HL Deb 15 December 1970 vol 313 cc1339-58

5.33 p.m.

THE LORD CHANCELLOR

My Lords, I rise to move the Judges' Remuneration (No. 2) Order 1970. Both this Order and the following Order which I shall be moving afterwards relate to the remuneration of the Judiciary. The second of the two Orders—the Judicial Office (Salaries) Order 1970—relates to what is called the Lower Judiciary of England and Wales; that is, the Recorders of Liverpool and Manchester, the Chief Metropolitan Magistrate, the county court judges and the Metropolitan magistrates. With the leave of the House, I propose to discuss both these Orders together, although of course any individual points relating to the second Order can be raised on the second, when I move it separately.

The first Order, the Judges' Remuneration (No. 2) Order 1970, relates to the so-called Higher Judiciary, and not merely the Higher Judiciary of England and Wales, but also that of Scotland and Northern Ireland; namely, the Lords of Appeal in Ordinary, the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, the Lords Justices of Appeal, the Judges of the High Court of Justice, the Lord President of the Court of Session, the Lord Justice-Clerk and ordinary Judges of the Court of Session, the Lord Chief Justice of Northern Ireland, the Lords Justices of Appeal for Northern Ireland and the Puisne Judges of the High Court of Justice in the same Province.

Both these Orders are in some sense a result and a necessary corollary of recent announced increases in the salaries of the Civil Service and chairmen of nationalised industries. But whereas the Lower Judiciary and those concerned with the following Order have since the war followed conventionally more or less automatically on the increases in Civil Service pay, the Higher Judiciary have not; and in this case direct comparability with the Civil Service is neither suggested nor desired; although comparability with the Lower Judiciary is, I should have thought, inevitable and therefore some indirect comparability with the Civil Service is unavoidable. The history of the matter is therefore of some importance in discussing both the scales and the timing.

In March, 1969, the National Board for Prices and Incomes published proposals for increases in the salaries of chairmen and members of nationalised industries' Boards. That is contained in their Report No. 107, Cmnd. 3970. Almost immediately afterwards the so-called Plowden Committee, the statutory Advisory Committee on the pay of the Higher Civil Service, published proposals for similar increases in the pay of Permanent Secretaries and higher civil servants. These proposals represented increases respectively of 60 per cent. and 63 per cent. It was accordingly then proposed that these large increases should be made in three stages. The previous Government accepted the increases as regards the first stage, but at first reserved their position as regards the remaining two.

The Permanent Secretaries received the first of their increases in July, 1969, and their second in July, 1970, under, I think, arrangements made by our predecessors. The third was due on July 1, 1971, but by a considered decision of the present Government, announced last August, this was made effective as from January 1, 1971, instead of July. Under the proposals of the National Board for Prices and Incomes the chairmen of the nationalised Boards followed suit.

Since 1957 an increase in the salaries of the Lower Judiciary has been dependent on Orders laid by the Lord Chancellor and subject to the Affirmative Resolution procedure. As I have said, in the case of the Lower Judiciary increases have since the war been related more or less automatically to any increases in the Higher Civil Service. This was the case in, I think, 1967. Accordingly it has always been assumed that Orders to give effect to increases corresponding with the Plowden recommendations would follow pari passu with the Civil Service increases, and that parallel action would be taken administratively to keep other members of the Lower Judiciary, who do not need Parliamentary Resolutions, in step.

My Lords, it is at least my opinion that for many years the Higher Judiciary have been less well treated than either the Lower Judiciary or the civil servants. This is largely because until 1965 a special Act of Parliament was required to increase their salaries. But even since 1965 an Order in Council, backed by Affirmative Resolution, has been necessary in their case, though such is not the case with the civil servants. Since no comparability has ever been established between the Higher Judiciary and the Civil Service, the effect has been gradually to erode the position of High Court judges both against the Civil Service and against the Lower Judiciary, with the latter of whom, of course, as I have said, there must be a certain comparability.

