Lords Sitting of 30 June 1992

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.

Baroness Thatcher
The Right Honourable Margaret Hilda Thatcher, OM, having been created Baroness Thatcher, of Kesteven in the County of Lincolnshire, for life—Was, in her robes, introduced between the Lord Boyd-Carpenter and the Lord Joseph.
Lord Jakobovits Lord Jakobovits—Took the Oath.

Wildlife Sites: Protection
2.52 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
What is their policy for the protection of internationally important wildlife sites.
Viscount Goschen: My Lords, the Government play their full part in international discussions concerning protection of internationally important wildlife sites. We warmly welcome the adoption of the EC Habitats Directive, and are considering the means of implementation. We are committed to the designation of special protection areas under the EC Birds Directive, and wetlands of international importance under the Ramsar Convention; and we contribute fully to the Council of Europe's biogenetic reserves network.
Baroness Nicol: My Lords, I thank the Minister for that reply. I think he has confirmed that new legislation will be needed. Can he say when the legislation is likely to be forthcoming? Will it aim to strengthen the existing protection for sites of special scientific interest? At the moment they are being damaged at an alarming rate.
Viscount Goschen: My Lords, under the existing arrangements, the Wildlife and Countryside Act 1981 will form the basis for implementing the directive. The sites which are designated as special areas of conservation are most likely to be drawn from the best of the existing SSSI network. We are considering whether further legislation will be necessary, and we shall consult on our proposals in due course.
Lord Hooson: My Lords, does the noble Viscount agree that the protection of wildlife needs constant review? For example, there are now so many magpies in the country that they threaten the existence of our songbirds. Everyone who knows anything about nature knows that that is occurring, yet no one is allowed to do anything about it. It is time that there was an annual review of the protective measures that are needed. Another example is that there are so many
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badgers in the country that it is difficult to accept any further increase. All such matters need constant review, otherwise nature keeps its own balance.
Viscount Goschen: My Lords, I totally agree with the noble Lord that continual review is required.
Lord Taylor of Gryfe: My Lords, I should like to express my congratulations to the noble Viscount on his commitment. Is he aware that, as evidence of that commitment, 10 per cent. of the land surface of Scotland is now designated as SSSIs? Will the Minister, in pursuance of his policy, take a balanced view which will protect the employment of people in the countryside as well as protecting wildlife?
Viscount Goschen: My Lords, I feel that point is slightly wide of the Question.
Lord Williams of Elvel: My Lords, will the Minister confirm that in view of recent publicity there is doubt about the future of the Joint Nature Conservation Committee, which was referred to in the Carver Report? Can he give an assurance that the Government intend to keep the JNCC operation, as described in that report?
Viscount Goschen: My Lords, the Government remain fully committed to the implementation of their nature conservation policies through the structure of the three country councils and the JNCC.
Baroness David: My Lords, the general intentions of the Government seem to be splendid; but are there definite plans to speed up the designation of special protection areas from the present rate of only four per annum? Since 29 sites were identified on 1st April 1992, would not the present rate result in an unacceptably long delay for certain areas?
Viscount Goschen: My Lords, we are pleased with our progress on the matter. We have designated 52 SPAs and 54 Ramsar sites under an accelerating programme. We expect to designate 30 more this financial year.
Lord Mackay of Ardbrecknish: My Lords, while my noble friend considers designating these sites, will he recall that in many of those areas the human population is equally fragile and requires as much attention as the animals and wildlife?
Viscount Goschen: My Lords, I agree that consultation with owners, occupiers and other interested parties is also necessary to resolve apparent conflicts before a designation can be made.
Lord St. John of Bletso: My Lords, in the light of the Minister's reply, will the Government go ahead with their road building plans where there are sites of special scientific interest?
Viscount Goschen: My Lords, the sites of special scientific interest are protected under the Wildlife and Countryside Act 1981. Every consideration will he taken into account.
Earl Grey: My Lords, what steps are being taken to help farmers manage farmlands of international wildlife importance in ways which will benefit nature conservation?
Viscount Goschen: My Lords, there are a whole range of measures on the subject which have been offered to farmers.
Baroness Hilton of Eggardon: My Lords, we were promised an environmental protection agency in the manifesto, but as yet there is no sign of one. The ODA has produced an excellent report about environmental action for the world. When will the Government show a similar commitment to the environment of this country?
Viscount Goschen: My Lords, the Government are fully committed to the environment of this country.

Prisoners: Release on Licence
2.58 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
Whether they consider that the procedures for the early release of prisoners, or the halting of trials on medical grounds, are adequate to prevent abuse.
Viscount Astor: My Lords, yes. The Government consider that the procedures which govern the early release of prisoners on licence are adequate to prevent abuse. The medical condition of a prisoner is only one of the factors taken into account when assessing his or her suitability for release on licence. The halting of trials on medical grounds is a matter for the discretion of the judge concerned.
Lord Astor of Hever: My Lords, I thank my noble kinsman for that helpful reply. Are the Government satisfied with the standard of medical evidence available to the courts and the Parole Board? What factors are taken into account by the Parole Board when deciding on release?
Viscount Astor: My Lords, judges and the Parole Board must take decisions on the best medical evidence available. If they are not satisfied with the medical evidence, they may call for further expert medical opinion. Many factors are considered when assessing suitability for release on licence, including the nature and seriousness of the offence personal and criminal history, the inmate's behaviour in prison, any relevant medical factors, release plans and any representations made by the inmate.
Lord Molloy: My Lords, is the Minister aware that people are concerned that prisoners who have committed heinous crimes are released at an early date and then repeat the kind of crimes for which they were committed to prison in the first place? Should not the Government consider the matter?
Viscount Astor: My Lords, that is obviously a concern. We have announced a review of our policy. We have announced that we shall abolish a restrictive
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policy on parole immediately. That is being done prior to the Criminal Justice Act coming into force on 1st October.
Lord Tordoff: My Lords, are there any mechanisms available for the recall of prisoners released with apparently terminal problems who suddenly make miraculous recoveries immediately after release?
Viscount Astor: My Lords, I understand that those on parole licence are only recalled to prison if they re-offend or breach the conditions of their licence.
Lord Dean of Beswick: My Lords, in reply to his noble kinsman the Minister said that judges and the Parole Board act only on adequate and proper medical evidence. Is that not contradicted by the fact that a person involved in the Guinness trial was given a custodial sentence and then released when the medical evidence on which he was released has since been debunked by three senior specialists in Alzheimer's disease? How can lay people be expected to believe that medical evidence is factual, accurate and unbiased?
Viscount Astor: My Lords, I understand the noble Lord is referring to Mr. Saunders. Mr. Saunders was released on parole licence after serving the normal one-third of his sentence. All prisoners serving more than 12 months in prison are eligible to be considered for parole at that stage of their sentence. Mr. Saunders's sentence had earlier been reduced by the Court of Appeal.
The Earl of Longford: My Lords, is the Minister aware that everyone who has considered this matter condemns the fact that the Parole Board does not give reasons for refusing parole?
Viscount Astor: My Lords, it is a matter for the Parole Board and the Home Secretary.
Lord Richard: My Lords, is the noble Viscount aware that early release seems to have the most efficacious effect upon a whole range of conditions and diseases? Will he say whether this series of miraculous cures seems to be on the increase, is at about the same level as it was in the previous year, or is declining? Will the noble Viscount assure us that in cases of this kind independent medical evidence is made available to the courts?
Viscount Astor: My Lords, perhaps the figures reflect the adequacy of prison regimes and the fact that people are treated well in prison and feel well when they leave prison.

Maastricht Treaty: Referendum Proposal
3.3 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
Whether they will make arrangements for a referendum on the Maastricht Treaty before the European Communities (Amendment) Bill makes any further progress in Parliament.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): No, my Lords.
Lord Stoddart of Swindon: Oh dear, my Lords. Is the Minister aware that her reply will cause great disappointment not only among the huge majority of British people who want a referendum but also among many people in the Conservative Party, many of whom are extremely senior? Is the Minister further aware that there is no mandate for the Government to go ahead with the Maastricht Treaty as the matter was not discussed during the general election and indeed the treaty was not available to the general public? In regard to the approving remarks made yesterday that it is only demagogues and dictators who go in for referenda, do the Government believe that the leaders of Denmark, Ireland and France are demagogues and dictators?
Baroness Chalker of Wallasey: My Lords, this is the first time I have ever heard the noble Lord, Lord Stoddart, be concerned for the welfare of the Conservative Party. However, he is rightly concerned for the good health and long service that I know my noble friend Lady Thatcher will give to this House as she has done to another place and to our nation. I believe the noble Lord mistakes the attitudes of the Danish people, because the Danish people sought by a narrow majority to defeat that referendum for a wide variety of reasons. Many thought the measure did not go far enough.
Our Government sought repeatedly during the recent general election to raise the profile of Europe as an election issue. The fact that that issue did not receive prominence is no doubt because most people were at least content with the Government's handling of the vital issue. As regards this country not having a referendum, I must say that we live in a parliamentary democracy where government is accountable to Parliament and where Parliament is accountable to the electorate. That is our system. We had a general election on 9th April. I know views differ, but they differ on many other issues. I shall not offer other quotes but I say simply that I believe our parliamentary democracy is strong enough to survive without referenda.
Lord Harmar-Nicholls: My Lords, is it not reasonable for the Government to say there are no immediate arrangements to hold a referendum? However to say or imply, as the brevity of my noble friend's reply did, that we would never hold a referendum is a great mistake. No government should allow, even by implication, the word "never" to appear in their vocabulary if they are a wise government.
Baroness Chalker of Wallasey: My Lords, my noble friend is mistaken. I did not say there would never be a referendum. I simply said no to the Question of the noble Lord, Lord Stoddart.
Lord Cledwyn of Penrhos: My Lords, if Denmark persists in the decision it took in the recent referendum, and given that every state in the Community must subscribe to ratification if it is to
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take place, will the Minister say what advice the Government will proffer to the other states in the Community when Britain assumes the presidency tomorrow?
Baroness Chalker of Wallasey: My Lords, as the noble Lord well knows from the report on the discussions in Oslo shortly following the Danish referendum, we have neither proffered advice to the Danish Government nor have we sought to press other member states of the Community to do so. We believe that the Government of Denmark need time to reflect, to consider and to consult. That is exactly what the Government of Denmark are doing. We wish them well and we hope they will soon resolve their problems.
Lord Barnett: My Lords, is it not a fact that the Maastricht Treaty is so complex that it is even possible that one or two Members of your Lordships' House may not fully understand it? In those circumstances would it not be rather difficult to put to the public at large a simple question that requires a yes or no reply, especially when the other much simpler question on whether we should enter a single market was put through both Houses without a referendum? Will the Minister give a more categorical assurance that there will not be a referendum?
Baroness Chalker of Wallasey: My Lords, the noble Lord teases me slightly but he knows that, as an ex-market researcher, I can only agree with him. There is no single question that could adequately sum up the Maastricht Treaty. We have a system of government in which the people vote for their elected Members. Those elected Members become Members of Parliament and the party with the most seats forms a Government. I believe that it is for the Government to take the decisions.
Lord Renfrew of Kaimsthorn: My Lords, does my noble friend agree that a referendum is a device of recent origin and is almost certainly of foreign origin? As my noble friend the Minister has indicated, the British way is to operate through the representatives of the people as moderated by the influence of your Lordships' House.
Baroness Chalker of Wallasey: My Lords, my noble friend puts the question and answers it himself.
Viscount Tonypandy: My Lords, when we had a national referendum about joining the European market we were assured that the question of our sovereignty would not arise. The principle of a referendum was accepted by this country when we had that referendum in the 'seventies. When it was a question of a piffling little change in the constitution of Wales and the establishment of an assembly without legislative powers, we had to go through the trauma of the very thing that the Government now say they are not prepared to allow—that is, a referendum. Will the Minister, who in my experience is not an unreasonable person, change her mind and at least say that the Government will consider the matter further?
Baroness Chalker of Wallasey: My Lords, I would be misleading your Lordships' House if, when we have agreed that we should ratify the treaty in accordance with the constitutional requirements of each member state, I said that we were about to embark on a referendum programme. We have no such constitutional requirement. Only France, Denmark and Ireland have opted for a referendum. All other member states will proceed by parliamentary procedures alone. I believe that that is what is right for our constitution and that is what we should do.
Lord Hooson: My Lords, does the noble Baroness not agree that, however important the European Communities (Amendment) Bill is, it is not as important a landmark as the Single European Act and there was no proposal that we should have a referendum on that?
Baroness Chalker of Wallasey: My Lords, the noble Lord has made a very important point. I remember that some of those who today are seeking to defeat a measure which they do not like by the system of a referendum were the very people who helped to achieve the Single European Act by means of the European Communities Act some years ago.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that her last stricture certainly does not apply to me? In view of the fact that the Government have spent some £38,000 to produce 75,000 copies of a pamphlet entitled The UK Presidency of the European Community, and in view of the inevitability of a referendum whether she likes it or not, will she take steps to ensure, by means of the issue of a suitable pamphlet on the lines of that of the Danish Government, that the British people are thoroughly informed as to what Maastricht is about?
Baroness Chalker of Wallasey: My Lords, the noble Lord offers me a tempting opportunity to continue in publication. It is always right that we explain what we are doing when we take responsibility for the Community presidency from tomorrow. That is exactly what the leaflet does. It will provide a great deal of informative material for young people and others. Whether or not it is necessary to explain the words of the Maastricht Treaty in a similar form to that adopted by the Danish Government is a matter for debate. No doubt that debate will follow on Thursday and again two weeks later.
Lord Monson: My Lords, does not the noble Baroness agree that the main argument for a referendum is that for the first time British subjects are being told, in Part II, Article 8 of the treaty, that whether they like it or not they are to become citizens of a European union,
"and shall be subject to the duties imposed thereby",
including by implication the duty of loyalty to the aforesaid European union? Is it not right that people should be consulted as to whether they wish such obligations to be imposed upon them?
Baroness Chalker of Wallasey: My Lords, I sincerely hope that Members of another place consulted their constituents on these matters, as I
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always did. That cannot be done in one simple contact; it has to be done over a period of time. That is what representation in our Parliament is all about.
Lord Cledwyn of Penrhos: My Lords, the noble Baroness made an important point and it would be helpful if she were to enlighten the House. She said that discussion would take place in the debate on Thursday and two weeks later. Can the noble Baroness explain what takes place two weeks later?
Baroness Chalker of Wallasey: My Lords, I had understood that it was the wish of the Select Committee of this House to debate its report on enlargement. If that is not the case I may have erred but I believe that that is what is envisaged.
Baroness Elles: My Lords, does my noble friend agree that one of the great strengths of the democratic countries in Western Europe is the diversity in the way in which we practise democracy? Would not those who have such pride in our own Parliament be amazed that some are seeking to undermine our parliamentary representative system by having a referendum?
Baroness Chalker of Wallasey: My Lords, my noble friend could not have put it better. She is exactly right. Our Parliament has withstood many strains and stresses both here and in another place over many years and I am certain that it will withstand this quite well without a new system.
Lord Grimond: My Lords, I am no great supporter of referenda, but would not the case against them in general be stronger if the other place was more representative of the votes cast in this country?
Baroness Chalker of Wallasey: My Lords, I know the noble Lord's love for a system of proportional representation, but as we do not have one at the present time I do not believe that anyone can truly answer his question.
Lord Jenkins of Putney: My Lords, can the noble Baroness tell the House why it is that a referendum, which at one time the Government's predecessors commended to the House as a step involving consultation of the British people, has now suddenly become a step undermining the British people?
Baroness Chalker of Wallasey: My Lords, it was not this Government who recommended referenda to the people in the first place.

Multinational Summit Meetings
3.15 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
How many multinational summit meetings involving the United Kingdom were held during 1972 and how many are due to take place during 1992.
Baroness Chalker of Wallasey: My Lords, in 1972 there were three multinational summit meetings involving the United Kingdom and five are scheduled this year.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her reply. Does the increase mean more and better understandings and decisions between heads of government? While my right honourable friend the Prime Minister and his predecessor, my noble friend Lady Thatcher, should be congratulated on their stamina, are even more summit meetings likely to take place in future years, making further heavy demands on heads of government?
Baroness Chalker of Wallasey: My Lords, I am grateful to my noble friend for his question. I believe that there is now a better understanding. I understand that the number of summits has varied between one in 1973 and as many as seven in 1989 and 1990. I believe that they help our understanding, but I agree, with the recent experience of Rio behind me, that they indeed require of Prime Ministers and their supporting teams a great deal of stamina. They are useful but we should have them only when they are truly necessary.

Business
3.17 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Judicial Pensions and Retirement Bill will be adjourned at about 7.30 p.m. for about one hour and that during that adjournment the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 1992, the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1992 and the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1992 will be taken collectively.

South Yorkshire Light Rail Transit Bill [H.L.]
Read a third time.
Clause 13 [Park Square Viaduct]:
The Chairman of Committees (Lord Ampthill)The Chairman of Committees (Lord Ampthill) moved the amendment:
Page 6, leave out lines 29 to 31.
The noble Lord said: My Lords, I beg to move the amendment to Clause 13 on page 6 to leave out lines 29 to 31, which are otiose.
On Question, amendment agreed to.
The Chairman of Committees: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
On Question, Bill passed, and sent to the Commons.

Business of the House: Debates, 1st July
The Lord Privy Seal (Lord Wakeham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Bonham-Carter set down for 1st July shall
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be limited to three hours and that in the name of the Lord Ezra set down for the same day to two hours. —(Lord Wakeham.)
On Question, Motion agreed to.

Human Fertilisation and Embryology (Disclosure of Information) Bill [H.L.]
3.19 p.m.
Read a third time.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
Lord Carter: My Lords, I should like to say just a few words because it gives me the opportunity to thank the noble and learned Lord for the very helpful way in which he has conducted the Bill. A number of detailed points were raised at Second Reading but the very full explanation which he gave when he replied to the debate meant that we did not need a Committee stage.
I am also extremely grateful to the noble and learned Lord for the meeting arranged with officials before the Second Reading of the Bill. At Second Reading we said that our hope was for the Bill to have a speedy passage through the House. The courteous and helpful way in which the noble and learned Lord the Lord Chancellor handled the Bill has helped to achieve that. We certainly wish the Bill well as it goes to another place.
The Lord Chancellor: My Lords, I am extremely grateful to the noble Lord for what he said. I should like to reciprocate his thanks and extend them to other noble Lords who took part in the Second Reading of the Bill. We had a very full discussion which enabled us to avoid the need for the Committee and Report stages. I hope that the Bill will have a speedy passage through the other place.
On Question, Bill passed, and sent to the Commons.

Judicial Pensions and Retirement Bill [H.L.]
3.21 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Persons to whom this Part applies]:
Lord Ackner Lord Ackner moved Amendment No. 1:
Page 1, line 15, leave out sub-paragraph (ii).
The noble and learned Lord said: For one who is not used to delivering the first service, it is some

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consolation to know that I cannot thereby commit a double fault. The point I seek to raise with this amendment is a very simple and short one. In a way it is a probing amendment because the wording of subsection (b) (ii), dealing with the application of the pensions aspect of the Bill, is to apply to any person:
"who, on or after that day, is appointed to some other qualifying judicial office, service in which would (apart from this Act) have been subject, in his case, to some other judicial pension scheme".
The reason for this probing amendment is that it seems to me —I apologise to the Committee if I have misunderstood—that there is a flavour of retrospection about this clause. Perhaps I may give the Committee a simple example. It is becoming more usual for circuit judges to be elevated to the High Court Bench. There are very good examples of those who have had that privilege. At the moment, without going into detail, a circuit judge earns his pension after 15 years' service. If he is elevated to being a High Court judge, does it mean that under this clause he no longer has the advantage of serving only 15 years, subject to an age point, and then becomes obliged to serve 20 years? If so, it sounds to me like retrospection under a not very heavy guise. With respect, if I am right it also seems to me to impose a degree of deterrence upon a person who, by his very qualities, has ex hypothesi shown that he should be promoted.
That is essentially the basis of my amendment. I beg to move.
Lord Morton of Shuna: This amendment is in my name also and I should like to raise a different point. It is quite clear that to change from a 15-year earning of full pension entitlement to a 20-year earning involves a reduction in salary because the pension earning rate is in fact part of the salary. Can the noble and learned Lord tell us how much that is on a 15-year earning pension as a proportion of salary and what the difference is when it goes down to 20 years for earning the full pension? I should have thought that it may be quite a large percentage.
The Lord Chancellor: The amendment would have the result that all those who presently hold a qualifying judicial office would be part of the new scheme. Therefore, I assume that my noble and learned friend Lord Ackner, while wishing to probe, does not wish his amendment to be passed. That would be retrospection with a great vengeance. It has always been the policy of the Government, as proposed in various consultation papers, that members of the existing judiciary who remained in their present appointment or who were promoted within a system which had the same judicial pension arrangements would not be affected by this Bill unless they wished to opt for it. However, sub-paragraph (ii), which is sought to be deleted, seeks to deal with the case, for example, of a circuit judge. I take that example at the instance of my noble and learned friend.
The problem is that under the present arrangement circuit judges are on a different scheme from the High Court Bench. The result of promotion is that the judge has to start again, so far as concerns counting time, in
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order to earn his pension at the High Court judge level; or, if he does not want to do that (usually it will not have a particularly advantageous result) he can elect for the full period of service but with the pension arrangements based on the salary of the circuit judge, from which level he has been promoted. That is a disincentive to promotion at present.
I have to say that those who have been promoted my—noble and learned friend referred to distinguished people who had been so promoted—have normally just accepted that situation, wishing to become High Court judges. But I believe that that is a disadvantage. The purpose of this clause is to enable those who are appointed, for example, to the High Court to get the benefit of their full time of service and their salary at the higher level so as to produce, generally speaking, a better pension. It is just possible that it might work to someone's disadvantage but I think it highly unlikely because of the timescale that would be involved.
The question asked by my noble and learned friend Lord Morton of Shuna is a difficult one to answer. It depends on the age at which one makes the calculation. Obviously, if one serves for 20 years, the present scheme appears better than the old one. It depends somewhat on the length of service and also, if one is making a very strict calculation, on the age at which the calculation is made. Whatever the correct answer, I cannot believe that it can be right for this amendment to be passed. I strongly recommend the Committee not to agree to it.
Lord Ackner: Before my noble and learned friend sits down, perhaps I may say something which arises out of the point raised by my noble and learned friend Lord Morton. I understood that the actuarial approach was that the 15-year pension represented the equivalent of an increase of about 30 per cent. to the salary. If so, an accrual period lengthened from 15 to 20 years represents, I have heard said, a decrease of 7.5 per cent. in the judicial salary. I should welcome my noble and learned friend's response. As was pointed out by my noble and learned friend Lord Donaldson at Second Reading, pension is nothing other than deferred pay.
3.30 p.m.
The Lord Chancellor: Pension is deferred pay. However, the rate at which pension accrues as a proportion of pay depends on what stage one has reached. Let me take an example, under the present scheme, of a judge who has worked for 16 years on the Bench. With regard to pension, the rate of accrual is zero because he has already acquired his full pension. The rate of accrual, strictly speaking as a percentage, depends on that factor. The other difficulty is that the pension is not the only benefit. There is also the benefit of a capital sum. Questions arise about the correct way in which that should be assessed.
The effect of the amendment would be to apply the new scheme to all the existing judiciary. Therefore I assume that the Committee would not wish to approve it.
Lord Ackner: I am bound to say that I am somewhat disappointed in my noble and learned friend's answer. However, I should like time to consider it. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 2:
Page 2, line 7, leave out ("within such time") and insert ("at any time prior to retirement").
The noble and learned Lord said: This is a short amendment. I can blame the parentage upon my noble and learned friend Lord McCluskey who raised the issue during Second Reading. He asked:
"Why does any period need to be laid down?"—
that is, during which a judge should have the right to opt into the new scheme.
"Why should not the existing judiciary merely be given the right to elect in the light of their personal, financial and family circumstances at any time while they continue to serve?"— [Official Report, 16/6/92; col. 164.]
Hence the quite short amendment which I have proposed to subsection (3) at line 7. It deletes the words "within such time" and inserts "at any time prior to retirement".
There may be occasions when a judge says to himself, "I am very concerned about the position of my wife. She is a great deal younger than I am. I am likely to die before her, and my health is such that that is more than likely to be the case. I should like to elect now. If anything happens to me I have made my election". Alternatively, he may wish to put off the matter until some other event occurs which makes the opting in appropriate. But he may not survive until the ordinary time for election. Therefore, the amendment enables him to anticipate what he considers is in his family's best interest.
When my noble and learned friend replies will he indicate what he has in mind regarding the personal representative of the judge who has died without opting? Under existing provisions, at present that consideration is very much on the cards. I much support the inquiry made by my noble and learned friend Lord McCluskey. It is the basis of the amendment.
Lord Mishcon: To follow on from the noble and learned Lord, Lord Ackner, what worries me is that provisions in the Bill—we have complained about this fact in other Bills—are taken out of the hands of those who are dealing with the matter in Parliament. If there is to be a limit, why is not the limit in the Bill? Why have we to pass a provision that is completely vague, unknown to us and to a large extent completely undetermined by us now or in the future? In the Bill the time is "as may be prescribed". I ask the noble and learned Lord why we cannot know the time period now. I quite understand that the manner in which the election is to be made, if it is to be a prescribed form, has to be left outside the Bill, but the time within which the election is made should be stated in the Bill.
Lord Morton of Shuna: The response to the consultation paper made it perfectly clear that judges on the old system were to be allowed at retirement (according to paragraph 19, I believe) to obtain advice from the Government as to which system would suit
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them better and then to choose. Therefore, I too do not understand why we have this somewhat threatening language in this subsection. Why was it not possible to say that "at any time prior to retirement" the person on the existing scheme could choose? That is what the amendment seeks to achieve.
The Lord Chancellor: My noble and learned friend Lord Morton of Shuna has demonstrated very plainly that the amendment will not provide what he seeks. The amendment suggests that the election has to be made "at any time prior to retirement". What he wishes to do, among other things, is to have the opportunity of advice about the various points of view on the respective merits of the courses open to the person in question and then for that person to make an election. I hope that I made it perfectly plain on Second Reading, in reply to my noble and learned friend Lord McCluskey, that the intention is for it to be possible to make an election at the time of retirement.
The point made by my noble and learned friend Lord Ackner is also good; namely, that a person might wish to make an election at a time other than retirement. There are certain problems associated with the degree of freedom of election available which can have some effect. However, the real problem was for how long such election was to be open. I have endeavoured to make it plain that election would be open until such a time as to enable it to be made in respect of retirement. How long should one have after that to consider such matters? How long will it take to obtain proper advice? One might not necessarily wish only government advice. I believe that a degree of flexibility in such matters is highly desirable.
Such experience as I have of seeking to operate pension schemes has suggested to me that often quite unexpected problems can arise. It is therefore wise in a subsidiary matter of this kind to have power to make regulations affecting the time and manner in which the election should be made.
However, of this I am perfectly clear. The intention is that election should be open in respect of the merits of the two courses open at the time of retirement, and within some reasonable period thereafter, in order to enable the matter properly to be considered. I also believe it right to permit a degree of flexibility about making elections earlier that would be regarded as binding, as my noble and learned friend Lord Ackner wishes.
The proposed amendment does not have the effect that my noble and learned friends wish. I believe that it would not be wise to specify in complete detail the time within which elections have to be made. However, if the Committee takes a different view upon that we may return to the matter. I believe that it would be a mistake to try at this stage to lay down in detail all possible ways and times at which an election might be made. The situation with regard to representatives has an effect in that respect. In this provision I intend that the election is by the person who has earned the pension.
Lord Renton: Flexibility is of advantage in some circumstances; but is not certainty essential with

