Lords Sitting of 27 October 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 Portsmouth.

Lord Geraint
Geraint Wyn Howells, Esquire, having been created Baron Geraint, of Ponterwyd in the County of Dyfed, for life—Was, in his robes, introduced between the Lord Hooson and the Lord Jenkins of Hillhead.
Lord Elis-Thomas
Dafydd Elis Elis-Thomas, Esquire, having been created Baron Elis-Thomas, of Nant Conwy in the County of Gwynedd, for life—Was, in his robes, introduced between the Lord Hooson and the Lord Thomas of Gwydir.

The Mentally Handicapped
2.59 p.m.
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
Whether they will now appoint a task force, comparable with that for the mentally ill, to work with the national development team in encouraging good practices in services for the mentally handicapped.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, we have no plans to do so.
Lord Allen of Abbeydale: My Lords, I thank the Minister for that rather disappointing reply. Does she recall that in the 1990 Act when the Government conceded a special grant for the mentally ill, they refused a similar concession for the mentally handicapped? I understand that some guidelines are being issued. However, does she agree that the Government should do rather more than issue guidelines and become more directly involved by appointing a task force, as is done for the mentally ill, supported perhaps by a little money? If they do not do so, is there not some risk that those with learning disabilities (if that is the preferred phrase) will again be the poor relation under the new community care arrangements? What better opportunity would there be for a new policy than the relaunch of MENCAP which was announced yesterday?
Baroness Cumberlege: My Lords, I feared that there might be some disappointment in my Answer. Perhaps I may soften it by congratulating the noble Lord on the relaunch of MENCAP yesterday, which I gather was a great success. Your Lordships will be aware that there has been much faster progress in developing services for people with a learning disability than for those with mental illness. For that reason the task
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force was set up. With regard to resources, the Government have put considerable funds into the field for those with learning difficulties (or mental handicap, as we used to call it). Indeed, this year for the health services it is an increase of 13 per cent., and in local authorities over the past 10 years it is an increase of 91 per cent.
Lord Renton: My Lords, is my noble friend aware that the term "learning difficulties" is an ambiguous one, whereas the term "mental handicap" clearly indicates people who have an incurable mental condition? Is she further aware that there are 20,000 of them still in long stay hospitals, many of whom are getting rather old but all of whom would like to have the opportunity to live in the community? Does she agree therefore that there is a much greater need for a task force to help those people than there is even for those who are mentally ill?
Baroness Cumberlege: My Lords, I thank my noble friend for that question. I am aware that there are people in long stay institutions who still want to be moved into the community to lead a fuller life. The Government are doing all they can to make that possible. The term "mental handicap" is one with which I feel much more comfortable. It is one which is well understood. But when the department consulted the general public, there was a very strong feeling that the term should be changed to "people with a learning disability".
Lord Ashley of Stoke: My Lords, the noble Baroness is quite right; there is disappointment at her response. In view of the fact that the same logic which led to setting up a task force for the mentally ill applies to the mentally handicapped, in so far as they are very vulnerable and subject to being put at the back of the queue, will the Government think again? Does she agree that although progress has been a little faster for those who are mentally ill, it has not been so fast for those who are mentally handicapped?
Baroness Cumberlege: My Lords, your Lordships will be aware that since 1979 we have reduced by half the number of people in long-stay mental handicap institutions. There are now no children in long-stay hospitals. That is tremendous progress. We also have the benefit of the national development team which is doing extremely good work in progressing those policies.
Lord Hailsham of Saint Marylebone: My Lords, does my noble friend confirm my belief that, quite apart from the question of a task force, the Secretary of State has power under the Mental Health Acts to issue a code of conduct in those matters? Have any codes of conduct been issued to assist the mentally handicapped in addition to those suffering from mental disorder?
Baroness Cumberlege: My Lords, I thank my noble and learned friend for that question. Yesterday the Department of Health and the Department of the Environment issued two sets of guidance, one for local authorities and one for health authorities.
Lord Ennals: My Lords, regardless of which of the two terms we use, does the Minister accept that there is and will be a great deal of regret in the country at the Answer that she gave? Does she agree that the mental illness task force has rendered an important service and should be commended? In view of that and, following the relaunch of MENCAP, the need for good practice to be made widely known throughout the country, will she reconsider the Answer given?
Baroness Cumberlege: My Lords, the noble Lord will be aware that good practice is disseminated widely by the national development team. That is its role. The task force was set up for mental illness because we are aware that a great deal more has to be done in that area, unlike in the field of people with learning disabilities in which enormous progress has been made over the past 10 years.
Lord Mayhew: My Lords, every five or 10 years we change the term we use to describe the mentally handicapped. Does the noble Baroness agree that there is nothing wrong with those terms? It is the attitude of the public that needs changing. Why do we not spend more time seeking to change the attitude of the public rather than changing the terms used?
Baroness Cumberlege: My Lords, the noble Lord may agree with me that the two factors are interrelated. The language that we use influences the attitude of the public.
Lord Carter: My Lords, we on these Benches add our welcome to the relaunch of MENCAP, and the issuing of the guidelines for people with learning disabilities to which the Minister referred. The guidance from the health service and management executive states clearly that additional resources will be necessary to enable people with learning disabilities to use the services satisfactorily. However, the departmental circular to local authorities states that it will be,
"a matter for local determination in the light of assessment of need, available resources and competing pressures on services".
Which statement is right? Will there be new money to implement the guidelines? Without new money, they certainly will not work.
Baroness Cumberlege: My Lords, noble Lords will be aware that year on year we put more money into the National Health Service. I am sure that health authorities which are commissioning services will use their powers and their resources to increase funds for that client group. Over the years we have seen places in voluntary and private local authority homes and hospitals increased by 57 per cent. We have also seen staff and places at training centres increase. Year on year we put more resources into the field of people with learning disabilities.
Lord Parry: My Lords, does the noble Baroness accept that, semantics and politics apart, many of us who have worked in that field for many years are deeply worried that difficulties are arising almost by accident? Will she confirm an assurance already given from the Government Front Bench that no changes
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will be made which will disadvantage the people who are already disadvantaged by closing down establishments which have proved to work and which have shown that they are capable of dealing with conditions of mental deficiency or of mental illness? Will she confirm that such establishments will be closed only when a better provision is in place, regardless of the comparative sums?
Baroness Cumberlege: My Lords, it is with great pleasure that I give that assurance to your Lordships' House.

Gross Domestic Product: Forecast
3.9 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their estimate of GDP for 1992 compared with 1990 and 1991.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, my right honourable friend the Chancellor of the Exchequer will publish a new forecast in the Autumn Statement.
Lord Ezra: My Lords, while recognising that the noble Earl cannot anticipate the Autumn Statement, nonetheless is he aware that reputable independent forecasts have suggested that compared with the 2.4 per cent. fall in GDP last year there is likely to be a further fall of 1 per cent. this year and very little prospect of noticeable improvement next year? Is he also aware that the CBI has recently published its quarterly trend statement which suggests an increase in pessimism among its respondents for future business prospects? The Government have recently announced that they will take steps to seek to achieve a recovery of the economy. Will the noble Earl tell us in broad terms what those steps may be?
The Earl of Caithness: My Lords, the noble Lord mentioned reputable forecasters. He will be aware that the average forecast of the independent reputable forecasters happens to be the same as the Treasury's at Budget time. With regard to the recent CBI survey, I am sure that the noble Lord will agree that it is not surprising that confidence has fallen, given the recent turbulence in financial markets and general uncertainty about the economy. The Government are taking active measures in that field and we look forward to expanding on those when answering his noble friend's Question next week.
Lord Marlesford: My Lords, does my noble friend agree that there is an urgency to revive the economy in a non-inflationary and non-consumer led way? I am thinking of the reintroduction for a period of two or three years of the 100 per cent. capital allowance for plant and machinery. Does my noble friend agree that although such measures normally require to be introduced in the Budget, the situation is too serious to be constrained by the conventional Budget timetable in each year?
The Earl of Caithness: My Lords, I wholeheartedly agree that any recovery should be non-inflationary,

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and that has been the basis of the Government's policy. I take note of my noble friend's other points and will bring them to the attention of my right honourable friend. It is worth stressing that a successful conclusion to the GATT round would be helpful.
Lord Stoddart of Swindon: My Lords, as it is clear that our membership of the ERM has caused a reduction of GDP, can we have an assurance that there will be no early return to the ERM and perhaps no return at all?
The Earl of Caithness: My Lords, that is an interesting question but slightly wide of that on the Order Paper.
Lord Boyd-Carpenter: My Lords, will my noble friend confirm that the obstacle to a happy conclusion of the GATT round is the attitude of the French? Will Her Majesty's Government take the strongest action against them?
The Earl of Caithness: My Lords, during his presidency of the EC my right honourable friend the Prime Minister has taken extensive action to bring the GATT round to a successful conclusion. We shall continue to do so and shall strive with might and main.
Lord Whaddon: My Lords, does the Minister appreciate that the closure of coal mines will deal a grievous blow to GDP as well as to the balance of payments?
The Earl of Caithness: My Lords, the subject of the closure of coal mines was recently well ventilated in your Lordships' House.
Lord Peston: My Lords, I do not wish to pursue the French attitude, although recent history has shown that one of the more effective ways of returning to full employment is to declare war. I hope that is not what the Minister has in mind! Obviously we shall wait to hear the Autumn Statement but the Treasury is always coy about saying what it believes. My question relates not to politics but to the general attitude of the Treasury. In order to enable businessmen in particular to plan properly for the future, is it not time that the Treasury produced monthly a view of what it believes is happening? We accept that it may make mistakes, but would not such a document at least help businessmen to know the kind of economic environment that the Treasury believes exists?
The Earl of Caithness: My Lords, the noble Lord will not have long to wait for the Autumn Statement; it will be made on 12th November. All noble Lords will agree that a stable economy and a consistent growth pattern is the best environment in which business can operate.
Viscount Montgomery of Alamein: My Lords, will my noble friend say what constitutes a reputable forecaster and how many there are?
The Earl of Caithness: My Lords, I was merely picking up the point made by the noble Lord, Lord
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Ezra, about forecasting. Someone once said that trying to run the economy was like trying to pull along a brick with an elastic band.
Lord John-Mackie: My Lords, what does the Minister consider will be a successful conclusion to the GATT round?
The Earl of Caithness: My Lords, a successful conclusion will be the signing of the GATT round. That would increase world trade considerably, give opportunities for British businesses which do not exist at present and prevent a protectionist system.

Smoking Ban: National Express Proposal
3.15 p.m.
Lord Orr-Ewing Lord Orr-Ewing asked Her Majesty's Government:
Whether the proposed ban on all smoking on National Express coaches, which have 80 per cent. of the long-distance market, is in accordance with the individual rights of their 3½ million passengers who smoke.
The Earl of Caithness: My Lords, this is a matter for the commercial judgment of the operators concerned.
Lord Orr-Ewing: My Lords, is my noble friend aware that British Rail continues to squeeze the 20 per cent. of its clients who are smokers into a smaller proportion of each train and that coaches are to follow the same policy? Is my noble friend further aware that a small group of people travelling from, say, Swindon to London next Monday will be banned from smoking on coaches? They may be unemployed and hard up and will obtain a competitive return fare which is £ 8 cheaper than British Rail's but they will be banned from smoking. What right has a large organisation to claim that it represents 90 per cent. of its customers and will not therefore allow smoking? I am not a smoker but I suggest that the Government have a responsibility to protect the rights of minorities. People who smoke feel strongly about the issue. Why should they not be allowed to smoke in moderation and have a special area on every conveyance reserved for their purposes?
The Earl of Caithness: My Lords, I am surprised that my noble friend wishes the Government to intervene in the commercial judgment of operators. I should have thought that he would have supported me on that issue.
Lord Mason of Barnsley: My Lords, is it not apparent that the anti-smoking dictators are at it again? Will the Minister advise National Express that we still have the right and the freedom to enjoy smoking tobacco? Will he also advise the 3½ million smokers to change to the small operators and therefore have the pleasure of seeing the profits of National Express fall while they go up in smoke in its competitors' coaches?
The Earl of Caithness: My Lords, I am sure that the customer will look at every opportunity available.
Lord Monson: My Lords, is the Minister aware that National Express is not an ordinary commercial organisation? It has a quasi-monopoly on most routes. As such it has a duty to cater for all those who are obliged to use its services for want of anything better—not merely non-smokers. Why cannot the organisation reserve a few seats at the back of each coach, as is done on aircraft, and thereby make everyone happy?
The Earl of Caithness: My Lords, as regards smoking National Express has undertaken a considerable consumer survey of passengers who use its coaches and has come down firmly in this direction.
Lord Beloff: My Lords, is my noble friend aware of a recent survey which shows that the dangers from passive smoking are greater than medical opinion had previously believed? Is he further aware that to old age pensioners such as myself who are without a motor car and who depend on public transport the elimination of smoking brings comfort in our dwindling lives?
The Earl of Caithness: My Lords, that only goes to show that it would be wrong for the Government to become involved. Let us leave the matter to the commercial operators.
Lord Ennals: My Lords, do Ministers agree with the evidence about passive smoking? Is there not overwhelming evidence to show that people who are forced to inhale other people's tobacco smoke at home, in offices or on coaches are suffering and becoming ill? Is it not right that the views of the majority as opposed to the views of the minority should carry, and is not the coach company to be congratulated on the initiative which it proposes to take?
The Earl of Caithness: My Lords, the Government's position on the Froggatt Report, an independent scientific report on smoking and health published in 1988, brought to people's attention the considerable evidence of the dangers of passive smoking. I repeat that is a matter for the operators and not for the Government.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that when the industry was under public ownership, people had a lot more freedom? Is he further aware that there is absolutely no reason why people who do not smoke should be forced to inhale other people's smoke? It is perfectly possible these days to separate smokers and non-smokers, both on railways and in coaches. Would it not be far better if the national bus company did its best to please all its customers and did not give in to the opinions of one section?
The Earl of Caithness: My Lords, although the noble Lord contends that there was more freedom when National Express was publicly owned, I am sure that he will now agree that it produces a far better service in the private sector.
Lord Clinton-Davis: My Lords, does the Minister appreciate that many Members of the House will agree with his view that this is not a matter for
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government interference? Having said that, is it not right that we should compliment National Express coaches on their initiative, bearing in mind that this is not a question, is it, of convenience? It is a question of danger to the health of those people who wish to travel free from the risks of passive smoking.
The Earl of Caithness: My Lords, as regards the first part of the question, I am delighted that the noble Lord, Lord Clinton-Davis, is able to agree with the Government's position. As regards the second part of his question, it is a matter for the commercial operators. There is a difference of opinion, which has been clearly represented in the House today.
The Earl of Halsbury: My Lords, is the noble Earl aware that in the United States of America there is no smoking on any railway but there is a club car attached to every train in which one can smoke, drink and talk to friends? Why can we not do the same?
The Earl of Caithness: My Lords, as we are talking about buses, that rather restricts me in the answer I can give the noble Earl.
Lord Orr-Ewing: My Lords, will my noble friend publish the proof which he has about passive smoking? A large body of opinion all over the world believes that it is not as injurious as people are now taking for granted? The case is not proven. Will he therefore publish proof which is accepted by a majority of medical experts?
The Earl of Caithness: My Lords, we have now gone completely off the subject of buses and are talking about reports on passive smoking. I shall however draw the matter to the attention of my noble friend who has, in fact, been listening to the exchanges.