Thus, to give an example, a High Court judge's salary was not increased from £5,000 until 1954—no pay rise for more than a century, although of course the standards of living generally had risen very much indeed. It remained at £8,000 until 1966—that is to say, it did not rise for more than 12 years. It remained at £10,000 from 1966 until this year, when it was raised to £11,500 to take into account the first stage in the Plowden recommendations. By that time the Civil Service pay of a Permanent Secretary, which had been only 60 per cent. of that of a High Court judge in 1938, was £400 more than that of a High Court Judge as at July 1, 1970.

The effect of implementing the third stage of Plowden on January 1, 1971, would have been to give the Permanent Secretary a £2,500 lead over a puisne judge of the High Court. The differential between the higher and the lower Judiciary was also eroded. At the begining of the period—that is to say, before the war—a county court judge received £2,000. but by 1954 the figure was £2,800 and it will now be £7,850. In other words, they have climbed from just over one-third of the salary of a High Court judge to just over two-thirds.

It is not proposed by the present Order to restore the differential, but it has been abundantly plain that to maintain the standards in the High Court Bench further erosion must be prevented. High Court judges are normally recruited from members of the Bar of a class whose earnings may be expected to be very high indeed, and county court judges are often only a little lower. They are all lawyers who can easily obtain employment in the City, either as salaried legal advisers with "top hat" pensions, or on boards of directors or as partners in merchant banks. They have lost whatever advantage used to be obtained by the exemption from income tax on post-retirement earnings.

I now come to the House and seriously say that the rate for the job is certainly not less (and in my judgment ought ideally to be higher) than that now proposed. In spite of the increase in the numbers of judges the volume of work transacted has greatly increased. Criminal appeals (or applications for leave) have risen for the four years 1965 to 1969 by 221 per cent.; appeals heard by 119 per cent.; sitting days in the Court of Appeal, Criminal Division by 31 per cent.; the number of criminal trials by 42 per cent.; and the number of civil and divorce proceedings (the latter excluding undefended divorces) by 86 per cent.

I should have liked to give the total number of sitting days in this period in the High Court, but the figures are not comparable since in 1965 (though not now) the sitting days in the High Court were swollen by the presence of county court judges sitting as divorce commissioners, which of course now they no longer do. Increases in Northern Ireland and in Scotland have, I am told, been greater than in England. Being a High Court judge involves long periods away from home, undertaking onerous duties such as chairmen on commissions, committees and inquiries. Apart from anything else, I must stress that much of the day to day work of the High Court judge has to be undertaken after he leaves his court.

My Lords, percentagewise the increases for the higher Judiciary after allowing for tax—which at that level of income seems to me the fair test, being virtually their take-home pay—is less than 5 per cent. for a Lord Chief Justice (on the assumption that he is married and without young children); 9.16 per cent. for a puisne judge (married without young children), and rather larger figures for the lower Judiciary, who of course have not had a rise as recently as May 15, 1970. In each case these percentages make allowance for the increase in the standard rate recently proposed.

I have not so far mentioned the fact that the higher Judiciary have voluntarily agreed to forgo these increases until July, 1971, which presumably will halve these figures. I do not myself feel that in making these proposals, which will cost £304,650 for the higher Judiciary of the three parts of the United Kingdom, and £172,900 for the lower Judiciary of England and Wales, I am asking the House to spend money unwisely.

My Lords, there is one thought uppermost in my mind as I move these Orders. It is that by this process judges, unlike the chairmen of nationalised industries or civil servants, being compelled to submit to ordeal by Affirmative Resolution, are put in a singularly invidious position as regards other comparable employment. The time has surely come to get rid of the present set-up altogether and to substitute the proposed review body which the present Government have undertaken to set up.

There is only one other thing I should like to add. When the salary increases were announced, the noble and learned Lord, Lord Gardiner, hinted that the salary of the Lord Chancellor is not affected, with the result that for the first time in history he will be paid less than the Lord Chief Justice, the Master of the Rolls, or a Lord of Appeal in Ordinary. My Lords, I do not complain. I beg to move.

Moved, That the Draft Judges' Remuneration (No. 2) Order 1970, laid before the House on 8th December, be approved.—(The Lord Chancellor.)