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regard to judicial pensions and judicial salaries? Parliament exists to ensure the independence of the judiciary, of which this matter is part. It may be some time before Report stage. Could not my noble and learned friend the Lord Chancellor make up his mind about the matter between now and Report stage? It could then be inserted as part of the primary legislation.
Lord Morton of Shuna: The noble and learned Lord suggests that there should be a discretion beyond retirement, which may be quite welcome. Do we take it that the Government have changed their mind since July 1991 when they said:
"The Government have decided that existing judges will be allowed to keep their options open until such time as they wish to retire"?
If there is to be a wider choice, would it not be better to express it on the face of the Bill rather than simply say that an election may be made within such time and in such a manner as may be prescribed, which might even be within one month of the Bill coming into force?
The Lord Chancellor: All I can do is indicate what I have in mind. The conclusion expressed in paragraph 19 is precisely what I have in mind. But if we put that into the Bill we would soon be faced in practice with feelings that hardship had been done to judges because they could not accumulate enough information, having decided perhaps rather quickly to retire. I know from experience that some of their Lordships take a period of time to decide that question while others decide relatively speedily. They might not therefore have enough time before the actual date of their retirement properly to evaluate the matter. What I have in mind is that the decision should be made at the latest in respect of the options as they exist at the date of retirement, but what I said in response to the consultation paper is perfectly appropriate to giving a reasonable time in connection with retirement for that to be decided. The problem is that my noble and learned friend Lord Ackner wishes the possibility of election to be made earlier as well. Questions arise about that. That is why I believe that flexibility is important. If noble Lords have views about what should be done in the light of our discussion we shall have the Report stage in which to consider the matter.
I understand the view of the noble Lord, Lord Mishcon, supported by my noble friend Lord Renton, that precision is desirable. Precision is desirable on the main matters so far as possible but flexibility sometimes works to the advantage of those who are subject to the scheme. That is the purpose of providing for this particular type of flexibility. If noble Lords can come forward with a formula which they think is best and which will work for as long as the legislation lasts I shall be glad to welcome such a proposal at the Report stage.
Lord Hailsham of Saint Marylebone: I wish to make a very brief point which is relevant to that raised by the noble Lord, Lord Mishcon. I may have misread the point; I want therefore to check it against my noble and learned friend's opinion. I can quite
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understand that there may be circumstances which would lead the holder of a judicial office who is promoted to defer his election until a later date. Such circumstances have been enumerated. However, that prompts the further question which I wish to put to my noble and learned friend—the unexpected always happens.
Let us suppose that a judge who is promoted decides to defer his election until a later date—the election once made is irrevocable—and then the unexpected occurs. He is run over and killed by the proverbial bus, or some other misfortune occurs to him. What will be the situation then? That point occurred to me when the noble Lord, Lord Mishcon, was speaking. There are some matters, despite the desire of Parliament to retain control of the product of our legislation, in which regulations are an advantage to the subject and not a disadvantage.
3.45 p.m.
The Lord Chancellor: It follows from what my noble and learned friends Lord Hailsham of Saint Marylebone and Lord Ackner have said that there are certain competing considerations to be borne in mind. Some judges may want to settle these matters early and irrevocably. If one does that and the unexpected happens it may be difficult to do anything about it. But that is the problem that has to be faced by those who wish to decide early. I could easily have included, if I had thought it right, a provision about relating it to retirement, although not this provision for the reason that I mentioned. However, I feel that that would be likely to produce from time to time—not perhaps very often—hard cases which we cannot always envisage now. My noble and learned friend Lord Hailsham indicated one possible source: there may be others.
It is not easy to envisage all the possibilities that can arise. It is my experience of judicial pension schemes and related schemes that too rigid provision has produced injustice in particular cases. If it is in primary legislation it is usually impossible to do anything about dealing with the particular case. One has to bear the injustice and feel sorry for the person who has suffered it. My advice to the Committee is that this is a wise form in which to leave the provision, on the understanding, which I wish to make absolutely clear, that the Government's intention is that election will be permissible in respect of retirement. Obviously, some reasonably short time after retirement to enable someone to make up his or her mind would be a useful part of that. I certainly intended to include that in the phraseology I used in answer to the consultation.
Lord Mishcon: I wonder whether the matter could not resolve itself with everyone being happy if between now and Report stage the noble and learned Lord could produce a draft of the regulation that he would have in mind in order that at least we would be satisfied that we were starting with a regulation. It is obvious that we would completely trust the Government to see that a regulation eventually came out in the form that the noble and learned Lord had drafted. That would make us a little happier that we

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were looking at flexibility which produced justice rather than just shrugging off responsibility and hoping that a regulation passed in the future would be as flexible and as helpful as the noble and learned Lord suggested.
The only other way in which to produce complete flexibility is to say that it shall be a discretion of someone, but one never knows whether a discretion will be used harshly or in a sympathetic form. We would all be happier if, prior to Report stage, the noble and learned Lord could produce a draft of what he has in mind on the lines of what he has so helpfully talked about today. We would then know at later stages of the Bill whether we were happy with that or whether we ought to see it in primary legislation. At the moment I take the view—I say this with utmost respect—that we ought to take responsibility for putting the words in primary legislation.
The Lord Chancellor: As the noble Lord, Lord Mishcon, knows, I strive continually to please everyone. I have not found it a very easily obtainable goal hitherto, but I am certainly anxious to do what I can to make everyone content with the provision. I am certainly content to try to see what we can do in the way of producing our present thoughts on the type of order that would prescribe the time and manner. It is not a general discretion—it is a discretion as to time and manner only that I have in mind to prescribe. I shall certainly make an attempt to do that but I do not wish to withdraw my invitation to noble Lords to suggest a form of words for primary legislation that they believe will satisfy everyone in all conceivable situations and produce justice in the future. I should not like to withdraw that invitation. I undertake to do what I can to implement the kind suggestion of the noble Lord, Lord Mishcon.
Lord Ackner: In view of my noble and learned friend's assurance that he will give the matter further consideration, I beg leave to withdraw the amendment. However, I should make it quite clear, in case it has been misunderstood, that we are all concerned with the ability to operate the system flexibly. I have used the words "at any time prior to retirement" because that covers the whole span of the judge while in office. I have specifically drawn attention to the personal representative because that arises after his death. The need to have an ability to operate before retirement may be very rarely exercised. I do not suppose that there are many judges now to whom it would apply but I knew one or two who mountaineered during the long vacation. Some of those may wish to give particular thought to the provision in this Bill for spouses, which I hope we shall be able to improve substantially.
Amendment, by leave, withdrawn.
On Question, Whether Clause I shall stand part of the Bill?
Lord Hailsham of Saint Marylebone: I wish to make a plea to my noble and learned friend because yesterday I was put in a particular situation of embarrassment. I am sure that he will help me to get out of it. At about 6.30 yesterday evening, and long
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after it was possible to table amendments for this Committee stage, I received a whole sheaf of amendments from the Association of Metropolitan Stipendiary Magistrates asking me to table them. Of course, it was wholly impossible for me to do that.
I hope my noble and learned friend will assist me because I have sent them to him by post. I am sure that he will receive them in due course, whatever that may mean. I hope that he will advise me as to what his reaction would be in the event of those amendments being tabled on Report. Some of those amendments would have been to Clause 1.
The Lord Chancellor: Certainly I shall do what I can to help my noble and learned friend to deal with the anxieties of that very important body of judges.
Lord Mishcon: I was also the recipient yesterday morning of the self-same amendments. The noble and learned Lord, Lord Hailsham, never exaggerates, which is why we love him so much. In fact, there was not a host of amendments; there were four.
The Lord Chancellor: Perhaps I may add that that shows that the time limits can sometimes be difficult to attain.
Clause 1 agreed to.
Clause 2 [The judicial officer's entitlement to a pension]:
Lord Ackner Lord Ackner moved Amendment No.3:
Page 2, line 27, leave out ("65") and insert ("60").
The noble and learned Lord said: I make some brief observations which refer to a number of my amendments hereafter. I respectfully submitted on Second Reading that pensions are deferred pay. In order to ensure that members of the top salary field are paid appropriately, the Government have adopted the process of asking the Top Salaries Review Body to report on pay. As pensions are deferred pay, this would have been a wholly proper matter to refer to that body, which would have had the advantage of independent, expert advice. The Government could have adopted or rejected those proposals as they saw fit but would have no doubt been required to justify any rejection. There would have been nothing novel in the Top Salaries Review Body being asked to consider the appropriate new pension scheme. It was asked to do so in relation to Members of Parliament. It produced a scheme and the Government adopted it.
Instead of that, we have a procedure under which the Government, keeping at arm's length interested parties, produced a consultative document. They obtained from those parties their responses, which they never published. They then produced a scheme. I have been fortunate in obtaining the response from the Top Salaries Review Body and the majority, although not all, of the amendments which I have tabled are as a result of the wisdom contained in that response together with informal advice that I have managed to obtain on this expert field. That advice is directed to what is currently provided on a top private executive scheme. That is a scheme which the judges are entitled to expect to be offered to them, the more

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so since that scheme is to be put into primary legislation and, once there, is unlikely to be amended for many years to come.
My main criticisms will be that, as a result of not going to the Top Salaries Review Body or an independent expert, there are to be found in this scheme out of date concepts taken from the old judicial scheme which my noble and learned friend mentioned on Second Reading as going back many years.
I am heartened by the fact that I am told that there will be a substantial gap between Committee and Report stages. I hope that that will enable the judiciary to obtain an independent report from a consultant actuary so that it can have the benefit which it would have had if the appropriate steps had been taken to entrust the matter initially to the TSRB.
Having said that, I turn to the amendments. They seek to change the ages which are referred to in the clauses to which I have drawn attention. Clause 2(1) (a) refers to:
"any person … who retires from qualifying judicial office on or after the day on which he attains the age of 65".
I endeavour to bring that up to date by changing it to 60 because 65 is becoming the top age at which people retire. The provision continues:
"who has, at the time of that retirement, completed … at least 5 years' service in qualifying judicial office".
The current position as regards a High Court judge is that he earns a pension immediately on appointment to the extent of 25 per cent. of his salary and for a circuit judge it is 20 per cent. Those judges are now to be penalised by that useful situation being removed from them. However, that is not a matter of age but of qualification.
In Clause 2(2) (a) I seek to deal with a person who retires from a qualifying judicial office on or after the day on which he attains the age of 60. That should be reduced to the age of 55 and 65 should be reduced to 60.
Perhaps I may quote from the relevant part of the response of the Top Salaries Review Body. In its covering letter it said that, while it welcomed improvements embodied in the new scheme:
"We consider that there is scope for further enhancement within Inland Revenue limits and in line with good practice elsewhere".
I turn now to the particular part which is relevant. The paragraph reads:
"The early retirement provisions are insufficiently flexible and fall short of good practice elsewhere. The Inland Revenue allow any pension earned to be put into payment after the age of 50 but without an actuarial reduction. However, most employers impose some actuarial reduction and we would suggest that this should apply to early pensions where members leave between the age of 50 and 60. Pensions of men and women retiring early over the age of 60 should not be subject to actuarial reduction in line with good practice elsewhere and rulings in the European Court of Justice".
In short, my submissions are that the age limits which have been imposed are out of date, they are not consistent with good practice and should be reduced to the modest extent—I emphasise those words—indicated in the amendment. I beg to move.
4 p.m.
The Lord Chancellor: I should comment on the general situation referred to by my noble and learned friend. In the light of the commitments that I made in this Chamber in connection with the passing of the Courts and Legal Services Bill, the Government agreed to review the judicial pension arrangements. The views of the Top Salaries Review Body were given in respect of the consultation document that we prepared. As my noble and learned friend is probably aware from the letter I recently sent to him, it advised that we should consult independent actuaries. We have done that and I gave a copy of that report to my noble and learned friend. I did not find it particularly useful in relation to the whole scope of the scheme, but I wanted my noble and learned friend to see it, he having asked about it. I know that if anything can be profitably made of it from the point of view of the judiciary he will be able to do it.
The situation in which we find ourselves is that I must attempt to produce a scheme which does the best it can for the judiciary within the general taxation principles adopted in primary legislation, taking account of the special position of the judiciary. It is important in that connection to say that I take the view that in our system it is right that judges should be appointed after they attain a level or standing in the profession which commends them as being demonstrably suitable for judicial office. That means that they must attain a distinguished place in the profession.
In order to accommodate the taxation principles which apply generally, it has been necessary to opt for a 20-year accrual system, to which we shall come later. But I regarded it as important to secure for this judicial scheme a system under which the benefits earned before appointment are retained. Under fast accruing schemes—notwithstanding what will be said later, in terms of the types of schemes that are considered for approval we are proposing a fast accruing scheme—the benefits which a person is able to provide for himself or herself under the taxation system during practice have normally to be taken into account. In other words, if one has in place under the self-employed arrangements a pension provision, that pension provision must be taken into account in deduction of the pension that may be allowed in the approved scheme. I sought to explain that in a note on taxation, a copy of which I hope was received by all noble Lords who expressed interest in the matter.
This is an extremely important exception which is valuable to retain. It is difficult to evaluate it. As my noble and learned friend the Lord Chief Justice pointed out at Second Reading, it depends to some extent on what the individual does. Overall, it is an important aspect of the provision. Incidentally, it is secured by Clause 18 of the Bill in respect of which there is a Motion not to allow it to stand part. I anticipate that when we reach that stage my explanation may allow it to stand part.
That arrangement is important for the judiciary. Therefore, in considering what it will be reasonable to obtain by way of tax benefits, one must take account of the fact that that specific provision was introduced.

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I understand that the position in relation to what was said by the Top Salaries Review Body is that the schemes to which it refers, certainly with regard to fast accruing, do not contain that feature.
It is important to retain that feature. To take 60 as the normal age at which a pension would be payable would be to make a considerable change to the scheme. That would have the effect of seriously damaging the possibility of the scheme standing as it does. The age of 65 which we proposed in the consultation paper was generally well received. In our response to the consultation paper we confirmed that 65 would be the normal pension age.
One must have some regard to the present position that for most of the judges affected by the scheme the present arrangement gives 72 or 75 as the ultimate retiring age. Accordingly, a change to 65 is a good step forward and I would invite the Committee to agree that that is the age which should remain in this part of the Bill.
Lord Wigoder: Perhaps I may ask the noble and learned Lord whether he disputes the proposition that the present amendment is more in keeping with best practice in the private sector at this stage.
The Lord Chancellor: Yes, I do. On examination one will find that the practice in the private sector to which the TSRB refers is practice in relation to schemes which do not allow the retained benefits. The retained benefits are extremely important. When I say "retained benefits" I mean retained separate so that they do not come into account in the state or public scheme. That is an important aspect of what is here provided for the judiciary which is not a feature of those schemes.
Lord Ackner: My noble and learned friend is overlooking the fact that the response which I read out from the Top Salaries Review Body was a response to the consultative paper, which made it perfectly clear that the retained benefits would not rank against the pension. That consultative paper made two aspects very clear which the judges were prepared to sacrifice. The first was the capping. The capping would place a ceiling upon the salary by which one could earn one's one-fortieth. That is a significant alteration in the financial pension. Secondly, and more important, the accrual rate would rise from 15 to 20 years.
The retained benefits have enough burden on their shoulders to account for those two major alterations in the deferred pay situation of the judge. They certainly do not justify the proposition that the scheme now provided for the judges would be grossly out of date. If they did, the TSRB would have said in its report "Of course, we note that a number of your proposals are not as generous as they might be, but then of course we bear in mind that the retained benefits have not had to be given up". They do no such thing and neither does the consultant from whom the Lord Chancellor's Department sought advice not—let me make it perfectly clear—on the whole scheme as we have it in front of us now, but merely on the consultative paper, for which I am indebted to my noble and learned friend for sending me a copy. In his
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criticisms, which, as my noble and learned friend anticipates, I shall certainly pray in aid, neither did that consultant say "Of course our criticism as to A, B and C is not a valid one because of the retained benefits provision".
The judges are required, in conformity under this Bill, to take the sacrifice resulting from capping and from the increase in the accrual period. It is quite unacceptable that in addition they should be landed with what I have heard described as an out-of-date scheme cobbled together from the Lord Chancellor's working paper and the old, and in many cases, very mean provisions of a very elderly scheme. As I indicated to the Committee, I hope that I shall have the advantage not only of the TSRB paper from which I have quoted, and the informal advice which I have outlined, but something more authoritative when we come to Report stage. On that basis I ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 to 8 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 9:
Page 2, line 40, after ("retires") insert ("or is removed").
The noble and learned Lord said: Again, I am relying purely on the wisdom of the Top Salaries Review Body. In these amendments I am seeking to bring into a modern situation what applies in relation to illness. I seek to bring in to Clause 2(3) (a) the words "or is removed" after "retires" because illness may result in a person being removed as well as voluntarily retiring. I have taken the word "removed" from a later section where it is, I believe, inappropriate. The first alteration is therefore merely a drafting one to cover the position of incapacity which results in removal rather than voluntary retirement.
I then go on to amend the age of 65 to 60. As regards the state of a judge's health, which is covered under subsection (3) (a), I seek to amend, in subsection 3(b), at lines 4 and 5 on page 3, "the appropriate annual rate". If a judge has a stroke and is unable to work after a year, the appropriate annual rate is one-fortieth of his salary. The comment of the TSRB is:
"Pension benefits calculated on the basis of pensionable pay and past service, but payable immediately in the event of retirement on grounds of ill-health, could be more generous. An alternative approach would be to base ill-health pensions on potential service to age 65".
Having deleted the words "at the appropriate rate", I have added the words in Amendment No. 13, in regard to the pension,
"he would have obtained if he had reached the age of 65 or completed 15 years in his judicial office, whichever is sooner".
That advice from the Top Salaries Review Body is in fact supported by the independent actuary consulted by my noble and learned friend. He comments as follows:
"On ill-health retirement an immediate pension is payable based on completed service. Where service is short the pension payable will be relatively small whereas it can be argued that it is precisely such individuals who need the greatest support. This is one reason why it is more common to provide a more generous basis of calculation in 59 per cent. of private sector schemes (see the NAPF 1990 survey) whereby some or all of potential service to normal pension age is included. For example, a somewhat complex enhancement formula is

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common in public service schemes. We suggest consideration is given to something simpler, such as inclusion or full or half of potential service".
I have made inquiries as to what happens in other jurisdictions comparable to ours; namely, America, Canada, New Zealand and Australia. They all provide for a significantly enhanced payment in relation to illness. I shall provide those answers in a moment because it means delving into a mass of papers which I have with me. It is shown that they consider, as we have always submitted, that a judge who embarks on his judicial career well on in his professional life, is in a special category of his own and requires this form of treatment. But according to both sources of pension expertise you do not need to be in a special category. That is what you can expect to get nowadays in any modern private scheme. I beg to move.
4.15 p.m.
Lord Donaldson of Lymington: I share my noble and learned friend's concern for the position of a judge who accepts appointment and, relatively shortly after that appointment, suffers some grievous affliction such as a stroke. As my noble and learned friend pointed out, that would mean in the first year one-fortieth of his salary as the basis for his pension. If he had the misfortune to die, it would mean a pension of one-eightieth for his widow.
I am not competent, and I do not wish, to get involved in the technicalities of pensions. However, I make this point. My noble and learned friend the Lord Chancellor, on a previous amendment, stressed the advantages that judges will derive from being able to put retained benefits on one side. I do not doubt that for the high-fliers practising in the High Court, particularly in specialties, that if they have been practising long enough they will have very significant benefits to retain. However, I question whether the average appointee to the Circuit Bench from circuit practice will necessarily have benefits which are of any real value to retain. We shall be discussing later on the age at which judges are appointed.
I should have thought it likely that with the cost of private education and other expenses which flow from having a family, and looking at the age at which they would be likely to be appointed to the Bench, it is relatively unlikely that there would be any surplus money to put by for the creation of benefits which, by courtesy of this Bill, they might be allowed to retain.
Lord Morton of Shuna: I wish to make just two points and shall try to make them as briefly as I can. First, I wholly agree with the noble and learned Lord, Lord Donaldson of Lymington, that we are not talking only about the eminent practitioners at the commercial Bar who are promoted to the High Court. In the Scottish context we are talking about people who are appointed as sheriffs. In my experience—it is only an experience of observation—people in the 40 years of age bracket who have families at fee-paying schools are not often in a position to have been able to pay vast sums into retirement pension provisions; and if they are in that happy position, they are not in
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the position of tending to be appointed sheriffs—and the sheriffs tend not to be the highest earners at the Bar.
The second point which I do not understand in relation to this amendment is why, standing the provisions in Section 2 of the Judicial Pensions Act 1981, which precisely provides that people who have to retire on the ground of incapacity receive the full 15-year pension, the Government have put forward these provisions which seem so radically different. They mean that if one has the misfortune to die in the first year one's widow receives one-eightieth of one's salary, and that if one is rendered speechless and unable to write as a result of, say, a stroke, one receives one-fortieth of one's salary. That is a radical change from the provisions of Section 2 of the Judicial Pensions Act 1981, and from what my noble and learned friend Lord Ackner has said, it does not seem to be modern pensions practice. Perhaps the noble and learned Lord will explain why the provision is necessary.
Lord Ackner: Perhaps I may give the figures that I said that I would be able to provide. If I may give the Committee an example in regard to Queensland in Australia, the figure is 75 per cent. of the maximum pension entitlement, plus 5 per cent. per annum in excess of five years, to 60 per cent. In Western Australia, it is 50 per cent. of the pension. Moving on to other jurisdictions, the figure in Canada is 663per cent. of last salary. In the United States it is 100 per cent. of salary and in New Zealand it is a minimum of 50 per cent. of salary.
Since I am on my feet, perhaps I may give the Committee the figure for the number of judges over the age of 50 who have been appointed to the Circuit Bench and to the High Court Bench in the past five years. There were over 180 Circuit judges and some 30 High Court judges—so five times as many judges are probably being appointed to the Circuit Bench than the High Court Bench. The noble and learned Lord the Lord Chancellor is on record as saying this—it is to be found on page 15 of the penultimate report of the Top Salaries Review Body:
"The Circuit Bench is the mainstay of the judiciary, to which it is vital to attract enough lawyers of the right calibre. They are clearly those who have, in my respectful submission, no great prospect of substantial private pensions—the more so if they are to be recruited round about the age of 45. Not only heavy mortgages, but the question of the children's education, will make any surplus cash very small".
Lord Mishcon: I, too, can put over my points briefly. First, I would wish to follow the noble and learned Lord the Master of the Rolls in what he said about the type of person whom one would wish to see in high judicial office. I tried to say this at Second Reading. Those of us who have spent many happy years in the law and who have had the privilege of looking at various judges from time to time—sometimes with admiration when one has won the case and sometimes with the opposite feeling when one has lost it—have realised to the full that it is not the high flyer by any manner of means who necessarily makes the best judge. It is very often the quiet, tranquil,

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sober-minded practitioner—I added the word "minded" on purpose—who catches the eyes of the judges, who then most likely might mention his name to the noble and learned Lord the Lord Chancellor as being of the temperament and the learning for such an office without having the dramatic effect upon a court and the public that some people might have. I look forward to the day when some of our academics serve in the Court of Appeal, to which they may be very well suited. We all know that academics will not have been able to contribute large sums for their pensions insurance policies during their academic careers.
I almost apologise for mentioning my second point—indeed, I do apologise to the noble and learned Lord, Lord Ackner. It is a point of semantics only. If I am mistaken about this I know that, with his large heart, the noble and learned Lord will forgive me, but I believe that he was making his case on this amendment on the basis of the retirement of somebody who is afflicted with ill health. Therefore, if I may say so, I would have hoped that his amendment might be worded something like this, "retires from or, by reason of ill health, has to cease holding qualifying judicial office". I say that because whatever happens in the rest of the Bill, the use of the word "removed" conjured up for me the image of a misbehaving judge who has to be removed from office but who then has the benefit of the noble and learned Lord's amendment—and I am sure that that is not what he intended.
Lord Ackner: Perhaps I may help the noble Lord, Lord Mishcon, on that point and direct him to subsection (4), which is just below line 5 on page 3 of the Bill. It refers to a removal for "incapacity or misbehaviour". I sought to take away the combination of incapacity and misbehaviour, which are clearly two entirely different concepts. I sought to use "incapacity" in subsection (3) (a) after the word "retires" in order to encompass the case of the incapacity that involves the removal. It seemed that that was the only way of effecting a divorce between "incapacity" and "misbehaviour" but, with my noble and learned friend's wide expertise in the matrimonial field, I bow to any suggestion that he may make.
Lord Mishcon: I shall not waste the time of the Committee and shall make only this respectful point to the noble and learned Lord. He is absolutely right that the word "removed" definitely comes later in Clause 2. However, using exactly the same word as is used for those who are removed for the objectionable reasons that are mentioned in the clause does not seem a happy choice of phrase. That was the only point that I was trying to make.
Lord Ackner: I entirely accept that point.
Lord Hailsham of Saint Marylebone: It is perhaps right that I should say in just a sentence or two that there is more in this than meets the eye. I was faced with two incidents that gave rise to the statutory provision relating to removal for incapacity or misbehaviour. My noble and learned friend could easily trace the cases. The first related to a very distinguished judge in the Court of Appeal who was
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stricken by a stroke. He wanted to retire—I do not think that there is any doubt about that—but he was quite unable to communicate his wish to anybody. I had then, before the Act came into force, to set up a little committee of his friends on the judicial Bench to find out whether they could possibly discern his real intention. They satisfied themselves that he wanted to resign, and he did so. In fact, I acted on those assumptions. However, the fact was borne in upon me inescapably that a situation may have arisen where it was quite impossible to find out the truth.
I turn now to the second aspect which is even more important to realise in such a situation. In the other incident, I was faced with a judge who had misbehaved. He was a minor judge in a lower position than that which I have just described. I was told that if he was made to retire gracefully from the Bench—which he certainly ought, in theory, to have done—he would lose his pension altogether. Therefore, I had to remove him in order to save his pension. That was the only way that I could do it. As I said, there is more in this than meets the eye. As I indicated on a previous occasion, I believe there is room for regulation, without being too precise, in the words of the statute.
4.30 p.m.
The Lord Chancellor: So far as concerns the first point, I believe that to insert the words "or is removed" in the first amendment, which is the one to which we are technically speaking, would introduce difficulty in understanding precisely the basis for removal. However, I take the point made by my noble and learned friend Lord Ackner that one has to read on into paragraph (b). Nevertheless, it is quite difficult to fit all possible grounds of removal into that provision. It would be inappropriate that a person who retires on medical grounds and a person who is removed for misbehaviour should be treated on the same basis. Therefore, I believe that it is important to make a distinction.
My noble and learned friend Lord Ackner said that there were two aspects of the new system which were, so to speak, being put before the judges for acceptance in return for the retained benefit: one was the 20-year accrual and the other was the cap. So far as concerns the cap, we intend to give a supplementary benefit in respect of that which is non-contributory. As a result, the capital sum which comes from that will be subject to taxation. However, there is an additional provision in respect of that part of the salary which is capped on a non-contributory basis. We have attempted to deal with that aspect and, therefore, it is not quite right to suggest that the cap has, as it were, damaged the position completely.
My noble and learned friend Lord Morton spoke about Section 2 of the Judicial Pensions Act 1981. My understanding of that provision is that, on ill-health retirement, the benefit accrued by completed years of service is what is payable; for example, because of the way in which the pension accrues under that system, the immediate pension payable on appointment is already l0/40ths of the total. What we are doing here is to mirror that fact.