GCHQ: Surveillance
3.24 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether GCHQ is maintaining surveillance of Amnesty International under the Mayfly procedure; and if not, when it stopped so doing.
Baroness Trumpington: My Lords, the Government do not comment on matters of this kind. GCHQ is fully answerable to Ministers and subject to the Interception of Communications Act.
Lord Jenkins of Putney: My Lords, is the noble Baroness aware that it is about time that the Government did start commenting on matters of this kind? Is she aware that 90 charitable organisations have protested against the practice of GCHQ putting them under surveillance? This concerns not only Amnesty International but also Christian Aid, and 90 other organisations have protested. It seems that GCHQ is totally out of control. It is known that even on those occasions on which official permission has been given, thereafter that has been ignored and the matter has been put on a basis of permanent

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surveillance. Is it not high time that something should he done to bring the spying organisations under more effective government control?
Baroness Trumpington: My Lords, I listened with great interest to the speculations of the noble Lord. Your Lordships will have an opportunity to discuss that and other matters when the SIS/GCHQ Bill is introduced, which the Prime Minister mentioned in his speech on this subject on 6th May.
Lord Cledwyn of Penrhos: My Lords, does not the noble Baroness agree that that procedure has serious implications for charities and for the recipients of aid? Will she confirm that Amnesty International has written on the subject to her right honourable friend the Prime Minister? Will she tell the House his response?
Baroness Trumpington: My Lords, the Government do not comment on alleged activities by the security and intelligence agencies. Amnesty International or any other organisations which thinks it has a case can complain to the tribunal set up under the Interception of Communications Act. I understand that that was the Prime Minister's reply.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness say how many cases have been heard under that Act?
Baroness Trumpington: My Lords, no, I cannot say. I cannot comment on individual cases but the IOCA commissioner reported in March that there is not the slightest truth in the suggestion that the law is being bent by GCHQ.
Lord Jenkins of Putney: My Lords, is not the noble Baroness aware that that assurance would gain much greater acceptance if it were made by a Minister who is able to say that the Government are in a position to discuss this matter, rather than hiding behind a total veil of silence? Does not the noble Baroness agree that it is high time that the protections which she says have been created were more effectively verified, if not by the House as a whole, then by the Privy Council?
Baroness Trumpington: My Lords, the Government, including past Labour Governments of which the noble Lord was a member, have always refused to confirm or deny that interception has been authorised in any particular case.

Business
Lord Hesketh: My Lords, at a convenient moment after 3.30 p.m., my noble and learned friend Lord Fraser of Carmyllie will, with the leave of the House, repeat a Statement that is to be made in another place on the Orkney and Fife inquiries.
It may be for the convenience of the House to know that the Report stage of the Judicial Pensions and Retirement Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Second Reading of the Croydon Tramlink Bill will he taken.

Woodgrange Park Cemetery Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Judicial Pensions and Retirement Bill [H.L.]
3.29 p.m.
Report received.
Clause 1 [Persons to whom this Part applies]:
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No.1:
Page 1, line 15, after ("day,") insert ("ceases to hold that office and").
The noble and learned Lord said: My Lords, this is a drafting amendment. Paragraph (b) (ii) as drafted might lend itself to the interpretation that a person who holds a qualifying judicial office on the appointed day would be required to transfer into the new pension scheme if he took on a second and concurrent office listed in Schedule 1. That is not my intention. That paragraph is intended merely to require that a person holding a qualifying judicial office on the appointed day should be brought within the new scheme if he is promoted to another office which would have meant moving to a different scheme in any event. The amendment makes that clear. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No.2:
Page 2, line 8, after ("time") insert ("not ending earlier than 6 months after retirement").
The noble and learned Lord said: My Lords, this amendment has the great advantage of brevity. It also has two factors which are quite unusual. First, basically, it is included at the invitation of my noble and learned friend the Lord Chancellor who requested us to draft what we thought should go into primary legislation. Indeed, the noble Lord, Lord Mishcon, did likewise. Reference to that in Committee can be found at col.671 of Hansard on 30th June 1992. Secondly, to make sure that I have your Lordships entirely on my side as regards the amendment, I should tell the House that it originated from my noble and learned friend Lord Brightman who, at the conclusion of the Committee stage, handed me a manuscript amendment upon which I could not improve.
The amendment is designed to enable a person to exercise the option to join the new scheme. It is a highly academic provision. The scheme now before your Lordships suffers from such disadvantages compared to the current scheme that it is highly unlikely that anyone will opt into it.
First, it increases the accrual period from 15 to 20 years—a matter which will be debated later. Secondly, it makes the accrual of 20 years come into force gradually, year by year—again a matter which will be referred to later—as against the present position where there is a guarantee to the High Court judge, immediately on becoming a judge, of one quarter of his maximum pension. Thirdly, the lump sum is capped—again that will be referred to later.
Fourthly, instead of the pension being calculated as heretofore on the salary being paid at the time of retirement, it is averaged over 12 months.
In short what has happened is this. The judicial retirement age has been lowered from 75 to 70, something which is generally supported. But it will cost more to fund, as all pensions do when they involve earlier retirement. Quite simply, the Bill says that the judges must pay more for that expense in the respects that I briefly summarised. My amendment, which will make clear in primary legislation that a person has a right to opt into the scheme with a limitation in the manner described, is highly academic. However, I believe that it should be contained in primary legislation and that is the reason I tabled it. I beg to move.
3.30 p.m.
Lord Morton of Shuna: My Lords, I support the principle of the amendment. I can perhaps forecast what the noble and learned Lord the Lord Chancellor will say in regard to Amendment No.3. The difficulty about that amendment is that it gives a prescription; the advantage is that it deals with the possibility that the choice may be made after death, which Amendment No.2 does not cover.
Possibly the way to deal with the matter is to put the two amendments together and to re-write the amendment of the noble and learned Lord the Lord Chancellor so that it allows the choice to be made as suggested by the noble and learned Lord, Lord Ackner, but also includes the possibility that the deceased judge's representative can make the choice after death. The further difficulty about the amendment of the noble and learned Lord the Lord Chancellor is the usual one of regulations appearing at a later stage and we do not know precisely what they will say. There does not seem to be much difference between the two positions.
Lord Mishcon: My Lords, perhaps I may be allowed a short intervention, which is all that is necessary. On the last occasion when this matter was discussed the possibility of the noble and learned Lord being able to produce a draft regulation was debated. I believe that he did not regard the suggestion as being in the slightest degree outrageous.
In the circumstances, having regard to what the noble and learned Lord, Lord Morton, said, is it possible for the noble and learned Lord the Lord Chancellor to agree that Amendments Nos.2 and 3 should be amalgamated? However, if he does not want those provisions included in primary legislation—although I believe it is far better that they should be—perhaps before Third Reading there can be tabled a regulation which carries out the spirit of Amendment No.2.
The Lord Chancellor: My Lords, the amendment to which my noble and learned friend Lord Ackner referred deals only with the question of the timing of a notice under the provision. As a result of discussion at Committee stage I undertook to consider the matter further, inviting your Lordships to see what was
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required. I prepared a draft set of regulations which I hope were circulated at the end of last week together with the note in regard to the amendments to the Bill, in order to indicate precisely what I had in mind as regards the regulations. I hope that noble Lords who are interested in the matter have seen the draft.
Amendment No.3 is intended to cover all the matters covered by the amendment of my noble and learned friend Lord Ackner, and more. It is important that those other matters should be dealt with. The proposed draft regulations permit an election to be made at any time after the Bill comes into force until three months after a qualifying judicial officer's retirement, provided that a pension had not commenced to be paid under the officer's old scheme. I should add that, for administrative reasons, a pension would not commence to be paid to an officer under his old scheme unless he had indicated that he wanted it to commence payment. Therefore if he is considering the matter he would not ask for the payment to start in the meantime.
The regulations also provide for an election to be made by the personal representatives of a judicial officer should that officer not have done so before death, and provided no benefits under the officer's old scheme had commenced payment. The purpose of the amendment in my name is to clarify the vires of the regulation-making power (Amendment No.3) so that there can be no doubt that the regulations can permit elections after retirement or death. Without that clarification, parliamentary counsel advises me that there is some doubt as to whether elections after retirement or death will be effective because the rest of the Bill is not drafted in terms which suggest that that is what is envisaged and therefore it is wise to make it clear.
In respect of my noble and learned friend's amendment, I am not wedded to the period of three months as opposed to six, but three months seems more than ample. Under that scheme, as now, anyone who indicates his intention to retire in advance, or who is approaching his compulsory retirement date, will be approached by my officials far enough ahead of the event for any necessary consultation with financial advisers to be made and decisions taken. In most cases, therefore, the three months after retirement will serve only as a safeguard. In the event of retirement with immediate effect it should be more than adequate for the necessary decision to be taken. In most cases the respective value of the two quotations provided will be clear-cut and the decision will make itself.
My noble and learned friend Lord Ackner suggests that it can only be one way in any case. I do not believe that he has taken full account of the various cases that may be covered under the scheme; for example, a person who falls under a scheme which accrues more slowly than the scheme of the High Court judges may well wish to make such a change.
The amendment of my noble and learned friend is covered fully by my amendment when one takes account of the regulations that I am proposing, with the exception that it is three months in the draft rather

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than six. As I said, that is a matter which can be readily adjusted should your Lordships feel that six months is important.
In the light of that explanation I hope that my noble and learned friend will think that it would be right for my amendment to go forward and that his point will be catered for in Amendment No.3 by the draft regulations that I suggested.
Lord Renton: My Lords, before my noble and learned friend sits down perhaps he will be good enough to explain how one can obtain a copy of the draft regulations. They are not in the Printed Paper Office. I was not sent a copy. Should there be other draft regulations which are relevant to our future discussions, it would be helpful to be provided with copies of them or to know how one can obtain them.
Lord Morton of Shuna: My Lords, with the leave of the House perhaps I may say that I also have not seen these draft regulations. It would have been helpful, in consideration of the amendments, if they had been made available.
The Lord Chancellor: My Lords, perhaps I may answer that point before my noble and learned friend Lord Ackner responds. I sent copies of the regulations to the Printed Paper Office as part of a set of papers which include comments on all the amendments which are in my name. I understand that these were put into the Printed Paper Office last Friday. If there is some problem about that I shall have to look into it.
Lord Renton: My Lords, I did not see them on display this afternoon.
Lord Mishcon: My Lords, with the leave of the House perhaps I may make my own position quite clear. The noble and learned Lord was kind enough to send me a copy of the documents which he has just mentioned. While I am on my feet perhaps I may clarify one point, again with the leave of the House. Is the noble and learned Lord saying that although the draft regulation only provides the period which he mentioned, he is prepared to see that it will now comply with Amendment No.2? The noble and learned Lord mentioned the will of the House and that can only be expressed either by the majority of speakers who address your Lordships or by a vote. If the noble and learned Lord would clarify that matter it may be that a vote will not be needed.
The Lord Chancellor: My Lords, I put three months into the draft on the view that that was probably long enough. If on consideration it is thought that it is not long enough then it is quite easy to change it. I wish only to give the House an opportunity to say. It may not be necessary to have a vote, but my noble and learned friend Lord Ackner, in dealing with his amendment, may express the view that the six months which he opted for in his amendment is essential in his mind. If that is so then I would feel disposed to agree.
Lord Ackner: My Lords, I thought six months a reasonably generous period. Retirement can involve all kinds of complicated decisions which should not be rushed. It does no one any harm to say six months; it
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is obviously mathematically twice as good as three months. Therefore I support it. The reason why I put it in the primary legislation is that it was thought that the safeguard should be put there. I looked at the history of judicial pension legislation. Significantly, in 1959, when a new scheme came into existence dealing with graduated pensions, there was in Section 3 of the Act primary legislation providing for the option. I believe it desirable that judges should have that provision enshrined in the primary legislation, as it was some 33 years ago. That is why I put it in. It can obviously be extended to cover death, again in the primary legislation. These regulations, which do not make the position immediately apparent, should perhaps be avoided, if that is possible. I certainly urge on your Lordships the period of six months.
The Lord Chancellor: My Lords, I am content to put six months into the draft regulations. The provisions proposed in Amendment No.3 make it fairly plain that such regulations are in mind. I believe that the provisions which I have in Amendment No.3 are necessary to cover death and election by personal representatives not covered in my noble and learned friend's amendment. If he feels able, I hope that we can proceed on the basis that Amendment No.3 will cover the matter on my undertaking that the draft regulations will be extended to six months.
Lord Ackner: My Lords, on the basis of my noble and learned friend's assurance I am content to withdraw my amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No.3:
Page 2, line 8, at end insert:
("( ) The circumstances that may be prescribed under subsection (2) above, and the time that may be prescribed under subsection (3) above, include circumstances or times which permit the making of an election notwithstanding that the person in question has retired from qualifying judicial office or has died; and, without prejudice to section 29(3) and (4) below, where any such circumstances or times are so prescribed—

(a) the person in question shall be treated for such purposes as may be prescribed as if he had, at such times as may be prescribed, been a person to whom this Part applies; and

(b) any right to make an election notwithstanding the person's death shall be exercisable by his personal representatives.").