5.45 p.m.

LORD GARDINER

My Lords, the House is grateful to the noble and learned Lord the Lord Chancellor for explaining this Order to us. I agree that it is convenient to discuss both Orders together, although I appreciate that for technical reasons they will have to be put separately. In view of the fact that these are the last items on the Order Paper to-day and that there are not many noble Lords in the House, and I believe the noble and learned Lord the Lord Chancellor has, or had, a committee to go to—although it is probably over by now—I was tempted to take these Orders as read and to say little about them, but I think that would be wrong.

We live in times when there are those who both think and say that although for many years the Electrical Trades Union has been a moderate and well-conducted trade union, and one which, probably more than any other union in the country, has made notable contributions to increased productivity, the psychological effect of an increase in their wanes of more than 10 per cent. on other persons who have claims pending would be such that it ought not to be allowed. The question has been, and I think is bound to be, asked, what is the psychological effect likely to be if men, however distinguished, who had an increase of 15 per cent.—£29 a week—on their then remuneration as recently as May 29 of this year, now get a further increase of another £48 a week?

My Lords, these Orders are being considered in the other place to-morrow and I think this House would make a mistake if it ran away from, and did not seek in any way to answer, that question. While I do not propose to repeat, because I agree with them, the things which the noble and learned Lord the Lord Chancellor has said, I think there are some even wider considerations. We, the people, had a long fight to obtain the independence of the higher Judiciary from the Executive, and as many of your Lordships know, if one goes to the central lobby of the Central Criminal Court the brass plate which is there in tribute to Mr. Bushell, the foreman, and other members of the jury who tried William Penn, the Quaker, for seditious libel (he afterwards went to America and founded Pennsylvania) was well deserved. They were a good, strong, contumacious British jury. They went to prison for a principle, and in the end the fight was won.

It was enshrined in the Act of Settlement, by which, as your Lordships know, the higher Judiciary could no longer be removed by the Executive but only by Parliament, and their remuneration could be determined only by Parliament and not by the Executive. While none of us would wish to change that, in my opinion it has had the effect that to-day the remuneration, particularly of the higher Judiciary, has fallen markedly behind the remuneration received by the leaders of other professions and persons occupying a similar status in the Public Service, and I think it is right that the reasons for that should be realised.

Of course it is nice to say that the remuneration of the higher Judiciary can be determined only by Parliament, but the first thing to observe is that it has never got before Parliament unless the Executive has put it there; and secondly that the Executive, whatever Party is in power, has in the past shown some reluctance to put before Parliament proposals for increases. As the noble and learned Lord the Lord Chancellor has said, it has happened only three times in our history, and the last Government was in fact the first Government in our history to propose to Parliament increases in remuneration for the higher Judiciary twice in one Parliament.

The reason why the Executive has shown reluctance, I think, to put such a case before Parliament is this. In the case of the surgeons and doctors in the National Health Service; in the case of the Armed Forces; in the case of Chairmen of boards of nationalised industries; in the case of the Civil Service, and in the case of Ministers and Members of Parliament, every Government which has come forward in recent times with proposals for increases has always been able to say, "We have submitted the question of what is the right remuneration for this group to a wholly independent board or committee, and these are the rates of remuneration which they recommend". But in the case of the higher Judiciary—and in the case of this group only—the Government has to take the responsibility, because their remuneration has never been so inquired into by any independent body. The Government has to get a figure as best it can, and justify it. I believe that for these reasons the remuneration particularly of the higher Judiciary has been prejudiced in the past.

It is I think known that the previous Government had it in mind to amalgamate the Prices and Incomes Board and the Monopolies Commission into a Commission on industry and Manpower (a title which, if I may say so, I never thought the happiest), because they felt it unsatisfactory to have so many different Committees inquiring into remuneration in the more sensitive fields, and that it would be right to have one overall body, a special panel of which would consider all these five sensitive areas.