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Many Members of the Committee have mentioned the retained benefit. My noble and learned friend the Master of the Rolls pointed out that not everyone may have substantial retained benefit. One has to decide on the matter. If Members of the Committee take the view that the retained benefits exemption is not worth having, then, by all means, we shall remove it, thereby acceding to the proposal of my noble friend Lord Renton. As a result, I may well be able to obtain enhanced benefits in other parts of the scheme. However, I have taken the view—and if I am wrong about this Members of the Committee will correct me—that having regard to the general situation in the profession and the desirability of having people at all levels within the judiciary who have attained a degree of standing in practice, the probabilities are extremely high that this is a better concession than any other that is likely to be available.
The noble Lord Lord Mishcon, suggested that the day may soon come—although, perhaps, he did not use the word "soon"—when academics would be in the Court of Appeal. I am not sure how universally that statement was applauded when it was mentioned, but, of course, academics who came into the Court of Appeal, would presumably have been in employment in universities. In the days when I served in the universities there was a federated superannuation system in operation. I feel certain that there is still such an arrangement in universities; indeed, I would be surprised if there is not. Accordingly, as academics serve in a university they will be accruing a pension provision which would fall to be taken into account when considering their position. In my judgment it would not be appropriate to have the same—
Baroness Seear: As the recipient of an academic pension, perhaps I may assist the noble and learned Lord. Yes, indeed, academics will have such pensions. However, I have to say that they are at a very much lower rate than that which applies to any successful barrister. The percentage of salary that one is paid as an academic would not compare with even the most modest earnings of some circuit judges. Therefore, one should not be overwhelmed by the fact that such persons will already have some money from an academic pension.
The Lord Chancellor: I am greatly obliged to the noble Baroness whose experience of universities, and of receiving salaries in them, is probably much more up-to-date than mine. However, the point is that such academics do receive a pension and, therefore, the earlier service has been recognised. No doubt the academics would like to have a judicial system operating for them. But we are certainly not proposing that at present. It is important to remember that they are not without some pension provision and that they would also be affected if earlier schemes had to be taken into account in respect of their judicial position.
In my view, the distinction that the Bill makes between those who retire voluntarily and those who retire on medical grounds at the early stage is reasonably made. Those who voluntarily go, wishing an immediate pension, will receive only the actuarially
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reduced pension. If they are ill and have to leave on that account, the full value of their pension will be payable immediately. Otherwise, the full paid pension which has accrued is payable only at the age of 65. If the pension is taken immediately, it results in a reduction. That is a reasonable recognition of the difference.
Of course, I agree that there are hard cases. I certainly accept that fact. I should obviously like to do anything that is reasonable to deal with such cases. But, as has been pointed out, the fact remains that, basically, the pension is a deferred salary. Therefore, it is reasonable that it should bear some relation to the time which the person in question has given the service which is subject to the pension.
We have therefore achieved an improvement in respect of those who have to retire on account of ill health as against those who retire on other grounds. It is not perhaps as generous as my noble and learned friend would have liked, but it recognises the principle. As I said, although the rate of accrual is different in the present system under the Judicial Pensions Act 1981, the principle—namely, that the pension that has accrued is immediately payable in the case of retirement on the grounds of illness—is preserved.
Lord Ackner: Time has great therapeutic qualities about it. In view of the substantial interval which we know that we shall have this evening, I should like time to reflect on what my noble and learned friend has said. I hope that he will take like advantage by reflecting on what I have said. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 3, line 3, leave out from beginning to first ("the") in line 4.
The noble and learned Lord said: I should like to speak also to Amendment No. 14 which has a similar purpose, which is to clarify the drafting. The words to be omitted by the amendment carry the implication that subsection (2) would otherwise necessarily apply to subsection (3). That is not the case, hence the amendment.
Amendment No. 14 makes it plain that subsection (2) is not to apply. They are both drafting amendments. I beg to move.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
Page 3, line 5, at end insert (" (and subsection (2) above shall not have effect in relation to that retirement, notwithstanding that the conditions in paragraphs (a) and (b) of that subsection may he satisfied in the particular case).").
On Question, amendment agreed to.
[Amendment No. 15 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 3, line 21, leave out ("on his retirement from qualifying judicial office").
The noble and learned Lord said: The purpose of the amendment is to ensure that if a judicial officer resumes service after he has retired and dies while his resumed service is continuing, the pension, in the form

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of a widow's pension, will continue to be payable as if no pension had originally been paid. As currently drafted, paragraph (c) continues the pension upon his retirement from service only. It does not cover the case, which is a possibility, of the officer dying while still serving. That is a point that should be covered. While considering the various possibilities that point occurred to us; and so I believe it right that the provision should be added. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 17:
Page 3, line 25, after ("rate") insert ("or amount").
The noble and learned Lord said: This is a drafting amendment to cater for lump sum benefits. As currently drafted, subsection (5) (c) (ii) talks about rate of benefit. However, in the case of a lump sum it is not the rate but the amount that is relevant. I think it right to make that correction. I beg to move.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
4.45 p.m.
Clause 3 [The appropriate annual rate]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Before I call the noble Lord, Lord Coleraine, perhaps I may say that if his amendment is agreed to I shall be unable to call Amendments Nos. 19 to 22 which would be pre-empted.
Lord Coleraine Lord Coleraine moved Amendment No. 18:
Page 4, line 10, leave out subsections (1) and (2) and insert:
("(1) In the case of a person who at the time of his retirement from qualifying judicial office has completed not more than twenty years' service in such office the "appropriate annual rate" for the purposes of this Part is an annual rate equal to one-fortieth of his pensionable pay multiplied by the aggregate length of his service in qualifying judicial office (expressed in years and fractions of a year).
(2) In the case of a person not falling within subsection (1) above the appropriate annual rate for the purpose of this Part is an amount equal to one-half of his pensionable pay plus an amount equal to one-seventieth of his pensionable pay multiplied by the aggregate length of his service in qualifying judicial office which exceeds 20 years of such service, but not extending beyond the date upon which he attains the age of 65 or completes 25 years of such service whichever first occurs (expressed in years and fractions of a year).").
The noble Lord said: I was not present on Second Reading when the noble and learned Lord explained that the Bill results from the review which he announced in Committee on the Courts and Legal Services Bill on 5th February 1990. I should perhaps remind the Committee, with some grief, that the amendment during which he made his announcement was my amendment which drew attention to the anomalies which affect lower judicial officers and in particular the accrual period of 20 years which they had to face. I then asked that the period be reduced to 15 years. Therefore I was sorry to read that the Government, for reasons of fiscal importance—as far as I can make out detached from the merits of the case—have had to insist that the 20-year accrual period should apply to all judicial officers. I shall listen with great interest to the debate on Amendment No. 19 which the noble and learned Lord, Lord Donaldson, will move shortly. I do not wish to pre-empt that
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amendment. I make it clear that this is a probing amendment which in due course I shall seek leave to withdraw.
The amendment provides additional pensions for judicial officers who complete more than 20 years' service at or before the age of 65; that is to say, to judicial officers who are appointed below the age of 45. In connection with the amendment I have been advised by the Association of District Judges. I have had an opportunity to read the reports from independent actuaries which the district judges have obtained. As I understand it, some 25 per cent. of district judges at present in post were first appointed before the age of 45. I also understand that the most recently appointed Chancery Master, who was appointed from the Bar, was under 45 when appointed.
Effectively, for judicial officers appointed at or under 45 the Bill would provide that they would have worked until they are 45 without obtaining pension rights for those years and without, during those years, having any opportunity to make proper, private financial provision for their own pensions.
The amendment would allow a pension of 1/70th of pensionable pay for each year served before the age of 45 and after the age of 40. I shall return to the reason why that fraction has been chosen. Were it not for the perceived need to bring pension arrangements within the requirements of the Income and Corporation Taxes Act 1988, it would be entirely fair for the fraction of 1/40th to be used. That is not challenged in the statement of the Government's intentions before legislation from which I shall read part of paragraph 4 which refers to the replies to the consultation paper and states:
"It was also suggested by some commentators that service in excess of 20 years should be allowed to buy extra benefits. This would exceed the limits allowed for tax approved schemes, and the Government has decided that service beyond 20 years should not count for pension purposes".
I hope that my noble and learned friend will be able to comment upon that statement because the advice that I have seen which was given to the district judges is that that statement is incorrect. As I understand it, the limit of pension imposed by the taxation statute is two-thirds of final remuneration, including the pension equivalent of a lump sum payment. The advice that I have seen is that the application of a 12:1 conversion factor, in accordance with Memorandum No. 108 of the Superannuation Funds Office of the Inland Revenue, to lump sum payments based on the pension earned by a 20-year accrual period would allow an additional 1/70th of pensionable salary for each year of service in excess of 20, up to a maximum of five such years.
I shall be interested to learn what can be said about that point. In the light of the advice that I have received it seems to me that that is a provision that should be looked at further. I beg to move.
The Lord Chancellor: One of the purposes of the Bill is to provide a uniform system of judicial pensions applying to all judicial officers. One of the difficulties of the present arrangement which has already been alluded to is that there are a number of different

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schemes and if a judge is promoted from one level to another it is often disadvantageous for him or her because of the aggregation rules.
The scheme as a whole is based on the way in which those matters are looked at by the Inland Revenue. That is the basis of what is said in the response to consultation, because the Inland Revenue of course takes account of the allowance in respect of retained benefits in its estimate, although it is impossible to have a calculation. The system is designed to deal with people who have attained a degree of standing in the profession before appointment. On that basis, until now the usual rule has been that a fixed period is set. Once that period has been served, the full pension is earned and thus matters are settled.
This is a different kind of provision, allowing for continuing the pension beyond the 20-year period for particular officers. I do not find it easy to reconcile that with the complete flexibility of the scheme. I am not sure, for example, what my noble friend has in mind for a person who is promoted from his present post to a higher judicial office. That would mean, for example, that because of the salary for the higher office he would receive a pension considerably above that of others in the same office who had served for comparable periods.
I do not know whether my noble friend has any comments on that aspect. At the moment I find it difficult to see how we could adapt the scheme while retaining the ideal of a single scheme in the way which he suggested.
Lord Coleraine: In answer to the point made by my noble and learned friend, I see nothing in the proposal which affects the scheme's uniformity. Obviously any judicial officer, be he a High Court judge or Chancery Master, would be able to take advantage of the proposals in the amendment if he happened to take up his first appointment between the ages of 40 and 45.
If I understand the other point which my noble and learned friend made, it would be correct that if a district judge or any other judge started in a post under the age of 45 he would, in the normal course of events and if he finished as a circuit judge, receive a slightly higher pension than the circuit judge who had served 15 or 20 years. This does not seem to me in any sense to conflict with the pension scheme which my noble and learned friend has in mind. It seems to follow quite naturally from the way his scheme is designed.
Obviously what my noble and learned friend said will need further consideration. Also I am sure that he will wish to consider the points I made about the actuarial advice which the district judges have received and which appears to conflict with the advice received by his department. For the time being, with the Recess ahead of us, I can do no better now than to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No.19:
Page 4, line 11, leave out ("20") and insert ("15").
The noble and learned Lord said: I am extremely grateful to the noble Lord for withdrawing his amendment. That enables me in this amendment to raise a broad question of principle which does not depend on the nitty-gritty of some clauses of the Bill.
The Bill deals with two quite different but interrelated subjects: namely, judicial pensions and judicial retirement. The important point is that it does so in that order. First come pensions, then retirement. We have to go to Clause 25 before we discover at what age a judge is required to retire. It seems to me that this is to approach the matter from back to front. Both logically and chronologically what comes first is the normal length of a judge's service and at what age that service may be expected to end. Only when a view has been formed as to those two factors is it possible to evolve a sensible pension scheme.
Perhaps I may make it clear that in moving this amendment to restore 15 years as the normal length of a judge's service I am not directly concerned with benefits or advantages for the judge. My concern is with the quality of the administration of justice. In deciding what should be the normal length of a judge's service, the Committee must not lose sight of two features which are unique to judicial office. The first is that the appointment involves a real career change. Whether the appointment is of a solicitor or a barrister, the person involved leaves the practising branch of the profession and joins the judicial branch, which calls for largely different skills and qualities. Whatever the judges may think about it, that is not promotion. It is a new start and is likely to be irrevocable. That person will not be able to go back to private practice.
It follows that, while it is to be hoped that every judicial appointment will enrich the Bench, it is equally certain that every appointment to the Bench will impoverish the practising branches of the profession. It must never be forgotten that under our system the skills of practitioners are just as important in the administration of justice as the skills of the judges.
The second unique feature is that for the vast majority of judges—and as a ballpark figure it may be as high as 80 per cent.—there will be no promotion; therefore no change in their work pattern throughout their judicial service. What they do in the first few months after appointment they will continue to do throughout that service.
Taking account of those two factors, I can well understand why 15 years has for so long been the established norm for judicial service in the case of circuit judges and the Bar. I believe that it is right and that 20 years is far too long.
There are two reasons why 15 years is right. The first can be simply stated. If one does the same judicial job for more than 15 years one becomes stale. A stale judge is a bad judge. He has heard it all before and risks becoming cynical. I have been on the Bench for nearly 26 years and I hope that I have become neither stale nor cynical. But I have been lucky. I have had several changes of job. I even had a number of especially interesting changes in my work pattern during my service as a puisne judge, but I have been

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exceptionally lucky. As I said on Second Reading, I should have retired after 15 years if I had still been a puisne judge of the Queen's Bench Division.
The second reason why 15 years is right is related to the likelihood that in future judges will have to retire at the age of 70. As I understood the sense of speeches in the House on Second Reading, this was one feature of the Bill which met with universal approval. I have not done the calculations but that approval was despite the fact that the average age of noble Lords speaking in the Second Reading debate was 70.7 years.
If, as is proposed in the Bill, we reduce the retiring age by five years from 75 to 70 and add five years to the normal period of service by increasing it from 15 to 20 years, as a matter of simple arithmetic we reduce the normal age at which solicitors and barristers become judges by 10 years. Appointments would have to be made between the ages of 40 and 45 years and at the latest by the age of 50.
The situation is rather worse than that because, while the compulsory retirement date is the judge's 70th birthday, the normal retirement date is at the age of 65. That is indicated by Clause 2(1) (a). If a judge is not expected to serve beyond his normal retirement date, he must be appointed at the very latest before his 45th birthday. That is simply too early if we are to continue to have an adequate supply of skilled and experienced practitioners. I must emphasise the need for experience. It is at least as important as knowledge of the law and it is needed both by the leading advocates and by the newly appointed judges. This proposed lowered age of appointment would mean that some leaders of the practising profession and some newly appointed judges would not even have 20 years' experience of practice as solicitors or at the Bar and the quality of justice will inevitably suffer.
That brings me to the question of an appropriate pension scheme. With all respect to my noble and learned friend the Lord Chancellor, I must say that it is no good the Government simply saying that 15-year schemes are out of line with all other schemes. The fact is that service in a judicial office is out of line with all other forms of state service. It is no good the Government saying that 20 years' service must be the norm because otherwise there will be no tax relief. That is simply putting the cart before the horse.
If we impose 20 years' service and tax relief on pensions we shall have stale judges serving out their time. Given the new retiring age of 70, we shall also obtain an impoverished practising profession. If the Government opt for 15 years' service and no tax relief on pensions, judicial appointment will be so unattractive that it will be difficult to obtain candidates of the quality which the public interest demands. I invite the Committee to support this amendment and affirm that 15 years should be the normal period of judicial service. It will then be for the Government to decide whether they wish to sacrifice the quality of justice upon the altar of fiscal uniformity. I beg to move.
5 p.m.
Lord Taylor of Gosforth: I wish to support the amendment proposed by my noble and learned friend the Master of the Rolls. I gave my reasons for opposing the 20-year accrual span on Second Reading and therefore I shall state my position briefly.
The present 15-year period is not an indulgent aberration requiring correction. It flows from the unique nature of judicial office, the time of life when the candidate is ripe for appointment and, dare I say it, at the other end of his span, at the time of life at which he may become overripe. As the Master of the Rolls has said, the period of a judge's service may be punctuated by changes of diet or promotions. Then a longer judicial career than 15 years may be appropriate. However, for the majority, the circuit judges, who themselves constitute a large majority of the judiciary, 15 years in the same place doing the same work is often long enough. If they spend longer than that doing the same work, staleness, case hardening and impairment of patience may set in.
To require judges to carry on for 20 years to earn a full pension is therefore not in the public interest and the status quo recognises that. I say with respect to my noble and learned friend the Lord Chancellor that he somewhat overplays the factor of retained benefits. He sees them as the answer to all the disadvantages which are contained in this Bill for the judiciary. They are perhaps overburdened in answering so many different calls. However, as has been observed already, the extent of the retained benefits may be open to doubt. As the noble Lord, Lord Mishcon, said, many who are appropriate appointees to the Bench will not necessarily have been high fliers. The best advocates do not necessarily make the best judges. Some of those who have not had remarkably high earnings and who have had children to educate and mortgages to pay will have had some difficulty in putting aside those retained benefits by which the noble and learned Lord the Lord Chancellor places such store.
Accordingly I submit that one has to consider the need for most judges to earn a full judicial pension and therefore, if this clause remains unamended, to do a 20-year stint. Many circuit judges now retire at 65, feeling, quite justifiably, that they have done their duty. I fear that they will feel they must soldier on for another five years when they are not doing the job as well as they did and when they are disaffected. That cannot possibly be in the interests of justice.
The status quo also allows, as I understand it, that tax relief is applicable to the present 15-year pension scheme. If the Committee were to accept the amendment as proposed by the noble and learned Lord the Master of the Rolls and as supported by a number of noble Lords on Second Reading, it would do so because that was in the public interest. In my submission it would be wholly wrong to interfere with the present tax relief as a kind of punishment.
The amendment is proposed as being in the public interest. To remove tax relief—my noble and learned friend the Lord Chancellor kindly indicated to me that that would be the Government's riposte to this proposed amendment—would be to exert a punitive price for doing no more than what is in the public

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interest. It seems very like a proposal in terrorem. To impose that punitive price would not only be mean; it would also seriously damage the recruitment of judges.
A pension at only 50 per cent. of salary does not compare favourably with judicial pensions in other jurisdictions. If the pension were also to be deprived of tax relief, I fear that that would constitute a serious disincentive to accepting judicial office. I therefore not only support the amendment proposed by my noble and learned friend the Master of the Rolls but also submit that it should not be used to trigger a fiscal set off by removal of tax relief.
Lord Benson: I support these amendments. My approach to this problem is the following. The 15-year rule is a benefit the judiciary has had for a long time. It is unreasonable to cut away longstanding benefits without compensating for that adequately in other ways. I do not think this has been done. In future a judge is to be sentenced to five years of additional hard labour in order to earn a full pension. The only compensating factor I can discover in the Bill is that he is offered a tax free lump sum of one-eighth more than he is already entitled to at present. Subject to advice from a competent actuary that I have not been able to secure, it seems to me that this action is wholly inadequate and unfair.
Apart from the transparent unfairness of it, there is a more serious point here. It is a point to which the noble and learned Lord the Lord Chief Justice has just referred. Since this Bill was published the noble and learned Lord the Lord Chancellor has written to the noble and learned Lord the Lord Chief Justice to state that if the 15-year rule is to be maintained the Government will take their pound of flesh by depriving the judges of the taxation advantages of their pension schemes which they presently enjoy.
That is a distasteful way of doing business. I am disturbed that the judges should be put in that position. I do not think that the contents of that correspondence have been seen by the judges at large but when they see them I think they will be restive. I hope therefore that the noble and learned Lord the Lord Chancellor will see fit to withdraw that threat.
Further, I am concerned that the proposals in the Bill will mean that a number of second raters will be appointed to the Bench and the quality of the Bench will deteriorate. A top-ranking barrister should normally be appointed to the Bench in his early 50s because it is at that time that he has achieved the experience and maturity which is necessary for the job. That means that he can no longer earn a full pension at the compulsory retirement age of 70 and still less at the normal retiring age of 65. He will also take a large cut in earnings. Normally he will have to work more years than previously. At present he receives a full pension after 15 years. Those restrictions mean that the best people will not accept appointment and those who do will be stale at the end of their appointment.
For all those reasons I support the amendments.
Baroness Seear: As a non-legal person I intervene in the debate with the greatest possible diffidence. It is
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now eight years since I was a member of the Top Salaries Review Body, on which I served for 13 years. I doubt whether the major issues and principles on which one tried to work or the lessons which one learnt have changed very much in the intervening period.
The first thing that I learnt was that comparability is an extremely crude instrument. In fact, if one considers it in detail it is an instrument which works scarcely at all except as a very rough and ready guide. One was constantly in the position of trying to make comparisons between jobs which were so different that no valid comparison could possibly be made. Indeed, the same applied to the rewards. Endless arguments were put forward by the eloquent spokesmen who came to speak to the Top Salaries Review Body on behalf of a variety of different groups. For example, we heard endless arguments about the relative value of an indexed pension against a chauffeur-driven car. Those are not scientific comparisons. Such considerations went on and on.
Perhaps I may digress for a moment—and this has a bearing on this discussion—and mention one particular intervention from the government department concerned which I found very curious. A circular was issued which stated that under no circumstances whatever should judges' lodgings (I nearly said digs) be provided with grape cutters. That type of intervention did not seem to me to have any relevance to the rewards which were to be given to the judiciary. I remember suggesting to Edward Boyle that we should send the judges a set of silver grape cutters since the authorities were not prepared to provide them.
The point that I am trying to make is that to talk in terms of comparisons with other occupations is beside the point and that the judiciary is a sui generic group. It is not the only one. So are Members of Parliament and, indeed, in relation to allowances, are Members of your Lordships' House. One needs to move away from the concept of comparability and to accept that the group is sui generic and consider the rewards not so much on the basis of comparability but on the basis of what the unique nature of this particular occupation requires.
Listening to the debate I get the impression that once again the Inland Revenue tail is wagging the judiciary dog, if I may describe it in such unflattering terms. That cannot be right. Can we not accept that the job is sui generic and that it is up to the Lord Chancellor and the Lord Chancellor's Department to make that point as strongly as possible to the Inland Revenue and to obtain the appropriate adjustments? Otherwise we shall never get this right.
In relation to the question of the 15-year period, I remember the discussions which went on on such matters. Different Lord Chancellors from both parties who came to talk to the Top Salaries Review Body over those 13 years made the point that they were having real difficulty in recruiting people of the quality that they needed for a first-class judiciary and that they were not getting the people they needed. That, after all, is the first consideration: under what conditions will one recruit the right judges? As other

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noble Lords have said, and I shall not repeat the arguments, if it is a 20-year period one either has to appoint young people or older people who will continue for 20 years in order to qualify for a pension. It seems to me that it is extremely improbable that that will make for the best possible judiciary.
The purpose of my intervention is primarily to beg the noble and learned Lord the Lord Chancellor to look at the matter as sui generic and not to be influenced by comparisons with other occupations—comparisons which are largely bogus.
5.15 p.m.
Lord Coleraine: It seems to me that the amendment applies to all judicial officers but the noble and learned Lord who introduced it directed his arguments to the preservation of the rights enjoyed by the higher judiciary to a 15-year accrual period rather than to the desirability of the accrual period for lower judicial officers being reduced from 20 to 15 years. His amendment had that effect but he did not appear to be concerned with that aspect of the matter.
I had not intended to intervene in the debate but I do so now merely to say that what is sauce for the goose should be sauce for the gander. The work done by the lower judicial officers—the stipendiary magistrates, the district judges and masters—is of the first importance to those who go to court for justice. It is of the greatest importance to those who practise before those judicial officers. If the noble and learned Lord, Lord Donaldson, felt at some point that if he had stayed on the High Court Bench for more than 15 years he would have given up, I feel sure that he and all others concerned in this matter will realise that those who serve in the lower offices have what is often a tedious job and that not only they but also those who appear before them and those who they serve would probably join in saying that 15 years is enough for them.
Lord Mishcon: I contribute to this debate a very short speech. Whatever the noble and learned Lord may say in reply to the debate I wish to pay him this sincere compliment from this Bench. The opposition to the amendment comes not from the broad mind of the noble and learned Lord the Lord Chancellor, but from the narrow concept of the Treasury. Whatever I may hear in this debate nothing will convince me otherwise.
As has been said, and I apologise for repeating a truism, the only consideration in this debate is this: how do we produce the best possible judiciary? And if ever the best possible judiciary was required it is at this hour. I believe that was said at Second Reading and, if so, I apologise for repeating what others may have put much better. In relation to the judges who are in charge of criminal trials, is it not important—especially in view of the unfair criticism of some of our judges in recent trials at which there were what are called miscarriages of justice—and is it not our duty to the public, especially at this hour, to see that in passing legislation of this kind we set the stage so that
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those who enter our judicial system are the best possible minds and the best possible characters within the legal profession?
There is no sense in hiding from the points that have been made. The points about please do not force the very young—unwarranted it may be—into being the only people who feel that they can enter into the judicial arena. Let us not force them, because of their age, to have to stay 20 years in a judicial post in order to get the full pension. That is not the way to do it. It is not the most brilliant and those in their early 40s who necessarily make the best judges. The best judges are those who have shown by their experience that they are worthy to hold judicial and high judicial office. If the object is to ensure that judges do not stay on until the very last moment—we want to encourage those who have had the experience and are able to ascend the judicial ladder—is it sensible to force those who start at the age of 50 to continue until they are 70, however they may feel about retirement? As I see it, those are the only considerations. I hope that the Committee will support the amendment.
Lord Wigoder: I do not know whether I need the leave of the Chamber to follow the arguments of my leader, my noble friend Lady Seear. I wish only to say that there are arguments in favour of both sides which will be weighed up seriously in the course of this discussion. In favour of the 15-year accrual period there is first the argument that it has worked satisfactorily for many years. It would require a powerful argument to change it. Secondly, as many noble Lords argued at Second Reading, perhaps for a number of judges 15 years is long enough before incurring the real risk of deterioration in the high standards expected of those who sit on the Bench. That applies particularly perhaps to circuit judges who often try routine crime of the same sort day after day and year after year.
The arguments in favour of the 20-year period are twofold. First, to be taken into account for the 20 years compared with the current 15-year period are accrued benefits which can be retained in addition to the present pension. I understand that. Particularly in relation to those who go on the High Court Bench, there may well be many members of the Bar who take with them substantial accrued benefits and for whom the accrual period, whether it be 15 years or 20 years, is not a highly material factor.
I doubt whether that applies to the great majority of circuit judges. The last figure I saw showed that their average gross income before going on to the Bench was something in the region of £70,000 a year. Out of that, those who are married and have children and mortgages are very unlikely to have put sufficient aside to compensate for the length of the accrual period.
The other argument in relation to the proposed 20-year period is the one upon which the noble and learned Lord the Lord Chancellor relied at Second Reading when he said that the 20-year period,
"is not…an arbitrary one. It is the limit fixed by the Finance Act 1987 as the minimum accrual period for a tax approved pension scheme to provide maximum pension benefits".— [Official Report, 16/6/92; col. 120.]

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As I said, the Government's intention is that the new judicial scheme should, for tax purposes, be brought more into line with the pension arrangements applicable to other members of society. I ask the noble and learned Lord whether he meant that he would prefer to go over to a 20-year rather than a 15-year accrual period simply for the sake of uniformity; or is there anything further involved?
As I understand it, the present 15-year accrual period has operated perfectly satisfactorily since the Finance Act 1987 came into force, without any tax disadvantages to either the recipients or the scheme itself. In those circumstances I can see no reason, if the Government so wanted, why the present period could not continue. If that is the situation, although I appreciate that there are arguments on both sides, I venture to think that those who suggest today that the present period should continue perhaps have the balance of the argument in their favour.
Lord Renton: We have heard powerful speeches about the need to avoid the danger that the quality of the judiciary may not be as good as we would wish it. Perhaps I may make a further point that we have to consider in the years to come—not the next few years but before too many years have passed. It is whether, with a 20-year accrual period, we shall get enough judges. My noble and learned friend Lord Hailsham of Saint Marylebone at Second Reading made a powerful speech based on his experience. The clear inference from that speech is that we must be careful to ensure that we get enough judges—not only enough judges of the right quality, but enough judges.
The early argument of my noble and learned friend the Lord Chancellor in response to that powerful plea was that there were certain financial considerations which should be observed. As a scheme had run since 1987—incidentally, we have managed without it for five years for the judiciary—and in order to get uniformity of financial treatment, there must be a 20-year period. I suggest that financial advantages are frequently inapplicable. Where they apply they are mostly marginal. As has been mentioned, my noble and learned friend the Lord Chancellor was good enough to send to those interested a paper which surveyed the pension arrangements of those in employment. They are irrelevant; nevertheless, they are the personal pension schemes. It is perfectly clear from the paper that such advantages as there are and such benefits as can be carried forward are of a marginal character.
I appreciate the point made by my noble friend Lord Coleraine: the Bill has a very wide application. It applies to a wide range of people doing whole time and part time judicial work, including people who are now called district judges and who were formerly called district registrars. It may well be that they and a few others should be treated differently under the Bill from the way in which the noble and learned Lords the Master of the Rolls and the Lord Chief Justice, among others, have suggested in this amendment. I see no reason whatever why we should not have a differentiation within the terms of the Bill in the description of the categories of judicial officer to
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which the Bill applies. That would at any rate enable some of the obstacles in the mind of my noble and learned friend the Lord Chancellor to be overcome.
The case has been put very strongly, not for the first time. I hope most sincerely that my noble and learned friend the Lord Chancellor will reveal that he has an open mind on the matter and that Treasury persuasion (which is always important) is not the over-ruling factor. Indeed it cannot be the over-ruling factor in the circumstances to which the amendment refers. Let us bear in mind that it is a matter of only marginal effect.
5.30 p.m.
Viscount Bledisloe: I venture to add to the debate by expressing my view as a practising advocate. I do so without any need to declare an interest since I know quite well that I stand no prospect of being offered any form of qualifying judicial office and therefore of drawing a qualifying judicial pension.
However, as did the noble and learned Lord, Lord Donaldson of Lymington, I speak on this basis. If one has a retiring age of 70 and a qualifying period of 20 years one would have to seek to appoint people before they are 50 if they are to attain their full pension. The noble Lord, Lord Donaldson, feared that that would lead to a shortage of experienced advocates. That is a possible consequence. However, speaking as a practising advocate, I fear that it is much more likely that there will be a shortage of people willing to take the judicial offices in question. Taking judicial office is becoming ever increasingly unattractive. Very often those who do so are putting their duty before their own personal advantage.
A factor which may not have occurred to some Members of the Committee is that nowadays people tend to have children at a distinctly older age. It may be because they are older when they marry or if they marry at a younger age they postpone having children. It means that someone under 50 is highly likely to have children of school age and still paying for their schooling, or, if he is not making such payment, whom he will be reluctant to leave at home while he goes on circuit and so on. I therefore seriously suggest that if one has to be appointed to the Bench before one is 50 in order to obtain one's full pension, in due time people will not take the appointment.
As the noble Lord, Lord Mishcon, so rightly said, if that policy is dictated by the Treasury it is being very short-sighted. Once it becomes habit and is fully acceptable not to go to the Bench, and once the shortage occurs, then the salary will have to be doubled or trebled in order to reverse that habit. At that stage the Treasury may be very much worse off.
The Lord Chancellor: The situation at present is that within the judiciary there are a number of different judicial pensions with different rates of accrual. In particular, there is a different pension scheme for circuit judges than there is for High Court judges. The rate of accrual for circuit judges happens to be the same as for High Court judges, but they are different schemes. In Scotland, the corresponding officer to the circuit judge is the sheriff. Reference was made earlier in the debate to sheriffs. Their rate of

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accrual is at present 20 years. As my noble friend Lord Coleraine said, district judges and others have higher rates of accrual than High Court judges. Some judicial officers have accrued pension provisions of 30 years.
One of the primary objectives of the Bill is to have a single system applying to all judicial officers which will make promotion from one level to another much easier. I believe that that is important for a number of reasons. My noble and learned friend Lord Donaldson of Lymington referred to one reason: that of seeking to avoid staleness and cynicism. Promotion seems to be a very good cure for some of those ills.
However, the primary reason for seeking to alter the present arrangements for the higher judiciary is that the general tax law was changed in the finance legislation to which I have referred. As a result of that change, the general law is that tax exemption will not be given to a scheme which accrues more rapidly than on a 20-year basis and which exceeds the £75,000 a year cap. That provision came into effect some time ago. My noble friend Lord Renton said that we have managed quite well in the interim. We have; but it was on that basis this Bill was being prepared. The consequence is that that general law has not yet been applied to the judicial pension system because, as the consultation paper makes clear, we sought to build a new judicial pension system within those general tax rules.
It has been suggested that I have issued something in the nature of a threat. Such matters depend on how one looks at them. From my point of view that is the general law and is therefore likely to be applied to the judiciary. I seek to produce a scheme which will carry appropriate benefits to the judiciary in a system which will make those benefits as tax efficient as possible for the judiciary. If one keeps the 15-year rule it will have tax liabilities as a consequence. The capital sum will be subject to a 40 per cent. income tax and the payments for contributions for widows' and children's pensions will he taxable in so far as that contribution exceeds £100. Those are the disadvantages. If one wishes to keep the 15-year accrual rate, that is what the general tax law will provide. I have sought to produce a scheme which will attain for the judiciary the maximum tax benefit available. This scheme attempts to do that.
I agree entirely with the noble Baroness, Lady Seear. One has to take account of the special situation of the judiciary: that the judiciary, generally speaking, comes to appointment after attaining a degree of success in the profession. It is because of that special aspect of the judiciary that, in contradistinction to the general law affecting fast accruing schemes of this kind, the retained benefits are not taken into account. In other words, a person who has made provision under tax efficient systems before appointment will be entitled to keep that benefit along with the pension that accrues.
My noble and learned friend Lord Donaldson said that the Bill is back to front; that the pension provision comes before the retirement provision. Of course, one can consider the matter either way. The pension is deferred remuneration. But the Bill sets no obligation on anyone to work for the accrual time of
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a full pension. The pension accrues evenly over the period of service. The shorter the period of service the lower the deferred remuneration will be. That seems reasonable. The remuneration will he in proportion to the time served, but because it accrues in that way tax benefits will be available to the judiciary.
A good deal has been said about the difficulty of getting judges. The noble Viscount, Lord Bledisloe, no doubt underestimating the risk that he might be subjected to such treatment, says that he has no interest in these matters except the purely public interest. I have responsibility at present for seeking to obtain people who are willing to serve as judges. My noble and learned friend Lord Ackner, in connection with an earlier amendment, quoted words I used seeking to obtain from the TSRB consideration of the position of the circuit Bench. These are aspects of their remuneration which have to be taken into account. But I believe, first, that the proposal in the Bill to move to a uniform accrual rate for all judicial officers is itself right, and, secondly, that it is right that that accrual rate should be fixed at such a rate as to attract the maximum tax efficiency that is available under the general law. The general law has not yet been applied to the judicial scheme because this proposal was then under preparation. All I have said is that, if this scheme were not to conform under the tax principles, general fairness would seem to suggest that the general tax law should be applied. That is what I indicated in the note I wrote to the Lord Chief Justice. It appears to me therefore that the proposals in the Bill take proper account of the very different position of the judiciary from many other people and do so within the constraints of the general taxation law.
My noble friend Lord Renton suggested that we might differentiate between the various categories within the judiciary. That is turning the clock back and is one of the disadvantages of the present scheme. To seek to differentiate between different levels of the judiciary would involve a lack of flexibility which enables people to be readily promoted from one level of the judiciary to another without suffering either financial or fiscal disadvantage.
Lord Renton: Does my noble and learned friend not realise—I am sure he must—that there is a tremendous difference between the responsibilities of and the qualities required from, at one end of the scale, district judges, who were formerly district registrars, and at the other, High Court judges?
The Lord Chancellor: Of course I understand that and the difference is reflected in the very different salary scales that apply. That is perfectly true. On the other hand, I do not believe that it is wise to differentiate as well as on salary scale by reference to the rate of accrual of their pensions. Surely if one serves well in one degree it is very natural that a person should be eligible for promotion. In introducing the amendment my noble and learned friend Lord Donaldson commended promotion as a good way of avoiding staleness and cynicism, and in his case, if I may say so with all respect, it has proved an extremely effective remedy against that if there was ever any risk of it, which I do not believe there was.