The noble and learned Lord said: My Lords, our past discussion is sufficient explanation of this amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.4:
Page 2, line 14, after ("holds") insert (", on a salaried basis,").
The noble and learned Lord said: My Lords, this is a drafting amendment. In moving it I shall speak also to Amendments Nos.6, 9, 15, 17, 20 to 24, 27 and 28, which are amendments to Schedule 1, and Amendments Nos.51 and 55. Before talking about these matters further perhaps I may return to the fact that I put into the Printed Paper Office on Friday a note about these amendments. I understand that

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copies of that note are in the Printed Paper Office. Appended to that note was the note of the draft regulations. These are the only draft regulations I have in mind. Some of your Lordships who have seen the note may not think of it as including the draft regulations. It contains comments in the hope of sorting out amendments so that your Lordships can see quickly which amendments are of substance.
As presently drafted the Bill may entitle in appropriate circumstances anyone who holds a qualifying judicial office listed in Schedule I to pension benefits under the new scheme. Some of those offices, however, may on occasion be held by a member of the scheme as a secondary office concurrently with the scheme member's primary appointment. In these circumstances, the member should, as now, accrue benefit rights only in respect of the first office. Similarly, some of the offices in the schedule do not at the moment carry a sufficient workload to warrant the employment of a full-time office holder. In this situation a suitably qualified person may be employed on a daily and fee-paid basis, again with no entitlement to pension benefit arising from that employment. The purpose of these amendments is to ensure that no person in one or other of these positions could claim a pension in respect of that secondary or fee-paid work. They leave open, however, the possibility of those offices attracting pension benefits at some point in the future should they be filled by full-time or part-time salaried officers. I believe that the use of the word "salaried" is a very simple way of differentiating those who carry a pension entitlement immediately. I beg to move.
Lord Simon of Glaisdale: My Lords, I could not take part in the earlier transactions on this Bill. Therefore, I feel considerable reluctance at inflicting myself at this stage. I do so because I happened to be at the Treasury when the previous scheme, which was so much less harmful to the judiciary, was hammered out and approved subsequently by Parliament. However, as regards this amendment I have a small drafting point. As I cannot trust my eyesight I am very ready to be told that I have got it entirely wrong. The point arises in connection with Amendment No.24 which is being discussed with the amendment which has just been moved by my noble and learned friend. That is Schedule I, page 26, line 47, to leave out "full-time". I could not find the words "full-time" in that line at all.
A similar point arises on Amendments Nos.25 and 26 which are grouped with Amendment No.10. It appears that something has gone wrong in the printing of the Marshalled List and the previous list of amendments. In order to leave time for the draftsman to send a chit down to my noble and learned friend to tell him why I am wrong, perhaps I may take the opportunity of drawing the attention of the House—as this amendment does—to the extraordinary list of officers in the schedule over which my noble and learned friend and his department exercise patronage. It has grown up gradually over the years, but it is now quite formidable. The schedule is not the end of it
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because there are a number of other officers in the new schedule which my noble and learned friend will be moving in due course.
I came across the problem personally when I was President of the Probate, Divorce and Admiralty Division. Oddly enough, the holder of that office is responsible for a large government department—namely, the Principal Probate Registry and the District Probate Registries. Constitutionally, this is clearly anomalous. Among the duties was appointment and promotion within that department, and particularly appointments to the position of senior registrar, registrar, and district registrar. The registrars of the Principal Probate Registry were only half drawn from the legal profession. The other half were drawn from the clerks within the registry. My predecessor as President—not my immediate predecessor, but my predecessor at some distance, Lord Gardiner—had indicated that he wished to exercise that patronage. He also expressed a similar wish in relation to the Masters of the Supreme Court. That was resisted by Lord Parker, who was then the Lord Chief Justice.
Although it seemed to me to be anomalous that I should have responsibility for the administration of those officers and therefore for the appointments, it also seemed anomalous that responsibility for those appointments, particularly since half related to the clerks to the registry, should be taken away and vested in the office of the Lord Chancellor. However, I have always taken the view that executive decisions should, as far as possible, be taken by someone who is responsible to Parliament. That is somewhat of a legal fiction these days, but nevertheless I felt bound to honour it. In a sense, it was empire-building by the office of my noble and learned friend.
I mention it only because the Bill raises very important constitutional points and one should not lose sight of the vast patronage which is exercised by my noble and learned friend and his office. I have noticed a chit coming down to tell my noble and learned friend why I was wrong on my first point, so I can resume my seat.
The Lord Chancellor: My Lords, I regret to say that my noble and learned friend's observation on that point is not quite correct. To date, I have no such chit. I have, however, sought to follow the amendments that my noble and learned friend is querying and, as far as I can follow the points that he is making, I must advise him that the word "full-time" does occur in the lines in question. I shall certainly check again in more detail although I have tried to do so while sitting and listening to my noble and learned friend. We are endeavouring in this aspect to go along with another principle that my noble and learned friend is keen on—that is, to try to shorten legislation. By including the reference to "salaried", we have been able to omit references to "full-time" where they occur.
Lord Simon of Glaisdale: My Lords, I am not sure whether I have heard my noble and learned friend correctly. Is he saying that the word "full-time" does occur in those lines?
The Lord Chancellor: My Lords, yes, that is what I am saying. As far as I have followed the amendments to which my noble and learned friend has referred, I have found the word "full-time" in the lines under discussion. However, in view of the fact that he has queried that point, I shall certainly wish to check it at my leisure. So far, however, I have not followed his point.
Turning to my noble and learned friend's reference to patronage, the Lord Chancellor has responsibility for appointing people who hold judicial office or quasi-judicial office and in some cases for recommending the appointment of such people to Her Majesty the Queen. I believe that it is right that these appointments should be made by the Lord Chancellor who has a variety of responsibilities, one of which is to be accountable to Parliament.
On Question, amendment agreed to.

Orkney and Fife Inquiries
3.56 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, with your Lordships' permission, I should like to repeat a Statement about child care in Scotland which my right honourable friend the Secretary of State for Scotland has made today in another place. The Statement is as follows:
"I have today published as a Return to an Address of the House the report which Lord Clyde prepared of the inquiry which I asked him to undertake into the removal of nine children from South Ronaldsay to a place of safety on 27th February 1991. I have also published as a Return to an Address of the House Sheriff Brian Kearney's report on child care policies in Fife following the inquiry which my predecessor asked him to undertake. I am also placing in the Library later today letters I am sending today to the chief executives of the two authorities concerned and also letters to the chief executives of all regional and islands councils about the action to be taken on the two reports.
"These are two important reports which have major implications for child protection and for the management of child care policies.
"Dealing first with the Orkney inquiry, I am grateful to Lord Clyde for completing such a full and clear report into circumstances which were both difficult and complicated. He has not only set out very clearly the facts of the handling of a difficult episode but has also drawn helpful conclusions and made positive recommendations which have major implications for child care law and practice. I am also grateful to the expert assessors who supported Lord Clyde in carrying out his task, Miss Ann Black and Dr. Hugh Morton.
"The report identified significant failings on the part of Orkney Islands Council social work department, the Northern Constabulary and the Royal Scottish Society for the Prevention of Cruelty to Children, not only in the way in which
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the decision to remove the children was reached but also how it was implemented and how the interviews were carried out with the children. The House should be in no doubt that this is a report which is justifiably critical of the way in which this affair was handled.
"However, Lord Clyde goes beyond immediate criticisms to make positive recommendations designed to prevent situations of the kind arising again in the future. At the same time he recognises the way in which agencies, and in particular social workers, have to face up to very difficult decisions in carrying out their duty to protect children. In this case in particular he notes that all those involved acted in good faith.
"I have examined the 194 recommendations of the report with care. Action is needed and I am anxious to see early progress. Some recommendations can be implemented without undue delay whereas others require primary legislation or further consideration and consultation. A number fall directly to the Scottish Office for action, but others affect other agencies: local authorities, the police and the health service. I am minded to accept the great majority of these recommendations and to take them forward in consultation with the agencies involved as a matter of priority. Some recommendations will require further consideration, and my officials will be contacting the organisations concerned to follow these up.
"I have in mind to make changes, broadly along the lines which Lord Clyde has recommended, on emergency protection of children and their removal to a place of safety. These would be implemented principally by primary legislation and I will include my detailed proposals for change in a White Paper on Child Care Policy and Law which I shall publish early next year. I am also minded to accept certain changes proposed for regulations and revised regulations will be issued for consultation in the usual way. These changes will be designed to increase the safeguards for children and parents involved in child protection investigations and procedures.
"A considerable number of the changes recommended relate to central guidance. We are committed to revise the central Scottish Office guidance on "Effective Intervention" and this will be done in the light of Lord Clyde's recommendations. At the same time we have established with the Association of Directors of Social Work a working party which will produce new practice guidance for social workers engaged in child protection. I shall ask the working party to embody Lord Clyde's recommendations in this guidance. One recommendation I would particularly highlight, and which I endorse, is Lord Clyde's recommendation that removal of a child should be recognised as a course to be considered only where no alternative exists and the urgency of the risk requires it, and that caution must be exercised.
"I have also established along with the Lord Advocate a working party to draw up guidance on joint working and the interviewing of children. This

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involves the police, the Crown Office, social work and other expert interests. I shall direct them to Lord Clyde's recommendations as the basis for their work. I intend all of this work to be carried out as a matter of urgency.
"Training for child protection is identified as an area of major importance. This has already been recognised by the significant commitment to various initiatives, notably support of the development of courses at Dundee University and the introduction in 1992– 93 of the new specific grant to help local authorities develop social work training. I propose immediately to increase substantially the amount available for specialist training for social workers in the Islands this year and to give close attention to the need to improve training in the current public expenditure round.
"The report provides an invaluable basis for moving ahead to improve child care. It not only analyses events within Orkney but draws conclusions and makes recommendations which should improve the way in which we afford protection to children in future. I also support what Lord Clyde says at the conclusion of his report that at the end of the day the welfare of the nine children involved should not be overlooked and every opportunity should be taken to overcome any effects of the inquiry and the incidents which prompted it. I am sure the House would want to endorse these sentiments. I also endorse his plea for action to re-establish relationships between Orkney Islands Council social work department and the local community. There will be an inspection next year in Orkney by the Social Work Services Inspectorate which I established earlier this year.
"I turn now to the report of Sheriff Kearney's inquiry on child care policies in Fife. This inquiry was established because of issues which were brought to the attention of my predecessor about the child care policies pursued by Fife Regional Council. As a result of his inquiry Sheriff Kearney has reached the conclusion that,
"very serious cause for concern exists as to the implementation of the Regional Council's social work department's child care policy".
"I accept this view. Sheriff Kearney makes a number of recommendations directed to Fife Regional Council to rectify these matters. I also accept his view that the implementation of the recommendations of the report will not remove the deficiencies described by Sheriff Kearney until and unless the region and the Director of Social Work are prepared to accept that these deficiencies exist. I have today written to the council asking it to let me have a report within eight weeks on how it proposes to implement the recommendations specifically addressed to it and what action it proposes to take on the issues of concern highlighted in the conclusions of the report. In particular I have asked what action it is taking to improve working relationships within the child care system in Fife. My officials will meet with regional
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council officials to discuss implementation and there will also be an inspection next year in Fife by the Social Work Services Inspectorate.
"As far as the general recommendations are concerned, I am minded to accept the great majority of the recommendations subject in some cases to consultation and I am writing today to a wide range of interests to draw some recommendations to their attention for immediate action. Other recommendations will be incorporated in guidance to be issued by me or in primary legislation in due course.
"I am grateful to Sheriff Kearney and his social work assessor, Professor Mapstone, for the care which they have given to this complex remit.
"I am very conscious of the difficult nature of the important task which confronts social workers, the police, and other agencies over the whole field of child care. The dilemma they face in deciding whether, when and how to intervene is often acute. But I am also conscious of the importance of public confidence in this work, which has such a major impact on the lives and well-being of children and their families. Above all there is the overriding obligation to ensure that in every action by the many bodies with responsibilities in this field, decisions are taken with care and that the best interests and welfare of the children remain paramount at all times.
"These detailed and substantial reports address very serious issues to which all concerned must respond. The action that I have announced today will be carried forward urgently by the Scottish Office in consultation with all the relevant agencies. It is my firm intention that it will result in improvements in procedures and the quality of practice for the future."
My Lords, that concludes the Statement.
4.6 p.m.
Lord Macaulay of Bragar: My Lords, I thank the Minister for repeating the Statement made in another place relating to the two inquiries involving the protection and care of children at risk of sexual and other abuses. I also welcome the caring and constructive approach of the Government as outlined in the Statement to this difficult area of human, or perhaps I should say inhuman, relationships.
I deal with the reports in reverse order. The Kearney Report unfortunately took three-and-a-half years to complete but I am sure that the conclusions and recommendations it makes will be of considerable value to the Government and the regional authority in the reappraisal of all the issues raised, which involve not only the children but their parents and guardians and sometimes close members of the family. I concur with the Minister in thanking Sheriff Kearney and his assessor for the meticulous care which they have taken in preparing the report.
Likewise, Lord Clyde deserves the thanks of the community for his typically fair and painstaking conduct of a very difficult inquiry in Orkney which was subjected to continuous media attention over a period of eight months. The report reaches almost 400

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pages and makes almost 200 recommendations. On the content of the report I reserve judgment as, despite my efforts to obtain a copy, at this stage I have not had a proper opportunity to consider the report, although parts of it—many parts in fact—have been leaked by the media since last Friday both on radio and in the press. Presumably, members of the press were in possession of embargoed copies of this very important report but just ignored the embargo. Indeed, I have a cutting from a newspaper yesterday which is headlined:
"Blame cast on police and social workers. Clyde Report highlights the lessons of Orkney".
If we are to have a system of giving reports to the press with embargoes on them, then it is the duty and responsibility of the press to pay attention to that embargo and not leak on a daily basis right up to the publication of the report.
I wish to raise several matters arising out of the report. One issue which arises in particular is the format of this type of inquiry. I should like to ask whether the Government agree that the procedures involved require to be urgently reviewed to ensure that any other such inquiry, if we have the misfortune to have one, is completed with minimum delay while doing justice to the issues and parties involved. Every day lost in such reports will almost certainly be another child or many other children being abused unnecessarily and without the protection of the community.
Specifically arising out of the Orkney inquiry, where solicitors and counsel seem to be the main beneficiaries, will the Government in their review of child care and law consider whether the adversarial approach is suitable to establish the facts in this type of inquiry? It may be a contradiction in terms to appoint an inquiry, announce the terms of reference and then turn that inquiry into what amounted in some cases to almost a criminal trial in respect of some of the principal people involved. I ask the Government to consider that suggestion.
That is only one option. But perhaps I may suggest one way in which it might be better dealt with as one option. A more suitable and swift system would be for the inquiry, once it has been set up, to ask for representations in writing for anyone with an interest. The inquiry could then analyse those representations and issue a preliminary report focusing on the main matters for consideration and inviting further comment all within a tight time-scale. Thereafter, the inquiry could invite witnesses that it considers necessary to attend and supplement the evidence which they may have already given in writing, with the proviso that if any other person not invited considered that his oral evidence and testimony was vital to the inquiry he could make application to it and then, cause shown, be allowed to give evidence to the inquiry.
The format at Orkney as it developed—and I do not blame anyone for this; I am not trying to allocate blame anywhere because it would be inappropriate—was viewed by many members of the public (and was, indeed, expressed in some newspapers) as a gravy train for lawyers. As I was not a passenger on that
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train I cannot comment with authority, but even the estimated costs of £ 5 million surely demand that that form of inquiry should be reviewed.
Unfortunately, child abuse is a desperately sad area of life for all those involved, whether that abuse be physical, sexual or a combination of both. Like industrial law and unfair dismissal, which started out to be a simple and readily understandable branch of the law to the layman, child abuse in itself has almost become an industry. Lawyers, solicitors, social workers, sociologists, medical men, and so on, are necessarily involved to get to the root of the cause of the abuse. However, some control must be taken over such matters.
We took the Statement in your Lordships' House because, although these are two Scottish inquiries, sexual abuse of children is not a parochial matter; it is a universal matter and, indeed, a United Kingdom matter. Cleveland, Rochdale and Orkney will all go together in the roll of sexual abuse. The dilemmas faced by all the parties involved—and I believe that this fact was recognised by the Minister—arc the same whether you are in Glasgow or in London. Social workers, doctors, the police and others all have the same problems in this very difficult task. If they move too soon they are criticised; but if they move too late they are also criticised. On occasions, some of them have been quite justifiably criticised and even verbally abused in various quarters.
The main problem in child abuse cases is the close involvement of other members of the family. Experience has shown that child abuse has not come from outsiders; it comes from other members of the family, close relatives and sometimes trusted babysitters. I wonder whether it is time for the Government to take a look at the situation and pool the resources we have from all the various people interested in child abuse into a UK pool of knowledge. It is no use someone in Glasgow doing one thing and someone in Portsmouth doing another. Let us have a universal approach to the matter. A child in Orkney is no different from a child in Oldham or a child in Orpington. To implement the report as proposed is all very well, but the knowledge should be passed to the South and to other countries.
I look forward to reading the White Paper on child care and law which, again, was no doubt delayed by the system of the two inquiries. The longer the White Paper is delayed, the longer proper legislation will he delayed. That underlines the plea I make for swifter procedures to be involved. If it cuts out the lawyers, well, so be it. It may be for the benefit of the community. All the matters raised in the inquiries are important and will no doubt be taken into account by the Government.
Finally, as part of the overall review of child care and social work, will the Government consider whether the time has come to carry out a complete review of the operation of the Social Work (Scotland) Act 1968, soon to have its 25th birthday. It covers a wide, time-consuming and very costly area of public life. No parliamentary Act is perfect. A review of that Act would be welcomed in many quarters. In closing, I repeat my gratitude to the Minister for repeating the

