come before the House. We are called upon merely to decide the formula which is in the Report. The question of when an Order is placed before this House for approval lies with the Government. There is no responsibility on the members of the Committee. In fact, they never discussed it.

LORD CARRINGTON

My Lords, perhaps I might say something in reply to what the noble Earl the Leader of the Opposition has said. I think that we on this side of the House should always try to be reasonable in everything he asks us to do, but I wonder whether he would reconsider his position. It seems to me that my noble friend, the noble and learned Lord on the Woolsack, has made the position fairly plain. There must be many precedents for doing what we are doing to-day. In fact, I think that if we did what the noble Earl suggests it might well be that we should be creating a precedent the other way; and I think that would be very undesirable. Indeed, in view of what my noble friend has said—and I think he has made it very plain—I hope that the noble Lord will consider withdrawing his Amendment and allowing us to proceed.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, I do not think I can accept that; but I am much obliged for the way in which the noble Lord the Leader of the House put it. But this has become what is now a growingly conscious matter, that we must protect the other place with regard to expenditure; that we ought not to approve expenditure until it is approved in the other place. I am perfectly well aware of the basic statutory position put by the noble and learned Lord, the Lord Chancellor, about laying such Statutory Orders; but I think it is quite easy for this House, which knows how a Statute limits our control over expenditure, to arrange that in a matter of this kind the matter is passed through the other place first. So we shall stick to our Amendment to adjourn the debate.

LORD CONESFORD

My Lords, might I suggest to the Opposition that this is in quite a different position from a Bill? If my memory is correct, and I withdraw this point if my memory is at fault, in the case of the Bill to which the noble Lord, Lord Morrison of Lambeth, referred, there was some question of the privilege of the House of Commons, and the Bill, if it had been passed by this House, would have gone down with a clause to which Mr. Speaker would have drawn the attention of another place as raising a question of privilege. I may not be right in that, but that is my recollection; that there was some possibility of a question of privilege. In this case, there is no possibility of any question of that sort. The matter arises under subordinate legislation under a Statute which has been passed by both Houses; an Order is required of each House quite independently and, as my noble friend the Leader of the House has pointed out, if, as a result of the speech on the noble Lord, Lord Morrison of Lambeth, we were to accept his argument, we should be creating a precedent, and I cannot believe that that is desirable.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, suppose we are going on with this kind of thing with expenditure concerned; and suppose

that the other place rejects the Order and we pass it. I think it is a matter of smooth working between the two Houses. It is quite easy to arrange this matter, and that is why we want the debate adjourned so that the Government side can consider it.

LORD CONESFORD

My Lords, I think the noble Earl who leads the Opposition has missed my point. There would be no conflict between the Houses of any kind. For this Order to become effective, an Affirmative Resolution is required in both Houses. If the House of Commons—which would be completely unfettered by anything we did—were not to pass the Order, the whole matter would be at an end. Nothing would have been done effectively to alter the law.

LORD STONHAM

My Lords, is it not the position that, with an Affirmative Resolution in respect of an Order such as we are now considering, we here are giving approval to expenditure of public money under that Order before such expenditure has been considered by the other place? The difference between an Order and, say, a Second Reading of a Bill is that if we took a Bill in the Lords first before it was taken in another place, when it went to another place there would be a separate Money Resolution moved in the Commons which would, of course, never be moved here over such a Bill. Therefore my noble friend is quite right: that we here, by approving this Order to-day, should be giving approval to the expenditure of public money. It is not setting a precedent, but merely giving an indication. In regard to Statutory Orders of this kind when the expenditure of public money is involved we feel that they should be given prior consideration in the Commons.

3.13 p.m.

On Question, Whether the debate shall be now adjourned?

Their Lordships divided: Contents, 23; Not-Contents, 70.