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So far as concerns members of the lower judiciary, as has been pointed out, the very fact that their responsibilities are less may well mean that the longer they serve the more risk there is. Therefore, we must attend to them. I must have concern for their interests as well as for the interests of the higher judiciary, although I appreciate fully the fact that the higher judiciary have different and very heavy responsibilities.
That is why I believe it is right to have a uniform scheme. The distinctions that exist at present in the judicial schemes are a source of great anxiety and—bitterness is too strong a word—resentment in some groups in the lower part of the judiciary. One of my aims in the general structure of the Bill is to remove those anomalies.
I sum up by saying that the Bill does not seek to set a minimum time of service related to 20 years. It seeks to produce a remuneration system which will do the very best that can be done for the judges within the general lines of the tax regime of general application. In the light of my explanation I hope that your Lordships will feel that the amendment should not be supported.
5.45 p.m.
Lord Mishcon: Before the noble and learned Lord sits down, on rather a dismal note does he not agree that even Finance Acts do not imitate the laws of the Medes and Persians? He has said—and I am sure that this may well have been as a result of his persuasion —that the Treasury and the Inland Revenue were content—knowing that a Bill was about to come before Parliament—to allow a different situation to apply in respect of the period of 15 years to judges. Is he not prepared to convey to the Treasury and the Inland Revenue the feeling of the Committee in regard to the different provision for judges as against other people and also say that the Committee seems to be of the view that it is no compensation that benefit can be taken from private insurance policies that may have been entered into in another career?
I hope that the noble and learned Lord is prepared to go back; otherwise noble Lords will be put in a difficult situation when they consider the Bill at Report stage. If we are being told that passing the amendment will mean that no tax benefit will accrue to the judges in future, that is a matter which the House will have to consider. Can the noble and learned Lord not use his powers of advocacy, which have never been better used than on this occasion when meeting the opposition of the whole Committee, as I understood it, to see that what has happened between the passing of the Finance Act and now can continue?
Lord Wigoder: Perhaps I may add to what was said by the noble Lord, Lord Mishcon, by asking a question. I do so in a state of profound ignorance. Is the noble and learned Lord saying that the tax exemption status of the 15-year accrual rule for the judiciary since 1987 has simply been a matter of concession by the Inland Review and that it can now be revoked purely by administrative decision?
The Lord Chancellor: No. What I am saying is that the general law was changed by the Finance Acts in respect, first, of the accrual rate, and, secondly, of the cap. It was changed by Parliament. Parliament put into the legislation a system which overrode the rules of private schemes that were approved but it did not do so in respect of the judiciary on the understanding that I would conduct a review of the system taking advantage of the tax regime in such a way as to produce the best I could for the judiciary. Basically, what has happened is that the general law has not been applied to new judges since that time.
The distinction was made at that time between those who were already in position under previous schemes and those coming into schemes after the operative date of the Finance Act in question.
The arrangement which is put before the Committee is the result of my review of the pension provisions for the judiciary to take account of the tax scheme and to produce a system which is as tax-efficient as possible.
Because the matter has been raised I shall illustrate it by the way in which I have dealt with the cap. Although there is a cap on the tax benefit I have produced provisions which will enable us to have a supplementary scheme for the judges to which they will not need to contribute—if they had to contribute their contributions would be taxable—in order to give them a further pension and a further lump sum. That lump sum will be taxable because it is not tax exempt, but the scheme is as tax-efficient as I can make it. I have sought to produce for the judiciary a uniform system which is as tax-efficient as possible under the general law. I do not believe that this is a matter which can depend on anything except the general law.
My position is that the general law is as I have stated it and my thorough belief is that it is for the ultimate benefit of the judiciary and gives them the best possible system. My noble and learned friend Lord Ackner raised certain anxieties in connection with subsidiary parts of the scheme. However, the main thrust of the scheme is designed to achieve the best and most tax-efficient arrangements which the general law will allow. I commend the scheme to the Committee on that basis.
Lord Wigoder: Is the noble and learned Lord saying that if the Inland Revenue wishes to do so, as from tomorrow it could revoke the present tax exemption basis of the existing judicial scheme?
The Lord Chancellor: I thought that I had already said that that is not the case because the general law was not applied by Parliament to the judicial scheme, as it was then, in order to give me time to produce a scheme for the judiciary which was tax efficient. Therefore, that would not happen tomorrow. Under the general law, schemes which accrue faster than 20 years and which go above the cap presently provided are taxable or, perhaps I should say, they cannot be tax approved and therefore they do not have the benefits which I mentioned. Of course, those benefits can vary from circumstance to circumstance. In this case, the benefit of tax approval is that the lump sum in the tax approved scheme is not taxable and the

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contributions which judges pay for widows' and children's benefits over £100 are not taxable. But if it was not for the tax approval, which is implied in that, the capital sum would be subject to 40 per cent. income tax at the standard rate and the annual contributions that are made above £100 would be taxable.
Lord Renton: My noble and learned friend has confined his reply to the tax effects without answering the extremely powerful points put to him about the quality of the judiciary. Perhaps he will deal with that.
The Lord Chancellor: I thought I had answered that but I shall try again if my first effort was not sufficiently successful. Benefits for the judiciary are provided in the most tax-efficient way of which I know. The level of those benefits depends on what are, from year to year, the salaries of judges. Members of the Committee may take it that I am as conscious as anyone of the problems associated with the recruitment of judges. I spoke of those as forcefully as I could to the Top Salaries Review Body. A consequence was that the TSRB made substantial recommendations for the improvement of the salaries of circuit judges. That was a year or two ago.
As my noble and learned friend Lord Ackner said, the TSRB will have regard to the whole situation from year to year. The Government must take decisions from year to year on levels of remuneration. This is basically a system to ensure that those benefits, when given, are provided to the judiciary as regards pensions in the most tax-efficient way possible.
Lord Ackner: Before my noble and learned friend sits down, in achieving what he has achieved—in particular, increasing the 15-year accrual period to 20 years—he emphasised that he has obtained the best possible tax efficient scheme. Has my noble and learned friend reflected upon the fact that in increasing the accrual period from 15 to 20 years he has doubled the 10-year accrual period which exists in the United States, Canada and Australia? If the best that can be done is to double the accrual period in this country, does he not agree that that is an extremely depressing situation for the judges?
The Lord Chancellor: I do not believe that my noble and learned friend has taken what I said fully in context. I said that, as I see it, this is the most efficient system that can be devised within the law of the United Kingdom. I may be fortunate or unfortunate in not having to operate under the laws of the United States. I know that in earlier debates in this Chamber views have been expressed that in some respects at least the practices of the United States in the legal field are not particularly to be emulated here.
In this matter I have to deal with the general tax laws of the United Kingdom. This system and method of accrual of pension provides the best and most efficient tax arrangement available under our existing law.
Lord Taylor of Gosforth: Perhaps I may crave the indulgence of the Committee for speaking a second time on this important amendment but, because we
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are in Committee, the tendency is to focus on the relevant clause. Perhaps we can stand back for a moment and look at the Bill as a whole. We have concentrated on the pension aspect, but the other aspect is the retirement date. The thrust of the Bill in that regard is to reduce the age of judicial retirement.
It seems to me absolutely clear that if a 15-year period of accrual is to be increased to a 20-year period, then certainly on the circuit Bench judges will be sitting for longer than they have sat before. It is all very well for my noble and learned friend the Lord Chancellor to say, "You do not have to stay; you can go when you want on whatever proportion of your salary to which you may have become entitled at that stage". For those who have been able to put by a large nest-egg—the very high earners at the Bar—that may be a sufficient solace. However, as regards the circuit Bench, I envisage that instead of retiring at 65, as many judges do now, they will feel the need to go on until they are 70. The result of that will be that the average age of the judiciary will be raised and not lowered. Therefore, that end of the Bill will be working in opposition to the other end of the Bill. I believe that my noble and learned friend the Lord Chancellor has not addressed the problem which has been raised by several Members of the Committee; namely, that judges will sit on to an age when they are not at their best. They will sit on not because they want to or because they feel that they are doing a good job but because they have to to earn their pension.
If the Committee decides that that is an undesirable state of affairs, and that therefore this amendment should be accepted, it would be wholly undesirable that that view should be defeated by the threat of removing tax relief. Therefore, I strongly support the suggestion made by the noble Lord, Lord Mishcon, that between now and Report stage my noble and learned friend the Lord Chancellor should consult the Treasury in order to find a way to make the appropriate adjustments to the general tax law that will enable the 15-year period to be maintained. As has been said, the tax laws are not the laws of Medes and Persians; tidiness and uniformity are not always in themselves virtues. I ask that the noble and learned Lord the Lord Chancellor reconsider the matter.
6 p.m.
Lord Browne-Wilkinson: The tax laws, I understand, provide that judges, under their existing pension schemes, are not to be taxed otherwise than in other pension schemes. There is a 15-year accrual period. It is said that it is desirable to produce uniformity. Do I understand that in order to remove the tax exemption from judges' pension schemes there will need to be an amendment to the Finance Acts? Is it therefore a matter entirely within the control of the Government as to whether or not tax exemption continues to be enjoyed? I ask that that be a matter of record.
Secondly, has the Treasury been approached on the basis, not that there is a special exemption for judges, but that what is special about judges—there may be others in the same situation—is that they start in paid employment, if what Members of the Committee have

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said is right, when they are appointed as judges at 40 to 50 years of age? What is needed is an accrual period for people whose paid employment under the scheme starts at that age.
I suggest to the Committee that there is no uniformity. We are speaking of a class of person who takes paid employment for the first time in middle age. Has the Revenue been approached with a view to considering whether that class of person is a special class, which would include judges? Perhaps the noble and learned Lord the Lord Chancellor can help.
The Lord Chancellor: There are a number of pension schemes which apply only to those who join them for the first time in what my noble and learned friend Lord Browne-Wilkinson describes as middle age. They are all subject to the general tax laws. The private pension scheme rules were overruled by the Finance Act to give effect to its general principles which apply to those who entered a pension scheme after the Finance Act came into operation.
The position with regard to judges is that their present provision is a scheme that operated before the Finance Act came into being. Therefore judges appointed before that time were subject to the old regime just as people in other pension schemes were subject to the old regime. But those who came into pension schemes after the relevant date are subject to the general rule that an accrual period of 20 years or more is required to obtain tax exempt status and that the total benefit is capped. The rules are those decided by Parliament. They are therefore contained in the Act of Parliament in question. That is the basis on which I made my earlier response.
Lord Benson: Perhaps the noble and learned Lord the Lord Chancellor can help me on a technical point which I raise as a layman. Judges' pension schemes require a special Act, such as that we are now considering, because they are a special class of person with special circumstances. If a special Act is required to deal with special business, why is it necessary to force into it a specific clause from the general law? That is something I cannot comprehend. To put it even more directly from a layman's point of view, why not leave Clause 18 where it is? The proposal is to remove it. Why not leave it there?
The Lord Chancellor: The problem is what Parliament will think is right in relation to the general tax law. It is fair to say that the general tax law would probably have applied to everyone were it not for the possibility of a scheme being prepared which is the basis of the Bill before us. Therefore I feel that judicial pensions should not be the subject of the general law immediately; but that the correct system is for us to attempt to produce a scheme which is as tax efficient as possible under the general law, making the appropriate provision for judges.
The general law can apply whether or not there are special provisions such as those before us. I believe that the principles of the general tax law mean that in order for judges to have the most tax efficient system, it must be on the lines I described.
Lord Mishcon: Perhaps the noble and learned Lord will especially forgive me for sounding somewhat persistent. Having heard the view expressed from all sides of the Chamber—it appears to be a unanimous Committee—that we want 15 rather than 20 years, is he prepared to inquire of the Treasury whether or not we can produce a situation where the tax threat—I do not mean that offensively—is removed? The views of the Committee can then at least be tested with the Treasury.
The Lord Chancellor: I have explained the position as fully as I can. It is for the Committee to make a decision in view of the action my noble and learned friend decides to take.
Lord Donaldson of Lymington: I cannot overemphasise that I do not believe that any Member of the Committee who has spoken today has done so with a view to obtaining a better deal for judges. The sole concern of the Committee has been to produce a system which will provide better judges and a better administration of justice.
I understand the difficulties of my noble and learned friend. He rightly says that it ought to be possible to promote judges from one post to another. He does not say that it does not happen, for good and extraneous reasons, except in a minority of cases. I appreciate his difficulties. He has been forced into the position of speaking as though he were a tax accountant advising lay clients on the best means of avoiding the incidence of taxation as it exists. I am a sufficiently old advocate to know that if one is not in a position to receive instructions to depart from a specific situation, all one can do is battle on and wait for the adjournment. As I see it, that is what my noble and learned friend has reasonably been doing.
It would be unkind if the Committee were to express its view at this moment. I believe that it would be better for me to withdraw the amendment and reintroduce it, if necessary, at Report stage, giving my noble and learned friend the Lord Chancellor the opportunity to change his position. I would certainly not withdraw the amendment on any other basis. I hope that we shall have better news in the light of further and better instructions by the time this matter next comes before your Lordships. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 20:
Page 4, line 13, leave out ("Part") and insert ("Act").
The noble and learned Lord said: This amendment and Amendment No. 21 are purely drafting amendments. The expression "appropriate annual rate" appears otherwise than in Part I of the Bill. I move this amendment so that the interpretation applies wherever the phrase arises in the Bill. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 4, line 16, leave out ("Part") and insert ("Act").
The noble and learned Lord said: This amendment is for exactly the same purpose. I beg to move.
On Question, amendment agreed to.
[Amendment No. 22 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 23:
Page 4, line 24, leave out ("in the period of twelve months ending with") and insert ("on").
The noble and learned Lord said: This is a small but important amendment. It is another case in which the value of the judges' pension has been downgraded, to which no doubt retained benefits will be produced as the constant answer. I ask Members of the Committee to turn to Clause 3(3) (a) where they will see that:
"a person's 'pensionable pay' is the greater of the following amounts, that is to say—(i)"—
which is this paragraph with which I am concerned —
"the pension-capped salary payable to him in respect of his service in qualifying judicial office in the period of twelve months ending with the day on which he retires from such office".
I understand that that is known as the actual salary paid approach.
The current position is that the pension is paid on the basis of the rate in payment at the time of retirement. This is an important matter for this reason. I can do no better than to quote what the senior magistrate, Sir David Hopkin, said in a note that he sent me which arrived today after I had tabled my amendment:
"The pay of public servants always lags behind that of their counterparts in the private sector. Annual increments invariably reflect the increased cost of living which those concerned have been paying since the last increase. And infrequent, periodic reviews are intended to bring up lagging salaries to provide some sort of parity with the private sector and reflect job weight. For political and economic reasons payment of the salary then determined to be appropriate for the job is staged over a number of years. Accordingly, even under the present arrangements, a judicial officer retires with a pension based on a figure lower than the job is deemed to be worth. The new proposal would aggravate this state of affairs by basing the calculation on a salary that would be even more remote from the proper rate payable at the date of retirement".
That comes very much in the context of events of the next fortnight or so. We believe that the TSRB report will not only be published but considered and decided on by the Government. We have been told in the newspapers—I am privy to nothing else—that it will suggest a large figure (say 30 per cent.). The newspapers have suggested that the Government will probably divide that by five, so it is 6 per cent.
As the Government indicated some time ago, let us assume that my assumed 6 per cent. increase is backdated to 1st April. Anyone who retires on or after 1st April will get, as matters stand at the moment, his current salary plus 6 per cent. as the basis for the calculation of his pension. Of course if the accident of birth results in persons being born before 1st April they will not gain that advantage. But accidents of birth produce all kinds of oddities. The Government are proposing that, with the pay addition of my assumed 6 per cent.—which merely indicates that the particular job has got an increase, although it is considered by others still to be grossly undervalued —if one retires on 2nd April one gets basically nothing as a result of that increase because one's pension will be calculated on the basis of the salary for 30th March or 1st April 1992.
Therefore, the net result is that in future there is to be taken away from the person who retires after, immediately after or some weeks or months after a pay increase the right to have his pension based on that new salary. It will have to be averaged over the year he retires. That not only affects the retired judge but his widow and his children if they qualify. So this matter is of far-reaching importance. The only justification provided by the Government that I understand is that their amendment will produce some solace or consolation in the judge who fortuitously happens to have been born sometime between 2nd April and 30th March of the following year. He will no longer be able to say, as some have said, "I wish my parents had been thinking of other matters for a few weeks before they decided that I should emerge on the horizon some nine months later". That is all this provision is designed to do.
On a rational basis it saves the Treasury money and that, as we know, is sometimes a motivating factor. It is quite unacceptable that a judge should lose the advantage in his pension of a pay increase which, when accorded, is out of date because it reflects past inflation and past lagging behind of his salary comparable to other salaries. In addition, it may be in the process of this dreary staging device which is designed to produce mathematics which are more saleable to the public media. I beg to move.
6.15 p.m.
Lord Morton of Shuna: I support this amendment. Another factor comes into it. If someone knows that a pay rise is coming and has to wait 12 months before the full effect on the pension appears, he may continue for that 12 months, although wishing that he were not there, having completed his full period of service, whether it is 15 or 20 years. It would seem much better that the pension should be based on the salary at the date of retirement rather than on this somewhat mean approach.
Viscount Bledisloe: Reluctant though I am to imperil my career by criticising any argument advanced by the noble and learned Lord, Lord Ackner, he lives somewhat in a world of unreality if he believes that commercial salary increases are not based on past data and past inflation. On any board on which I have ever sat when one is looking at salary increases one is also looking at inflation over the past year. One is looking at comparables which have been awarded by other companies. The passage that the noble and learned Lord read from the words of the chief magistrate seems to describe precisely how salary reviews are conducted in any form of life—and the judiciary is, I fear, no different in that. Therefore, I take my life in my hands and say that I do not think that the way in which judicial salaries are reviewed is, if so described, any different from the way in which any other salaries are reviewed.
Lord Ackner: If I may make this perfectly clear, I was not suggesting that it is. All that I am pointing to in relation to the judicial salary, which I am glad is fortified by my noble friend's intervention, is that it is universal—namely, that any award is for the past.

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That fortifies my proposition that once the award is made the salary should then be the new salary and all calculations should take effect on that salary.
The Lord Chancellor: The present system puts a high importance on the salary in payment at the date of retirement. The question is: is that the fairest system having regard to the various people who may be affected? My noble and learned friend instanced the case of persons who either died or retired on 31st March on the one hand and on 1st April on the other hand when on that 1st April there was a very large step in salary as a result of an award from the TSRB. I am not of course referring to this year in particular.
It seems to me that what we are proposing, which is to take the year's salary that was actually paid, is the fairest system and does not produce an unfair emphasis on the actual date of retirement. There would of course be a difference between the amount paid in respect of 1st April and 31st March—if there was a step in salary on 1st April—but it would not be large. If the step was significant, the difference would possibly be significant, but it would not be so large as to be unfair. I should have thought that, in the judicial pension scheme above all, fairness would be an important criterion.
The noble and learned Lord, Lord Morton of Shuna, suggested that judges may wish to stay on for the purpose of maintaining their pension. That applies particularly in the present system. Assuming that such motives ever enter the minds of judges—and the noble and learned Lord is a judge and it is he who has suggested that at least it might—it is perfectly possible for someone to do that under the present system. Our system would at least mean that if the judge were to do that he would have to work for some period on the new salary rate instead of simply getting the benefit of it and immediately retiring. Therefore, even if one allows such cynical motives to enter into the calculation, I believe that our system is fairer than that proposed in the amendment and I invite the Committee not to accept it.
Lord Boyd-Carpenter: Can my noble and learned friend say whether the system to which the noble and learned Lord, Lord Ackner, apparently objects is general in respect of public service pensions? I refer, for example, to the Civil Service and the armed forces.
The Lord Chancellor: Subject to being corrected, my understanding is that what we are proposing is quite a general system. I do not say that it is universal but I understand it to be general. Perhaps, however, I may give that answer subject to checking it—
Viscount Astor: I am advised that the answer is yes.
The Lord Chancellor: Yes, it has been checked and the answer is as I have said. The system that we are proposing is a quite general one.
Lord Boyd-Carpenter: Is it the case therefore that adopting the suggestion of the noble and learned Lord, Lord Ackner, would put the judiciary in a privileged and special position compared with other public services?
The Lord Chancellor: That is so. I do not say that putting the judiciary in a special or privileged position would necessarily be wrong but I do say that in this particular respect it is somewhat unfair as between the members of the judiciary who may be affected by it. The present system means that someone who believes that a salary step will be implemented on a particular date may attribute undue importance to that date if that person was influenced in the way in which the noble and learned Lord, Lord Morton of Shuna, has suggested.
Lord Coleraine: We are outside the problems of taxation on this occasion and my noble and learned friend the Lord Chancellor has suggested that retaining the old system would be unfair as between members of the judiciary. However, when it was a case of dealing with the taxation problems of the accrual period, he was quick to say that the judiciary should make up its own mind and that if its members felt that they wanted a particular scheme they could have it but they would have to lose the possible tax advantages.
I do not know whether the judiciary agreed that the old scheme should continue, but we have here a case where it seems that the effect of the Government's proposals is to produce a small but appreciable reduction in pension rights across the board. Is this also not a case on which my noble and learned friend should invite the judiciary to say what it wants and how it considers that its members should be treated if the prime consideration is fairness between them?
The Lord Chancellor: I hope that I made it plain when I was talking about the tax situation that those were options that existed. The provision of benefits in the form of salary and pensions for the judiciary is not of course a matter only for the judiciary. I was indicating that one cannot have it both ways very readily even if one is a member of' the judiciary. That is what I was trying to say, because we still have a responsibility—and the taxpayer particularly has an interest in these matters.
Although at this time, as at all other times, it is ultimately for the Committee to decide on an amendment, I submit that the amendment would produce a less fair system than the one that I am advocating. Therefore, I invite the Committee to decide, if called upon, that the amendment should not be agreed to.
Lord Ackner: I do not know whether I made this clear to my noble friend Lord Boyd-Carpenter: I am merely seeking to retain the status quo. This is something that exists at present. It is another feature in the reduction in the value of the judicial pension. As I understand it, the only justification that has been given is that some persons may feel bitter that they were not born later. I do not look upon that as being an adequate explanation. I should like to discover what happens in the private field in this regard, and as we are hoping between now and Report stage to obtain expert advice, I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 24:
Page 4, line 30, at end insert:
("and in either case where increases in rates of salary have fallen behind the cost of living index the pensionable pay shall he deemed to have been increased annually in accordance with that index").
The noble Viscount said: This amendment is part of the same argument. For a substantial period of time the position has been that when the Top Salaries Review Body makes a recommendation about the salary of judges among other people the recommendation is not introduced or accepted as it stands; it is brought in in stages. The noble and learned Lord, Lord Ackner, has just given an example of the sort of thing that can happen. Although it is not exactly a promise, the Government are committing themselves over a period of time to meeting the improvements in salary which the TSRB has recommended.
I am afraid that I have not drafted the amendment with great elegance. Somewhere on the statute book is a method of expressing the inflation-proofing of pensions because it is something which is legitimate. I am sure that my noble and learned friend the Lord Chancellor will tell the Committee that it is something which the Revenue is prepared to accept. Therefore, in order to deal with the question of stages, my amendment suggests a minimum process.
My noble and learned friend will perhaps be able to say that the Government will never do less than increase judicial salaries—and, therefore, pensions—to take account of inflation. If that is the case, there cannot be any harm in having a fallback position of this sort because it would never have to be implemented. If, on the other hand, a government decide for some reason not to maintain the judicial salaries in line with inflation, this would at least be a legitimate method of providing for the pensions, not just of the judges but, as has been said, of the widows and children also, to be kept in line with inflation as it increases, I am afraid, virtually year by year. Therefore, to some extent, the proposal is in line with the previous amendment; but it is one that I think is also in line with what is now accepted practice in the world of taxation about which we have heard so much today. I beg to move.
6.30 p.m.
The Lord Chancellor: The amendment as proposed would be quite difficult to apply. My understanding is that it is against the accepted practice for public sector schemes, including, of course, the present judicial scheme under the 1981 Act. I cannot perhaps do better than quote the words used by my right honourable friend as she then was (now my noble friend Lady Thatcher) as Prime Minister in a parliamentary Written Answer on 13th April 1984:
"It is the Government's intention that, if in future it is necessary to delay or stage the implementation of Review Body salary recommendations, this principle will be applied, and the pensions of retiring public servants in the group concerned will be calculated on the basis of rate of salary payable at or in the period before the date of retirement and not on notional or deemed rates of salary which were not in payment on that date". [Official Report, Commons, 13/4/84; col. 383.]
That remains the Government's position.
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As regards Amendment No. 26, I am not sure whether my noble friend wishes to speak to it separately.
Viscount Colville of Culross: Yes, I would rather deal with the amendment separately.
The Lord Chancellor: In that case, what I have said completes my answer to Amendment No. 24.
Viscount Colville of Culross: The situation here is very much the same as it has been on previous amendments; namely, that although we have had introduced to us a Bill which deals specifically with judicial pensions, and of course judicial retirement, apparently there has to be imported into it an absolutely irreversible reliance upon what is the general policy for everyone else. It seems to me that that falls very much into the same category as what has been said on other occasions. Those words may have been said by the noble Baroness when she was Prime Minister. However, it does not follow, as Members of the Committee have pointed out, that just because it has been said it is necessarily the only way in which we should legislate on the subject. After all, Parliament is sovereign. If we choose to take a stand on the matter there is nothing to stop that. For all prime ministerial announcements, we can make amendments. I am not suggesting that Members of the Committee should do so today but it is a matter that I should like to study.
I am afraid that I am not particularly convinced by the quotation introduced by my noble and learned friend. However, I do not intend to step out of line with what has been happening in the Committee thus far and ask for a Division on the amendment this evening. I shall study the matter. I hope that we may perhaps be able to improve the situation before Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 25:
Page 4, line 36, leave out ("any") and insert ("the").
The noble and learned Lord said: The purpose of this drafting amendment is to make clear that there is only one scheme established by Part I of the Bill. I believe that it is important that one scheme applies under the Bill to all judicial officers. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 26:
Page 4, line 45, leave out from ("within") to ("he") and insert ("five years").
The noble Viscount said: Amendment No. 26 covers a different aspect; it is a probing amendment. I am sure that my noble and learned friend appreciates that fact. One has to assume that a member of the judiciary—of whatever rank—has fallen sick and that there is some prospect of his or her recovery and return to full duties. The present drafting of the Bill would require that person to decide at the end of three years that there was no hope of returning to a full-time job. If he or she did not resign at that moment, the reduced salary which would be inevitable as a result of the disability would, as I understand it. be the basis of