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very full Statement on the two matters. However, I hope to bring all those issues back to the House for a full debate at the earliest possible date.
Lord Grimond: My Lords, I, too, thank the Minister for repeating the Statement. I should also like to thank Lord Clyde for what I am sure is a most excellent report, though I have not had the opportunity to read it. This was a tragedy for all Orkney. It caused great unhappiness, especially to children and it certainly shook our faith in the social services. I believe that the Statement will do something to reassure people that action is to be taken on what the Minister himself described as a "justifiably critical" report.
As for the report's 194 recommendations, I welcome the statement by the Minister that he intends to take action. However, I should like to be reassured that the action will not seem too remote or too professionally oriented. To my mind, one of the things that went wrong was that the community which used to look after a great many matters concerning children, family life, and so on, became divorced from what were its responsibilities. It felt that it was going to be taken over by social workers. But social workers cannot take over those responsibilities. Least of all, they cannot take them over in a scattered, island community. A limited number of career social workers simply cannot compete with the problems which may arise in such scattered communities and which used to be dealt with by the family—that is, aunts, uncles, cousins and so on.
I read that the working party involves the police, the Crown Office, social workers and other expert interests. But, above all, it involves the local people and their families. I hope that their interests will be represented on it. I also hope that they will have every opportunity to make their views known. I have always had doubts about these inquiries. As has been said, this one went on for eight months and cost £ 1 million. In it, as always, allegations were made against individuals to which they could not reply. That is an old and justifiable complaint. I would much rather that, wherever possible—I agree that it may not always be possible where children are concerned—the normal procedures of law should apply. If crimes have been committed (and there were allusions that they were committed) they should be prosecuted in the courts where proper procedures are enforced. If public servants or the police have trespassed under the law, they too are subject to it and action should be taken against them.
The allegations made against the people who cannot answer back are very serious. The problem has existed for a long time. I hope that some attention will be paid to it. I understand that a review of local government is taking place at the Scottish Office. I hope that that review will not be solely concerned with local government finance or local government areas. I hope that it will look at the responsibilities of local government and the ability of the local authorities to discharge those responsibilities.
It is not only the career civil servants, the social workers, who are involved; it is the senior officials and
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the elected representatives of the local authority. It is time certainly in small communities, and I think probably in all communities, that we looked at the responsibilities that we are constantly placing on local authorities and their ability to discharge them, or indeed to recruit adequate staff to do so. With those reservations I welcome the report as far as I am able.
Lord Fraser of Carmyllie: My Lords, I am grateful for the response and the welcome that has been extended to the publication of these reports, and indeed for the statements by both noble Lords. Perhaps I may deal first, as did the noble Lord, Lord Macaulay, with the Kearney Report. Indeed it took a long time to reach its conclusion, but as the noble Lord will see, when he has the time to study it, it involves the detailed examination of a large number of cases.
I regret to say that it included some rather worrying conclusions. For example, it says at one point:
"The central impetus in implementation of policy which we found to exist was the tendency to over-simplify the approach of the social worker to the intricate and difficult discipline of child care and to impose this simplified approach in a rigid and dogmatic manner which, thus imposed, alienated others involved in child care such as, on the one hand the Children's Panel and the Reporter, parts of the hearings system and on the other hand, other professionals directly involved in child care such as teachers, guidance teachers, educational psychologists, child psychiatrists, clinical child psychologists and health visitors."
The noble Lord will appreciate that in bringing it together he had a major task in attempting to redress what he saw as a serious imbalance in the way in which social service policy was being taken forward.
I agree with the noble Lord that there has certainly been some considerable publicity in the Scottish press about the reports, but I would indicate to him that there were no leaked reports. None was given out, under embargo, until about an hour ago, so their speculations are not on the basis of the actual reports. I think that the noble Lord will be aware that criticisms of the police and the social workers were widely known as the evidence was reported from Orkney itself.
While the noble Lord's concern about the format of the inquiry is one that I readily understand, and it did take a long time, this was against the background of the circumstance where, following on a decision by a sheriff, it was not possible to take the case forward in the court to see if the grounds of referral were established, nor indeed in my capacity then as Lord Advocate did I think that there was a possibility to take the matter forward then to see if there might be any basis for criminal proceedings. Although Lord Clyde's remit was quite clear that he was not in a position to examine whether or not the allegations were true, as the inquiry developed there were not surprisingly attempts made from all quarters in one way or another to establish whether the underlying allegations had any truth in them.
The inquiry cost a lot of money. I think that the figure of £ 5 million that the noble Lord gives is, so far as we yet know, on the high side. We have paid out some £ 2.25 million so far. The noble Lord is right to draw this into the context of the other major inquiries that there have been south of the border. In particular,

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in one matter, the Cleveland inquiry concluded with an indication that social workers should have careful regard to what children said without necessarily believing them. Lord Clyde has found it necessary to repeat that recommendation.
At the centre of what Lord Clyde has said is that Section 37 of the 1968 Act should be amended so that children should only be removed from their homes on a test along the lines of when they are likely to suffer imminent and significant harm. Obviously we hope that if such a change were to be incorporated into primary legislation the likelihood of such removals would be reduced in the future.
I turn to the observations of the noble Lord, Lord Grimond. I think that I have covered what he had to say in terms of a criticism that proper legal procedures should have been followed. I entirely agree with him. As a former Lord Advocate may I say that it would have been much more desirable if that had been possible, but the circumstances made it almost beyond it. The noble Lord made some observation with regard to drawing members of the community into a working party. As large parts of the report indicate, great regard must be had, particularly in Orkney, to the views of the community. The particular working party was a specialist one on developing proper techniques with regard to the questioning of children. Lord Clyde has a number of significant criticisms to make about the way that was done in this case.
Baroness Carnegy of Lour: My Lords, in setting up the working party that my noble and learned friend has just announced, will he bear in mind that among children's rights must be the right to be children? Being asked by whatever means to expose the truth of what their parents or other adults have, or have not, done to them can be a burden for children which is often quite out of proportion to the usefulness of the facts that emerge. Should not more of that burden be put upon adults and greater effort put into finding more successful ways of getting the truth out of them?
Lord Fraser of CarmyllieMy Lords, a significant part of the report by Lord Clyde is devoted to an examination of what might be the best ways of discovering from children just exactly what the truth of the situation may be. He also reflects carefully on whether in all circumstances the most appropriate way to respond to the paramount needs of the child is always that of removing him from his parents, and indeed goes on to offer some observations as to whether in such circumstances it is always appropriate to prosecute a parent if there is an allegation that might be supported by evidence of sexual abuse. These are extremely difficult areas, and areas that ought to he discussed carefully, but I have no doubt that there are quite sharply conflicting views on whether prosecution is or is not always appropriate.
Lord Macaulay of Bragar: My Lords, may I say, with the leave of the House, that in the light of the assurances that the noble and learned Lord has given me that no embargoed copies of the report were released to the press, I unreservedly withdraw any
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comments criticising the abuse of the system. However, clearly information leaked from somewhere to the press.
Lord Stodart of Leaston: My Lords, is my noble friend aware of the perplexity, if not the certain anxiety, of the general public about the way in which the police appear to have been involved together with the social services in the early morning raid, particularly as no subsequent prosecution was mounted? Are the police bound to answer the call of the social services in matters of this kind without first perhaps investigating what the social services fear has been happening?
Lord Fraser of Carmyllie: My Lords, there are a number of criticisms by Lord Clyde that the Social Work Services Department and the police and others failed to consider the position of the children, and failed to keep an open mind as they considered these allegations before they took steps to remove the children from their homes. I should make it clear that in the report in relation to what are described in the popular press as the "dawn raids" Lord Clyde said:
"The timing of the removals was beyond serious criticism. The time for the removal of a child must depend upon the whole circumstances of each particular case, but the prime consideration must be the welfare of the child."
Although he makes that observation in his report with regard to the particular circumstances of the Orkney case, he also quotes from a policy document prepared by the directors of social work in which they indicated that in a planned intervention, such as the intervention of the type we saw in Orkney,
"removal of children who are sleeping in their homes or have just risen from their beds cannot be supported as a form of intervention centred on the interests of the children concerned."
With respect, I agree with that.
4.30 p.m.
Lord Mackay of Ardbrecknish: My Lords, my noble and learned friend will recall that for some four years I had responsibility for social work at the Scottish Office. That, I hasten to add, was before any of these issues arose. However, I certainly recall some of the issues mentioned in the Statement today and the need to address them. I welcome the news that there will be regulation in this area and that a White Paper will be published that addresses the issues and considers how we might improve both regulations and legislation with regard to children and child care. When is the White Paper likely to emerge?
Will my noble and learned friend also tell me whether we are likely to have the opportunity of a debate in this House once we have had a chance to digest what must be detailed and full reports? Will he comment in general terms on the fact that the two reports cost a great deal of money and took a great deal of time to be produced? That was also the case with other similar inquiries. Is it not time the Government took a look at how they run inquiries of this nature so that they cost less and take a lot less time? My noble and learned friend will know that during the course of the Lord Clyde inquiry there was a great deal of adverse publicity in Scotland directed at the legal profession and at the very nature of these

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inquiries. I hope that my noble and learned friend will agree with me when I say the one thing that is left hanging in the air over the Orkney case is the truth or otherwise of the allegations. Many of us feel that situation is totally unsatisfactory.
Lord Fraser of Carmyllie: My Lords, I shall respond to the noble Lord's final point first. I understand why the noble Lord should consider the state of affairs unsatisfactory. However, as I have sought to explain, once a sheriff had indicated that he considered there was a fundamental flaw in the procedures which had been followed—that decision was subsequently reversed in the Court of Session—the children were returned to their families immediately. That course having been followed, it was thereafter effectively impossible to determine whether or not the allegations that had been made were true or false. The parents and others, who were the subject of these allegations, enjoy, along with every other citizen in this country, the presumption of innocence. None of them has been brought before a criminal court and none of them has been found guilty of any offence. There the matter must rest.
The matter of the length and the cost of an inquiry is always a difficult one to consider. My noble friend may like to consider what Lord Clyde said when he embarked on this inquiry. He certainly attempted at the outset to keep the inquiry short. He attempted as best he could to pursue it in what might broadly be described as an inquisitorial fashion. However, for the reasons I have just outlined—that is, that there were those who felt they had their own serious interests to protect—it became difficult for Lord Clyde to deprive various parties of their rights to examine matters fully. I offer no criticism whatsoever of Lord Clyde in that regard.
The White Paper will be produced in the early part of next year. It will cover the reports of the Orkney inquiry and the Fife inquiry. A review of child care was published in 1990. There is a further report that discusses the role and functions of the reporter. It is time for us to reconsider much of the 1968 material. We await only a review of residential accommodation in Scotland. Once all those aspects have been studied the White Paper will be published.
Lord Mishcon: My Lords, I hope I may intervene in connection with the portion of the Statement which deals with the issue of the White Paper to which the noble and learned Lord has just referred. In the course of a discussion on these serious matters it has been stated that these are problems that concern the whole of the United Kingdom and not just Scotland. I understand that the White Paper will be produced by the Scottish Office. I hope we may take it that the paper will constitute an accumulation of the wisdom of the department of the noble and learned Lord the Lord Chancellor with all that department's experience of the Children Act—the Act was brought before this House with great distinction by the noble and learned Lord—and that of the Home Office as regards the whole of the United Kingdom. I hope we may take it that the White Paper will constitute a unified
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representation of all the wisdom that could be assembled and that it will benefit all our children, whether they be Scots or not.
Lord Fraser of Carmyllie: My Lords, the noble Lord is perfectly correct to say that children at risk are often at risk for much the same reasons in Scotland as they are south of the Border. As I believe I indicated when replying to the noble Lord, Lord Macaulay, it is disappointing that Lord Clyde should criticise the fact that notwithstanding that a document had been issued by the Scottish Office entitled Effective Intervention, which relied heavily on some of the recommendations of the Cleveland report, those recommendations were not followed through or observed. Sometimes we in Scotland tend to be chauvinistic as regards our law, but I am sure there are some worthwhile lessons to be learnt from some unhappy experiences south of the Border and from the legislation which my noble and learned friend the Lord Chancellor introduced some time ago.
Lord Harris of Greenwich: My Lords, is the noble and learned Lord aware that many of us welcome the additional resources that are to be made available for social worker training in Scotland? Is the noble and learned Lord also aware that there are clear indications that the training of police officers for conducting inquiries of this kind should be reviewed? What discussions are taking place with the chief inspector of constabulary in Scotland to ensure that the training processes are now reviewed?
Lord Fraser of Carmyllie: My Lords, criticisms are made of the training of social workers but there are also indications that police officers who were engaged along with social workers and officials of the Royal Scottish Society for the Prevention of Cruelty to Children lacked a sufficient degree of skill as regards their training and expertise when interviewing children. The recommendations that Lord Clyde made are all accepted by the Secretary of State and those that relate to the training of police officers in this difficult and complicated area of investigation will be implemented as vigorously as those that relate to the training of social workers.
Lady Saltoun of Abernethy: My Lords, the Statement said that the social work inspectorate would make thorough inspections of the Fife and Orkney social work departments. Can the noble and learned Lord assure us that those inspections will take place without any notice being given to the social work departments involved because if inspections are notified in advance they become virtually useless?
Lord Fraser of Carmyllie: My Lords, I appreciate that in certain circumstances it is desirable to conduct inspections without any notice being given so that those who are being inspected will have no knowledge that an inspection is about to take place. However, the type of inspection that is envisaged here aims to ensure, following on the criticisms made in the report, that social work departments have in place a number of officials who are qualified and expert in the area of child abuse, or whatever. In those circumstances I do

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not envisage that people from the independent inspectorate will suddenly emerge from a plane in Orkney without warning. However, in spite of that, I can assure the noble Lady that the inspection will be most thorough. It is important that social work matters on the island of Orkney are improved and also that they should return to some degree of normality.