CONTENTS
Addison, V.	Greenhill, L.	Morrison of Lambeth, L.
Alexander of Hillsborough, E.	Henderson, L.	Noel-Buxton, L.
Amwell, L.	Listowel, E.	Shepherd, L.
Burden, L. [Teller.]	Longford, E.	Silkin, L.
Burton of Coventry, B.	Lucan, E. [Teller.]	Stonham, L.
Geddes of Epsom, L.	Macpherson of Drumochter, L.	Summerskill, B.
Taylor, L.	Walston, L.	Wise, L.
Uvedale of North End, L.	Williams, L.
NOT-CONTENTS
Ailwyn, L.	Denham, L.	Lucas of Chilworth, L.
Airedale, L.	Derwent, L.	Mabane, L.
Albemarle, E.	Dilhorne, L. (L. Chancellor.)	MacAndrew, L.
Alexander of Tunis, E.	Drumalbyn, L.	McNair, L.
Alport, L.	Ebbisham, L.	Merrivale, L.
Amherst of Hackney, L.	Effingham, E.	Mersey, V.
Amulree, L.	Elliot of Harwood, B.	Milverton, L.
Astor, V.	Falmouth, V.	Molson, L.
Auckland, L.	Ferrers, E.	Morton of Henryton, L.
Balerno, L.	Ferrier, L.	Mowbray and Stourton, L.
Beauchamp, E.	Fortescue, E.	Napier and Ettrick, L.
Blakenham, V.	Fraser of Lonsdale, L.	Newall, L.
Bossom, L.	Fraser of North Cape, L.	Newton, L.
Boston, L.	Goschen, V. [Teller.]	Ogmore, L.
Brentford, V.	Grantchester, L.	St. Aldwyn, E. [Teller.]
Carrington, L.	Grenfell, L.	St. Oswald, L.
Cawley, L.	Haddington, E.	Salisbury, M.
Cholmondeley, M.	Horsbrugh, B.	Soulbury, V.
Clwyd, L.	Iddesleigh, E.	Spens, L.
Colyton, L,	Jellicoe, E.	Strathclyde, L.
Conesford, L.	Jessel, L.	Swinton, E.
Craigmyle, L.	Lansdowne, M.	Willingdon, M.
Crathorne, L.	Lothian, M.	Wolverton, L.
Craven, E.

On Question, Motion agreed to.

3.22 p.m.

LORD SILKIN

My Lords, coming to the merits of this Order, I must say that I strongly support the increases which are put forward in the Order. I have myself urged from time to time that the pay of judicial officers was inadequate and there have been substantial increases from time to time; but I have never felt that the salaries corresponded to what the judicial officers ought to be getting, or what they could earn outside in their own profession. I feel that this is a matter of belated justice. I therefore feel, apart from the two points which my noble friends have taken, that the increases should be made. The Order itself says nothing about when these increases are to come into operation. Perhaps the noble and learned Lord the Lord Chancellor will say something about that.

LORD OGMORE

My Lords, I should like to support this Order, particularly that part of it which deals with the county court judges. I have always been a great admirer of the county court system and of the learned judges who sit in the county courts. Indeed, I have felt that much more use should be made of them, and I think there should be greater opportunity for judges of county courts to go on to become Judges in the High Court. Anyone who has seen the work of the county court will know how near to the people is the system of justice that the county court represents. It is quick; it is efficient; and I believe that it gives just as good justice as anywhere else in the world, if not better. I hope that the noble and learned Lord on the Woolsack will continuously bear in mind the need to give county court judges every opportunity to ascend to the higher levels of the Judiciary.

LORD MORRISON OF LAMBETH

My Lords, I am not a bit surprised at the noble Lord, Lord Ogmore, having just returned from the Lobby where he has been voting against the great fight for principle of David Lloyd George years ago—but I will not pursue that point—

LORD OGMORE

My Lords, may I say that David Lloyd George never voted for any principle which would hold up and clog the machinery of Parliament, which I think this objection to this Order would mean.