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the pension. Therefore, unless one could go back beyond the beginning of the disability to a time when the salary was being paid in full, there would inevitably be a reduction.
I simply wonder whether Members of the Committee will follow me in the idea that three years may be too short a period. The proposed five-year period will not in fact make a very great deal of difference; indeed, I imagine that there would be very few cases where it would apply. However, it would at least give the judge concerned a little longer to see whether there was any prospect of returning to full-time service. I should like to know what my noble and learned friend has to say on the matter and why he has introduced a cut-off point of three years. I beg to move.
The Lord Chancellor: It is important to note that this matter applies in a rather restricted way: it applies only to judicial officers whose salary and pension benefits are funded out of money provided by Parliament. In the ordinary case of more senior judges, sick leave is normally without effect on salary. That applies where, during sickness, people are given six months' leave on full pay and thereafter sick leave on half pay, subject to a maximum of 12 months' sick leave in any period of four years or less.
The idea is to try to mitigate the effect of loss of salary so far as concerns pension. We have taken three years because that seems a reasonable period to even out the effects of the sick leave and return possibly to a time when the officer was in full-time employment. Obviously, five years goes back even further. In the current climate, I should have thought it unlikely that that would be much better for the officer. That would be my general judgment.
The provision is very like what one finds in comparable schemes. However, if my noble friend has any specific cases in mind where a five-year period would have made all the difference, I would find it useful to consider them. There is no particular basis for the three-year period, except a kind of empirical judgment that it is a reasonable period to take in the context.
Viscount Colville of Culross: I am grateful to my noble and learned friend for his reply. I do not in fact have a particular case in mind. However, I suspect that there may be such cases. Now that we know that the three-year period is based on an empirical judgment, I shall see if I can ascertain whether there are cases where hardship would arise under the provision. I intend to pursue the matter, but I shall not do so today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Aberdare): I must remind Members of the Committee that if Amendment No. 27 is agreed to I cannot call Amendment No. 28.
Lord Renton Lord Renton moved Amendment No. 27:
Page 5, leave out lines I to 24.
The noble Lord said: The amendment proposes to leave out lines one to 24 of Clause 3 on page 5. That
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would be the same as leaving out subsections (4), (5) and (6) of the clause. The subsections enable regulations to be made by "the appropriate Minister" with Treasury concurrence in the circumstances mentioned. It is not the first time that a Bill has included power to make regulations; indeed, we discussed an example in Clause 1. Other examples are to be found in Clauses 9, 10, 12 and 19—each of which contain powers to amend or amplify the primary legislation contained in the Bill. I have tabled amendments to enable Members of the Committee to discuss each of those clauses.
In view of the importance of the independence of the judiciary established by the Act of Settlement, and bearing in mind that the financial independence of the judiciary is a necessary part of it, we need to ensure that that independence is not impaired by the Government having the opportunity to alter the law on judicial pensions or salaries laid down by Parliament.
When we were discussing Clauses 1 and 3 my noble and learned friend Lord Hailsham pointed to the advantage, as he saw it, of regulations to obtain flexibility. There are some circumstances in which in matters of detail it could be an advantage, but the payment of judges' salaries from the Consolidated Fund was a manifestation of the financial independence of the judiciary. Bearing those important constitutional factors in mind as background, I invite the Committee to consider those three subsections of Clause 3.
In subsection (6) we find that the regulations are to be made by the appropriate Minister. Clause 30(1) tells us that it is the Lord Chancellor who is the appropriate Minister. I hope and believe that he is the only one. That is what the Bill makes clear, but it says that he is to have the concurrence of the Treasury. Why should he have that in a matter affecting the independence of the judiciary of which he is the head? It is worth noting that where there is a similar power to prescribe, in regulations, given in Clause 1(7) it is merely the Lord Chancellor who is to do that, and the concurrence of the Treasury is not required. Why should it be required under Clause 3?
Clause 3(4) provides for pensionable pay and pension-capped salary to be determined—by the appropriate Minister in regulations—in the circumstances then detailed. In other words, the Lord Chancellor will have the power to alter primary legislation. In considering the extent of that power, we should be sure about what we are doing. The subsection provides:
"such regulations may, in particular, provide for such a person's pensionable pay and pension-capped salary to be determined for the purposes of this Act as if he had served in his qualifying judicial office … throughout the whole of the period of 12 months mentioned in paragraph (a) above and had been paid in respect of that service a salary of an amount determined by reference to the annual rate of salary payable in his case"—
there has been an amendment—
"in respect of service in that office in that period".
It is a complicated provision, but it will determine what the pensionable pay and pension-capped salary shall be. Surely that should be clear from the primary legislation without our having to rely upon and refer

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to what is done by regulations. In subsection (5) we find part-time judicial service is dealt with—for example, recorders, of which I was one once but never received or expected a pension or an opportunity of a pension for such service. Recorders are barristers or solicitors who remain in practice, with a few exceptions. The few exceptions being full-time recorders.
Subsection (4) provides for the amount of salary and pensionable pay to be reduced; that is, reduced bearing in mind that the office is part-time and reduced from what presumably it might have been if it had not been part-time. Here again, we have uncertainty. It would have been much better, although it might have been a fairly long clause, to have that provision put into primary legislation. Clearly some provision must be made for such reductions but it should be done by Parliament. I hope that my noble and learned friend will consider the effect of those three subsections, and the regulation-making power that he is given by them, and replace them with primary legislation on Report. I beg to move.
6.45 p.m.
The Lord Chancellor: The type of calculations required in the cases covered by the regulation-making power contained in Clause 3(4) and (5) are appropriate for subordinate legislation, the primary legislation granting the necessary powers. The primary legislation is in some detail. As I said earlier, the subject is complicated and it is difficult to envisage all possible circumstances in respect of which regulations might apply.
By seeking to require that this matter should be covered by primary legislation, my noble friend is advocating a course contrary to the proposals of his own distinguished committee aimed at shortening legislation. To try to deal with all such possible cases in primary legislation is unwise.
The circumstances in which the regulations are to be made are circumscribed by the terms of subsections (4) and (5). They are appropriately made with the concurrence of the Treasury because they affect the charge that may be involved.
The appropriate Minister is the Lord Chancellor in the case of England and Wales but the Secretary of State in the case of Scotland because he is the Minister responsible for the judiciary in Scotland. That is why the phrase is used in that way. The Lord Chancellor is the appropriate Minister in respect of Northern Ireland.
Lord Renton: I am grateful to my noble and learned friend for that explanation. Perhaps I may correct him on one thing, and that is our committee's recommendations. In our recommendations contained in Chapter 17 (Recommendation 70 and onwards) we conceded that there was necessarily some complexity in fiscal legislation. We were dealing with primary legislation. Where the citizens' interests are concerned, in financial matters it has always been conceded —in Finance Bills, for example—that we cannot avoid stating precisely what it is that the citizen is entitled to expect: what deductions are to be made
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in respect of taxation, and so on. On that point, with deep respect—I hate to disagree with my noble and learned friend on such a matter—I must say that I do not go along with him.
Of course, any provisions made to carry out the purposes of subsections (4) and (5) are bound to be complex, but the question is whether that complexity should be set out in a Bill—which Bill Parliament can amend—or whether they should be set out in regulations which Parliament cannot amend but can only approve or disapprove of.
My noble and learned friend and I must beg to differ at this stage. Nevertheless, I hope that he will bear in mind the discussion we have had and may think better of the matter between now and the Report stage. In that hope, and without committing him, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
Page 5, line 13, leave out ("to him-) and insert ("in his case").
The noble and learned Lord said: This is a drafting amendment to make clearer that this provision is concerned with the actual rate of salary of a judicial officer that is applicable in his case. I beg to move.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4 [Lump sum on the judicial officer's retirement or death]:
Lord Ackner Lord Ackner moved Amendment No. 29:
Page 5, line 27, leave out ("two and one-quarter") and insert ("three").
The noble and learned Lord said: This amendment relates to the tax free lump sum. I wish to make clear at the outset that I only move the amendment on the basis that the 20-year accrual scheme stands. It is not an attempt to improve the lot of the judge as it stands at the moment. Speaking entirely for myself, though I believe also for many other judges, in this legislation we seek, apart from modernising some of the provisions, to retain the status quo; that is, the 15-year accrual period and a lump sum of twice the pensionable pay.
My noble and learned friend the Lord Chancellor, quite rightly I am sure, took me to task for quoting him back during discussion of a previous amendment. I made a note that my noble and learned friend had achieved the most tax efficient scheme available. He courteously nods agreement. However, that does not seem to be borne out either by the Top Salaries Review Body or by the independent consultant actuary who is retained by the Lord Chancellor's department.
Perhaps I may indicate straightaway what the TSRB said on the subject. In its response to the noble and learned Lord, the Lord Chancellor, it highlighted a number of points. Under the heading "Main Points", the first comment states:
"Tax free lump sum. Under the proposed scheme an annual pension is payable plus an immediate tax-free lump sum. The maximum annual pension, accrued over 20 years, will be equal to half pensionable pay (capped). The maximum lump sum will be equal to 2 x annual pension x 9/8".

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That is, two-and-one-quarter. I stress the following words:
"However, it is normal in public service pension schemes for the lump sum to equal 3 x annual pension.
It is noted that a factor of 2.25 is the maximum now allowed in the calculation of the optional lump sum under typical private sector final salary pension schemes. That factor applies to the pre-commuted annual pension, with a maximum of two-thirds of final salary. The maximum lump sum calculated on that basis is … equal to the automatic lump sum of 3 x annual pension under typical public service schemes.
In the Review Body's view, the lump sum under the proposed scheme for the judiciary should be improved from 2.25 x to 3 x annual pension".
I emphasise the words,
"the lump sum under the proposed scheme".
It would be apparent to any expert that the proposed scheme made clear that retained benefits were permitted.
I refer to the advice which the noble and learned Lord the Lord Chancellor received from his own expert on the subject:
"there has been a clear trend of improvement in this area amongst pension schemes generally, and good practice is represented by a lump sum of three times pay".
I now turn to the justification for the 2.25; that is, two-and-one-quarter times the amount, as provided in the Government's consultative paper.
"The consultation paper proposed that there should be a death gratuity … Some commentators thought that this rate should be increased, but the Government has decided that the rate proposed is a reasonable one".
There is no reference at all to this being the result of the remarkable achievement of hanging on to retained benefits.
I find it difficult in these circumstances to be persuaded by my noble and learned friend's protestations that he has achieved the most tax efficient scheme available. Quite clearly, according to the experts, what is available to be paid under this scheme—and it is good practice which occurs in both the public and the private sector—is not 2.25 but three times. Hence my amendment. I beg to move.
Lord Benson: I support the amendment on the same grounds as those given by the noble and learned Lord, Lord Ackner. It would help to alleviate the manifest unfairness of raising the 15-year rule to 20, thereby imposing a sentence of five years' hard labour on the judge before he could earn the full pension.
That is the only reason I support the amendment. It is only a second-best solution. The best solution is to retain the 15-year period and the appropriate rate for the tax-free lump sum. Whereas in the private sector the tax-free lump sum usually works out at about three times, it might possibly be reasonable and fair to make it slightly less, or much less in the case of judges, if the 15-year rule were retained simply because judges do not have to bring into account the retained benefits earned prior to appointment to the Bench.
Lord Morton of Shuna: I believe that everything has been said. I confess that I find it difficult to see why, not withstanding the advice which the department of
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the noble and learned Lord has received, the Bill contains a provision contrary to that advice. Therefore I support the amendment to "three times".
Lord Wilberforce: Is there not another argument for increasing the two-and-one-quarter to three? It is that under the Bill the lump sum and pensionable salary is split between two parts —the capped part and the separate scheme which is introduced by Clause 19. As the noble and learned Lord said earlier this evening, the uncapped portion of the lump sum which is paid under Clause 19 is taxable. It is not subject to tax benefit. Under the present figures it may be as much as one-third or one-quarter of the lump sum payable. So one-quarter of the lump sum under the scheme will be subject to tax of 40 per cent. Therefore, is there not reason for compensating for that by increasing the 2.25 to three? That is a separate point from the one urged by my noble and learned friend Lord Ackner.
The Lord Chancellor: First I wish to deal with the point I was making about the passage to which my noble and learned friend Lord Ackner referred. I said that it was the most tax efficient scheme that could be devised. I was not saying that it was the highest possible benefit anyone could think of. I am sure that I would not need the variety of your Lordships' talents to be able to think of a great variety of higher benefits. I was thinking of the tax efficiency of the scheme and we were dealing at the time with the rate of accrual and the capital sum. As my noble and learned friend said, the TSRB suggested in its comments on the consultation paper that three would be a good multiplier. The independent advisers I referred to also took that view.
One has to take account of other matters, of course. Perhaps one of the most important is a matter that my noble and learned friend Lord Wilberforce referred to. The capped provision is contributory in respect of widows' and children's benefits. The uncapped provision is not contributory at all. It is true that the tax will be calculated on the lump sum and exacted from it but that is an aspect of the new provisions which is more generous in respect of the actual benefit paid than the old provisions. As far as we could, we considered the matters referred to by TSRB. In the light of those considerations the Government concluded that 2.25 was a reasonable figure in respect of the lump sum accrual.
Lord Ackner: Before my noble and learned friend sits down I hope he will explain why the principle of conformity has to be applied so inflexibly to the accrual period. Apparently we must go up from 15 to 20 years because five years ago Parliament said other people must have a minimum period of 20 years. Yet on this matter, where the TSRB states that it is normal in public service pension schemes for the lump sum to equal three times the annual pension, the principle of conformity goes out of the window.
7 p.m.
The Lord Chancellor: It is relatively easy to distinguish between the two positions. I was talking about the tax law which is a general provision and which, apart from exceptions, covers the situation. As regards the matter we are discussing, it is a question of looking at all the conditions of the schemes. It is true that the TSRB thought the multiple of three was normal in public service schemes. However, not all public service schemes accrue at the rate of the 20-year period. Many do not. One has to take account of those factors as well as of the contribution regime that applies.
I do not think it is a particularly cogent argument to take the tax law on the one hand and other types of conformity on the other and seek to equate them. I certainly did not seek to do so. One has to look at all the circumstances of the scheme in taking account of it. I acknowledge, of course, that the TSRB and R. Watson, the independent advisers, drew our attention to that aspect of the matter, but having considered all the material they referred to we concluded that this was a reasonable figure.
Lord Ackner: I am bound to say with the deepest respect that this clause is merely characteristic of a Bill which seeks to provide not the most efficient tax scheme available but one in which the judges are expected to take as low a figure as is possibly arguable on a number of items. As we shall return to this type of question on Report, and in view of the hour, I do not propose to ask the Committee to divide on the amendment. However, in my submission, it is perfectly clear that no satisfactory answer has been given to a point which has the support not only of the independent expert retained by the noble and learned Lord the Lord Chancellor and his department, but also of the Top Salaries Review Body which was set up in order to give independent advice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 30:
Page 5, line 34, leave out subsection (3) and insert:
("(3) Where a person dies within five years of retirement his personal representatives shall be granted a lump sum equal to five times the annual rate of pension less any annual sums paid to him by way of pension.").
The noble and learned Lord said: This amendment again is of the same type. The informal advice that I have received—I hope it will be confirmed subsequently formally—is that once a lump sum has been put, as it is in Clause 4(3), at one and a half times the pay, or three times the pension, the subsection adds precisely nothing to the situation where there is death early in retirement. I am instructed that a modern top executive pension scheme would provide that which I have set out in the amendment, namely that,
"Where a person dies within five years of retirement his personal representatives shall be granted a lump sum equal to five times the annual rate of pension less any annual sums paid to him by way of pension".
That is the modern example of what one would expect to find in a scheme which the judges, in my respectful submission, are entitled to receive. I beg to move.
The Lord Chancellor: The amendment seeks further enhancement. It is certainly possible that an amendment of this kind could be given effect to without damaging the scheme from the point of view of tax efficiency. When reference is made to other schemes one has to look at them in totality. However, this is a matter which I should like to consider further. At present there is no such provision and the measure proposed would certainly be a change from the general scheme that presently exists. However, it is certainly a matter which could be further considered.
Lord Ackner: Even a glimmer of hope sometimes springs eternal. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Surviving spouse's pension]:
Lord Ackner Lord Ackner moved Amendment No. 31:
Page 6, line 8, leave out paragraph (b).
The noble and learned Lord said: If one really required an indication of how out of date this scheme is, one has only to see how the surviving spouse is treated. In the old days there used to be a clause called a dum costa clause which required, for a pension to continue to be paid, that a surviving spouse must remain chaste, whatever that may mean. That has gone but lingering far behind in the past is this clause which involves the surviving spouse not remarrying without the loss of her pension.
In this day and age is it really necessary to give the following advice to an expiring judge: "Do not forget to tell your widow-to-be that she should live in sin and on no account remarry"? I raised this point with a friend of mine recently. My friend told me that his uncle, who was aged 90, had recently decided to marry a sweet young thing of 84. When he proffered his hand in marriage, she, with great wisdom, said, "Ah, but what about my pension"? As she was 84 years old the pension had been taken out 50 or 60 years ago and there, lo and behold, was the same kind of clause as we have served up now. They wisely said, "Let's write to the insurance company". So they wrote to the insurance company—not, I emphasise, the Treasury. Back came the answer: "Certainly we will continue to pay your pension. Please let us know the date of your marriage because we would like to send you a handsome gift". It is my lack of confidence that that would be the reaction of Her Majesty's Treasury that impels me to ask that the modern scheme be introduced into the Bill.
As can be discovered quite simply, the modern scheme is that a surviving spouse, whether she lives in sin or remarries or whatever she does, receives the pension so long as she is a surviving spouse. Quite rightly so. As my noble and learned friend Lord Morton of Shuna wisely points out, the surviving spouse may be left, as a result of a decease a year after the judge is appointed with 1/80th of his salary, and she a young woman. She is to lose even that if she remarries. In the case of a widow who is a good deal older the position is not so bad.
This is an indication of Treasury meanness, insisting on an out-of-date provision. It justifies the

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phrase which I have repeated earlier, and which is not of my making: it is a scheme which is cobbled together with a few Treasury demands and a number of out-of-date provisions. I beg to move.
The Deputy Chairman of Committees (Lord Alport): I have to advise the Committee that. if the amendment is agreed to, I shall not be able to call Amendment No. 34.
Lord Morton of Shuna: I support the amendment. My noble and learned friend Lord Ackner did not deal to any great extent with the terrible difficulties that are presumably envisaged by the Treasury in respect of Clause 5(1) (b). It seems that by that provision the Treasury wishes to prevent any retired judge from marrying. Whether or not that is an invitation to live in sin I am not sure, but I question why it is necessary to have the requirement that no pension should be paid to the widow of a retired judge who dies very shortly after his retirement and very shortly after his marriage. Must all judges before they retire make sure that they are married? It seems a curiously out-of-date provision.
Lord Benson: I support the amendments. I find the clauses extremely difficult to comprehend. They seem to have the result that if a judge marries the day before he retires his widow will receive a pension on his death, but if a judge marries the day after he retires his widow will receive nothing on his death.
If a judge marries before his retirement and then dies, his widow may remarry. On remarriage the question of whether the pension should continue will be the subject of a means test settled by the Treasury. The Bill is silent on the amount of the means test and I suppose that the matter will be settled on an ad hoc basis by Treasury sleuths. The means test under subsection (3) will have to be monitored regularly by the Treasury, presumably annually. That means that the widow and her new husband will presumably be required to make annual returns of their income and their assets.
I find the proposals wholly offensive, for five reasons: first, they are mean and penny-pinching; secondly, a judge's widow needs a pension to support herself and the date of marriage is totally irrelevant: thirdly, the cost of imposing the Treasury sleuths will, I suspect, be far more than anything that the Treasury is likely to save in pension; fourthly, it may not be intended, but there is a clear implication in the clauses that judges and their wives will conduct their marital arrangements in a way which will fiddle pension entitlements out of the Treasury; and, finally, as has already been pointed out, it will encourage judges' widows to live in sin or, as the modern jargon puts it, to shack up. I believe that to be contrary to the public interest and I believe that the Church would take the same view.
I hope that the noble and learned Lord the Lord Chancellor will delete the offending clauses without delay.
Lord Wilberforce: Perhaps I may raise a question, which may be a totally ignorant one. Is not the whole
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of this discussion assuming a sexist element? Nothing is said about widows or wives; the Bill refers to "spouse". Indeed, if the Bill said anything else it would be an offence against the Sex Discrimination Act. Therefore, one must assume that, as its language indicates, the Bill applies equally to widows and widowers, and in that case the whole of the provision is even more out of date and unworkable.
7.15 p.m.
The Lord Chancellor: Certainly the Bill applies to both sexes and the word "spouse" is used on that basis. I do not see why that should make the provision unworkable.
The basis of the provision is that arrangements are made in respect of those who are married to each other at the date of the judge's retirement. I submit to the Committee that the provision reasonably selects for the payment of a widow's pension one who was married to the judge at the date of retiral. The provision is made on that basis and I see no reason why that should not work.
In relation to Clauses 2 and 3, to which my noble and learned friend Lord Ackner directed his remarks in relation to his amendments, they are drawn up on the basis that the pension is paid from public funds and that one has to have regard to the situation as at the date on which the funds are paid. The powers resting with the Treasury are discretionary. In other words, there is no absolute cut-off of the pension, as my noble and learned friend may have implied in some of his remarks, but a discretionary power in the Treasury to take account of all the circumstances.
In that situation I submit to the Committee that the proposals are perfectly workable. I submit that they are fair in their general operation.
Lord Ackner: Before my noble and learned friend sits down, since I raised a number of clauses which include the same proposition, can he tell the Committee, seeing that we are dealing with primary legislation, whether the Government have any intention of ensuring that the scheme is in a modern form?
The Lord Chancellor: If and when the Bill becomes an Act of Parliament it will be in an extremely modern form.
Lord Ackner: I am sure that my noble and learned friend knew exactly what I had in mind. I spell the matter out because my question was obviously misunderstood. Is it the Government's intention, since they are involving this subject in primary legislation, to ensure that clauses dealing with spouses, disability, sickness, orphans and early retirement are to reflect, or are not to reflect, what one finds in a modern pension scheme? I hope that I have made my question clear on this occasion.
The Lord Chancellor: There are many varieties of schemes promulgated at the present time and many of them have different provisions dealing with these various matters. I had understood the question from my noble and learned friend to relate to the form of the scheme. So far as concerns the substance of the

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scheme, the precise form that it will take will have to depend on the decisions taken in this Chamber and in another place. Obviously the arguments about what are appropriate provisions to be made in respect of the various contingencies with which the Bill deals may to some extent depend on what other recently promulgated schemes do. In such an operation account has to be taken of the various circumstances of the schemes. The noble Baroness, Lady Seear, pointed out the difficulty of comparability in this area. It is quite difficult to take account of the varying circumstances to which other schemes may apply.
Lord Ackner: I have listened as always with interest to what my noble and learned friend said. I shall reflect upon it and undoubtedly return to the charge at Report stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 and 33 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 34:
Page 6, line 19, at end insert:
("( ) Where the deceased died while holding qualifying judicial office, his death shall be treated for the purposes of subsection (1) (b) above as his retirement from such office.").
The noble and learned Lord said: This is a drafting amendment. I shall also speak to Amendment No. 40 which has the same purpose. The Bill provides for a surviving spouse (and an adopted child) of a deceased judicial officer to receive a pension provided that he marries the spouse (or adopts the child) before he retires from qualifying judicial office. The amendment covers the case in which the officer dies before retirement by treating the death as his retirement for the purpose of the pensions being payable. I beg to move.
Lord Morton of Shuna: I am sorry but I am an ignorant Scot and I find great difficulty in Amendment No. 34, which reads:
"Where the deceased died while holding qualifying judicial office, his death shall be treated for the purposes of subsection (1) (b) … as his retirement from such office".
Subsection (1) (b) states that the marriage took place before the deceased retired.
I cannot see any sense in that, unless in some way the marriage has taken place after the death, which I cannot think is what is meant. It seems to be a totally unnecessary provision. If the man dies in office, he is dead and therefore there is a widow—or a spouse. If he has retired he has not died in office. I just do not understand what is talked about here.
The Lord Chancellor: I certainly accept that if he dies he is dead. The point is that the benefits are predicated on the situation. What is dealt with is the situation in which the marriage took place before the deceased retired from qualifying judicial office. We want also to take account of the case in which there was a marriage and then the person died while still in office.
Because the measure was expressed as requiring retirement from office, it is necessary to have some provision that takes account of the possibility that the deceased did not retire from office but died before that
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event took place and of course obviated that event altogether. It is in order that the other provisions should properly be attractive.
Lord Morton of Shuna: I am much obliged. I shall read with great care what the noble and learned Lord said. However, Clause 5(1) starts off with a person dying and leaving a surviving spouse. I think I can understand that. Then paragraph (b) states that:
"their marriage took place before the deceased retired".
I can understand that. But why is it necessary to say that if the deceased died before he retired he is to be treated for the provisions of Clause 5 as having retired on the date he died? It seems unnecessary because it is the qualification of the whole clause that the person has died.
The Lord Chancellor: The point is that the conditions required for the surviving spouse to be entitled to a pension for life are (a) and (b). Paragraph (a) requires that he leaves a surviving spouse. We are agreed on that. My noble and learned friend says that he understands that passage so I do not need to pause too long on that. Paragraph (b) states that:
"their marriage took place before the deceased retired from qualifying judicial office".
If he did not retire at all but died, there is at least an argument that the spouse does not qualify because that condition is not satisfied.
This amendment is to make sure, just in case the matter is read closely, that where the deceased dies rather than retires—leaves office by death rather than retiral—the surviving spouse provision applies. That is the purpose of it. I do not think that my noble and learned friend should he all that puzzled. I feel certain that he has had more difficult problems of construction to deal with and has dealt with them very successfully.
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 36:
Page 6, line 31, leave out from ("pension") to end of line 36 and insert ("had he reached the age of 65 or completed 15 years in his qualifying judicial office, whichever is the earlier.").
The noble and learned Lord said: Again, Amendment No. 36 is designed to produce a modern provision where there has been death in the payment which the widow should receive. The amendment is in the same terms as earlier; namely, that instead of the widow receiving the one eightieth after a year's service by her husband, she would receive the pension had he reached 65 years of age or completed 15 years' service in his qualifying judicial office, whichever is the earlier. At the present moment she is treated in an out-of-date, mean fashion. This amendment is another attempt to bring the scheme up to date. I beg to move.
Lord Morton of Shuna: At Second Reading I spoke on this point; namely, that the provisions for a widow or a widower of a judge who dies early after his appointment are quite mean. In the hope that it will produce something better for the surviving spouse—if I may use that word with no sexist connotation —I support the amendment.

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If someone dies in middle age (if that is defined, as it has been in the Chamber today, as between 45 and 50), the spouse is liable to have children and be at the stage where pension arrangements must be good if they are to be effective. It is at that age that pension is most needed by the surviving spouse. It is at that age that these pension provisions are at their most mean. I hope that the noble and learned Lord will be able at least to take this matter away and consider the position.
The Lord Chancellor: The arguments are precisely the same as the arguments advanced in respect of the amendments to Clause 2. I have explained and need not repeat the reasons for the way in which the Bill is framed on this aspect.
Lord Ackner: I accept that the arguments are the same, but they have the merit of growing stronger every time one finds a new situation to which that out-of-date approach applies.
Along with the other matters, I shall invite the Chamber to reconsider the point at Report stage. Accordingly I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume. Perhaps I may suggest that the Committee stage begins again at half-past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

British Coal and British Rail (Transfer Proposals) Bill
Brought from the Commons; read a first time, and to be printed.

Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 1992
7.30 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) rose to move that the draft regulations laid before the House on 13th May be approved [1st Report from the Joint Committee].
The noble and learned Lord said: My Lords, I beg to move the Advice and Assistance (Assistance by way of Representation) (Scotland) Amendment Regulations 1992. I speak also to the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1992 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1992.
The latter two sets of regulations provide for the uprating of the financial eligibility limits for civil legal aid and for advice and assistance. They adjust the financial limits to take account of inflation and to
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reflect changes in the level of social security benefits. Corresponding increases have recently been made to the eligibility limits in England and Wales.
The third set of regulations provide for the extension of legal assistance by way of representation to cover unopposed petitions for the appointment of an executor under the Act of Sederunt (Confirmation of Executors) 1964.
With your Lordships' permission I shall outline the provisions contained in each of these regulations in a little more detail. The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1992 raise the lower disposable income limit for civil legal aid—that is the level below which no contribution from income is payable—from £2,860 to £3,060 a year. The regulations also increase the upper limit—that is, the level above which legal aid is not normally available —from £6,350 to £6,800 a year. The upper capital limit—above which legal aid is not normally available —is increased from £6,310 to £6,750. There is no change in the lower limit of £3,000.
The Advice and Assistance (Financial Conditions) (Scotland) Regulations 1992 increase the weekly disposable income above which a person is required to pay a contribution for legal advice and assistance from £64 to £70 and also prescribe the scale of contributions to be paid where weekly disposable income exceeds £75 but does not exceed £145. The capital limit above which advice and assistance is not normally available increases from £935 to £1,000. The scale of contributions for applicants with disposable income between the upper and lower income limit for advice and assistance is also changed by the regulations.
Those proposed changes represent an increase of 7 per cent., which matches the uprating level of income-related social security benefits. The eligibility limits remain in line with the corresponding limits in England and Wales. As recipients of income support and other income-related benefit are permitted to have £3,000 in disposable capital before any income is assumed to be generated which would affect the level of benefit paid, it is sensible to continue to use that limit as the threshold for capital contributions for legal aid, which is why the lower capital limit remains unchanged.
The Advice and Assistance (Assistance By Way of Representation) (Scotland) Amendment Regulations 1992 amend the principal 1988 regulations to allow the ABWOR scheme to be used in relation to petitions for the appointment of an executor to a deceased person under the Act of Sederunt (Confirmation of Executors) 1964. To date this could only be achieved by way of full civil legal aid, a more time consuming, expensive and less flexible system so far as the client was concerned.
The regulations are intended to come into force on 1st July 1992. I hope that I have explained in sufficient detail their objectives and our other proposals to improve the administration of legal aid in Scotland.
Moved, That the draft regulations laid before the House on 13th May be approved [1st Report from the Joint Committee]. —(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.

Advice and Assistance (Financial Conditions) (Scotland) Regulations 1992
7.34 p.m.
Lord Fraser of Carmyllie: My Lords, I beg to move. Moved, That the draft regulations laid before the House on 13th May be approved [1st Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.

Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1992
7.35 p.m.
Lord Fraser of Carmyllie: My Lords, I beg to move. Moved, That the draft regulations laid before the House on 13th May be approved [1st Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until half past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.36 to 8.30 p.m.]

Judicial Pensions and Retirement Bill [H.L.]
House again in Committee.
Clause 6 [Grant and payment of a children's pension]:
Lord Ackner Lord Ackner moved Amendment No. 37:
Page 6, line 39, leave out ("during his service in such office").
The noble and learned Lord said: Some decades ago, when my practice contained a small sprinkling of contested divorce cases mainly concerned with cruelty allegations, there was a doctrine that the allegations could be minor in themselves but if one added together a sufficiency of them one would establish one's case. It was rather like the effect of water dripping upon a stone—it would ultimately have some effect. My amendment to Clause 6 brings back those days because we have yet another example, if an example was needed, of an out-of-date concept which has been stitched into what is meant to be a current, acceptable and, I assume, modern scheme.
Under the ordinary modern scheme in practice a surviving child obtains the pension irrespective as to when the marriage took place. He merely has to establish that he is a surviving child just as in a modern scheme a widower or a widow has to establish that he or she is a surviving spouse. One does not ask when the marriage took place. One merely asks whether he or she is a surviving spouse or a surviving child. However, when we come to this piece of pension archaeology we find that the child has to be a child who is born as a result of a marriage which took place during the service of a judicial officer. That is
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completely out of date. In a modern, top executive pension scheme one merely inquires whether it is a surviving child. In fact it was suggested to me that in a modern scheme one does not even bother whether the child was the product of a marriage. However, I anticipate that that was asking much too much in suggesting a modern approach and therefore I have taken the somewhat old-fashioned idea of asking only that the child should be a child of a marriage rather than the child of a union.
That is the basis of my amendment. Despite the increased enthusiasm which a short break and the calorific intake provides, I have no doubt that it will receive a rather glum reply. I beg to move.
Lord Morton of Shuna: I support the amendment. If a child is born before the person was promoted or appointed to judicial office and the divorce takes place before appointment to that office under these provisions it appears that the child would have no entitlement to a pension even if the judicial office holder died when the child was perhaps eight or nine. That would be perfectly possible under these provisions and the rate of divorce from which we seem to suffer in society at the present time. I am not perhaps as cynical as my noble and learned friend Lord Ackner, but it seems to me that that is not what the noble and learned Lord the Lord Chancellor or the Government could possibly have intended. Therefore, I support the amendment.
Lord Benson: With the approval of the Committee, perhaps I may speak to Amendments Nos. 37, 38 and 39, as they are grouped together. The clause seems to provide that after a judge's death children's pensions will be paid to natural and to adopted children provided they came into being during the marriage and before retirement. Children's pensions will not be paid for natural children born after retirement. Children's pensions will not be paid for any adopted children unless adopted during marriage. Children's pensions will not be paid to adopted children if they were adopted after retirement. As I did Clause 5, I find the clause offensive. It seems both mean and penny-pinching.
Children have to be supported whether they were born before or after retirement. The date of birth or adoption is entirely irrelevant. There is the same implication that a judge will arrange his affairs so as to diddle pension entitlements out of the Treasury. It suggests that there is something evil in adopting a child or having a child after retirement. I hope that the amendments will be approved.
Lord Wigoder: Although I am reluctant to keep comparing the scheme proposed in the Bill with schemes in the private sector, because there are many fundamental differences, I certainly have never heard of a scheme in the private sector that contains such exclusions. I support the amendment.
The Lord Chancellor: The effect of the amendments would be to provide a children's pension in respect of, first, the children of any marriage the judicial officer may have entered into at any time before, during or after his service in a qualifying judicial office;

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secondly, the children adopted during any of the marriages in the first category above; and, thirdly, any other child who was wholly or mainly dependent on the deceased if the Treasury is satisfied that the deceased had formed the intention of adopting that child before any marriage in the first category above had terminated.
The question of who dependent children are is a difficult one and there is also the question of what range of children should be provided for. My noble and learned friend Lord Ackner said that he stopped short of requiring support for certain children. It is difficult to be certain what is the best basis for this matter. The proposals in the clause are as we proposed in the consultation paper. It is appropriate to try to make the provisions tailor as closely as we can to the circumstances of the judiciary generally. That is what has motivated these clauses in order that we should be able to use the money available in the best possible way. These amendments enlarge considerably the possible scope of children who may be supported without perhaps making a tremendous difference to the actual children who will be supported.
Lord Ackner: I am sure that the contributions that have been made with regard to this amendment will give my noble and learned friend food for thought during the forthcoming Recess. I hope that when we return to deal with Report stage we may find at least some movement towards modernity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.40:
Page 7, line 39, at end insert:
("( ) Where the deceased died while holding qualifying judicial office, his death shall be treated for the purposes of subsection (2) (b) above as his retirement from such office.").
The noble and learned Lord said: I have spoken to this amendment with Amendment No. 34. I beg to move.
On Question, amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 agreed to.
Clause 8 [Rate of children's pension]:
[Amendment No. 41 not moved.]
Clause 8 agreed to.
Clause 9 [Contribution towards cost of surviving spouse's and children's pension]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 42:
Page 9, line 42, leave out subsection (5).
The noble and learned Lord said: With this amendment I shall speak also to Amendment No. 44 which is similar in purpose and effect.
The purpose of these amendments is to delete two superfluous provisions whereby the regulation-making powers in Clauses 9 and 10 can be used to make consequential provision to other enactments. Clause 29(3) already permits regulations to make consequential (and transitional, supplementary and incidental) provisions, while Clause 29(4) permits such
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provisions to modify the operation of enactments. The existence of Clause 29(4) removes the need for the two provisions in Clauses 9 and 10. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 9, as amended, shall stand part of the Bill?
Lord Ackner: This is the last of my familiar refrains which are based upon this proposition: that there is a heavy onus on the Government, who have to resort to primary legislation, to ensure that that legislation is modern and up to date. In this regard it is not. Once more, I rely for support, first, upon the views as communicated by the Top Salaries Review Body to the Lord Chancellor in response to his consultative paper. I have already referred to the tax free lump sum which it put down as its first main point. Its second main point is as regards widows' and widowers' pensions. This is the comment it communicated to the Lord Chancellor following his publication of the Government's consultative paper:
"Widows' and widowers' pensions. Under the proposed scheme"—
and that is the scheme with all its warts, including the concessions with regard to retained benefits—
"members will be required to contribute 3 per cent. of salary towards a widows' or a widowers' pension".
I interpose here to say that I believe that the figure is 4 per cent. It continues:
"The Review Body considers this high for what it regards as the rather unimpressive benefits of ½ x the member's annual pension. Under modern private sector schemes, widowers' and widows' benefits are non-contributory. The Review Body believes that they should also be non-contributory under the proposed new judicial pension scheme".
That is the TSRB's view.
One then comes to the independent consultant actuary who gave my noble and learned friend the Lord Chancellor his advice on the subject. He made this observation:
"The requirement to pay contributions purely for spouse's pensions is very rare in the private sector, where it is seen as outdated and potentially inequitable between male and female scheme members and at odds with the trend towards widening the class of beneficiaries to include financial dependants. It is however not uncommon in public sector schemes".
In my respectful submission, it is a fairly damning commentary:
"it is seen as outdated and potentially inequitable between male and female scheme members".
Once more, the Government are intent on primary legislation. My noble and learned friend says that he has done his best to achieve for the judiciary the best scheme that he can. This provides admirable ammunition for him to try yet harder. I hope that he will do so during the ensuing Recess.
8.45 p.m.
The Lord Chancellor: My noble and learned friend has read out passages with which I am rather familiar from the TSRB's comments on the consultation paper and the comment of the independent actuary. However, as they point out in those passages they are referring to private schemes, but we are dealing with the public sector. They point out that provisions of this kind are common in public sector schemes.

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I suggest to the Committee that for this purpose public sector schemes are probably more germane as comparisons, if comparisons are to be made. The general provision in public sector schemes, even those which accrue over a 40-year period, is for contributions to be made. Over a 40-year period that is usually 1.5 per cent. of salary, which equates with 3 per cent. over a 20-year period as we are proposing in the Bill.
Clause 9 reflects analogous provisions in the Judicial Pensions Act 1981. That contains a power to deal with it through the lump sum. We consider that unnecessary now that the pension accrues evenly from the date of appointment.
suggest to the Committee that this clause announced in response to the consultation is reasonable in a public sector scheme of the type that we have here. I suggest to the Committee that Clause 9 should stand part of the Bill.
Lord Ackner: This is a contest in which it is quite impossible to make any headway. If the doctrine of conformity is to be applicable, if one does not comply with the public sector scheme one does not get home. However, if one complies with the public sector scheme, as we do in our submissions on three times the lump sum to which I referred on an earlier amendment, one still does not win.
There is apparently a settled policy that the judicial pension scheme should, on occasions, fail the public sector; on occasions fail the private sector; and on occasions fail both. Exactly what is the philosophy behind it, except to save money, I am quite incapable of assimilating. I hope that the vacation will add to both my noble and learned friend's ability and mine to assimilate some of the points. I shall not press my submissions pour mieux saucer after the summer Recess.
Clause 9 agreed to.
Clause 10 [Additional benefits from voluntary contributions]:
[Amendment No. 43 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 44:
Page 10, line 38, leave out subsection (5).
The noble and learned Lord said: I spoke to this amendment at the same time as Amendment No. 42. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 10, as amended, shall stand part of the Bill?
Lord Renton: This clause enables regulations to be made which entitle judges and others to make voluntary contributions towards the cost of additional benefits. That is an admirable idea. The power contained in the clause—a power which earlier today I questioned on several occasions—is more acceptable in this clause by the deletion of subsection (5) at the instance of my noble and learned friend the Lord Chancellor.
I shall not divide the Committee. It is perhaps one of the rare occasions when regulations may be as good a way as any of achieving the purpose of the provision.
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However, I ask my noble and learned friend the Lord Chancellor why he needs the concurrence of the Treasury on the matter.
The Lord Chancellor: The Treasury's concurrence is required because of the nature of the regulations in question to allow judicial officers, under new pension arrangements, to make additional voluntary contributions towards the cost of the provision of additional benefits under those arrangements; that is, in order to enable a judicial officer to buy additional benefits. The precise terms on which that can be allowed depend on a number of considerations, many of which are in the Treasury's area of responsibility. It is only if we can obtain the basic tax benefits for the arrangements that they will be worth while. The consent of the Treasury is therefore appropriate in regulations of this kind.
Lord Renton: I am grateful for that explanation. Although I am always doubtful of the need for the head of the judiciary to require the concurrence of the Treasury on a matter affecting the judiciary, I nevertheless do not intend to press the matter.
Clause 10, as amended, agreed to.
Clause 11 [Provision against pensions under two or more judicial pension schemes]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 45:
Page 11, line 15, leave out ("in") and insert ("of").
The noble and learned Lord said: This is a drafting amendment designed to correct the description of the Northern Ireland Civil Service in respect of provisions referred to. In moving the amendment I speak also to Amendments Nos. 46 and 70, which are tabled on the same basis.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Transfer of rights of persons holding qualifying judicial office before commencement]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 46:
Page 12, line 4, leave out ("in") and insert ("or).
The noble and learned Lord said: I spoke to this amendment with an earlier amendment. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 12, as amended, shall stand part of the Bill?
Lord Renton: I tabled a Motion to oppose the question that Clause 12 shall stand part of the Bill because of the regulation-making power contained in subsection (2). That regulation-making power governs the application of the whole of the clause.
The clause as a whole deals with the transfer of rights of a person already holding qualifying judicial office before the Bill comes into force. That appears to make the clause retrospective by altering the pension rights of those already on the Bench. It does so simply by enabling regulations to be made with the concurrence of the Treasury. That does not seem to me to be right.
When we are dealing with the transfer of such rights it should be done essentially by primary legislation. Again, we find that the Treasury must give concurrence. It is difficult to believe that we need this

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regulation-making power as well as the others in the Bill. I shall be interested to hear what is said by my noble and learned friend the Lord Chancellor.
The Lord Chancellor: My noble friend wishes this clause to be deleted primarily because it depends on regulation-making powers. The regulation-making powers are intended to deal with quite detailed and complicated matters in regard to transfer values. They are not intended to affect the rights of existing holders of judicial office as members of existing schemes; it is on transfer that the provision will come into play.
The clause exists to ensure that those coming into a new pension scheme will be able to bring with them into the new scheme the pension rights accrued under a pre-Bill scheme. Valuing those rights will not be easy. It is obvious that actuarial advice will be required. I do not believe that it is feasible, within a reasonable space, to include the detail of that in relation to the Bill in advance of its passage. For instance, the nature of the valuation will depend on the final form of the scheme under the Bill. That is only one aspect of the matter.
Although I understand from what I have heard this afternoon that not all the current judiciary welcome the new scheme for their successors, there are some judicial officers who may consider it a significant advantage over their current arrangements. That is one of the reasons why the option to transfer to the new scheme was spread over such a long interval. The TSRB thought that to be important.
For instance, officers who are currently subject to 30- and 40-year pension schemes will obviously want to consider transferring to this scheme. Without Clause 12 and the detailed provisions, those who want to elect to come into the new scheme, as well as those who come into the new scheme on promotion or reappointment to the same office after retirement, will be disadvantaged.
It is clear from the nature of the detailed arrangements required that they would not be appropriate for primary legislation for, among other reasons, the reasons I have given. In the light of that explanation I hope that my noble friend will allow Clause 12 to stand part of the Bill.
9 p.m.
Lord Renton: I would if my noble and learned friend can give an assurance that the regulations will not have any kind of retrospective effect which is adverse to the citizen in this case.
The Lord Chancellor: No, certainly not. They will take effect on a transfer into the new scheme. The object of the regulations will be to bring into the currency of the new scheme as fairly as possible what the officer has already acquired under the former scheme.
Lord Renton: I am grateful to my noble and learned friend for his explanation. In the circumstances I shall not attempt to oppose the proposition that the clause shall stand part of the Bill. I merely express regret that once again the Treasury had to concur. It is so
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undesirable and unnecessary because the Lord Chancellor's Department is very efficient and fair-minded. I have made my points.
Clause 12, as amended, agreed to.
Clauses 13 to 15 agreed to.
Clause 16 [Disregard of abatement of pension under s.65 of the Social Security Act 1973 etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 47:
Page 14, line 18, after ("1973") insert (" (modification etc. of public service pension schemes) ").
The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 48 which has much the same purpose of providing a few words in parenthesis to explain the statutory provisions referred to in the clause. Those words will help the reader, I believe, to understand the drift of the clause. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 48:
Page 14, line 20, after ("1975") insert (" (corresponding provision for Northern Ireland) ").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 agreed to.
Clause 18 [Continuity of tax treatment]:
On Question, Whether Clause 18 shall stand part of the Bill?
Lord Renton: We have already had references to this clause today. My noble and learned friend the Lord Chancellor expressed surprise that I had tabled a Motion to the effect that the clause shall not stand part of the Bill. I am glad that I did so. In the light of what we have heard, I am not so much worried about the substance of the clause, but I am very worried indeed about the form in which it is presented. One cannot say that this is the way to treat the users of statutes. They are entitled to be given a much stronger indication, even if it is a fairly broad one, of what the considerable legislation by reference in this clause really amounts to.
It is a rather glaring example of legislation by reference. Amendments to previous legislation should be done by the method of amending the text where that is possible and feasible. That is called a textual amendment. This matter is entirely non-textual. The Explanatory and Financial Memorandum merely repeats in very summary form what the clause itself says and gives no explanation of it whatever. It is clear from earlier discussion and from what my noble and learned friend said that the clause is very important. I believe that a Bill produced by my noble and learned friend the Lord Chancellor and his department should do better in order to help the user and reader of the Bill whether he or she is in Parliament or not. The clause states:
"For the purposes of Chapter I of Part XIV of the Income and Corporation Taxes Act 1988 (retirement benefit schemes)".
That is a consolidation Act which covers nearly a thousand pages. I was on the Joint Consolidation Committee which considered the matter. It took a lot

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of time and trouble. Part XIV is on page 570 of the Act in the statutes at large. There we find that Chapter I runs to 17 pages. By reading the clause we find that,
"the provisions of this Part shall be regarded as amendments, for such persons as are mentioned in section 1(1)".
In turn that depends on the people mentioned in Schedule 1 to the Bill. For such people this part of the Bill has to be seen in terms of amending Chapter I of Part XIV of the 1988 Act.
The mind trembles at having to work it through. It makes me realise how glad I am that I am not in practice at the Bar especially not in revenue practice. There is what I regard as a greater difficulty. Perhaps I have become too rusty. The statutory schemes constituted under the Judicial Pensions Act 1981 shall also be amended. I have a copy of the 1981 Act with me. It is an important Act, affecting judicial pensions. However, from beginning to end it has no reference to "schemes"—or none that I have been able to find. Therefore, one's difficulty in understanding Clause 18 is increased by the reference to
"statutory schemes … under the 1981 Act".
Parliament should do better than this. I know that the answer, "It is very succinct", could well be given and that one could say, "It saves a lot in terms of setting out the previous provisions and their effects". But if that succinct way of doing it is the only feasible way—and I do not accept that it is—surely the Explanatory and Financial Memorandum should fulfil its purpose and explain what it all comes to, which is much more than I am capable of understanding—and I should have thought that that would apply to many other people, both in and out of Parliament.
That is why I have tabled the Motion that the clause should not stand part of the Bill. That is why I hope that any of your Lordships who have had the same sort of difficulties that I have had will join me in wondering why we are presented with a clause of this kind. That is also why I shall be very interested to hear such excuses as my noble and learned friend the Lord Chancellor can put forward in support of the clause.
Lord Mishcon: I have only one observation to make. When I read the clause I wondered whether the Committee should not make a ruling that any judge who is called upon to interpret it shall have a double pension.
The Lord Chancellor: All I can say is that that judge would have more chance of a double pension if the clause were left in the Bill than if it were taken out.
I have sought to explain—and I hope that my explanation has been reasonably clear—that substantial changes were made in the general law in respect of schemes taking effect after 14th March 1989 and in respect of those who joined schemes after that time. The purpose of Clause 18 is to make this scheme enjoy the tax treatment that was afforded to schemes that were in existence before 14th March 1989 and which were relevant statutory schemes for the purposes of that chapter.
I have no doubt that other ways of doing this could have been devised. Perhaps I should add that when I first arrived at the Lord Advocate's Department more years ago than I care to remember, having come from
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practice at the Bar, I thought that I should be able to simplify considerably the drafting of statutes. Perhaps others have had different experiences, but it is my experience that it is one thing to see the defects and complexities in existing drafting, but another to improve on that drafting. I know that some of my noble and learned friends have occasionally encountered difficulties in producing drafts that are universally comprehensible. I shall take my noble friend's injunction to try to do better, but this is our best effort. It is the best that we have been able to do so far.
Lord Renton: Can my noble and learned friend say why no adequate explanation was given in the explanatory memorandum in respect of Clause 18?
The Lord Chancellor: The benefit of the explanation given in the explanatory memorandum is that it is succinct. It could certainly never be described as misleading. The problem is that one must assume some degree of knowledge. If one was going to have an explanatory memorandum that attempted to explain the Bill's provisions in detail, the memorandum would be apt to be at least as long as the Bill. It is intended to be a short explanation in summary form. I have endeavoured to assist the Committee by putting out the "Notes on Clauses" in good time for this Committee. I hope that my noble friend has seen them. It is difficult succinctly to explain a clause such as this. The style of the explanatory memorandum is pretty much in accordance with the standard degree of explanation.
Clause 18 agreed to.
Clause 19 [Benefits in respect of earnings in excess of pension-capped salary]:
Lord Wilberforce Lord Wilberforce moved Amendment No. 49:
Page 15, line 7, after ("officer")") insert ("including a spouse's or children's pension").
The noble and learned Lord said: This is a modest amendment for the purposes of clarification and I recognise that it may not be necessary. The Committee will appreciate that Clause 19 is intended to introduce a separate statutory scheme in respect of earnings over the capped amount. There is no doubt that it is intended to provide a judicial officer with a pension related to half of his excess salary and to a lump sum on the same basis. I believe that there is equally no doubt that it is intended to provide spouse's and children's pensions on the same basis as relate to the pension-capped part of the judicial officer's salary. The trouble is that the clause does not refer to spouses or children. There is not a word in it about them. Therefore, one is left with a process of deduction to find out from the wording whether or not that is so. The words which apparently bring spouses and children into the scheme are "in respect or. Subsection (1) (a) refers to a "lump sum" which is payable,
"to or in respect of a person".
Surely that is a somewhat slender thread on which to hang such an important right. Similarly, if one looks at subsection (3) it will be seen that it refers to "no contributions". Again, one would deduce that the

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section is referring to the pensions of the spouses and children. But there are other indications. Subsection (1) (b) refers only to,
"the judicial officer's pensionable pay".
It does not refer to the pensions of widows or children. Further, subsection (2) states:
"Where this section applies, payments by way of pension or lump sum shall be made",
and so on. Again, lump sums are made to the judicial officer—the retired judge—but not to a widow or to a child. It is possible that the clause makes the whole matter clear when one gets down to it—puts a towel around one's head and goes to a Chancery court to interpret it—but would it not be better to make it clear by the insertion of some explicit words? I venture to suggest to the noble and learned Lord that, first, he should state in explicit terms the fact that the clause does bring in spouses' and children's pensions on exactly the same basis as applies under Clauses 5 to 9 in respect of the capped portion. Secondly, I should be most grateful if he would consider with his draftsman whether it would be better to introduce additional words somewhere in the Bill referring to spouses and children.
My amendment would bring in a reference to spouses and children in subsection (1) (a) of the clause, at line 7, page 15. I agree that it is not very elegant; indeed, there may be other ways of doing it. Perhaps a reference could be inserted in a definition section. I hope that the noble and learned Lord will be good enough to consider whether some explicit reference would help the process of judicial interpretation and save us from the necessity of referring to Hansard in future cases, even assuming that Members of the Committee decide that such a reference is admissible. I beg to move.
9.15 p.m.
The Lord Chancellor: The way in which the clause falls to be read is as follows:
"This section applies in any case where … a pension or lump sum is payable under Part I above to or in respect of a person to whom that Part applies".
I suggest that what one should do is to look at Part I to see where a lump sum or a pension is payable in respect of a person. Wherever that arises, a corresponding liability to pay arises here in respect of subsection (2).
Lord Wilberforce: I beg the noble and learned Lord's pardon. I should have referred to that point. There is a reference in Clause 5(1). However, that refers to the deceased's service; it does not say that it applies to an officer. That introduces yet another ambiguity.
The Lord Chancellor: I was seeking to explain the way in which the clause has been constructed; for example, the payments in Clause 5 are payments in respect of the judicial officer where they are not payments to the officer. However, the point that I wish to make is that one must look in Part I at all places where a pension or lump sum is payable,
"to or in respect of a person to whom that Part applies".
Then one should refer to subsection (2) which reads:
"Where this section applies,"—
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that is to say, where the cap is exceeded—
"payments by way of pension or lump sum shall be made to or in respect of the judicial officer amounting to the difference between"—
and then separate provisions are made for the pension and the lump sum, adding to the corresponding figures given in the earlier part. I shall of course draw my noble and learned friend's anxieties to the attention of the draftsman and invite his view as to whether greater clarification is possible.
Lord Wilberforce: I am obliged to my noble and learned friend. On that basis, I have pleasure in seeking leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 50:
Page 15, line 9, leave out from ("had") to end of line 10 and insert ("pension-capped salary fallen to be determined under section 3(3) (b) above, in his case, without the limit imposed by reference to the permitted maximum there mentioned.").
The noble and learned Lord said: With this amendment I should like to speak also to Amendment No. 51. The amendments cover a point that was raised by my noble and learned friend Lord Morton of Shuna in respect of the existing clause which he found difficult to understand. I referred his difficulties to the draftsman. It would be fair to the draftsman to say that he prefers his original formulation to any that we might put in its place. He has however attempted another version with the same effect, and that is what is proposed in Amendment No. 50. Out of my desire, to which the noble Lord, Lord Mishcon, referred at the outset of the proceedings, to try to please everyone —I have not succeeded fully so far—I have persuaded the draftsman to produce Amendments No. 50 and 51 in the hope that they will be more acceptable to my noble and learned friend Lord Morton of Shuna. I beg to move.
Lord Morton of Shuna: I am grateful to the noble and learned Lord. He, of course, has the advantage of being a mathematician of note. When one reaches the difficulty of whether a definite sum is less than an infinitely large sum, non-mathematicians become lost. What has been proposed by the noble and learned Lord is, at least to non-mathematicians like myself, much clearer. In other words, even I can understand it. It might look even better if the definite article were inserted at the front of each amendment, but that is a minor matter. I welcome the change.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 51:
Page 15, line 19, leave out from ("had") to end of line 20 and insert ("pension-capped salary fallen to be determined under section 3(3) (b) above, in his case, without the limit imposed by reference to the permitted maximum there mentioned.").
On Question, amendment agreed to.
Lord Renton Lord Renton moved Amendment No. 52:
Page 15, leave out lines 24 to 38.
The noble Lord said: The amendment covers subsections (4) and (5). This is the last of the provisions in the Bill containing a regulation-making power. I do not intend to divide the Committee, but it is worth drawing attention to the fact that on this

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occasion the appropriate Minister (the Lord Chancellor) may make regulations without the concurrence of the Treasury. That is good; but why should it be required on other occasions?
I do not understand the logic of requiring the concurrence of the Treasury on some occasions and not on others. I am sure that my noble and learned friend is capable of doing the right thing without the concurrence of the Treasury on all of those occasions. It will be interesting to have an explanation. Perhaps we could benefit on Report by acting accordingly and deleting "the concurrence of the Treasury" in places where it should not be required. I beg to move.
The Lord Chancellor: The purpose of the provision which my noble friend seeks to leave out through his amendment is to put in place the detail to give effect to the principle or purpose stated earlier in the clause. It is obvious that details are required which would not be appropriate for primary legislation.
My noble friend says, "Oh, the Lord Chancellor is able to make regulations without the concurrence of the Treasury". I am grateful for his confidence, but the responsibilities of the Lord Chancellor on the one hand and of the Treasury on the other are distinct. I have to pay attention to the Treasury's responsibilities.
This regulation is simply to give effect in detail to the primary legislative provisions which go before it. These are fairly pointed. The detail would be of less concern to the Treasury than matters which require its concurrence in earlier provisions which are much more directly its responsibilities.
Lord Renton: It seems to me that my noble and learned friend has made a distinction without a difference. However, I shall not pursue the matter now. I shall consider carefully what was said on this and on other occasions about the need for concurrence with the Treasury. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19, as amended, agreed to.
Clause 20 agreed to.
Clause 21 [Application of the Pensions (Increase) Act 1971]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 53:
Page 16, line 26, leave out subsection (1).
The noble and learned Lord said: The purpose of this amendment is to improve the drafting of the clause dealing with the Pensions (Increase) Act 1971. The first part of the clause is unnecessary. It was included as a matter of precaution but on closer examination it was found that the provision was unnecessary and should be omitted. A consequent amendment to subsection (2) is required.
The amendment to subsection (3) is a corresponding provision for Northern Ireland, with the wording included in the inserted text in subsection (2). I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 54 and 55:
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Page 16, line 28, leave out ("In Schedule 2 to that Act") and insert ("In the Pensions (Increase) Act 1971, in Schedule 2").
Page 16, line 37, after first ("Act") insert (", other than pensions payable under or by virtue of section 10 above").
The noble and learned Lord said: I have just spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Clause 21, as amended, agreed to.
Clauses 22 to 24 agreed to.
Clause 25 [Retirement date for holders of certain judicial offices]:
9.30 p.m.
Lord Ackner Lord Ackner moved Amendment No. 56:
Page 17, line 30, leave Out subsection (2).
The noble and learned Lord said: I referred to this in my contribution to the debate on Second Reading and do not wish to weary the Committee with repetition. I seek to remove subsections (2), (3) and (4) because they provide what I respectfully submit is a potentially destructive mechanism of the compulsory retirement age of 70. The subsections pay lip service to the concept of everyone retiring at 70 and then give to the Lord Chancellor the right to continue in office for a given case or for a period of time not exceeding one year, or all the way up to five years.
At this stage of the evening the Committee will not be moved by ringing citations on the necessity to preserve judicial independence. However, I wish to make one quick quotation by Lord Simmons, who said:
"It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not, nor favours the executive".
It may be immediately asked, surely everyone supports judicial independence? Probably there is no one better to reply to that than my noble and learned friend Lord Hailsham, who unfortunately is not present in the Chamber. He said in a public lecture in 1987 when he posed that very question:
"Oh, do they? Certainly not the public, or the backbenchers in the House of Commons who constantly revile, frequently from inconsistent standpoints, individual judges or particular decisions, or what they imagine to be judicial policies, and daily demand individual judges to be directed or rebuked (presumably by the Executive Government) to move in this direction or that, or even should be removed from office. Certainly not the Opposition, whichever party happens to be on the Speaker's left. Certainly not party conferences of any hue".
I stress the following words:
"And, least of all, I may assure you, individual members of the Cabinet, whose Departmental interests from time to time basically conflict not only with the views of the judiciary, where they are entitled to differ, but in the provision of the means necessary to enable the Courts to discharge their functions".
Those are cautionary observations which, in my respectful submission, wholly justify concern at any clause which may diminish the independence of the judiciary.
On Second Reading I instanced a case where it might be well thought that a judge on contract so to speak, having passed the retirement age, might not have made the courageous decision he did, or having made it might not be considered eligible by the appropriate Minister for reappointment for another year. This is not theoretical. Most of us know of two