I should not myself have agreed to any proposal to change the way in which the remuneration of the Judiciary was arrived at without their agreement. But I took the proper steps to ascertain the opinion of the judges, and they were in favour of such a review applying to them. About what is to happen in the future I am not at the moment at all clear, and I would ask the noble and learned Lord on the Woolsack whether he will be good enough to explain this a little further. The right honourable gentleman, the Lord President, was, I thought, very clear in what he said on December 4, but he was followed by the right honourable gentleman, the Prime Minister on December 8, and I am quite unable to reconcile what they said.

The Lord President was, if I may say so, quite clear when he said—and I am new quoting from column 1723 and 1724 of the OFFICIAL REPORT of another place for December 4—that the Government intended: to establish three Review Bodies to advise on the remuneration of certain groups for whom, for one reason or another, no negotiating machinery was appropriate. One of these"— that is to say, one of the Review Bodies— was to advise on the remuneration of the boards of nationalised industries, the Judiciary, senior civil servants, senior officers of the Armed Forces, and, as the right hon. Member for Sowerby mentioned, such other groups as might appropriately be considered with them. This Review Body, along with the others to be set up, would be serviced by an Office of Manpower Economics which would not be part of the Government machine. Its reports would, therefore, be entirely independent. He went on to say: … such a body would perhaps be better placed than any specially constituted body could be to study this difficult question of the remuneration of Members of Parliament … it would be the Government's intention, when this Review Body has been set up early in the new year, to refer to it the whole question of the emoluments, allowances, expenses and pensions of Ministers and Members of the House of Commons. That seems clear, my Lords. So far as the Judiciary are concerned, they, with all these other sensitive sectors, are to have their remuneration reviewed by one of these three Review Bodies. What the other two Review Bodies are to do we were not told.

But I cannot reconcile that statement with what the right honourable gentleman, the Prime Minister, said four days later, on December 8 (col. 255). He referred to the Judiciary, senior officers of the Armed Forces, other public servants, the chairmen and deputy chairmen of nationalised industry boards; and he said: Following this announcement, members of the Judiciary were given an assurance that Orders would be laid before Parliament… Then he said: I have to inform the House that senior members of all these four groups"— and he went on to refer to the offer to forgo the increase for six months. Later, in col. 257, he said: Future reviews will come under the group of Review Bodies being set up by my right hon. Friend the Secretary of State, but no detailed arrangements have yet been made as to the particular Review Bodies before which they will appear … They will include the doctors. There will be a number of review panels"— the Review Bodies have now become panels— but we have not yet settled the different review panels which will consider the situation of these four groups of public servants."—[OFFICIAL REPORT, Commons, 8/12/70, col. 257.] Apart from the fact that there are five groups, this seems to conflict with the clear previous statement that one of the three Review Bodies would consider all these five groups.

I am more puzzled when I see that, at the bottom of col. 259, he says: That was the purpose of all the Government's actions; but I thought it right and appropriate, in view of the publication of the Prices and Incomes Board Report on the position of the Judiciary", and so on. I am not clear what that meant at all. I do not know of any Prices and Incomes Board Report on the Judiciary. I would invite the noble and learned Lord, the Lord Chancellor, when he comes to reply, to tell us what he can further about that. Have the judges been consulted? If they have been consulted, have they agreed? Will it be one of the three Review Bodies which considers their remuneration as well as that of the four other groups; or will it be a review panel? Does a panel envisage a selection from a larger number? And, if so, what sort of number; and what are likely to be their qualifications?

I took steps to satisfy myself that the special Commission proposed by the last Government would have had on it one or more persons who were familiar with judicial life: the long weeks and months spent away from wives and adolescent children—and judges want to see their children growing up, as much as any other father does; the difficulties of a job in which a judge cannot afford to let his attention wander for a moment, but where everything he does in court is done in public and before the Press, when any incautious observation may be repeated and criticised in every newspaper in the country on the following day. I should have thought it most essential that if, for the first time, the remuneration of judges is to be considered by some Review Body or panel there should be on it at least some who are familiar with judicial life.