LORD MORRISON OF LAMBETH

Well, a delay of three days or a week in the passing of this Order will not hold up the British Constitution or Parliament; all it will do is to delay certain rises. My noble friend Lord Silkin has quite legitimately said that he strongly supports the Order. This is not a Party matter. I do not pretend to be speaking for the Labour Party in the matter, any more than my noble friend would do—everybody is entitled to his opinion. I am just putting a kind of interrogation on the merits of it. These are substantial increases in salary.

LORD SHEPHERD

Three per cent.

LORD MORRISON OF LAMBETH

My noble friend Lord Shepherd says 3 per cent., by which, I have no doubt, he means much more than 3 per cent. This was not the line which was taken about the nurses. I believe that there was a great crisis in their case about 6d. a week. These are substantial increases. If it be the case that suitably qualified men cannot be obtained from legal circles for the purpose of filling these posts unless these new salaries are paid, I admit that that is a case. But it is a matter for argument, and I am putting no more than a query. Certainly we do not propose to divide against the Order because we try not to vote against statutory rules and instruments.

As I have indicated, I am a little doubtful. When I was Home Secretary I used to appoint recorders and stipendiary magistrates. The Home Office held that responsibility until Lord Jowitt, who was a Labour Lord Chancellor, persuaded the then Home Secretary, my right honourable friend Mr. Chuter Ede, to pass these appointments over to the Lord Chancellor, so that probably for a long time the Lord Chancellor's Office has been doing "empire-building" in order to get a complete monopoly in judicial appointments. I do not think it was bad that there were two Departments concerned with judicial appointments. At the time I was at the Home Office the appointments that were made were, I think, good appointments. I cannot answer for those that were made previously. At that time, certain practices obtained, such as consulting the Party Whips about who would be suitable. I gave a written instruction that that must stop, and it did. Then the salaries were materially lower. So, of course, was the cost of living, which has steadily gone up under the present Administration. But I must say that I did not find it difficult to get suitable people for the position of stipendiary magistrate. There were quite a number of applicants. I took the best advice I could get from the Law Officers of the Crown and from the Lord Chancellor, and made decisions by which I think we secured pretty good people for the position.

Stipendiary magistrates are doing the work which, in the main, lay magistrates do in the provinces outside London. This is not a task calling for a great degree of legal profundity, although substantial legal problems do arise and I agree that good men are required. But I do not think it is particularly difficult to get men who are suitable for these positions. Nor do I think it necessary to have leading—what one might call "star"—Queen's Counsel who have made high fees at the Bar for the purpose of doing the job of the metropolitan magistrates. The job is concerned partly with law, but it is just as much concerned with average fair-mindedness, good sense and a capacity for giving advice, often in domestic disputes which can be peaceably settled by the kindly invitation of the magistrate. All I say is not that I oppose the Order, but that I am a little doubtful about it.

There is another reason why it would have been better for this initiation of expenditure to start in another place. Compare these salaries to those of Members of Parliament. This aspect is almost bound to be commented upon in another place. These judicial salaries are to go up by £900 or £1,000, as the case may be, while M.P.s in another place, who are having a thin time on their £1,750, are left out in the cold—not to mention your Lordships, because three guineas a day does not go too far; but perhaps we can come to that on another and more orderly occasion. At a time when the Government are impressing upon industry the desirability of restricting wage and salary increases, it is going a little far that these substantial increases should go ahead. I have yet to be convinced that we could not get suitable people for these positions—or, at any rate, stipendiary magistrates. I cannot speak so confidently about county court judges, because I have no personal experience about them, but I think that it is open to question as to whether this is the right time to come along with very substantial increases when the Government are warning all of us, not entirely without justification, to be a little careful about how much of the national income we claim for ourselves. Now that I have expressed my doubts, it is, of course, for the Lord Chancellor to make his observations and for the House to decide.

LORD STRATHCLYDE

My Lords, I wonder if my noble and learned friend on the Woolsack could tell me whether Her Majesty's Government have in mind to introduce a similar Order in relation to the Sheriffs Principal and the Sheriffs-Substitute in Scotland? If not, would he draw the attention of his right honourable friend, the Secretary of State, and the Lord Advocate to the present Order?