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cases where both personalities are live and well but whose elevation to the Court of Appeal was substantially delayed because the government of the time disliked their particular decisions, not necessarily on legal matters but in relation to other matters which formed part of their previous office. It needed a change of government in one case to ensure the elevation and it needed a delegation from the senior judges to the then Lord Chancellor to put an end to the failure to elevate the particular judge to the Court of Appeal.
In my respectful submission, it is constitutionally unacceptable that the security of a judge should depend upon a decision of an appropriate Minister —the Lord Chancellor of the day—as to whether or not he should be continued in office. That matter is not purely theoretical. It is practical. It will run the serious risk of undermining the whole purpose of saying that the retirement age must come down to 70. We all know that by modern standards 70 is a senior age to continue in what is a demanding office. Those, in short, are my submissions to justify moving this amendment. I beg to move.
Lord Morton of Shuna: Everything has been said by my noble and learned friend Lord Ackner with much more vigour and clarity than I could achieve. I do not want to repeat what I said at Second Reading, but the position in Scotland is even more difficult than the constitutional position in England and Wales because the Secretary of State has different functions from the Lord Chancellor.
It seems to me also that the provision is totally unnecessary, standing the provision that one can use, if necessary, a retired judge up to the age of 75. I therefore can envisage no position in which it would be necessary to continue in office a particular judge, but perhaps the noble and learned Lord will be able to supply some theoretical explanation.
There are also other difficulties, although less important. What happens to the person continued in office? If the person continued in office had served for 12 years when he reached the age of 70 would he receive another year's pension if he served for another year, or would he not? That is not clear. It adds to the difficulty. If he was to receive another year's pension by persuading the Government to continue him in office it would be even more obnoxious to the public if he were to deal with a case in which the Government were a party. Therefore, it seems to me that that is a difficulty which should not arise, and I strongly support the amendment.
Lord Mishcon: I listened, as I always do, with the greatest of care to the noble and learned Lord, Lord Ackner. I wondered where the logic of his argument left me. If it is wrong for a member of the Government who is also Lord Chancellor—the Minister referred to —to have the power to extend the period of office of a judge beyond the age of 70 because that might give the appearance that some control of an improper kind was being exercised by the Minister, is it not logical to suggest that it must also be wrong for a Lord Chancellor, as a Minister, to make the original appointment?
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It seems to me that there are many advocates who appear in cases and make submissions, especially on applications for judicial review, in which what they say may be very unpopular with a government and with a Cabinet. The logic of the noble and learned Lord's argument would lead him to say that in order that the public may realise that all appointments of judges and extensions of appointments of judges are made without political considerations there should be some form of judicial appointments board, in which the Lord Chancellor would no doubt play his part and would openly be seen to consult with others, not all of them lawyers, who would make the appointments. As that was advocated in certain discussions which were held during the general election I thought that I had a brother in the noble and learned Lord when he followed that line.
It may be suggested that it is perfectly all right for the person who makes the original appointment to be the Minister, making a recommendation on his own, openly in the public view, although most of us know that consultations of a sensible nature take place. If the argument is that it is the Minister on his own and he does not consult at all openly, I should have thought that the argument must be that that Minister should not even make the original appointment.
Lord Donaldson of Lymington: It is very rare indeed that I am driven to my feet by an impelling feeling that I must disagree with the noble Lord, Lord Mishcon, but that is the case on this occasion.
First, it is not the Lord Chancellor who appoints the higher judiciary; it is Her Majesty the Queen. It is true that in respect of some appointments he makes the recommendation; others are made by the Prime Minister. But that may be regarded as a pure technicality.
I particularly disagree with the noble Lord when he says that if it is objectionable that a judge's term of office should be extended by a Minister it must equally be objectionable that the recommendation is made in view of the submissions which potential candidates may have been making as counsel. That cannot be right. He must know that the submissions which counsel make on behalf of their clients bear no necessary relationship to what counsel themselves think. The only relevance of submissions made by counsel would be if they were professionally improper, in which case there would be a case for not appointing and not recommending.
The fundamental difference between recommending the appointment of a judge and extending year by year is that one invites the candidate to become a judge. He accepts, and one has under the existing system 15 years and under the proposed system 20 years in which to regret that the invitation was ever extended. There is nothing to be done about it. But at the other end of the term of office the man is theoretically under one's thumb. One says to him, "Right, you can have 12 months extension and I shall look at it again at the end of 12 months." The difference in terms of apparent control over the judge is enormous. When it comes to the four designated judges it is, if I may say so, quite ludicrous that a Minister of the Crown should be able to say to one of

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those judges, who have their special responsibilities under the Courts and Legal Services Act 1990, "Well, I am giving a good deal of thought to whether your period of office should be extended." It is quite unacceptable. I support the amendment.
Lord Wigoder: I come to the same conclusion on these amendments as did the noble and learned Lord, Lord Ackner, but with a slightly different perspective. These are not party political matters and it is my view that the age of 70 is an appropriate retiring age for the judiciary. Just as throughout the public sector the trend has been towards earlier retirement during the past few generations, so it should now apply in the case of the judiciary.
I believe that when retirement age has been reached a person should retire and not seek to take further part in his previous activities. I speak with some feeling on this matter, having myself retired from my occupation at 1.30 this afternoon. I feel strongly that the younger generation should be given their chance. I am not impressed by the argument that there are doctors over the age of 65 or judges over the age of 80 who are perfectly capable of carrying out their tasks. That is not the point. One cannot distinguish between individuals and it is quite invidious to seek to do so.
I want to make two other points. I may well have misread the clause but it seems to me that the only power that is sought to be given is a power to continue a judge's term of office after he has reached the age of 70. There does not appear to be any power to allow a judge to retire at the age of 70 and to bring him back afterwards. I do not know whether it was the intention to include that in the Bill. If so, I should be very much against that proposition.
The other observation which I make, not entirely flippantly, is that if there is to be a retirement age of 70, or any retirement age, should there not be some provision whereby, as a matter of routine, a judge who embarked on a piece of judicial business before he reached his birthday (his retirement age) is allowed to complete that business without the necessity for any particular order by the Lord Chancellor or anybody else?
When I was a very young man at the Bar the story was often repeated of a judge of the King's Bench Division (as it then was) who reached his retirement age in the course of a long case. Without informing anybody he simply withdrew to his farm in Ireland over the weekend and left the parties to assemble on the Monday morning wondering what on earth had happened to the judge who was trying the case.
I have no intention of being flippant about what is a serious matter. There should be some provision to allow a judge who has embarked on a commission of inquiry or a substantial case as a matter of routine to complete it even if his retirement age occurs in the middle of the proceedings.
9.45 p.m.
Lord Benson: I wish to follow the argument of the noble Lord, Lord Wigoder. I suggest that it is imprudent to bring a person back after a compulsory retirement age because his attitude changes from the
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time of compulsory retirement; in fact it begins to change about a year before that date. On the compulsory retirement date other changes occur. Not only does his attitude of mind change but he does not have his previous back-up of accommodation, reference books, secretaries and so on. In addition, for all those reasons his ideas become out of date very quickly. That doctrine is fully accepted in other walks of life. I see no reason why it is not accepted in the case of the judiciary.
I wish to draw attention to one of the consequences which is almost bound to happen. Sooner or later a judge who is brought back from retirement will make a mistake. Everyone makes mistakes. But someone who is brought back and whose ideas are out of date is much more likely to make a mistake than those in full office. When that occurs one can envisage exactly what will happen. The banner headline of the newspaper will be, "Blunder by aged judge rescued from retirement". The next line will be, "Judicial system propped up by has-beens because of the shortage of judges". These are not exaggerations. At present the judiciary is a target for the press. There is just a sufficient grain of truth in what the press states to make such comment possible. I suggest that Clauses 2, 3 and 4 are withdrawn from the Bill.
Lord Taylor of Gosforth: In this context perhaps I may repeat a suggestion that I made at Second Reading. At the present time the Lord Chancellor consults with the Heads of Divisions and others before he makes any appointment of judges. That is done informally and one hopes that it produces a very satisfactory result. However, I endorse what my noble and learned friend the Master of the Rolls has said: that there is a distinction between appointing judges and, as is proposed in the clauses, extending a judge. Again I would expect that my noble and learned friend the Lord Chancellor would consult with Heads of Divisions. But would it not be a good idea, at the very minimum for the sake of constitutional cosmetics (if I may so call it), to have built into the Bill that the Lord Chancellor should consult with the Heads of Division in this regard?
The Lord Chancellor: There are a number of different matters to be dealt with in the three amendments. The first question is whether there should be any power to extend a judicial officer's appointment beyond 70, given that 70 is to be the retiring age.
The purpose of the provisions of this clause is to enable a person to be continued in office. This is not a situation, as the noble Lord, Lord Benson, was figuring, of someone who has retired being brought back without back-up. The idea of the clause is that a person would be continued in office beyond the age of 70 from year to year to a maximum age of 75. This is not a new provision so far as concerns the judiciary as a whole, although it is a new provision so far as concerns High Court judges. The Circuit Bench has had a provision of this kind for quite a long time. I have exercised this power from time to time without,

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so far as I know, any complaint whatsoever and certainly without any of the headlines to which the noble Lord, Lord Benson, referred.
I take the view that it is to happen only where the public interest requires it. For example, in recent times in regard to the Circuit Bench I have found it less and less necessary, because of the improved recruitment pattern, to exercise the power. I would certainly hope, as I said at Second Reading, that the power will be exercised only very sparingly in the future in respect of the higher judiciary and indeed the judiciary generally.
The first question is whether there should be any power at all to continue in office. I take the sense of what my noble and learned friend the Lord Chief Justice said as being in favour of a power to extend. I think I am right in saying that my noble and learned friend the Master of the Rolls was also of that view or certainly has been of that view. This would embrace the kind of situation to which the noble Lord, Lord Wigoder, referred in which a judge was sitting on a case which lasted longer than expected, but it would not be confined to such a situation. I have sought to put the provision into the Bill because when making a change from 75 to 70 in a fairly long-established system it is wise to have some flexibility in case of unforeseen developments or developments that might be difficult to handle.
Assuming that there is to be a power, what conditions should apply? I believe very strongly that the office that I have presently the honour to hold is one that has gained the confidence of the public generally that appointments are made on the basis of competence and suitability. I would take my noble and learned friend Lord Ackner to be referring to some time before I was in office. I have been the subject of some criticism from my noble and learned friend in a number of ways from time to time but not particularly, I think, on that aspect.
Lord Ackner: I can give an emphatic confirmation that it certainly occurred long before my noble and learned friend ascended to his office.
The Lord Chancellor: I am grateful for that. I felt certain that that was so. Considerations of the kind to which my noble and learned friend referred would enter into no decision of mine in relation to judicial appointments. My noble and learned friend referred to what my noble and learned friend Lord Hailsham said in a lecture delivered shortly after he ceased to hold the office of Lord Chancellor. I am less conscious than he appeared to be of the kind of reaction to which he referred. I am conscious of unfair criticism of the judiciary which one tries to meet wisely as these criticisms develop. On the question of judicial independence, that concept is valued not only by me but by many with whom I associate, including my colleagues in Cabinet. Of course, judicial independence does not mean only independence from the Executive. It means independence one judge from another, each judge being independent.
Assuming that power were to be exercised, I should consult the appropriate judges; namely, the heads of division in the case of High Court judges and, in
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respect of Members of the House of Lords, it would be appropriate to consult the senior Lords of Appeal in Ordinary. I am not certain, although I am open to invitations to consider this matter further, that it is necessarily wise that that consultation should be put on the face of the statute. I certainly believe that it is wise to hold that consultation and I give an undertaking to that effect.
The reasons why I am not certain that it is wise to put it on the face of the statute are, first, that there is no such provision in respect of circuit judges, although I appreciate that that is a different situation, and, secondly, because of the kind of attack to which the noble Lord, Lord Benson, referred. On the whole, it is better that the responsibility for extending an appointment should be seen as the responsibility of the Lord Chancellor in the case of England and Wales. The reason for that is that if on the face of the statute any of my judicial colleagues were expressly involved they would be thought by the public to share a responsibility in respect of any disaster. That may not be wise. My judicial colleagues may be able to exercise influence better and without any responsibility in that sense—public accountability for it—without being named. However, as I say, I am open to an invitation to consider that further.
Certainly I believe, from what has been said, that there is a degree of difference of view about this matter. I feel fairly strongly that in making the kind of change that we are in the retirement age, the provision for extension is wise. I agree that the terms on which the extension should be granted and exactly how that should be organised require careful consideration, and I have tried to give it such consideration. I should like to leave my views on this matter before the Committee. I apprehend that my noble and learned friend does not intend to reach a final decision on the matter this evening.
My noble and learned friend Lord Morton referred to the Scottish position; that is, that the Secretary of State has responsibility as the appropriate Minister. As I understand it, the convention is that in matters of this kind the Secretary of State acts on the advice of the Lord Advocate. As regards judicial appointments in Scotland, which are made on the nomination of the Secretary of State, the same traditions to which I have referred affecting the office of the Lord Advocate apply to the office of the Secretary of State for Scotland in respect of that particular and all-important function.
Lord Morton of Shuna: Before the noble and learned Lord sits down, I think he gave an indication by nodding his head but he has not said anything as regards my question as to whether pensions continue to build up after the age of 70.
The Lord Chancellor: I forgot that point in the heat of trying to deal with the important point of principle. My noble and learned friend says that the position is not clear, although I thought it was. My understanding is that if a person continues in office that will be pensionable service and will count for pension purposes.

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I do not accept the view that that creates any particular additional pressure. It is important that the appropriate Minister would require to be convinced that the appointment was in the public interest and not merely because of the fact that only by granting an extension would the judge receive a full pension. The purpose of the extension would be to serve the public interest in some other way.
I was asked for practical illustrations. The most likely illustration is perhaps the scarcity of a particular specialty—a specialty which requires a good deal of planning in advance to ensure that when the judge holding the specialty retires another judge is available to replace him. With all the planning in the world it may be that somebody with the required specialty may not be available quickly. In that situation it may be right to extend the time of the existing judge. That is an illustration which occurs to me. On the circuit Bench it has occurred quite often, though less frequently than at one time.
10 p.m.
Lord Donaldson of Lymington: I understand the illustration given by the noble and learned Lord. However, does he not agree that if the judiciary are to be seen to be independent—I mean by that the whole-time professional judiciary, accepting, of course, that he is the head of the judiciary—in a matter of this kind they must be prepared to accept responsibility and stand up and be counted? It is no answer to say that the Lord Chancellor is answerable to Parliament and that the whole-time judiciary should not become involved. Does he not agree that the fact that they are not involved casts doubt upon their independence?
The Lord Chancellor: One aspect of judicial independence which is not always fully appreciated is that judges are independent of one another. The fact that one of the independent judiciary is involved on the face of the Bill means that they carry responsibility. However, they carry it in a way that is perhaps more difficult for them to handle than is the responsibility of a Minister directly answerable to Parliament. After all, if I am criticised by somebody in Parliament, I have the chance directly to answer.
I do not give that answer as a means of avoiding the issue. I simply put it forward as a consideration. I have read in perceptive pieces on related subjects that one must be careful. I am anxious to do what I can to preserve the independence of the judiciary; I am therefore content to consider whether some clause in regard to formal consultation should be included on the face of the Bill. However, I draw attention to the fact that the considerations for that are not necessarily all one way.
Lord Mishcon: I believe that this is the end of discussion on the matter. Will the noble and learned Lord consider that whereas if on the face of the Bill it is the Minister who makes a decision, criticism could be made publicly that political considerations have entered into the matter; if there is consultation with elements of the judiciary on the face of the Bill, that criticism could never fairly be made.
Lord Ackner: My noble and learned friend is right. I would not dream of asking the Committee to reach a final decision on this important matter at this time of night. However, I ask that we concentrate at this stage on whether or not there should be any power at all.
Thanks to the wisdom of my noble friend Lord Benson, Amendments Nos. 58 and 60A—to which I added my name after some slight redrafting—deal with the terms of the power if it should exist. I can turn to that in a moment. On the basis of whether or not the power should exist at all I make only the following points.
First, the same problem arose in Scotland when what became the Scottish Law Reform (Miscellaneous Provisions) Act 1987 was introduced. The age at that time was 75. The principle was exactly the same. Parliament decided, and the Government introduced the clause, under pressure, that at 75 the chopper came down and that was an end of it. There was therefore no problem in reaching a firm conclusion in Scotland where the shortage of judges may be even more acute because of the size of the judiciary.
The reason the chopper came down under Section 22 of the Act was quite simply one of principle. If Parliament says that 75, or now 70, is the retirement age, it should not be played around with. That should be the end of the matter.
The next amendment deals with the terms, if the power is to exist. I shall not dwell on that for the moment. Comparable jurisdictions are always worth looking to. We become over-insular in our approach. I have already made one or two comparative points. The only two jurisdictions comparable to ours which I have discovered are the United States and Canada, where there is a power to opt for senior judge status. But the option is made by the judge. Having opted for that status he is available for what use the chief justice or the judiciary wish to make of him, it being understood that he is not expected to work full-time. But the judge opts whether he wants that status. It is not somebody else's decision offering him that particular entitlement. I believe that that is again because of the constitutional principle that the independence of the judiciary involves security of tenure which is not dependent on the Executive.
At Second Reading I referred to other countries with hotter climes. In the Far East there have been very good indications of how a Bench is weakened in fact and in the public perception by this yearly renewal. Quite a high proportion of the judiciary were on contract. It was a thoroughly bad system. I do not believe that it continues as much as it did. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Benson Lord Benson moved Amendment No. 57:
Page 17, line 30, leave out subsection (2) and insert:
("(2) Subsections (3) and (4) below shall be regarded as a temporary measure which shall not apply after 3Ist December 1997 and any person who, prior to that date, was authorised to hold office under subsections (3) and (4) shall cease to hold office on 31st December 1997.").
The noble Lord said: If subsections (2), (3) and (4) remain in the Bill then this amendment is relevant. So

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far as I know, the only reason for employing judges after the retirement age is because of the shortage of judges. I have never heard of any other reason being given. I believe that that shortage has existed for a long time. It is a bad situation, which should be corrected. Lay persons do not understand how it is possible for a shortage of judges to continue. Why is the situation in the judiciary not corrected? It could not exist in the private sector because it would not be supported by the shareholders and the public. Why have judges not been appointed?
The purpose of this amendment gives the Government five years to clean up the situation, which should be time enough. In that time they should be able to find enough judges and to remove the backlog. The amendment has one other advantage—namely, that it prevents this bad situation being continued after 1997. The Committee may be sure that if this amendment is not passed there will be a shortage of judges in perpetuity. I beg to move.
The Lord Chancellor: I believe that the prophecy that the noble Lord, Lord Benson, has just uttered is not justified by the existence of this power with the Circuit Bench. As I mentioned earlier, this power has existed for some time with the Circuit Bench. In recent times it has been possible to use it only rarely so the existence of such power does not necessarily perpetuate a shortage. As I said when speaking to the last amendment, Circuit Bench recruitment has improved in such a way that I have been able not to exercise that power in quite a number of recent cases.
I understand the purpose of the amendment, and it is certainly worthy of consideration. It raises the question of whether the power should be time-limited if it is given. It is difficult for us to foresee the exact position in the future, given the proposed changes. It will always be possible for Parliament to remove the power in the light of developing experience or—and perhaps this is more likely —the relevant Minister, the Lord Chancellor in a case that I take as typical, would not find it necessary to use the power, except possibly in exceptional circumstances such as I indicated a moment ago. I submit that we cannot see sufficiently into the future to fix a definite date in this way. But the Committee may feel that this is an option which is worthy of consideration.
Lord Ackner: The figure that I have been supplied by the noble and learned Lord's department in relation to the number of circuit judges who sat over the age of 72 was 562 in 1991. To use a phrase that perhaps one should not use in this House, that is hardly peanuts when one considers the use made of retired judges.
The Lord Chancellor: I am not certain whether the noble and learned Lord, Lord Ackner, is referring to those who have been continued in office under the power or to those who are sitting as deputies, having retired.
Lord Ackner: Only to those who are sitting as retired.
The Lord Chancellor: If the noble and learned Lord is referring to those who are sitting as retired, that explains why his figures and those that I have in mind are rather different. I am talking about the exercise of the power to continue judges in office, which is what the amendment which has been tabled by the noble Lord, Lord Benson, is directed to, as I understand it.
Lord Benson: The noble and learned Lord the Lord Chancellor has said that the amendment is worthy of consideration. I am pleased to hear that, and I hope that the consideration will be successful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 58 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 58A:
Page 17, line 34, leave out from ("applies") to ("office") in line 37, and insert ("the Lord Chief Justice or the Lord President with the consent of the appropriate Minister considers there is a shortage of relevant officers for the time being specified in either Part of Schedule 5 to this Act he may as a temporary measure to facilitate the disposal of business authorise the holder of a relevant office to continue in that office after his compulsory retirement date").
The noble and learned Lord said: I owe this amendment essentially to the wisdom of the noble Lord, Lord Benson, but I have altered the wording. The amendment is designed to tag on to the limited five-year period. During the five-year period, these are the terms upon which the scheme should operate. As the wording of the amendment has some relevance, perhaps I may read it out. It states:
"the Lord Chief Justice or the Lord President with the consent of the appropriate Minister considers there is a shortage of relevant officers for the time being specified in either Part of Schedule 5 to this Act he may as a temporary measure to facilitate the disposal of business authorise the holder of a relevant office to continue in that office after his compulsory retirement date".
These are the points of note. If the wording that I have suggested proves acceptable, the Lord Chief Justice himself cannot be continued in office beyond the age of 70. I think that that is quite right. It is in order that it is never to be possible to say that the Lord Chief Justice has been continued because of the way in which he operates in the eyes of the Executive. I think that that is absolutely right. The Lord Chief Justice therefore has nothing to gain by the way in which he operates the system. It is then for him—or the Lord President, who is in the same position—with the consent of the Lord Chancellor in England, only where there is a shortage of relevant officers and only as a temporary measure, to facilitate the disposal of business. The Lord Chancellor will still be properly answerable in the House because, ex hypothesi, he has not only been consulted, but his concurrence is required. If it is thought that there is something novel about the proposal I should point out that I have lifted almost the entirety of that language straight from Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which reads as follows:
"If it appears to the Lord President of the Court of Session that it is expedient as a temporary measure to make an appointment under this section in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary he may, with the consent of the Secretary of State".

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This is my last amendment tonight. I am delighted to find that it can be put forward so harmoniously not only with the concurrence of Parliament mutatis mutandis seven years ago, but also in relation to the Scots jurisdiction to which we are quite properly referred from time to time as providing the common sense and wise solution to many of our problems. I beg to move.
10.15 p.m.
The Lord Chancellor: My noble and learned friend approached the amendment in a way which makes it especially difficult for me to say too much about it in principle. However, that will not deter me very much. The Scottish provision was set in place against the background of the Scottish situation. Of course, there is no reference there to the Lord Chancellor or the Lord Chief Justice. Against the background of the English situation and the nature of the constitution of the English court, I believe that the proposal that the Lord Chancellor should have the primary responsibility, after consulting the Lord Chief Justice and the other Heads of Divisions as appropriate, would be more in keeping with the way in which the court here is structured.
As I said earlier, assuming that the power is granted the conditions require careful consideration. However, I do not believe that this is necessarily a case where the Scottish provision is quite the right one for the jurisdiction involved. As has already been said, the Secretary of State does not occupy the position that the Lord Chancellor holds. Moreover, as my noble and learned friend well knows, the Lord Chancellor is President of the Supreme Court and that cannot be said of the Secretary of State for Scotland in respect of any jurisdiction there. The appropriate form is one that we want further to consider. I believe that my noble and learned friend has indicated that he regards it as something which may take a little time.
Lord Morton of Shuna: Before the noble and learned Lord sat down he indicated that the position of Scotland is different from that of England. That is something that I have, no doubt inarticulately, tried to say both on Second Reading and earlier this evening. The position of the Secretary of State is wholly different from that of the noble and learned Lord in their respective jurisdictions. It is possible that the appropriate course—that is, if the clause is to continue to exist at all—is to have separate provisions for England and Scotland. I hope that that suggestion will also be considered as an alternative.
Lord Wigoder: When in due course the noble and learned Lord the Lord Chancellor considers the wording of this part of the Bill, I respectfully ask him to consider making it clear that any extension of a term of office beyond the age of 70 will be a temporary measure to deal with an emergency situation.
The Lord Chancellor: The nature of the power here conferred is one that applies from year to year. The principal reason why I suggested that form of power was that there should not be an extension up to the age
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of 75, as it were. The extension can be granted for a year at a time only. On each extension the public interest would need to be considered.
The special circumstances mentioned by the noble Lord, Lord Wigoder, of a case not being completed is referred to, at least in certain circumstances, in Clause 25(6) (e). The intention is that the measure should be a temporary one in the sense that it is a year-to-year measure which is required to be reconsidered on each occasion.
Lord Mishcon: Only so that, in my view at all events, one deals tidily with the point raised by the noble Lord, Lord Wigoder, and just answered by the noble and learned Lord the Lord Chancellor, I, peculiarly enough, appreciated the relevance of paragraph (e) to which the noble and learned Lord has just referred. In case we forget, he will realise that automatically—we shall come to this point—all powers cease at the age of 75. Paragraph (e) is followed by the words:
"except that nothing in any of those provisions shall authorise a person to do anything after the day on which he attains the age of 75".
I have never come across in an Act of Parliament anything which is so unsympathetic to the aged as those words. The person is not to do anything. I hope the noble and learned Lord will not forget that paragraph (e) will not apply to someone who has reached the age of 75 having reserved judgment at the age of 74¾.
The Lord Chancellor: I shall not forget that point. On the assumption that the 75 arrangement stands—there are amendments still to be considered in relation to that point—that is a matter which one will wish to consider. If someone reaches the age of 74 and one was considering extending his term of office, one would have to have that point in mind. The reason for the strong words to which the noble Lord, Lord Mishcon, referred is the principle behind this part of the Bill: there should be no more judicial work, either temporary or by continuation in office, after the age of 75.
Lord Ackner: Obviously, once more, there can he no final decision on this point tonight. I ask my noble and learned friend to consider—if he does not wish to incorporate the whole of the Scots drafting—what possible criticism there could be of including in the Bill the words "temporary measure" which it was thought fit to put in for Scotland. To employ someone from year to year from 70 to 75 does not sound to me like a temporary measure. It will not sound like one to the public.
There is a further point to consider: the possible invidious decisions which will have to be made. Am to be continued in office? It is different once one retires and is asked to return to sit from time to time to the continuation in office as an office-holder with the back-up —the room, the clerk and the very name of Master of the Rolls or President of the Family Division. It creates an invidious position when a person is not continued in office, whereas the automatic cessation at 70 produces a clean break. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 had been withdrawn from the Marshalled List.]
[Amendments Nos. 60 and 60A not moved.]
[Amendment No. 61 had been withdrawn from the Marshalled List.]
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 62:
Page 18, line 8, leave out subsection (5).
The noble and learned Lord said: We now move from the full-time office holder to the retired judge who is brought back. Quite different considerations apply to him, as my noble and learned friend Lord Ackner has just said. The lettered paragraphs, with the exception of paragraph (b), to which special considerations apply, are all provisions relating to people coming back as part-timers. They provide a cut-off age of 75.
We all know that there is no magic about 75, and I shall not rehearse the arguments that some people over the age of 75 are as bright as a button while some under 70 ought not to be given house room. No doubt it will be said by my noble and learned friend, "That is true but there must be a cut-off point at some time. It is bound to be arbitrary, but 75 is as good as we shall get". With all respect to my noble and learned friend, the answer is that we do not need a cut-off point at all. He could enforce the policy, or give it life, tomorrow simply by sending a note to the Lord Chief Justice, myself and other Heads of Division and to those who are responsible for the employment of retired county court judges, saying, "I don't think you ought to go on employing these judges. Please stop as soon as you can". Then we shall do it. On the other hand, we may protest about a lack of judges, but that is another matter. We shall do what is required and the policy can be given effect.
Therefore, what is the purpose of the provision? It is quite unnecessary in order to create change on the ground. The purpose can only be to tie the hands of a future Lord Chancellor. I cannot see its point. A crisis could well arise in which the only available judge happened to be over 75, who might he required to get us out of an enormous temporary crisis.
I am congenitally opposed to circumscribing anyone's jurisdiction ever to do anything. By all means exercise discretion not to do something, but, particularly in primary legislation, never say, "You cannot do it". It is an invitation to the gods to create a situation in which one feels one must do it. Accordingly, I hope that the noble and learned Lord will either agree to withdraw the provision or at least to consider it seriously. I beg to move.
The Chairman of Committees: I should remind the Committee that if Amendment No. 62 is agreed to I shall be unable to call Amendment No. 64.
Lord Bridge of Harwich: It is in no spirit of high optimism that I speak in support of the amendment to a somewhat sparsely populated Chamber at a late hour, especially having heard what has been said earlier. It is invidious that, as a retired Law Lord
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already past the present retiring age of 75. I should speak to it at all. I hope the Committee will give me credit in supposing that at least I do not speak purely out of self interest.
I believe that whether or not subsection (5) remains in the Bill is of importance; not perhaps as concerns trial judges but judges exercising appellate jurisdiction. I hope it is right, and it may be common ground, that those who have had the good fortune to start as puisne judges and then have a career as Appellate Judges, or come to your Lordships' House and have a second and different career as a different kind of Appellate Judge, are not as susceptible to the vices which have been referred to as staleness, cynicism and impatience. Those vices afflict some trial judges who do the same boring job year after year. If they are susceptible to those vices, it soon becomes apparent to their colleagues and they will never be invited to sit as retired judges.
One has three quite different careers if one finishes in the House of Lords as a Law Lord. There is the career as a puisne judge, the career in the Court of Appeal and a quite different career here. Ever since the age limit of 75 was introduced the Court of Appeal has largely had to rely on calling retired judges back to sit because the number of regular Appellate Judges available to do the work that has to be done inevitably varies. Lord Justices of Appeal fall ill like anyone else and they are called upon to preside over public inquiries and to undertake all kinds of other responsibilities. A fortiori in this Chamber there is always someone like the noble and learned Lord, Lord Griffiths, who is hardly ever available because he is busy presiding over the Lord Chancellor's advisory committee and performing other important functions.
Law Lords go away to give lecture tours in foreign countries, and that is approved and considered, from a public relations point of view, to be proper. Yet the Chamber, as far as I know, has never had an establishment of more than 10 regular salaried Lords of Appeal in Ordinary. The statutory number is 11. However, at the moment there are 10 regular salaried Lords of Appeal in Ordinary. When I first came here, there were only nine. Yet the Chamber normally manages to sit two committees, one here and one in the Privy Council, or two committees here, or occasionally even three committees. That call only be done if, when the occasion arises—it only arises every now and again—retired Law Lords or other qualified people can be called upon to sit. If that is to be done away with, the establishment will have to be enormously increased and a large number of Law Lords—I think the same would apply to the Court of Appeal—will find themselves with little to do half the time. Is that really sensible? In particular, is it sensible when—my noble and learned friend the Master of the Rolls has pointed this out—a statutory ban is not required?
I invite my noble and learned friend the Lord Chancellor, when he replies, to indicate what the real purpose behind this statutory provision is. That it has a useful, perhaps a necessary public relations function to perform, I fully understand. If it is thought worth adopting from that point of view, so be it. But I