Lastly, will the noble and learned Lord be approving the terms or reference? Will these simply extend to remuneration, or will they include pension? It is, I think, well known that the Treasury have never been too happy about conditions of judicial pensions. May I express the hope that advantage will not be taken of this by the Treasury to try to obtain worse terms?

My Lords I think there is an answer to the question which has been asked, but of course I cannot congratulate the Government on their timing. It does seem very extraordinary just at the present time, when we have been hearing about other men, some of whom have take-home pay of £18 15s., and a wife and three children, and who have taken quite exceptional steps in the field of productivity. I know it is said, and rightly said, that the employers have made a great contribution to productivity by the purchase of the necessary machinery—and of course that is true. But then you have to get your employees to agree to work the new machines. Mr. Cannon, whom I knew well, and whose death I am sure we all deplore, was an outstanding trade union leader who realised that much the best basis for increased pay is increased productivity. I think I am right in saying that, out of a work force of 150,000, their productivity agreement was such that the employers were enabled to dispense altogether with the services of 26,000. That, I should imagine, takes some "selling" to a trade union. It does seem a very odd time, just as this is before the public, and just as it is said, "They may have a very good case; they may have the best case in the world. But inflation, you know! And look at the effect on subsequent pending pay claims if men are to get as much as 11 per cent, at this time!" to introduce these Orders, having regard to the percentages here in question.

6.2 p.m.

LORD BALOGH

My Lords, I wish to pursue a little further the thoughts to which my noble friend Lord Gardiner has given utterance. The announcement of the increases in these salaries has been received, generally speaking, with a sort of congratulatory, and to some extent a self-congratulatory, glow. As the noble and learned Lord the Lord Chancellor pointed out, they derive, albeit indirectly, from the National Board for Prices and Incomes. That Report to which allusion has been made was, in my opinion, one of the less fortunate productions of the Board which the Government have decided to abolish. But I should like to remind the noble and learned Lord the Lord Chancellor that in those days the Board was in charge not only of salaries but also of prices. This makes an enor mous difference when we are discussing these problems, because the whole ambit of life at that point was different from that with which we are now confronted.

In my opinion, there is no doubt that that Report on top salaries was one the most unfortunate things that has happened in this country in the last few years, and certainly one of the most potent causes of the type of inflation which then of course, through the Kindersley Report, generally established itself in all professions and gave the most unfortunate impression to everybody else. The salary rises with which we are now confronted are, roughly speaking, of the order of 9 to 10 per cent. per annum in the past four years; that is to say, more than was the average in those years, though of course very much less than the current average. Surely, something which has been condemned ought not to be accepted.

The historical review by the noble and learned Lord the Lord Chancellor, to which we have listened with great attention and interest, reminded me, and probably some of your Lordships, of the wrangle between the higher and lower engineering workers as to which of the differentials ought or ought not to be preserved. I feel that a tone which should not really creep into the Judiciary has in this way been adopted. There is, move-over, an implication that the relative remuneration of people, such as dustmen and Dukes, at a certain previous point of time was right and ought to be restored. I cannot possibly accept this. I do not think it is acceptable if we are to have consensus in this country. I do not believe that a consensus is possible except by a much more equal distribution of the national income, which must include salaries.

This leads me to my second point. If we are to prosper in this country, these questions must be settled by consent and consensus, and not by crude forces emanating from unemployment and the mobilisation of public opinion. However, the Government have established three separate bodies. The leapfrogging of salaries which inevitably this will involve is going to have the most unfortunate possible effect on wages. It has been said that the Government are setting up these salary determining bodies in circumstances where no satisfactory negotiating machinery exists. But is there any trade or industry in which a satisfactory negotiating machinery can exist when you are confronting two highly powerful monopolies? Of course there will have to be an arbitration of one kind or another. What the Government have now decided is that the arbitration should be by ordeal of force—of market forces. And they have decided on an incomes policy. Let it be quite clear that we have an incomes policy at this point in this country, though no prices policy. It is determined by the pull downwards of unemployment and the pull upwards of the monopoly power of the combined industry and trade unions. This cannot lead to anything but bitterness, and the need for permanent deflation, which will put this country permanently behind the other countries of Europe and the industrialised countries of the world, as it has happened in the last twenty years.