Judicial Pensions and Retirement Bill [H.L.]
4.40 p.m.
Consideration of amendments on Report resumed on Clause 1.
The Lord Chancellor The Lord Chancellor moved Amendment No.5:
Page 2, line 15, leave out ("judicial offices for the time being") and insert ("offices").
The noble and learned Lord said: My Lords, this is a drafting amendment. Its primary purpose is to put beyond doubt that all the offices listed in Schedule 1—including those offices which might not usually be described as judicial—shall be regarded as qualifying judicial offices for the purposes of the Bill. It also removes an ambiguity. I beg to move.
Lord Wigoder: My Lords, before the amendment is formally adopted perhaps I may clarify the position relating to the bundle of extremely helpful documents about which there was some discussion a while ago. The position is that those papers were apparently supplied to the Printed Paper Office but they were not put on display. Apparently they never are. Therefore, they were only available to noble Lords who cared to ask for them. The problem was that many noble Lords did not know of their existence.
Perhaps I may respectfully suggest to the noble and learned Lord that where such a situation arises in the future, as it is bound to do, noble Lords who have taken part in the debates on the subject at various stages up to that time might either be sent the documents direct or at least notified that documents whose existence they had no reason to suspect are available on request.
The Lord Chancellor: My Lords, I accept that point entirely. We sought to disseminate the documents to some extent. I am sorry that it appears that everyone did not receive copies. I took some trouble in preparing the documents and had hoped that they would be disseminated. I am sorry that the noble Lord, Lord Wigoder, did not receive a copy earlier. We shall certainly see whether we can make better arrangements for the future.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.6:
Page 2, line 17, at end insert ("if it is held on a salaried basis.
(5A) For the purposes of subsection (5) above, a person holds an office "on a salaried basis" if and so long as, and to the extent that—

(a) his service in the office is remunerated by payment of a salary; and

(b) that salary is not subject to terms which preclude rights to pensions and other benefits accruing by reference to it;

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and the reference in that subsection to an office being held on a salaried basis shall be construed accordingly.").
The noble and learned Lord said: My Lords, I have already spoken to the amendment with Amendment No.4. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.7:
Page 2, line 18, after ("amend") insert ("either Part or).
The noble and learned Lord said: My Lords, this is a drafting amendment. Schedule 1 has two separate parts and the amendment merely serves to make it clear that offices may be added to either part of it. I beg to move.
On Question, amendment agreed to.
Lord Simon of Glaisdale: My Lords, perhaps I may ask why the amendment is necessary. If the Minister is given powers to amend the schedule why is it necessary to say that he has power to amend both parts of the schedule? Is it not merely a symptom of the prolixity from which we have been suffering, in spite of the protests of the committee presided over by the noble Lord, Lord Renton?
There is another point which arises in connection with the amendment. Is it not a Henry VIII provision as defined by the Donoughmore Committee? Did not my noble and learned friend say during the passage of the Courts and Legal Services Bill that the Government took fully into account the recommendations of the Donoughmore Committee? Did not those include the recommendation that a Henry VIII clause should not be used merely because it was convenient but when it was necessary? Why is it necessary here?
There are other ways of dealing with such a situation. I hope that my noble and learned friend will not merely say either that when a new judicial office is created it is convenient or it is more convenient for him to be allowed to amend the Act of Parliament. As your Lordships know, under the procedure for parliamentary disqualification of officers holding offices of profit under the Crown as the new office of profit is created that very statute amends the schedule to the Parliamentary Disqualification Act. Why cannot that be done in this case?
I repeat the question, which is capable of a simple answer. Is this a Henry VIII clause? Is it consonant with the recommendation of the Donoughmore Committee to which I referred? Even if it is convenient, why is it necessary?
The Lord Chancellor: My Lords, so far as concerns the amendment, which is the matter at issue, it is desirable to make it plain that either part of the schedule can be amended in order to remove the possible suggestion that all one can do is add something to the end of the schedule.
Lord Simon of Glaisdale: My Lords, will my noble and learned friend allow me to intervene? Can there possibly be any doubt that if the schedule can be amended both parts can be amended?
The Lord Chancellor: My Lords, I am in the course of trying to explain why parliamentary counsel advised that the amendment was wise. He took the view that amending the schedule might be regarded as

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restricted to adding offices to it. The point is that the office could be added to either part of the schedule and he thought it wise to specify that that was the case.
It seems to me that this type of clause is perfectly appropriate for the purposes of adding to or amending a schedule of this kind, which sets out a list of offices to which the pension provisions might apply. The amendment is concerned with only a minor aspect, and that is why I have moved it.
Lord Mishcon: My Lords, I hesitate to hold up the Report stage of the Bill on a point which has been raised by my noble and learned friend Lord Simon of Glaisdale with such eloquence, but I wish to ask whether the amendment clarifies the position or does the reverse. If one can amend a schedule one can obviously amend any part of it. If one introduces an amendment which provides that one can amend either part of the schedule does not one then have to choose whether to amend Part I or to amend Part II of the schedule? With the original wording there can be no doubt about the power to amend the schedule.
The Lord Chancellor: My Lords, the clause which has been amended is not quite so simple. It says that:
"The appropriate Minister may by order amend Schedule I to this Act by adding offices to those for the time being there specified".
It is the view of parliamentary counsel, which has led to the amendment, that that wording contains an ambiguity in that it may suggest that one can only add offices to the schedule and that therefore that would mean at the end of the schedule. It was for that reason that the amendment was proposed.
Lord Mishcon: My Lords, perhaps I may take one more second.
Baroness Trumpington: My Lords, it may be great cheek on my part to intervene but I have been told by our learned clerk that the noble Lord is out of order.
The Lord Chancellor The Lord Chancellor moved Amendment No.8:
Page 2, line 23, at end insert ("other than subsection (6) above").
The noble and learned Lord said: My Lords, the purpose of the amendment is to allow subsection (6) to come into force at an earlier date than the rest of the Bill, should that be desirable. That would enable the Lord Chancellor to bring any further offices which may be necessary within the scope of Schedule 1 before the appointed day. The Bill would then operate in exactly the same way in respect of such offices when it comes into force on the appointed day as it would in respect of all others. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Qualifying judicial offices]:
The Lord Chancellor The Lord Chancellor moved Amendment No.9:
Page 25, line 20, leave out ("salaried").
The noble and learned Lord said: My Lords, I spoke to the amendment with Amendment No.4. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 25, line 35, leave out ("Senior, or other").
The noble and learned Lord said: My Lords, in speaking to Amendment No.10 I should like to speak also to Amendments Nos.11 to 14, 16, 18, 19, 25 and 26.
These are purely technical amendments intended to ensure that the list of offices in Schedule 1 correctly describes those offices which are to come within the new pension scheme and does not include any which are not. Amendments are made to the entries relating to the district judges of the Principal Registry and the Family Division, child support commissioners, the presidents of a number of tribunals and the chairmen of a number of tribunals and various officers of the Immigration Appeals Tribunal. The chairmen of child support appeal tribunals also gain separate entries in the schedule. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.11 to 14:
Page 26, line 8, at end insert ("excluding appointments in pursuance of paragraph 4 of Schedule 4 to the Child Support Act 1991").
Page 26, line 9, at end insert (", excluding appointments in pursuance of paragraph 4 of Schedule 4 to the Child Support Act 1991 as that paragraph has effect by virtue of paragraph 8 of that Schedule").
Page 26, leave out lines 12 and 13.
Page 26, leave out lines 16 and 17 and insert ("for Northern Ireland").
The noble and learned Lord said: My Lords, I spoke to Amendments Nos.11 to 14 with Amendment No.10. With your Lordships' leave, I should like to move these amendments en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.15:
Page 26, line 18, leave out ("Regional or other full-time")
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No.4. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.16:
Page 26, line 19, leave out from first ("tribunals") to end of line 20 and insert ("and disability appeal tribunals").
The noble and learned Lord said: My Lords, I spoke to this with Amendment No.10. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 17:
Page 26, line 21, leave out ("Full-time").
The noble and learned Lord said: My Lords, I spoke to this with Amendment No.4. I beg to move. On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.18 and 19:
Page 26, line 22, leave out ("disability appeal tribunals and child support appeal tribunals") and insert ("and disability appeal tribunals").
Page 26, line 23, at end insert:
("Chairman of child support appeal tribunals Chairman of child support appeal tribunals in Northern Ireland").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No.10. With your Lordships' leave, I move the amendments en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.20 to 24:
Page 26, line 29, leave out ("Full-time").
Page 26, line 32, leave out ("Full-time").
Page 26, line 37, leave out ("full-time").
Page 26, line 46, leave out ("Full-time").
Page 26, line 47, leave out ("Full-time").
The noble and learned Lord said: My Lords, I spoke to Amendments Nos.20 to 24 with Amendment No.4. With your Lordships' leave, I beg to move the amendments en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments 25 and 26:
Page 26, line 49, leave out ("Vice-President") and insert ("other member").
Page 26, leave out lines 50 to 52.
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No.10. With your Lordships' leave, I beg to move the amendments en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.27 and 28:
Page 27, line 3, leave out ("full-time").
Page 27, line 4, leave out ("full-time").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No.4. I beg to move the amendments en bloc.
On Question, amendments agreed to.
Clause 2 [The judicial officer's entitlement to a pension]:
Lord Ackner Lord Ackner: moved Amendment No.29:
Page 2, line 27, leave out ("65") and insert ("60").
The noble and learned Lord said: My Lords, in moving this amendment I take together Amendments Nos.29 to 33 and 35 to 36 because all relate to Clause 2 and the ages referred to therein. The first one referred to is the age at which a person who retires from the qualifying office can draw his pension. In Clause 2(1) (a) that is 65. Clause 2(1) (b) obliges him to have done five years' service in the qualifying office. Clause 2(2) deals with someone who wishes to retire before 65. If he retires at 55 he has his pension actuarially reduced.
The purpose of the amendment is to make the scheme consistent with modern practice. Sixty five is in excess of the usual retiring age. The general age for senior employees, certainly in the private sector, is 60, and doubtless that is so within the Civil Service. Your Lordships may remember that the pension proposal devised by the Government was not handed over to the Top Salaries Review Body to provide a scheme as was done in the case of Members of Parliament. It is difficult to know why, because it is accepted that a pension is deferred pay and the remit of the Top
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Salaries Review Body is to advise the Minister on matters of pay in regard to those within its remit. The result was that a consultative paper was published by the Government. Among those who reacted was the Top Salaries Review Body. On the subject of age it commented:
"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 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".
When the matter was debated in Committee my noble and learned friend said:
"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". [Official Report, 30/6/92; col.675.]
He did not vouchsafe any further reasons for that and it is difficult to understand why a reduction from 65 to 60 (the ordinary retirement age) and a reduction from 60 to 55 (the actuarially reduced pension) should in any way cause that result.
The limits we propose are modest in extent. Those which are in the Bill are out of date and according to the TSRB not consistent with good practice.
The next amendment is to delete:
"(b) who has, at the time of that retirement, completed, in the aggregate, at least 5 years' service in qualifying judicial office."
There does not seem to be any justification for taking five years. After two years a person is entitled by law to a pension under the social security regulations. Therefore, there would seem to be no purpose in imposing a five-year limitation. I beg to move.
The Lord Chancellor: My Lords, the difference in the normal and early pension ages in this scheme from those in the private sector is a function of the unusual career path which the judiciary follows. Although the Bill reduces the compulsory retirement age for judges and makes provision for the first time for early retirement with an immediately payable pension we have not yet reached the point when the judiciary will follow exactly the same career and employment patterns as the rest of the public and private sectors.
To a great extent it is, I believe, common ground among many of your Lordships, in particular my noble and learned friends, that the best persons to fill judicial posts are those who have reached a certain degree of standing in the legal profession appropriate to the offices in question. This usually means that entrants will come to those offices rather later in life than generally applies in other careers and that they will tend to work to a later age. That this has consequence for the shape of the scheme is, I believe, obvious. An occupational pension scheme must be designed to reflect the realities of the career paths of its members. It is for that reason that the judicial pension scheme will have the shortest accrual period the Revenue will permit for earning maximum pension benefits whilst attracting tax-approved status. It is for this reason also that the early retirement and normal