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particularly ask the question: what other important function can this statutory ban perform which could not equally well be achieved by the exercise of discretion by the Lord Chancellor, whether or not in consultation with the regular judiciary, as to whether any particular retired judge, or any particular category of retired judges, should or should not be asked to sit occasionally when that is needed?
10.30 p.m.
Lord Hacking: I did not have the opportunity to speak on Second Reading and I arrive at this Committee somewhat late in the evening. I ask the Committee's forgiveness for my late intervention particularly to oppose this amendment. I rise merely having listened to the argument to find myself contrary to that argument. It seems to me that the basic defect of this amendment is that it restricts the appointment of judges to all levels of the High Court of the judiciary. The most important matter of all is that there should be a sufficient number of judges at all levels of the judiciary below the retirement age fully able to discharge those duties.
The Lord Chancellor: The purpose of the subsection that is sought to be removed by this amendment is to place a statutory age limit on those who can perform judicial functions. I wish to stress how grateful I am to those retired judges, including distinguished Members of this Chamber, who have continued diligently to devote themselves to the public service and to make a valuable contribution to the administration of justice after their retirement from full-time office. I have come to the conclusion that it is no longer fair to them, or entirely consistent with public expectations, to enable them to do so indefinitely. I have therefore thought it appropriate for the first time, at least in England and Wales, to impose an overriding age limit on such sittings. The Bill as it stands provides for that limit to be 75.
These are very much matters of balance and of judgment and I can see the argument for simply leaving the matter to the Lord Chancellor's discretion. I certainly agree that I could, by my own action, achieve that result for the time being. However, this is a very important change. After all, judges over the age of 75 have been sitting from time to time in this jurisdiction for quite a long period after the 75 years
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age limit was introduced. I feel that it is right that the matter should be discussed in Parliament and decided by Parliament rather than simply by fiat of the Lord Chancellor.
I believe that the provisions strike a balance. There is the ordinary retirement age of 70; the possibility of continuation in office beyond 70 or of sitting as a judge between the ages of 70 and 75, having retired; and then at 75 the option to sit will no longer be open.
Of course I am particularly appreciative of the services of some who will be affected by this particular clause, if and when it comes into operation. It is not without a good deal of personal regret in respect of those individuals that I have thought it right to put the clause forward. However, the very considerations which move me personally in that respect are likely to move any successor also. It is as well that Parliament should decide the matter and make a definite provision. That is the basis on which the provision which the amendment seeks to remove has been put forward. There are perhaps refinements to the provision which we shall have an opportunity of considering in a moment.
Lord Mishcon: I rise with the utmost fear, having summoned such courage as one can summon at this late hour, merely to ask with extreme respect of the noble and learned Lord, why, in the light of that reasoning, there is an exception in the case of the President of the Supreme Court—namely, the Lord Chancellor—when those under his presidency are not allowed to continue beyond the age of 75.
The Lord Chancellor: I have thought it right to leave that matter, not because I contemplate for one moment being in that position personally but because the Lord Chancellor holds office entirely at the discretion of Her Majesty. Obviously, if Her Majesty in her wisdom thought it right to appoint a Lord Chancellor who was 77 or so, it would be right that he should perform those functions. However, it is my feeling that once this provision is in place the chances of that happening would be remote.
Lord Donaldson of Lymington: I regret the answer given by the noble and learned Lord, but in view of the lateness of the hour I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wilberforce Lord Wilberforce moved Amendment No. 64:
Page 18, leave out lines 12 to 14, and insert:
("(b) be a member of an Appellate Committee of the House of Lords;").
The noble and learned Lord said: The amendment arises on the assumption that subsection (5) remains part of the clause. Perhaps I should defer the matter until we decide the fate of subsection (5), but I shall move it briefly in order that we may see the whole clause in perspective.
This is a friendly amendment designed to assist the Government by way of change. It has nothing to do with the Treasury. It is motivated by the fact that subsection (5) (b) on the one hand does not achieve what it is intended to achieve and on the other hand may have undesirable results which it is not intended to achieve.
On the first limb, the intention is to prevent anybody from exercising judicial functions in the House of Lords after attaining the age of 75. It acts by reference to a section in the Appellate Jurisdiction Act. However, that is a pure quorum section, which says roughly that there must be three Lords of Appeal to hear any appeal. All that paragraph (b) would do is to say that after the age of 75 one cannot count towards the quorum. But if one can get a quorum otherwise, it would not prevent anybody of 75, 80 or 90 from sitting as a judge in the House of Lords. In any case, the paragraph is defective.
My amendment is much simpler. It takes the direct route of saying that after the age of 75 one cannot sit as a member of an Appellate Committee in the House of Lords. It does that directly following the pattern in paragraph (a) which states:
"be a member of the Judicial Committee of the Privy Council".
One should do it in the same way in both connections. That is the first limb. The Bill does not do what is wanted and my suggested amendment is simpler.
Paragraph (b) may produce some undesirable results in relation to the non-judicial functions of Lords of Appeal. As the Committee will know, they are called upon to perform a number of functions in connection with the business of this Chamber. The Committee for Privileges requires the presence of a number of Lords and not less than four Lords of Appeal. It has never been the position in my time in this Chamber, which is quite some time, that one was disqualified from sitting because one was retired. On the contrary, it is desirable that retired Law Lords should be able to sit; otherwise too much time is taken up at the expense of active members. Some of the committee hearings are quite long.
There is no age limit on the other members of the committee: indeed, it may be said that, as regards that particular committee, age, so far from being a disqualification, ought to be a positive qualification by reason of experience in these matters. That deals with the Committee for Privileges. There is also the Personal Bills Committee which requires a Lord of Appeal. Again, the same point is made. One does not always want to dislocate the appellate business of the Chamber by drawing upon an active Law Lord. There is no reason why someone retired up
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to any age should not function. In any case, it is not the function of this Bill to interfere with the non-judicial business of the Chamber. I am sure the necessary consultations have not taken place. It seems better to leave matters. My amendment avoids any difficulty in that direction. There remain three points. The first comes back to the position of the Lord Chancellor. It is a very difficult matter. There is an exemption in favour of the Lord Chancellor under paragraph (a). Should there be one under paragraph (b)? I leave aside the policy questions. I assume that it is desirable that a Lord Chancellor up to the age of 90, if there is such a person, should be able to sit. Should it be necessary to make a specific exemption in favour of a 90 year-old Lord Chancellor? It is a difficult question which I have not been able to solve.
The jurisdiction of the Lord Chancellor in matters of appeal is a very old and constitutional one. It is much older than the Appellate Jurisdiction Act 1876 and one hesitates to interfere with it. Moreover, if one looks back to the beginning of the clause, there is a reference to persons holding relevant offices. Going to the schedule, one finds that the Lord Chancellor is exempted from the subsection. So again he appears to be treated as being in a special position.
I have in the end taken the cowardly course of not putting in a specific mention of the Lord Chancellor, leaving it to the distinguished holder of that office to express his own view. If he thinks it right to make an exemption in favour of the Lord Chancellor, of course that should be done.
My second point is that there is no reference in my amendment to Appeal Committees of the House of Lords as distinct from Appellate Committees. I deliberately did not mention them because it has never been the practice of retired Lords of Appeal to sit on Appeal Committees. It did not seem necessary to make a specific mention. Indeed, paragraph (b) as drafted does not deal with Appeal Committees. It deals only with substantive appeals. Again, if a different view were taken, it would be quite easy to put a reference to an Appeal Committee into my amendment side by side with an Appellate Committee.
Thirdly—this is a technical point—there is a reference to this section in Schedule 6 to the Bill at page 46. It introduces an amendment to it. If my amendment were accepted, that would become superfluous and it would be quite simple to delete the provision in Schedule 6 at page 46 at Report or some later stage.
I move the amendment as a simplification, as an aid to the Government and as avoiding some of the difficulties which may be posed by paragraph (b) at present. I beg to move.
10.45 p.m.
Lord Bridge of Harwich: Perhaps I may ask my noble and learned friend Lord Wilberforce how the amendment applies when the judicial function of the House is being exercised in the Chamber, as it is in the

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first week of October normally before the House resumes, not by an Appellate Committee but by the House.
Lord Wilberforce: That is a nasty one. I had not thought about that. I may have to extend the amendment to apply to that case.
The Lord Chancellor: I am grateful to my noble and learned friend Lord Wilberforce for the trouble he has taken. The question that my noble and learned friend Lord Bridge of Harwich raised in a sense shows how difficult the matter is. My noble and learned friend Lord Wilberforce has shown me how difficult my drafting is too.
I should like to consider carefully what my noble and learned friend Lord Wilberforce said. It is important. My impression is that it is wise for the Lords of Appeal in Ordinary to sit in the House so far as possible. Obviously there are constraints, but, generally speaking, where possible I believe it wise that they should do so. For example, during the dissolution of Parliament it is highly wise that they should sit in the House.
Perhaps I have said sufficient for the present. I shall take advice from Parliamentary Counsel in the light of the very kind explanation that my noble and learned friend Lord Wilberforce gave for his amendment. I shall have to consider carefully the position of the Lord Chancellor.
Lord Wilberforce: I am grateful to the noble and learned Lord. On that basis, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 65:
Page 18, leave out lines 37 and 38.
The noble and learned Lord said: The amendment refers to the paragraphs that the noble Lord, Lord Wigoder, looked for. They are what I would describe as Magnus Magnusson clauses: "You have begun so you may finish", to use the words of "Mastermind".
I do not understand why there has to be a cut-off date. I do not refer only to paragraph (e). The provisions are all the same. For example, Section 9(7) of the Supreme Court Act 1981 provides that,
"Notwithstanding he expiry of any period"—
allowing a judge to act as judge in a particular court—
"he may attend at that court for the purpose of continuing to deal with, giving judgment in, or dealing with any ancillary matter relating to, any case begun before him while acting as a judge of that court".
It is merely a carry over if by any chance he does not finish his case by the time he has to retire.
It may be said that in the great new era we shall not employ anyone who is anywhere near 75. That may be right. The trouble is that one may have a case which is started by a judge who is 73; it is referred to the European Court, or some even worse crisis occurs, if that be imaginable, and cannot be resumed until a time when he nears his retirement age. I do not believe that the public relations spin-off advantage of the clause is worth it. As one who is
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a manager in the judicial field, I should be much happier—should I have got it wrong and started a judge on a case which, contrary to all expectation, he could not complete by his 75th birthday—to be able to have him for an extra week to finish the case rather than start all over again.
Lord Mishcon: That must be right. It would be quite ridiculous if one came across a situation of a judge trying a case which was supposed to last for about six months to a year but which, as has happened recently in several long cases—certainly criminal cases—has lasted an uncivilised length of time.
I wish to raise one point that occurred to me. The noble and learned Lord may think that it is not a worthy point to raise, in which case I shall accept his rebuke with humility. The wording of paragraph (e) covers,
"any ancillary matter relating to, any case which may have been begun before him at a time when he was holding that office".
As the next words are that,
"nothing…shall authorise a person to do anything after the day on which he attains the age of 75",
what would be our present position in regard to a mandatory life sentence where the judge is consulted—he may certainly be over the age of 75—by the Home Secretary to ask what his views really were in regard to the case which he tried and whether or not there should be a reduction in sentence or, in the case of a life sentence, freedom on parole? Would that not be doing something ancillary to any case which had been before him at a time when he was holding office before the age of 75? Are not these words—they struck me as being so stern—that nothing should be done despite all those provisions most unhelpful?
The Lord Chancellor: They are helpful in promoting the policy that judicial activity should stop at the age of 75. The caution comes on at 70 and the anticipation is that by the time 75 arrives the judge has to stop. The noble Lord gave an example of the opinion of the judge being sought in relation to a case that the judge had tried. I would doubt whether that is authorised under any statutory provision dealing with service in the judiciary. However, it is a point that we should look at carefully. My understanding of the practice is that the view is given shortly after the trial by the trial judge. One would hope that that would happen some considerable time before he or she was 75.
The purpose of the provision is to make effective and show that effect is to be given to the general idea that by 75 judicial activity should stop. As a manager I share the feeling of liking to have maximum freedom. On the other hand, one wants to operate properly within a reasonably defined structure, and this is part of the definition. However, as with the other considerations dealing with the age of 75, I would certainly wish to consider this matter further.
Lord Renton: Will my noble and learned friend consider the wording between now and Report

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stage? It is strange that a person should not do anything after the age of 75. Is he to stay in bed for the rest of his life?
The Lord Chancellor: My noble friend is reading a little too short. The subsection states that,
"nothing in any of those provisions shall authorise a person to do anything".
Nothing in these provisions authorises a good number of activities that would be open to my noble friend without confining himself to bed. One has to read the whole provision as a matter of statutory construction. Therefore, the particular difficulty that my noble friend envisages does not realistically arise.
Lord Donaldson of Lymington: I thank my noble and learned friend for saying that he will look at this matter again. In the spirit of helpfulness that is prevailing in the Committee at this hour and in the absence of the Lord Chief Justice, perhaps I may say, sotto voce, that he is wrong about the Parole Board. We certainly write to the Home Secretary at the time, or it may be that that is done more formally nowadays. However, one receives follow-up inquiries years afterwards. Within only the past two months I have received an inquiry about a potential parolee whom I sentenced to life imprisonment 15 years ago, or something of that order.
I take the point that my noble and learned friend makes. I do not believe that I need statutory authority to respond to an inquiry from the Parole Board, the Home Secretary, the Lord Chancellor or anybody else. In the absence of statutory authority, and assuming that I am not enjoined from doing so, I shall continue to write to anybody who writes a sensible and courteous letter to me.
I am delighted that at last I have partially won one point in the sense that the matter will be looked at again. It is delightful to end the evening on that note. I am happy to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66 had been withdrawn from the Marshalled List.]
Lord Renton Lord Renton moved Amendment No. 67:
Page 19, line 3, leave out subsection (10).
The noble Lord said: I draw attention to this matter because of the obscurity caused by the legislation by reference.
This clause invokes Schedule 6, which is seven-and-a-half pages long and very properly makes textual amendments to about 15 statutes. One wishes that the matter could rest there but even those amendments are to have effect subject to various subsections that have gone before and to Clause 27.
I need only deal with subsection (6) but I invite the attention of3, the Committee to it because the subsection states:
"This section is without prejudice to",
and it then refers to the Courts Act 1971, the Judicature (Northern Ireland) Act 1978, the Supreme Court Act 1981 and the County Courts Act 1984. So far that is not too bad. One could turn up those detailed provisions and to perhaps find how the
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amendments made by the schedule affect them. But we then come to paragraph (e) of subsection (6) which states:
"any provision of any other Act or instrument under or by virtue of which a person who has ceased to hold a judicial office may continue to deal with, give judgment in, or deal with any ancillary matter relating to, any case which may have been begun before him at a time when he was holding that office".
No doubt it is necessary to have a provision like that but I find it strange that the amendments made by Schedule 6 should be subject to that very broad qualification.
However, the matter does not end there because one must go to Clause 27 and one finds that the same provisions as are in Clause 25 refer to recorders and certain other periodical appointments. That may not be so serious but Clause 25(10) rather turns in upon itself. It states:
"and no amendment made by Schedule 6 to this Act, shall affect the continuing validity of that exercise of that power in relation to that person".
We refer back in the subsection to the continuation power which is expressed to he other than under subsections (2) and (4).
I wonder whether such a convoluted provision is unavoidable in this important Bill. I refer to it in the hope that the drafting may be simplified by Report stage. I beg to move.
11 p.m.
The Lord Chancellor: I shall certainly look again at Clause 25(10) and the schedule. The difficulty is to try to make a simple provision which creates new rules for the future at the same time as preserving the position of those already in post at the time the provisions come into effect. That is the problem the provision faces. The last thing I want to do is retrospectively to damage the position of anyone who is in post at the time the Act comes into force.
Having said that, I am grateful to my noble friend for drawing attention to the matter, and shall want to reconsider the schedule in some detail in the light of his observations.
Lord Renton: I am grateful to my noble and learned friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
Clauses 26 to 28 agreed to.
Clause 29 [Regulations curd orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 68:
Page 22, line 35, leave out ("appears") and insert ("may appear").
The noble and learned Lord said: I have attempted to improve the grammar of the provision by this amendment. I beg to move.
On Question, amendment agreed to.
Lord Renton Lord Renton moved Amendment No. 69:
Page 22, line 38, leave out subsection (4).
The noble Lord said: Clause 29 is the familiar clause that so often governs the way in which a regulation-making power in a statute shall be exercised. They are common form provisions.

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However, subsection (4) is a Henry VIII clause. It would enable the operation of this Act, or any other Act, to be modified by regulation.
I ask whether it is necessary to have such a wide power in the Bill, especially in view of what has been said on a number of occasions during this Committee stage in regard to the independence of the judiciary. For that reason, I beg to move.
The Lord Chancellor: Subsection (4) is entirely subsidiary to subsection (3), which provides that regulations or orders made under the Bill may include,
"such transitional, consequential, supplementary or incidental provision or savings as appears…to be necessary or expedient".
Accordingly, it is only if such transitional, consequential and so on provisions appear to be necessary or expedient that subsection (4) can come into operation. All that subsection (4) permits is for such transitional and consequential provisions to modify the operation of the Bill or other enactment. In other words, it is not a power to amend the text of enactments, which is the true Henry VIII power—though that is a compendious phrase whose scope is perhaps not self-evident—but rather one to modify the operation of those enactments for the purpose of the transitional or consequential provision.
The sort of case where a power to modify the operation of primary legislation will be important is where a new class of judicial officer becomes entitled to participate in the new pensions arrangements and is added to the list of officers in Schedule 1 to the Bill. It will be necessary to ensure that the Bill applies to the new class as it does to classes already in the Bill. A power, along the lines of subsection (4), to modify the operation of the new legislation may well be essential if the new class of judicial officer is to be properly incorporated.
It is a subordinate type of modification and I suggest to my noble friend that it is justified in the circumstances of this case. I believe I briefly referred to it in my Second Reading speech.
Lord Renton: The terms of subsection (3) are familiar and have from time to time been widely used. For example, the word "supplementary" enables considerable extensions of primary legislation to be made by means of subordinate legislation. I believe that we would do better without that kind of thing. I regret that we have subsection (4) even when it has to be read subject to subsection (3). However, at this late hour I shall say no more. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29, as amended, agreed to.
Clause 30 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 70:
Page 23, line 41, leave out ("in") and insert ("of").
The noble and learned Lord said: This is a drafting amendment and the purpose of it is to correct the description of the Northern Ireland Civil Service. I have mentioned a similar instance already. Amendment No. 71 is also a drafting amendment in
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order to correct a reference to the Social Security Administration (Northern Ireland) Act 1992. I beg to move.
On Question, amendment agreed to.
Clause 30, as amended, agreed to.
Clause 31 agreed to.
Schedule 1 [Qualifying judicial offices]:
The Lord Chancellor The Lord Chancellor moved Amendment No.71:
Page 26, line 16, leave out ("50") and insert ("49").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Transfer of accrued benefits]:
Lord Renton Lord Renton moved Amendment No. 72:
Page 31, line 38, leave out paragraph 13.
The noble Lord said: This amendment concerns the making of regulations in pursuance of this schedule dealing with the transfer of accrued benefits. In paragraph (2) we find that the regulations for the purpose of the schedule will be made with the concurrence of the Treasury by the Lord Chancellor or, in relation to Scotland, the Secretary of State. I concede that on this occasion the regulations will be matters of considerable detail. I am sorry to have wasted the time of the Committee even by moving the amendment. It is yet another example of the use of regulations in this Bill. I beg to move.
The Lord Chancellor: The option is either to have very lengthy primary legislation which needs constant amendment or to have a balance of regulation-making power to make detailed provisions which are an implement of the main provisions and policy of the Bill. I am grateful to my noble friend for recognising that this particular provision is very much of that character. It would spoil our primary legislation if we had to put all these matters in in detail, even assuming that we could manage it. I believe that, if we did so, experience would soon show that detailed amendments would be called for and the legislative programme would, sadly, be even heavier than it is.
Lord Renton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Schedule 3 agreed to.
Schedule 4 [Pensions for senior public investigative officers]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 73:
Page 37, line 44, leave out (" 5(4) (b)") and insert (" 5(4) (0").
The noble and learned Lord said: Amendments Nos. 73, 74 and 75 are drafting amendments to correct minor drafting errors. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 74 and 75:
Page 39, line 32, leave out ("this Act") and insert ("the Superannuation Act 1972").

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Page 40, line 40, leave out (" 5(4) (b)") and insert (' 5(4) (c)").
On Question, amendments agreed to.
Lord Renton Lord Renton moved Amendment No. 76:
Page 41, line 11, leave out paragraph 8.
The noble Lord said: The Committee will be glad to know that this is not only my last amendment in this Committee stage, but the last item on the Marshalled List. Before I 'speak to it I cannot forbear from saying how much I admire the stamina and the patience of my noble and learned friend the Lord Chancellor. I have frequently not been convinced by what he has said, but I nevertheless greatly admire the grasp that he has shown of the subject as he sees it.
The peg on which to hang the substance of what I wish to say is that we should leave out paragraph 8 of Schedule 4, which deals with pensions for senior public investigative officers. Again—and this is the last occasion in the Bill—we have the power to make regulations, but several questions arise on this occasion. The first arises in the first sub-paragraph which states:
"The Treasury may make regulations for purposes supplementary to the other provisions of this Schedule."
On all previous occasions it has been the Lord Chancellor who is the Minister responsible, with or without the concurrence of the Treasury, but here the Treasury alone has the responsibility. May I ask why?
Sub-paragraph (2) (b) refers to what is called "the 1992 scheme". Perhaps I have read things too quickly or have not been alert enough but I cannot find a reference to "the 1992 scheme" except at line 33 of page 36, in paragraph (1) (b). However, as there are to be various schemes under the Act I am wondering whether that, and the one that follows on page 46, are the only references to what is intended to be the 1992 scheme. Are there other references in the Bill? That might be rather difficult for my noble and learned friend to answer at this late hour, but I find it a little difficult to follow.
My only other point is this. Under sub-paragraph (4) of paragraph 8 we find that
"Any statutory instrument made by virtue of this Schedule"—
that is, any regulation—
"shall be subject to annulment in pursuance of a resolution of the House of Commons".
Why is it only another place when the Minister responsible —the Lord Chancellor—is a member of your Lordships' House and when there is more expertise among the noble and learned Lords in this House than can be found in the whole of the 650 Members of another place put together? It is quite extraordinary that suddenly, towards the end of the Bill, we find that it is the Treasury, and not my noble and learned friend, who will be making the regulations; and that there shall be annulments subject only to the resolution of another place. I vehemently beg to move.
The Lord Chancellor: My noble friend will appreciate that Part II of Schedule 4 deals with the Parliamentary Commissioner for Administration, who is essentially an officer of the House of Commons. What we are doing is amending the Parliamentary
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Commissioner Act 1967 because the commissioner has functions which are quite like judicial functions in many ways. It is right that he should have his pension arrangements on terms similar to those in the scheme which is in the 1992 Act.
Members of the Committee should look, first, at paragraph 1(b), which is in the substituted schedule. It refers to,
"the scheme of pensions and other benefits constituted by Part I of the 1992 Act ('the 1992 scheme')".
That is the definition of the 1992 scheme for the purposes of the Parliamentary Commissioner Act 1967. That is to be substituted for the existing schedule. The reason that the Treasury makes the regulations in respect of the Parliamentary Commissioner for Administration is that that is the present position under the Parliamentary Commissioner Act. The Chancellor of the Exchequer is the Minister responsible in relation to the Parliamentary Commissioner for Administration. Therefore, he is not one of the people for whom the Lord Chancellor has responsibility. It is right that he should have his pension arrangements subject to regulations made by the Treasury on the same lines as paragraph 4 of Schedule 1 to the 1967 Act, exercisable in similar circumstances and able to be annulled by similar authority.
It may not be thought modest of me to join too closely with what my noble friend said about expertise. Obviously there is also great expertise in the other place which I should like to acknowledge—certainly expertise relevant to the consideration of regulations about the Parliamentary Commissioner for Administration.
Lord Mishcon: Before the noble and learned Lord sits down, perhaps I may from this side of the Chamber associate myself completely with the remarks made by the noble Lord, Lord Renton, about the conduct of the Committee stage from the Government Front Bench by the noble and learned Lord. He is a model of courtesy and patience. It reminds me of the hopeless task that some bowlers may have in the game of cricket when they toss up a ball which they think to be remarkably good—a googly, a leg break or an off break—but inevitably the ball is returned with a straight bat.
Lord Hacking: As a very late arrival in the Chamber for this Committee stage but as the last surviving Cross-Bencher this evening, I should also like to associate myself with the remarks made by both the noble Lord, Lord Renton, and the noble Lord, Lord Mishcon.
The Lord Chancellor: I am extremely grateful for the remarks that have been expressed. The help that Members of the Committee give so evidently throughout the discussions obviously sustains me in doing what I have to do—so apparently to the satisfaction of noble Lords.
Lord Renton: In withdrawing the amendment I shall continue with the cricketing analogy. I do not

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admit to having been clean bowled but I do admit to having been caught in the slips. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4, as amended, agreed to.
Remaining schedules agreed to.
House resumed.

Midland Metro Bill [H.L.]
Presented and read a first time.

Ulster Bank Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at twenty minutes past eleven o'clock.