I am sorry that the judges and their colleagues have not gone much further than they have gone; and if they could not accept the precept noblesse oblige, at least have acted on the precept of sagesse oblige.

6.8 p.m.

LORD HAWKE

My Lords, nearly twenty years ago the judges were due for a rise in pay, very much more modest in those days than it is to-day, and I remember writing to The Times saying that it was not proper to give them a rise in pay and that surtax should be reduced. Needless to say, the letter was not published. But just imagine how things would have improved had that letter been published and the Government of the day had taken advantage of it, because we are now dealing with one of the most ridiculous anomalies that I have ever heard of. The nationalised industries and the top Judiciary are being given rises, the top portions of which are going to be removed by the Government of the day as to 91¾ per cent., and put straight back into the Treasury. It is increasing the overheads of these industries, and it is increasing the cost of the Judiciary. The only person who benefits in the end is the Chancellor of the Exchequer. This is a stupid anomaly and yet we perpetuate it because Government after Government are afraid to tackle surtax.

6.9 p.m.

THE LORD CHANCELLOR

My Lords, perhaps I may be allowed a word or two in reply to the speeches that have been made. I thank the noble and learned Lord, Lord Gardiner, very sincerely for the earlier part of his remarks; I thought they were very much in point. It cannot have been an altogether easy speech to have made from that Bench. I welcome very much indeed the implied support which it gives me. I hope that he will take that as a sincere tribute both to his courage and to the integrity of his remarks.

If I may, I will come to some of the other remarks he has made in logical rather than chronological order. In the first place, I was extremely glad that he made no bones about what people will be saying outside about the comparison between, for instance, the claim of the Electrical Trades Union and the other unions and what is now being proposed. I deliberately omitted that from my opening speech because I thought it was inappropriate to my opening speech, and that I should stick strictly to the Orders and the material for them. However, it does enable me to say one or two things which require very much to be said about it.

I do not want to go into the merits of that particular dispute, because in the present context it would be inappropriate for a person of my office even to refer to the kind of thing which the Government and Parliament have been discussing in the past few days. I will say that I share his sorrow at the death of Mr. Cannon, which was almost universally deplored. He was a great servant of his own movement, and he was very widely loved outside his own body of friends. I do not think I ought to allow my remarks to trespass any further on that particular matter, although I think the noble and learned Lord went further than I propose to do.

What I want to say quite plainly to the House, and to the noble and learned Lord, is that when you are dealing with increases in pay you have really to compare like with like. I do not shrink from this any more than the noble and learned Lord did; this sort of thing has to be brought out into the open and discussed quite openly. What is like with like? I am not talking about wages in the electricity industry, because if you start talking about the pay structure of an industry you do not know a great deal about you obviously make errors of detail which deprive your remarks of the value which they are intended to have. Broadly speaking, over industry as a whole, take home pay consists of wages and a certain amount of money earned by overtime. The lower paid workers do not attract much, and sometimes do not attract anything in the way of direct taxation, but they sometimes make up on a basic salary, or some equivalent, by way of Overtime. Take home pay is, therefore, the right way of judging from the outside of an industry, although it may be wholly inappropriate for the purpose of a Court of Inquiry, or for the purpose of negotiation between employers and employed, who are concerned with the details of the structure. However, take home pay, from outside the industry, is not an unfair yardstick to take when you are discussing the question of wage increases from time to time and their possible effect on inflation.

Take home pay, when you are dealing with the higher Judiciary, or any of the other higher paid posts which we have discussed marginally in connection with this Order, is something very different. Judges do not get overtime or special responsibility pay if they have to head a Commission. I do not know whether the actual Court of Inquiry will be headed by a judge, but one may well be asked to do so, and the noble and learned Lord knows even better than I that almost every few days a Lord Chancellor is being asked by one of his colleagues to provide a High Court judge to chair an independent inquiry.