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pension ages are a little above those used for others. Because of the age at which members of the judiciary are appointed, it would be impractical to allow them, as these amendments seek to do, to retire within a few years of appointment with an immediately payable pension without actuarial reduction. The taxpayer has a right to expect some minimum length of public service from public office holders before taking on the not inconsiderable expense of pensioning them and their dependants, possibly for a good many years ahead.
I believe that the Bill as drafted is fair both to the scheme members and the taxpayers. In my judgment it is a scheme which is properly fitted to the career pattern that judges would normally follow. Accordingly, I must invite your Lordships not to accept this amendment.
5 p.m.
Lord Ackner: My Lords, before my noble and learned friend sits down, perhaps he will tell the House whether he anticipates that, with a retiring age reduced from 75 to 70, he envisages the appointment of judges earlier than on average occurs at present.
The Lord Chancellor: My Lords, it is difficult to be certain about how that may operate. It may well be that judges will be appointed somewhat earlier than at present but not so early as to justify the provisions in these amendments.
The provisions of the Bill reduce the current retiring age. It is worth mentioning that in response to the consultation paper, the Association of County Court and District Registrars (as it was) stated:
"We strongly support the proposal to reduce the normal retiring age to 65".
The Council of Her Majesty's Circuit Judges, writing about that, said:
"The ability to retire at 65, taking a lower pension if necessary, is to be welcomed and is an undoubted benefit".
I quote from the departmental response. My point is that even if judges are appointed in future at a point somewhat lower than at present, the need for them to attain a degree of standing in the profession is such that in any event this particular proposal would be inappropriate.
Lord Ackner: My Lords, from my noble and learned friend's answer, it follows that if a judge—this could easily apply to a circuit judge or a district judge—is appointed under the age of 45, and the present 20-year accrual period stands, he has to serve more than 20 years in order to retire with his pension. If he retires earlier, it will be actuarially reduced, although he has served more than 20 years.
That seems to me to be utterly wrong. Why should that situation arise? He has done his 20 years and ought to be able to go. Instead, he is not only obliged to stay on but to stay on for all practical purposes at half pay. If he had gone after 20 years at the age of 65 he would have received his half pay pension. He is obliged to stay on without drawing that half pay and therefore in effect only receiving half pay merely
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because the modern retiring age, which applies not only in the private sector but equally throughout the Civil Service, is not to be used in this instance.
I take comfort only to the extent that I infer from my noble and learned friend's answer the clearest possible concession that the judges are sui generis, a matter on which I hope that we shall be able to build later in the debate. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 30:
Page 2, line 28, leave out paragraph (b).
The noble and learned Lord said: My Lords, I am happy that this amendment is no longer necessary. It was tabled to deal with the situation of a judge, who because of ill health, was required to retire. He did not resign but was required to go. That provision was coupled with the provision later in the Bill which deals with removal for misbehaviour. It was in order to divorce the one from the other that the amendment was tabled. I am happy to concede that the amendments proposed by my noble and learned friend the Lord Chancellor achieve that purpose but, obviously, with greater ability and distinction. Accordingly, I shall not move the amendment.
[Amendment No.30 not moved.]
[Amendments Nos.31 to 37 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 38:
Page 3, line 8, leave out ("on the ground of incapacity or misbehaviour").
The noble and learned Lord said: My Lords, this amendment is intended to deal with the matter referred to by my noble and learned friend Lord Ackner in his observations a few moments ago. In moving this amendment I shall also speak to Amendment No.39 which is part of the series to which my noble and learned friend referred. I shall endeavour to deal with that amendment and also Amendment No.44 tabled in my name. I speak to Amendments Nos.38 and 44 but the subject matter is also covered by Amendment No.34, to which reference has been made, and Amendment No.39.
As has been said, the amendment is intended to deal with the point raised by the drafting of subsection (4). That subsection deals with the pension entitlement of a qualifying judicial officer who is removed from office. As drafted, it gives just two grounds for removal: incapacity and misbehaviour. In fact, the grounds on which the different classes of officer who will come within the scheme may be removed are many and various and not limited to just those two. Therefore, the simplest way of dealing with the matter is to cut out altogether the description of the grounds. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No.39:
Page 3, line 8, leave out ("incapacity or").
The noble and learned Lord said: My Lords, I think that there may be some slight confusion here and I should like some assistance in clarifying it.
Amendments Nos.37 and 76 are grouped together and listed below Amendment No.39. I take it that Amendment No.39 will be put to the House before Amendment No.37 is dealt with.
The Lord Chancellor: My Lords, I called Amendment No.37 a little while ago.
Lord Ackner: My Lords, the grouping shows very clearly that Amendment No.37 is to be taken with Amendment No.76. They are related. Amendment No.39, to which the noble and learned Lord has just referred, appears in the grouping above it.
The Lord Chancellor: My Lords, I have to call the amendments in the order in which they appear on the Marshalled List. I called Amendment No.37 and I understood that my noble and learned friend responded to the effect that it was not moved. It may be possible for him to deal with this difficulty. Obviously, if he wants later to raise an amendment which is related to Amendment No.37, I shall not stand in the way of ultimately giving effect to Amendment No.37 if your Lordships are in favour of the later amendment.
Lord Hailshani of Saint Marylebone: My Lords, we are getting into rather a muddle. I understood my noble and learned friend on the Woolsack to have proposed Amendment No.38 and the House passed it. Amendment No.38 leaves out,
"on the ground of incapacity or misbehaviour".
Amendment No.39 leaves out "incapacity or". The phrase has already been left out.
The Lord Chancellor: My Lords, I understood the problem to be that my noble and learned friend Lord Ackner was wishing to raise Amendment No.37 which I called some time ago.
Lord Ackner: My Lords, in view of my noble and learned friend's kind suggestion, when we deal with Amendment No.76, which is linked to Amendment No.37, with your Lordships' indulgence I shall marry the two together. That is why they are grouped together.
[Amendment No.39 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 40:
Page 3, line 26, after ("determined") insert ("(subject to section 4(6) below)").
The noble and learned Lord said: My Lords, with this Amendment I speak also to Amendments Nos.57 and 66 to 68.
They are technical amendments and are concerned with the rare case of a scheme member who retires and begins to receive a pension but is then reappointed to judicial office. That is something that does not happen too often. A person in that situation will not be required on returning to service to refund any lump sum payment which he may have received on his first retirement. However, when he comes to his final retirement his pension and lump sum will be calculated by reference to his full service and any part of the final lump sum he has already received should not of course be paid to him again.
Clause 4 as drafted already provides for the deduction of an equivalent amount to any lump sum
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the officer has already received from the lump sum payment he receives on final retirement. It does not provide, however, for equivalent deductions from the lump sum payments made to personal representatives in the event of death in service or in the circumstances set out in Clause 4(3). The amendments are designed to cover those points and to put that matter right. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.41:
Page 3, line 27, at end insert:
("( )A A pension under this section shall be payable at such intervals, not exceeding three months, as the Treasury may determine.").
The noble and learned Lord said: My Lords, with this amendment I speak also to Amendments Nos.70,80 and 81.
The purpose of the amendments is to establish the timing of payment of a pension under this section, and of the surviving spouses' and children's pensions. The amendments allow for administrative flexibility by enabling the Treasury to determine the actual timing of payments, but include the safeguard that the intervals between payments shall not exceed three months. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 42:
Page 3, line 42, at end insert ("(except to the extent to which it is given effect under or by virtue of section 12 below").
The noble and learned Lord said: My Lords, the purpose of this amendment is to ensure that, where an officer holds an office which is added to the list of offices in Schedule 1, his accrued rights in that office before the date on which it becomes a qualifying office can be transferred into the new scheme under the provisions of Clause 12. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.43:
Page 4, line 4, at end insert ("and for this purpose a payment in respect of a pension shall be treated as becoming due on the first day of the period for which it is payable.").
The noble and learned Lord said: My Lords, the purpose of this technical amendment is solely to protect the interests of a judicial officer's estate in respect of pension payments that were due to a judicial officer but have not actually been paid to him at the time of his death. I beg to move.
On Question, amendment agreed to.
5.15 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No.44:
Page 4, line 8, at end insert:
("(e) where a person ceases to hold qualifying judicial office in consequence of infirmity of mind or body, the cessation (however brought about) shall be taken for the purposes of this Part to constitute retirement, not removal, from such office.").
The noble and learned Lord said: My Lords, I have already spoken to the amendment with Amendment No.34. I beg to move.
On Question, amendment agreed to.
Clause 3 [The appropriate annual rate]:
The Lord Chancellor: My Lords, if Amendment No.45 is agreed to, I cannot call Amendments Nos.46 to 48 inclusive.
Lord Coleraine Lord Coleraine moved Amendment No.45:
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 Act 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 purposes of this Act 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: My Lords, I first moved the amendment in Committee. I make no apologies for bringing it back again today because when my noble and learned friend sought to answer, he did not so much answer as probe the thinking behind the amendment. With the four months which have passed since Committee stage, I hope that he may have found it possible to look favourably at the thinking behind the amendment, if not the wording which I concede is incomplete at this stage.
The amendment provides a modest increment to pensions of judicial officers who are appointed before the age of 45 years, but would do so only in respect of periods of service exceeding 20 years and completed before the age of 65. Under the Bill as drafted such judicial officers will have been unable to make tax-effective contributions to their pensions during their periods of service before the age of 45. That fact alone, according to my understanding of the thinking behind the Bill, ought to speak loudly in favour of the amendment being accepted.
I remind the House that in the consultation paper, the point is answered by the statement that the extra pension payable to persons for periods in excess of 20 years would exceed the limits allowed for tax-approved schemes. On the basis of the actuary's report prepared for the Association of District Judges, I argued in Committee that that was incorrect. I challenged the assumption. I stated that the modest increment that the amendment allowed was within the limits laid down for those schemes. My point has not been challenged. I believe that the point which I made in Committee still holds good. I beg to move.
Lord Campbell of Alloway: My Lords, my noble friend makes an important and constructive contribution to this aspect of the debate. If the Government were prepared to accept Amendment No.45, I would support it. However, as I understand the attitude of the Government, they will not accept Amendments Nos.45,46 or 47. Since I prefer Amendments Nos.46 and 47, with deference to my noble and learned friend, I shall support those amendments in due course.
The Lord Chancellor: My Lords, as I stated in calling the amendment, it pre-empts later amendments. That I understand to be the purport of the observations of my noble friend Lord Campbell of Alloway.
The pension scheme has to be designed with an eye to a maximum level of benefit obtainable under it. In this case we have set the accrual span for earning maximum benefit at the minimum that the revenue allow for a tax-approved scheme; namely,20 years. I can see that there is possible scope for a person who has not any retained benefits to wish to improve what he might receive. In this connection, having in mind what my noble friend said at Committee stage, I have considered what else can be done.
My noble friend Lord Coleraine will have noticed the provisions of the additional voluntary contribution scheme referred to in Clause 10 of the Bill. I believe that it may be possible to open that up still further by making technical amendments which I shall propose later in order to enable people in the situation to which my noble friend referred to make such additional contributions. Contributions made under such a scheme will attract tax relief and would therefore be a way of adding to the value of the judge's pension up to the Inland Revenue's maximum in his particular case. If a person has no retained benefits, that would be quite an attractive option. I cannot accept the amendment as it is put. However, I have endeavoured to deal with the situation by opening up further the possibility of a scheme under Clause 10.
I hope that in the light of that explanation my noble friend will feel able to withdraw the amendment and make it possible for us to have a debate on Amendment No.46 and later amendments.
Lord Coleraine: My Lords, I listened to what my noble and learned friend said and I wish to consider the points that he drew to my attention. I cannot help believing that if the period could be stretched to 25 years where that is justified that would be right. However, tonight is not the time to take the matter further; I sense that the will of the House is that the amendment is withdrawn and consideration is deferred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No.46:
Page 4, line 11, leave out ("20") and insert ("15").
The noble and learned Lord said: My Lords, perhaps I may first express my appreciation to the noble Lord, Lord Coleraine, for withdrawing his amendment and thus enabling the House to debate Amendment No.46. It is grouped with Amendment No.47, which is purely consequential and need have nothing said about it in its own right. Amendment No.46 raises the great issue of whether we should have a minimum accrual period of 15 or 20 years. Its purpose is to retain that accrual period where it exists and to extend it throughout the new scheme which is proposed by the Bill.
I moved the two amendments in Committee. They received unanimous support from all who spoke other than, necessarily, the noble and learned Lord the Lord

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Chancellor. However, that is not a matter of criticism. I withdrew the amendments in order to enable the noble and learned Lord to put the views of the Committee before the Treasury. I assume that he did so, but there has been no sign of any change of mind.
In Committee the noble and learned Lord resisted the amendments and in doing so advanced two explanations. First he said that in 1988 Parliament altered the general tax laws relating to pensions. That is entirely correct, but the change was in the general tax laws—and I stress the word "general". There was no suggestion that the judicial pensions scheme for the higher judiciary would in consequence require revision or that if for other reasons it were thereafter revised, any such revision must be within the 1988 general tax framework.
Few laws, and in particular tax laws, can have universal application. As we all know, no government have ever had the slightest hesitation in making exceptions in tax laws for exceptional situations in which the public interest genuinely so requires. The noble and learned Lord the Lord Chancellor has spoken in the debate about the exceptional career path or pattern of the judiciary. It is my submission to your Lordships that that very exceptional career path or pattern raises the question of whether exceptional treatment should be accorded to the judiciary. I wish to make clear that I am not suggesting that in the interests of the judiciary; I suggest it in the public interest. It must be judged by the public interest and it is only if the public interest would be served by exceptional treatment that there should be such treatment.
Secondly, the noble and learned Lord the Lord Chancellor said that it was desirable that there should be one uniform scheme for judicial pensions which would eliminate the anomalies and injustices which undoubtedly arise when, as at present, we have more than one scheme and a judicial officer has to change schemes on promotion. I am sure that no one will disagree with that objective. However, there are more ways than one of achieving it, and the way in which the Bill is drafted is not one of them.
What the noble and learned Lord did not say, but what I ventured to suggest underlies the Government's whole attitude towards amendments to the Bill, is that whatever changes are being made in the pension arrangements, the result must be financially neutral; those changes must cost nothing. If a 30-year accrual period is to be changed to 20 years, some other period must be increased. In the Government's view that is the only public interest which matters.
With the greatest respect, I suggest that that is complete nonsense. We are not legislating for a time of temporary recession; we are legislating for the long term. Indeed, the full effects of the Bill will not be felt for at least 15 years, and some people suggest it will be longer.
In that situation there exists another public interest of far greater importance; that is, the quality of justice and the calibre of the judges who administer it. No one denies that the office of judge of whatever level is rewarding in its nature. At present it rightly carries with it a certain status in the community. However, if
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one makes that sufficiently financially unattractive, the day will assuredly come when suitable candidates will say to themselves, "Well, if the public rate the importance of the job that low, I am just not interested in seeking appointment".
Not only will the candidates for judicial appointments be affected, so will the administration of justice which, as your Lordships well know, is deeply rooted in public confidence. Why should the public have confidence in judges if they are relatively lowly regarded in the league tables of esteem as measured in terms of remuneration?
The principal vice of the Bill is that it seeks to make two changes; one is clearly desirable and the other could be justified only if the judicial career structure or path were radially different. Put together, their effects are cumulative and will almost certainly prove disastrous in the longer term.
For reasons previously given, I supported and continue to support lowering the retirement age to 70. That necessitates lowering the average age of appointment to judicial office by approximately five years. If at the same time one increases the pension accrual period by five years, one will, in effect, reduce the average age of appointment by 10 years. One is then talking about appointing judges aged between 40 and 45 which, as a norm, is too young. Such judges will not have acquired the depth of experience which is required by them. Furthermore, it will deprive the public of the services of the brightest and best members of the practising branch of the legal profession just at a time when they are beginning to develop their full potential. Therefore, there will be a double loss; a loss to the practitioners who directly serve the public as clients and a loss to the Bench.
There are real objections to a 20-year accrual period, apart from being combined with a reduced retirement age. The majority of judges will never be promoted. They will continue throughout their careers to serve in the office into which they were first appointed. That is inevitable even if it is inherently undesirable. It is inevitable given the pyramidical nature of the judiciary, the numbers involved and the real differences between the talents called for at the different levels. Twenty years of an endless diet of the same professional fare will inevitably blunt the enthusiasm for sympathy and the critical approach which judges would bring to bear upon all the cases which they are called on to try. I suggest that we cannot afford to have judges soldiering on simply in order to earn their full pension. Apart from anything else—and there are many other objections—it would tend to raise the normal retiring age rather than lower it.
It is a great mistake to think, as the noble and learned Lord the Lord Chancellor appeared to think when this matter was last before us, that practitioners at or about the age of 40 will already have acquired significant pension rights. Only the exceptional few will have had incomes to make that possible. Of those few, many will naturally and humanly, if not perhaps very sensibly, have concentrated their expenditure on

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the immediate needs of their families, including such matters as expenditure incurred to educate their children and to service the mortgages on their homes.
When offered judicial employment, those people will have to ask themselves whether they are prepared to forgo the opportunity of acquiring the really worthwhile pension which would be open to them if they continued in private practice for 10 or 15 years when the alternative facing them is to hold judicial office for 20 years and end up with a very much smaller pension.
At present it is extremely rare for a judge to be appointed at an age at which he cannot earn a full pension based on a 15 year accrual period. Perhaps the noble and learned Lord the Lord Chancellor contemplates that in future it will be the rule rather than the exception that a judge should be appointed at a time when he cannot serve for long enough to qualify for a full pension. If so, judicial pensions will not normally exceed a figure of perhaps one third rather than one half of final salary. That may well save money but it will be singularly unattractive to those who are considering judicial appointments. As always, the result will be that we simply get what we pay for. I hope that the House will support these amendments not in the interests of future judges but in the public interest.
5.30 p.m.
Lord Taylor of Gosforth: My Lords, I regard this as the crucial clause in Part I. I wish to support this amendment with such force as I can muster. I believe that I do so with the greater authority in that I know I speak on behalf of the judiciary as a whole, not just the High Court Bench but especially the circuit Bench up and down the length and breadth of this country.
What is proposed in this amendment is not an advantage for the judiciary which it has not hitherto had. All that is sought is that the status quo should remain. That status quo has existed for a long time and for very good reason, the good reason being, as has already been said and acknowledged by my noble and learned friend, that the judiciary is in a unique position because of what my noble and learned friend referred to as the unusual career path and the fact that before anyone is ripe to be appointed to the Bench he needs—again I use my noble and learned friend's words—to have acquired status and experience. That means that the judiciary starts its job in that role at a stage when many people are already beginning to contemplate retirement. Therefore, it means that the length of the accrual period for pensions in relation to the judiciary must be separately considered from any consideration in regard to public servants in general. That has been recognised and that is why the accrual period of 15 years for the judiciary has been in existence for so long.
The arguments on this clause have already been deployed skilfully by my noble and learned friend Lord Donaldson of Lymington, and at previous stages of the Bill. However, I make no apology for repeating
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them because my noble and learned friend the Lord Chancellor has not addressed them either in this House or in such discussions as I have had with him.
Perhaps I may make two preliminary remarks. First, the present judiciary has no self-interest to protect in regard to this clause because it simply does not bite upon those in office at present. Therefore, however cynical anyone may feel about self-interest, it simply does not apply here.
The second point has already been made by my noble and learned friend Lord Donaldson of Lymington. At a time when every increase in payment or every financial provision must be scrutinised in the light of the stringent circumstances in which we find ourselves temporarily, this Bill does not fall to be considered in those terms. As has already been said, here we are laying down the guidelines for judicial pensions not for this year or next year and, indeed, not even beginning to have any bite for another 15 years or so. When they do have a bite, they will continue to bite for many years during which I hope that this country will again see periods of prosperity. Therefore, this clause need not be considered solely in the light of present stringent circumstances.
I am fundamentally opposed to the 20 year period, not because it is financially unfavourable to the judiciary—of course it is—but my reason is concerned with the public interest. Together with my noble and learned friend on the Woolsack, I am primarily responsible for the efficiency and standards of service of the judiciary. I am quite satisfied that to require judges to serve for 20 years in order to earn a full pension is contrary to the public interest. Twenty years sitting on the Bench, after a career in a profession preceding it, is an extremely long time. There can be no doubt but that there is a tendency for staleness, for case hardening, for inflexibility of approach and for resistance to change, both as regards new laws and society, to set in when a judge sits for too long—and particularly when he sits for too long—doing the same work in the same place.
I do not mean in any way to denigrate—quite the contrary—the circuit judges who form the backbone of the judiciary in this country, disposing of the great majority of civil cases and jury trials. However, they tend to sit in the same place doing the same class of work day in and day out, year in and year out. Presently the evidence shows that many judges who are appointed when they are about 50 have lost their zest for the work by the time they have been there for 15 years. They have had enough. Judges, particularly on the circuit Bench but not solely there, who have been appointed at about the age of 50 are in many instances ready to go and do go at the age of 65 or thereabouts.
If this clause is not amended, it will force them to work on for another five years in order for them to gain a full pension. In those five years they will not be happy and I dare say that the public interest will not be served by judges who are soldiering on simply for that purpose, whereas they really feel that they have done their work on the Bench.
The answer to this which has been presented so far by my noble and learned friend is not to address the