3.33 p.m.

THE LORD CHANCELLOR

My Lords, dealing with the last question first, I am sure that my right honourable friend the Secretary of State for Scotland is fully aware of the Sheriffs-Substitutes and the other members of the lower Judiciary in Scotland and has them under active consideration. I should like next to reply to the noble Lord, Lord Morrison of Lambeth. He was, it is true, as Home Secretary at one time responsible for the appointment of recorders and stipendiary magistrates. I do not think that responsibility lasted much longer than his time. I think in fact Parliament decided to transfer the power to make those appointments to the Lord Chancellor.

I am not going to debate to-day whether that decision of Parliament was right or wrong. All I would say to the noble Lord is that my memory goes back to the time when he was Home Secretary and was making those appointments and to the complaints and criticisms about the inadequate salaries that were payable, for instance, to recorders. Nor am I going to debate with the noble Lord the precise position in the legal hierarchy of stipendiary magistrates and their relationship to lay justices. Lay justices have a very useful part to play in the administration of justice in Greater London, and so indeed, in my view, have stipendiary magistrates. If one is going to have stipendiary magistrates, it is right in my belies that they should get adequate remuneration for what they are doing.

The noble Lord put the point—I do not know on what grounds he bases his judg- ment—that he could get people competent to perform the duties of a stipendiary magistrate without making the increases in their salaries which are proposed under this Order. I very much doubt whether, if he had the responsibility, he would find it as easy to get the right man as he sought to represent in his speech to your Lordships. There is no question of "empire building" about this. No complaint was made when the salaries of the higher civil servants were raised pursuant to the recommendations of the Franks Committee. I think we all recognise that those increases were justified, having regard to present circumstances and conditions. On two previous occasions when the salaries of the higher civil servants have been increased, corresponding increases have been made to the remuneration of the lower Judiciary.

On this occasion, as I said in my speech to your Lordships, we think that it is right to make corresponding increases to the salaries of the lower Judiciary, the recorders of Manchester and Liverpool, the county court judges and the magistrates. It is quite easy to bring some sort of electioneering into these things by reference to the nurses and the salaries of M.P.s. These orders cannot be made retrospective. That was one reason why I was seeking to get your Lordships' approval to this Order to-day. I am grateful to the noble Lord, Lord Ogmore, for what he said. I think he will see when he reads the Administration of Justice Bill—

LORD OGMORE

I have.

THE LORD CHANCELLOR

—that it makes provision for making more use of county court judges.

To the noble Lord, Lord Silkin, I would say how very much I agree with his observations about this measure. He asked when it would come into force. If your Lordships will look at the draft Order, you will see that it comes into force when I and the Lords Commissioners of the Treasury sign it; it can be effective only after the draft Order (and that is all this is) has been approved by a Resolution of each House of Parliament. I have dealt, I hope sufficiently fully, with the points raised by your Lordships in relation to this proposal.

EARL ALEXANDER OF HILLSBOROUGH

My Lords, it was a very great pity that the Amendment we proposed for adjourning this debate was not carried. My noble friend, with a considerable amount of experience in this matter, has raised points of substance and it is quite possible that similar points will be raised in the other place. This House ought to have known what the other House thinks about this financial matter before agreeing to it. In the circumstances we are comparatively hamstrung in coming to what I call a considered view on this matter in both Houses of Parliament—that is to say, if this House is going to claim to be able to pass very large public expenditure without our first having heard what is going to be done in the House which is responsible to the electorate of the country for the complete control of the national expenditure. However, in view of the attitude taken by the Government, there is no reason at all why we should hold up this matter any longer. The House has taken a decision that the debate should not be adjourned. So, in spite of our protest on this, and without our having had adequate consultation with the other place, we shall have to let this go and the blame must be upon the Government themselves.