I will come back to that point, if I may, when I come to deal with the remarks of the noble Lord, Lord Balogh. The only point I am making about it at the moment is that the judge does not get overtime for doing it, and does not get anything extra, although he may have extra responsibility and extra time to work. The take home pay for a judge is not basic rate plus overtime; it is basic rate minus surtax and income tax I come back here to my noble friend Lord Hawke. I pointed out, I think accurately, that even if he had not forgone half of it, the Lord Chief Justice, to take an example, assuming he is married and without young children entitling him to children's allowance, gets less than 5 per cent. on this wage increase. I think it was very much less than generous of the noble Lord, Lord Balogh, not to recognise that when you are talking about salary increases you are bound to talk realistically; and if you are going to talk in terms of percentages you must compare like with like.

LORD BALOGH

My Lords, I think that the noble and learned Lord the Lord Chancellor, if he wants to talk realistically about higher salaries, should take into account other things than the surtax and the income tax. I am sure he is far too learned a judge, and far too sceptical in his knowledge of mankind, not to know what high salaries mean in regard to surtax. We know very well what surtax means in this country. The national income of this country has increased tenfold, and the surtax rates have trebled, and the surtax takings have increased twice. I do not wish to imply anything, but if he talks realistically we ought to take into account these facts also, and also the pensions.

THE LORD CHANCELLOR

My Lords, the noble Lord was not listening accurately to what I was saying. Obviously, if we are going to discuss the whole question of differentials in industry we must choose another debate to do it. All I said was, and I stick to it, and it was a perfectly fair criticism of the noble Lord's speech, that if you are going to talk in terms of crude increases, in terms of money and in terms of the percentages, you must compare like with like, and not like with unlike. That is the only proposition I was making, and it seems to me to be an indisputable one.

LORD BALOGH

My Lords, I am exceedingly sorry, and I apologise to the noble and learned Lord the Lord Chancellor, but I do want to compare like with like. The pay of a top-salaried person, after surtax, is not comparing like with like when dealing with the take home pay of a worker.

THE LORD CHANCELLOR

My Lords, I do not think the noble Lord is getting away with this at all. What I was saying to him, and I say it now for the third time and I hope that this time he will accept it, is that if you are going to talk about percentage increases you must take percentages on comparable figures; otherwise you are misleading people. The Lord Chief Justice and his puisnes are in fact getting very much less than the 10 per cent. which was offered to the unions by the employers in a recent dispute, if you take like with like; my contention being that, for the purpose of calculating a percentage increase, you ought to take take-home pay as a good yardstick if you are outside the industry. I am not discussing, although I will say a word about it in a moment, the general question of surtax, incomes policy, or prices policy, in connection with the present Order. I doubt whether the House would have much patience with me if I endeavoured to enlarge upon the various philosophical concepts which the noble Lord voiced when he came to criticise what is now being done.

The noble and learned Lord, Lord Gardiner, I think quite fairly, from his point of view, criticised the timing of this proposal. I greatly sympathise; but the timing really was not, with great respect, of our choosing. Obviously we had to time it to get the increases at the point of time at which they will be effective when they have been promised. It is, therefore, largely as a result of the functioning of the Special Orders Committee of this House, and of the Affirmative Resolution procedure, that we have to do it before we break up for Christmas. The time really was not of my choosing. Therefore, although the criticism is a perfectly sound one from his own point of view, I think he will take it that I do not view the timing with any more pleasure than he does. I would only say this to him—and he has considerably more experience about this problem than I have—that there seldom is a time which is convenient from that point of view for a Government to propose higher salaries for the higher Judiciary. Frankly, I acknowledge the courage of the noble and learned Lord and his colleagues in having twice done it during their term of office. But I venture to think that their memories are not altogether happy ones about the moments they chose, any more than my present experience is a happy one about the moment to which I am driven. But I do not think that the timing point—although it is a fair one, or would have been fair if I had not frankly acknowledged that it was disagreeable to me—is a point which should trouble the House when it looks at the realities of the situation.