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argument head-on and say, "I do not accept that 20 years is too long or that case hardening sets in". His argument is to say, "Well, they do not need to stay that long. They can go after 15 years, as they always have. Of course, they will only receive fifteen-twentieths of their pension but there is the retained benefit, and how generous we are in not taking retained benefit into account, which is a unique privilege attaching to the judiciary and to nobody else".
That is misconceived. It is particularly misconceived in relation to the circuit Bench because in that case we are not necessarily dealing with high earners who have been able, in the very few years of their maturity at the Bar, to put aside money by way of retained benefits so that they have some private pension to supplement their fifteen-twentieths if they go at the age of 65. Those who are appointed to the Circuit Bench are often not high flyers. One does not need to be a high flyer in order to be an extremely good judge. In the past it has been thought that those who are the most flashy and able advocates are not always the best on the Bench because they continue to practise that skill from the Bench where it is not as appropriate as it was from counsels' benches.
There are many judges who are extremely good but who have not earned high fees at the Bar. Moreover, at the time they are appointed to the Bench (and, a. fortiori, if they are appointed a little earlier as my noble and learned friend contemplates they will be) the moment of appointment will hit them just when they are trying to educate their families, pay their mortgages and generally enable themselves to be established in middle life rather than at a time when they have been prosperous for a period and been able to make a nestegg for themselves as the view of the noble and learned Lord the Lord Chancellor seems to contemplate. The retained benefit argument may be all right for a few high flyers. However, it does not apply to the foot soldiers of the judiciary. It is those judges for whom I am most concerned in this provision.
Should the clause remain unamended, the Bill will contain two major clauses which clash in their purposes. I support and have always supported a reduction in the retirement age of the judiciary. That is provided for in Part II of the Bill, a reduction from 75 to 70. In fact that was not initially proposed by the Government. It was initiated and supported by the judiciary themselves. At the time it was so supported and proposed there was not the countervailing provision looming on the horizon of making the judges work an extra period in order to earn a full pension.
At the moment, should the clause remain amended, judges will have to retire earlier and work longer in order to earn their full pensions. It seems to me that those two provisions incontestably work in opposition to one another. The motive for reducing the retirement age of judges from 75 to 70—namely, to achieve a younger judiciary more acceptable to the public in the 1990s—will be defeated by the fact that most judges on the Circuit Bench who would have retired at 65 or thereabouts will now hang on until
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they are 70. The average age of the judiciary will therefore be higher as a result of the Bill rather than lower.
It is for the noble and learned Lord on the Woolsack and myself to ensure that the judiciary are so appointed and deployed as to give the public the best service. I have yet to hear the response of the noble and learned Lord the Lord Chancellor to the argument that to have judges soldiering on for 20 years is contrary to public interest. But the justification is said to be twofold. First, that it is in accordance with general taxation policy; secondly, that it is bringing the judges into line with other public servants.
As my noble and learned friend said, judges are in a separate category. The general taxation policy can be varied. There is no reason why there should not be exceptions; indeed, if there were not there would be no need for this part of the Bill at all. My noble and learned friend contemplates that there will be exceptions in relation to the judiciary, to wit, the retained benefits. Therefore if it is desired and thought to be in the public interest that there should be an exception in relation to the accrual period, then that can be made too. There is nothing which requires the judiciary to be placed in the general Procrustean bed of a 20-year accrual period simply to bring them in line. Bringing them in line is not necessarily a good thing in all cases; uniformity is not necessarily the ultimate virtue.
The arguments put forward in favour of the clause simply do not meet the main argument in regard to the public interest which I have endeavoured to present. I hope that the House will see the force of my argument and carry the amendment. I ask particularly that when my noble and learned friend on the Woolsack replies, he has regard to the efficiency of the judiciary—of which he is the head—has regard to the public whose interests should be paramount and does not simply speak for the Treasury.
5.45 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I hope not to take up too much time. I ask the House to believe that my one object in speaking is that I am concerned that we should obtain the best judges we possibly can to serve the public. Two of my noble and learned friends on the Cross-Benches pointed out that the financial cost of the accrual period will not, in the nature of things, bite during my lifetime—certainly not for 15 years. The effect of accepting the Bill, if it is not amended in the sense proposed by my noble and learned friends, will bite the moment the Bill comes into effect and from then onwards. It will have immediate effect.
If it be the case that it will be more difficult for future Lord Chancellors to recommend to Her Majesty appointments of judges of adequate calibre, the Bill will have done almost infinite harm. As the noble and learned Lord the Lord Chief Justice said, we have the concurrence of the two main propositions in the Bill. The first is the reduction in the retiring age from 75 to 70 in the higher grades of the judiciary which appears to be fairly uncontroversial in itself.

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However, it is the effect of the accrual period upon that reduced retiring age which will produce the result that we fear.
Last week an Unstarred Question debated the need for judges. There was unanimous opinion from the Cross-Benches on that occasion and from other quarters in the House regarding the need for more judges in the judicial establishment. I share that view. We probably need another seven judges in the judicial establishment at the High Court level, and I do not know how many more at circuit judge level. I do know that when I was Lord Chancellor I had to appoint around 400 circuit judges, and I do not know how many recorders and assistant recorders in addition. When my father was Lord Chancellor, he had to appoint around one-quarter of that number.
The Bar was smaller then, as was the solicitors' profession. But in fact the extent by which work has increased for the courts is totally out of proportion to the rise in the numbers of the profession. Crime at the trial on indictment level has risen by around 10 per cent. a year compound interest almost since the war. Divorce work (or family work as it now is) has risen similarly since the Act of 1969. Motor accident cases, which form a great deal of the bread and butter of the Queen's Bench Division, are a result of the number of motor vehicles on the road. When we come out of recession, as I hope we all will, the employers' liability cases will rise in direct proportion also. The construction cases and the official referee work are even now running at far beyond what I was accustomed to when I was practising at the Bar. One can say the same of the Commercial Court which was referred to in the previous debate on the Unstarred Question.
I can only say that I found it extremely difficult to find enough judges of adequate calibre when I was Lord Chancellor—which, after all, was almost seven years ago. The situation must have grown a good deal worse since then. We managed to keep our heads above water. The Bar as a whole and the solicitors' profession are public servants who are eager to serve the public and often regard a judicial career as the legitimate aim of a career in the law, and I also take that view.
However, there comes a limit. I certainly was not finding it easy to compete, let us say, with the City. I look around this Chamber, but I do not see all of them here. The number of high-class high-fliers at the Bar who take remunerative positions in the City firmament at quite astronomical salaries, is not inconsiderable. I know from various sources that are open to me that the earnings at the Bar are very much higher. They make my mouth drool with envy compared with when I was practising. One has to compete with them. There is no reason why a man should not go on practising and earning large sums instead of joining the judicial Bench, but that is not what I believe a really public-spirited man will do.
Thank goodness there is a good deal of job satisfaction about being a judge, and one should take that into account. There is also the public esteem in which especially High Court judges and above are
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held. But that is not really enough. If one needs to appoint judges mainly aged 45 and above—it is no use referring to very much earlier ages than that—they have to be called for 15 or 20 years before they are appointed. It is true that the late Lord Devlin was aged about 41 when he was made a High Court judge, but in the main judges are appointed at the age of 45-plus. If one is then to say that a judge will have to retire at 70 with an accrual period of 20 years, that does not make sense.
It is no good referring—as my noble and learned friend on the Woolsack did at an earlier stage of the Bill—to the general pension law. That point has already been dealt with in this debate by both my noble and learned friends the Master of the Rolls and the Lord Chief Justice. The fact is that judges in the common law world—perhaps the Scots will forgive me for including them for this purpose—are appointed from successful practitioners whereas in the Code Napoleon world they are appointed as a separate profession when they leave law school and become part of the civil service. But that is not so in the common law world. The appointments have to be made from successful practitioners. They have to be of a quality which commands the respect of the profession. If one goes on saying that this provision has to be part of the system which applies to civil servants and other career patterns of the ordinary kind, one is going to get into terrible trouble. I beg my noble and learned friend the Lord Chancellor to consider his successors even if he gets by with it.
Lord Simon of Glaisdale: My Lords, your Lordships have just heard three remarkable speeches. I doubt if any of your Lordships who heard them would consider other than that their case has been made out conclusively. This is very much a Treasury Bill. I do not at all use that as a term of opprobrium. I thought it might be useful for your Lordships to know how the situation appeared to the Treasury in 1958– 59 when the present system was established.
The first point is negative. Nobody suggested for a moment that there were any grounds for bringing judicial pensions into line with the Civil Service pension. That argument was never advanced. The other point is positive. The situation which faced both the Lord Chancellor's Department and the Treasury, which were entirely at one, was that for many years a judge had to subsist on the Bench for 15 years before he acquired a right to a pension at all.
I am sure that my noble and learned friend Lord Hailsham will bear me out when I say that when we came to the Bar there were a number of judges who were soldiering on, to use the expression of the noble Lord, Lord Alexander of Weedon, at Second Reading, and repeated and further spelt out by my noble and learned friend the Lord Chief Justice today. A number of judges were obviously in pain and ill-health which seriously affected their performance, but they felt in duty bound to their families and themselves to soldier on until they were quite convinced that they could no longer properly perform their duties. So the obvious answer, and the one that was adopted, was to have a graduated accrual system. The problem of soldiering on to earn a pension after 15 years is greatly

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exacerbated by the provisions of this Bill. To earn a full pension a judge is now required to go on for an extra five years.
There is one factor which we do not know as far as I have been able to ascertain. What is the benefit to the public purse of harming the judges in this way? At Second Reading my noble and learned friend said that obviously the increase from 15 years to 20 years is not helpful. I take that to be Ministerspeak meaning harmful. It certainly will be harmful to the judges as a whole. It has been estimated that the provisions of this Bill amount in effect to a cut of 7.5 per cent in the value of the pension. That is the calculation which has been made. If I am wrong I am sure that my noble friend Lord Benson, who has such expertise in these matters, will correct me.
We do not know and we have not been told, what the financial benefit is of this extra burden that is being put on the judges. I hope that my noble and learned friend will not say that it cannot be calculated because there are so many imponderables. There are certainly uncertainties, but some such calculation must have been made to justify the statement in the Financial Memorandum that the financial effects of this Bill are broadly neutral. Therefore, I press my noble and learned friend to give his best estimate of the figure involved if this additional burden is carried into effect so that judges must serve 20 years and not 15 years to earn a full pension. What is the advantage, on the best estimate in pounds, shillings and pence, to the public purse? I support this amendment as strongly as I can.
6 p.m.
Lord Ackner: My Lords, the first Judicial Pensions Act was passed in 1799, which is nearly 200 years ago. It provided for the pension to be earned after 15 years' service. That period has therefore inured for close on 200 years. Now, for some purely Treasury reason as far as one can gather, one is contemplating altering it. In case it is thought that there is something idiosyncratic about the British period of 15 years, perhaps I may inform the House that in the United States the period is 10 years, which is one-half of the 20 years proposed; in Australia the period is 10 years, which again is one-half of the proposed period. In Canada it is 10 years, which again is one-half of the proposed period. In New Zealand there is an interesting compromise which some would favour. There the period is 16 years, which is one year added to our 15 years. However, the pension is not one-half; it is two-thirds, and it is tax-free. I imagine that the Government will not support that proposition.
To avoid repetition the only other point that I wish to make relates to the reference which has been made so frequently and which will no doubt be made again to the enormous advantage that members of the judiciary have in not being obliged to have their retained benefits taken into account. I am referring to the pensions that they may have acquired by money purchase or similar schemes. With the deepest respect, that is a red herring for the following four quite separate reasons.
First, it is, generally speaking, a justifiable assumption that pension provisions are part of an
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employment package—a pension representing deferred pay. After entering into employment, an employee gradually builds up his pension entitlement. In the course of his career he may be promoted or he may achieve an improved salary by taking on different employment. It is therefore considered right that credit must be given for the benefits he thus achieves under the various pension schemes into which he enters in the course of his employment. Therefore, as I understand it, although not in primary legislation, Inland Revenue practice contains a provision requiring that retained benefits are then to be taken into account.
However—this is my second point—before appointment to the Bench, the self-employed lawyer is in a different position. True enough, he can make some provision for his future retirement by money purchase, but the extent to which he does so varies considerably in practice. Some lawyers who have no children or other family commitments may be able to set aside satisfactory provision for the future. Others, burdened with house purchase and mortgage interest and with the heavy cost of children's education, find that they cannot finance any—or any adequate—pension provision in addition to their existing outgoings until later in their lives—indeed, at just the period when they might he offered a judicial appointment. Others may invest not in pension contracts but in real property or other assets. Moreover, the judicial appointment offered does not involve as is the case with promotions—an increase in income, but the very reverse. Taking retained benefits into account would, in all those circumstances, be quite inequitable. Why should wealth in one form—accumulated pensions—be taken into account whereas wealth in another form—real property—is not? Why should the saver be penalised but the speculator not?
The third point is that the Government know full well that if retained benefits were taken into account the only practical effect would be seriously to inhibit recruitment to the High Court Bench of those whose incomes are so high as to enable substantial pension provision to he made by the age of 50 to 55. In relation to circuit judges, in practice the retained benefits are likely to be very modest if not totally irrelevant.
My fourth and final point is that the decision to disregard retained benefits is not some new advantage that has been conjured up to facilitate the passage of the 20-year accrual. It is something which judges have enjoyed ever since pensions began and has certainly been of value for the past 40 or so years during which pensions have been able to be earned with tax advantages.
Lord Campbell of Alloway: My Lords, I wish to speak briefly from the Back Benches as a practising member of the Bar who has absolutely no interest to declare. By reason of age, any question of judicial preferment is quite impossible. However, on the grounds of the reasonable, convincing and moderate arguments advanced by noble and learned Lords on the Cross Benches and in the speech of my noble and learned friend Lord Hailsham, surely there is an overwhelming case to be made in support of the