Before I come back to the noble Lord, Lord Balogh, I should like to deal in a little more detail with a question which I was asked by the noble and learned Lord, Lord Gardiner. He found difficulty in reconciling the statement of the Prime Minister, in answer to a supplementary on December 8, with an earlier statement by the Lord President as part of a more considered set of remarks on the same subject. I sympathise with him, but I must tell him, from experience of another place, that the atmosphere in which one answers supplementaries is not quite as easy as it is in this House; and even in this House I have known Ministers, of both political persuasions, sometimes get their answers to supplementaries a little wrong, when their original Answers were quite right.

The right answer to this point is, of course, that the Lord President was accurately reflecting an earlier statement, which should be treated as the governing statement, by the Secretary of State for Employment who said the following on November 2: The Government intend … to establish at an early date three Review Bodies with a degree of interlocking membership. One will advise on the remuneration of the boards of nationalised industries, the Judiciary, senior civil servants, senior officers of the Armed Forces and such other groups as might be appropriately considered. … Another will advise on the pay of the Armed Forces generally. A third will advise on the remuneration of doctors and dentists in the National Health Service. These three Bodies will have at their disposal and working to their directions a secretariat provided by a new Office of Manpower Economics."—[OFFICIAL, REPORT, Commons, 2/11/70; col. 668.] In other words, that, and neither of the statements to which the noble and learned Lord referred, should be looked at as the fountain of wisdom for the moment of Government thinking on this general subject.

That earlier statement in fact answers a few of the questions, though not all of them, which the noble and learned Lord quite properly asked me. Of course I shall consult the Judiciary. I have taken certain steps already, and I have every reason to believe that it will be agreeable to them that the higher group Review Body will be the one to undertake the reviews connected with them. I am grateful for the points which the noble and learned Lord raised about the desirability of my being concerned as to the composition and the terms of reference. I cannot give him any answer about the matter now, but I am sure that his remarks will be noted as coming from an authoritative source, and I will certainly bring them to the attention of my colleagues. I think that is as far as I can take this particular point.

I come back for a moment to the remarks of the noble Lord, Lord Balogh. The truth of the matter is that I want these salaries because I want to attract the best men, and men of suitable calibre, to the job. It is vital to the present existence and honour of this country that we maintain the standards of our higher Judiciary and of the new Judiciary—the county court judges as they are now; the Circuit judges as they will become, if and when the Courts Bill becomes law—at an adequate level. Law, and the administration of law, is, in my opinion, the first of the social services and the basis of social morality, without which nothing else can be done. The fact of the matter is—the noble Lord, Lord Balogh, as a devoted Socialist, may deplore it—that earnings at the Bar are very high, and they are even higher in some of the ranks of the solicitors' profession. The fact is that I have to recruit judges from the Bar, and even if the full desires of the solicitors' profession and of the Circuit Bench were met I should have to recruit from an equally high group of men and women, and I have to have a properly paid Judiciary if I am at all to discharge my functions as Lord Chancellor.

The salaries which are being put forward in this Motion are not based on some elaborate theory of comparability with the Civil Service, although I gave my reasons for saying that they have a certain connection both as regards content and timing. They are not based on any profound philosophy about free market forces, or the suitability of a private enterprise system or the wrong-headedness of Socialism. They are based fundamentally on pragmatic considerations. We need a fine Judiciary in this country—we have the best in the world, in my opinion—and I do not believe that we would get it if we did not pay it properly.

We find—and I said that I would come back to this at the end—that, time and time again, when this country is in trouble of one sort or another, when it wants to set up a commission of inquiry, when there is a scandal in public affairs, when there is a dispute in which absolutely impartial chairmanship of the first water is required, politicians of all Parties come to the Lord Chancellor and say, "Find me a judge." Now, my Lords, what sort of a Lord Chancellor would I be if I were to allow that profession to run down, and how much gratitude would I earn from Parliament if I were to submit to the kind of specious talk that people are only too ready to indulge in—particularly in another place—about the level of salary of the Judiciary? I should be unworthy to sit on the Woolsack. I hope that this Motion will now be passed.

On Question, Motion agreed to.