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amendment? I wish to have the privilege of having said just a few words publicly and on record in support.
Beyond the general argument that has been raised, only one matter concerns me. I refer to the point raised by the noble and learned Lord, Lord Simon of Glaisdale, when he asked, "What is it all about in terms of cash?" What does the Treasury want? What is it going to get? And is it really worth it in terms of the public interest—the only interest with which we are concerned?
Lord Cocks of Hartcliffe: My Lords, it will probably be said that the only remarkable thing about my speech is that so far as I can tell, apart from the noble Baroness, Lady Seear, I am the only person to have taken part in our entire proceedings up to now who is not legally qualified, and the noble Baroness has an honoris causa Doctor of Law degree to her credit.
I am moved to speak for very much the same reasons that I was driven to my feet on 9th June 1989 during the Second Reading of the Dock Work Bill. I had not intended to speak then, but I got so fed up hearing not only the Minister who introduced the Second Reading but also speaker after speaker from the Government Benches deplore the fact that dockers had jobs for life that I had to say that this was hardly the place for people to talk about having jobs for life. I mentioned that there had been a recent Friday debate in which the noble and learned Lord the Lord Chancellor had introduced his proposals for the reform of the Bar. I drew attention to the fact that of some three dozen speakers, two dozen were barristers. I made the point that possibly our proceedings on the Dock Work Bill might have been rather different if two dozen dockers had been Members of your Lordships' House.
When I was a schoolboy, if somebody was being bullied we used to have an expression, "Two (or three) against one isn't fair." During these proceedings, we have been in the position of having N against one, where N is any given number of your Lordships who happen to be legally qualified, speaking against the noble and learned Lord the Lord Chancellor. Although I know that the judges have only the interests and the standing of their profession at heart, they are in the extremely fortunate position of being able to table amendments on, and to discuss, their conditions of service. Frankly, if members of the mining community had had the same privilege, things might possibly have taken a different course recently.
On the question of staleness in jobs, I feel it necessary to point out to your Lordships that there are numerous professions in which people become stale after a time. Indeed, for many people plodding on towards retirement, possibly with a recurrent illness, is a real hardship. It becomes more and more difficult for them to give the zest and the attention to the job that they were able to give in their younger days. Perhaps we should try to move towards some sort of system in which membership of various professions, such as teaching, social work, probation work and prison
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work, could be almost interchangeable so that people can move smoothly from one service to another to avoid the staleness that we are talking about.
I am afraid that if we accept this argument from noble and learned Lords today it will be the thin end of the wedge and the whole question of comparability will be raised. Other people will then be trying to do this and will be exerting pressure. I want to put it on record that the judges, while they serve our community nobly, are really in an exceptional and very privileged position.
Lord Mishcon: My Lords, for many reasons I wish that I had been able to speak before my noble friend. Nevertheless I suppose it falls to me to some extent to answer the point. I answer in this way. No one who belongs to the profession that I have the privilege to belong to has argued in any way the purpose of this amendment on the basis of more remuneration—more money—for judges. It is true that the pound may have fallen in value and that our balance of payments may be looked upon with some derision by wealthy countries in the world. But there is one thing that no one in this world could ever say with truth. That is, that our system of justice with the standard of our judiciary is not the highest in the universe. That is due, as has been said, to the quality of our judges.
I say to my noble friend with a smile that no one should think that our circuit judges and puisne judges are treated with great luxury on appointment. I can say this with the knowledge of someone who is a practitioner but who has never been appointed a judge. Those who claim so are completely and absolutely wrong. Does anyone think that they have suites at their disposal, as befits, one might think, the dignity of the High Court judge, or research assistants galore to help them in researches for their judgments, as anyone might think was appropriate to a High Court judge who is required to be of the standard I have mentioned'? Does anyone think that there is secretarial assistance galore of the highest ability? Those who think that do not know the truth. Indeed I know so well that the modern luxury chambers of counsel and solicitors compare so much more favourably with the rooms that are given even to our judges in the Court of Appeal and the Lords of Appeal in Ordinary who assist your Lordships' House in the administration of justice. We are not talking about luxury appointments.
I do not intend to repeat the arguments so far advanced because that would not aid the cause that I have in mind. I do not want to make the position of the noble and learned Lord the Lord Chancellor any more difficult than it is. I say that with complete sincerity. In Committee I made the respectful suggestion that between that stage and today the noble and learned Lord should use his considerable powers of advocacy, employed in Committee with great ability even if not received with the utmost popularity by your Lordships, to persuade the Treasury and the Revenue that it is a bad suggestion that the age should, on the one side, be reduced for retirement and, on the other side, that there should be

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the figure of 20 years instead of 15. The suggestion is an absolute absurdity apart from anything else, but I shall not repeat the obvious arguments on that basis.
I do not know what has happened in the noble and learned Lord's discussions. I make this suggestion to the noble and learned Lord and I wonder whether your Lordships will not feel that it is appropriate and possibly that no further participation in this debate may be necessary if only my suggestion is adopted. The noble and learned Lord is the proud head of the judiciary, a judiciary which he has served with, from his point of view, complete integrity. But as head of the judiciary he has heard the view expressed, for example, by the noble and learned Lord the Lord Chief Justice, who has consulted the judiciary at circuit level and at High Court level. He will know the opinion therefore of the judiciary of which he is the proud and distinguished head.
All of us appreciate that he has a dual position. He is a member of the Government and a member of the Cabinet. All I suggest is this. Will he not agree that the appropriate thing to do in these circumstances is to accept this amendment because it will have expressed the view of the judiciary and of those who sit in your Lordships' House without any legal qualifications but who may agree with the amendment? Let us see what the attitude of the Revenue and Treasury would be on the amendment being accepted as the view of your Lordships' House. There will always be the opportunity at Third Reading for the noble and learned Lord to have another view to express to the House in the light of the reaction of the Revenue and the Treasury. I ask the noble and learned Lord, having heard all the speeches in Committee and on Report, to accept the amendment at this stage so that the Revenue and Treasury may know the view of your Lordships' House.
6.15 p.m.
Lord Wigoder: My Lords, I wish to make two very brief points in support of the amendment. First, it is self-evident that if a judge has to retire at the age of 70 and has to put in 20 years before he can expect his full pension, it means that he has to be appointed before the age of 50. That is too young in the great majority of cases. Members of the Bar are called in their early twenties. They can normally expect to do 15 to 20 years as juniors in order to provide a good, solid, hard base for their practice before they take silk. I know there is a tendency these days sometimes for them to take silk almost as soon as they finish their pupillage. That ought to be resisted. It is necessary, if there is to he a strong junior Bar, that they should serve as juniors for 15 to 20 years. After taking silk, they then have to acquire a wide range of experience of all facets of the law in this country, in Europe and internationally before they are really fit to serve on the Bench. That is bound to take another 10 to 15 years or so. If this amendment is not carried it means that the noble and learned Lord the Lord Chancellor will in future have to look for the overwhelming majority of his recruits to the Bench from members of the Bar who are under the age of 50. I believe that that simply will not be practicable.
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My second argument is this. I have had the pleasure of appearing many times in the past before judges who have served for longer than 15 years. I mean no offence to anyone in your Lordships' House whom this may affect. I am bound to say that, by that stage, I found that none of those judges was improving. They were without exception deteriorating. It would be a disaster to seek to make them all continue in that way.
Lord Benson: My Lords, after the eloquence to which we have listened this afternoon on the point it would be an impertinence for me to speak at all. However, I wish only to put a point of view from the layman, the man in the street. What we are worried about, and nothing else, is the quality of the persons who sit on the Bench. What we have heard tonight from people who speak with unexampled authority is that, if the Bill goes through in its present form, there is a danger either that the best people will not be appointed or, if they are, that they will become stale by the end of 15 years. What has not been stressed in the House is the fact that in every other comparable walk of life the retiring age is 60. Judges already have to do 10 years' more work than any of their compatriots in other classes of work. No wonder they are likely to become stale. Other people retire at the age of 60 and enjoy their retirement from then on.
I should like to stress one further point. In another field we have seen the result of appointing second raters. Between the 1960s and the 1970s we appointed many teachers in schools who were not qualified for the job. As a result, discipline in the schools went by the board and the teaching was deplorable. We are only now climbing out of that misery. I beg the Government not to make another similar mistake with the infinitely more important administration of justice.
The Lord Chancellor: My Lords, as 1 said earlier, and I repeat it now, the career pattern of judges is different from that of most other people; indeed, reference has been made to that fact more than once. Judges follow an unusual career path. I agree with some matters that have been raised. First, I agree that those who have spoken who are either already retired members of the judiciary or presently serving members of it are not speaking from any personal interest in these matters but from the point of view of the public interest as they perceive it.
I also agree with the view that what we are seeking to set here is the system for pension payments for the future; in other words, I shall not refer to any present aspect of the economy or anything of that sort in dealing with the matters which have been raised. However, I shall put forward what I believe is a proper basis for considering this amendment and those that are related to it.
I agree with the view that the calibre of those who sit on the Bench is vitally important. Along with those who have already expressed the opinion, I believe that the calibre of judges we have is extremely high. It is derived from their particular judicial qualities which have matured over a period of service in the profession. That is the way in which we have hitherto—and, I believe, will in the future—properly looked

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for our judges and not in a career path referred to by my noble and learned friend Lord Hailsham—which some continental countries adopt whereby one becomes a judge at an early age and then moves up through a judicial hierarchy.
I believe that our system, against the background of our tradition, is a better one. Judges are appointed after they have participated in the profession and reached a standing and standard in that profession which marks them out as suitable for judicial office. My noble and learned friend Lord Simon of Glaisdale mentioned the previous system and my noble and learned friend Lord Ackner pointed out that for certain judges from 1799 there was a 15-year accrual system.
One has to look at the position from the point of view of the present general tax law. First, people working in a profession on a self-employed basis have opportunities for laying aside money for pensions out of their earnings, with tax relief. That started off in a very modest way and has gradually improved as regards the way in which tax relief is allowed. Fortunately, we are in a tax regime which is a little more benign than it was some years ago. The basic allowances have been considerably improved over what they were when the allowance started. Therefore, the tax system of this country allows people at the cost of the Exchequer to make provision for a pension while they are working as self-employed people. I submit to your Lordships that that is the first important point to be borne in mind when considering the special position of the judiciary: that they have worked in the profession with an opportunity, so far as concerns the tax law, to make provision for their retirement with tax advantage.
When the time comes for such people to go on the Bench, they will typically have served for quite a long time in the profession. I have not yet reached the stage of handing out silk patents to people who have just recently completed their pupillage. I believe that our system also properly recognises distinction in practice at that level. Those whom one would be looking to appoint either to the circuit Bench, to the Bench of district judges or to the High Court Bench would all have served an appropriate time in the profession.
In my submission, we have to approach the correct arrangements for judicial pensions on the basis of what is the general tax law. That is the first aspect of the tax law which has to be taken into account. The second is that the general rule provided under the Income and Corporation Taxes Act 1988 is that a 20-year minimum accrual period is required for the provision of a full pension under a tax-approved scheme. That is the general rule. I believe that it is proper and appropriate to design the pension arrangements for the judiciary taking full account of their special circumstances against that background.
Therefore, the best possible pension which can be given to the judiciary is one that gives its members those tax advantages. It is right that they should have a pension with a 20-year minimum accrual period. The result of that is to produce a scheme such as that provided by the Bill. In one scheme it incorporates all
1066
the different levels of the judiciary that are set out in the schedule. It has important advantages; for example, in relation to the promotion of a circuit judge to the High Court.
I, for one, take the view that it is important that there should be an avenue of promotion from the circuit Bench to the High Court. Apart from anything else, I believe that it helps to maintain a zest for judging in circuit judges which, were there no such avenue, might wither rather earlier than would otherwise be the case. That is an important aspect of the judicial career. Secondly, in the development and deployment of judicial talent it is important to seek to provide for them a variety of work. The arrangements in place these days help in that direction.
The appropriate system therefore appears to me to be one which gives the best possible tax treatment of the pension accruing to the judge coupled with recognition that the judges have had an opportunity under the tax regime for the profession to make provision for their pension while serving in the profession. I accept at once that precisely what provision a person makes may vary according to circumstances; but so far as the tax law is concerned, that provision is there to enable a person to make a substantial contribution to his pension, with the proper tax relief on it, while working in the profession.
The next matter I want to mention is that so far as I can judge the effect of the retirement provision—subject to amendments that we shall consider in relation to the retirement part of the Bill—is to make 70 the maximum age to which a senior judge, a member of the higher judiciary, can hold office. That is a reduction of five years from the present limit. That has the effect of reducing the maximum age at which judges will hold office, and nothing in the pension part of the Bill does anything to erode or damage that. That is the maximum age. It is that point that is important.
The noble Lord, Lord Wigoder, has told your Lordships about his experience of attending on judges who have had 15 years' experience. I should think it highly likely that the reactions of particular judges would vary considerably from one judge to another. It is most unlikely that it is wise to stereotype judges as if all of them, after 15 years' service and at whatever age they were appointed, suddenly become stale and unable to follow what is going on, or to adapt to change. I do not believe there is any real basis on which 15 years can be selected as self-evidently the right time at which to ask judges to retire. If it were so, it should apply to all judges. Generally speaking, it is the age at which judges sit that may have importance in this connection and not the length of time for which they have already sat. I do not accept that it is established that judges who sit for more than 15 years on the Bench are thereby less fit to perform their judicial functions than those who sit for 15 years or less.
In my submission, the scheme proposed in this Bill is a proper recognition of the special career path of the judiciary against the background of the general tax law that I have described. I have indicated a number of matters in correspondence with my noble and

1067
learned friend the Lord Chief Justice and others that I shall be proposing by way of improvement on certain aspects of the scheme; but so far as this aspect is concerned, I believe that what we have proposed in the Bill is appropriate against the background that I have described.
It has been suggested in some speeches that what I am seeking to do is to align judges with other public servants. The accrual rate in the new judicial scheme is about double the level applicable to most public service employees, so I am not seeking to align the judges' accrual rate with public service employees generally. It is about 50 per cent. more favourable than the provision applicable to Members of Parliament. So far as the private sector is concerned, nearly two thirds of private sector employees who are members of occupational pension schemes are subject to an accrual rate of one-sixtieth. Only 10 per cent. of private sector employees enjoy accrual rates higher than one sixtieth, and only a tiny minority have accrual rates as high as one thirty-fourth. In broad terms, I believe that the judicial pension arrangements are worth about twice the typical provision made for either public service or private sector schemes.
In my submission, it is appropriate that the retained benefits should be allowed as an addition, having regard to the special position of the judiciary; but I believe that it is right that the judicial pension arrangements should take account of the general tax law to which I have referred. It is for these reasons that in my view the provision of the Bill should stand and this particular amendment should not be given effect to.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, would he please indicate whether the consultations that were requested between Committee stage and Report stage have taken place between the noble and learned Lord and the Revenue and the Treasury?
The Lord Chancellor: My Lords, I speak here for Her Majesty's Government; and the view that I have put forward is the government point of view. I do not think it is appropriate for me to enter into details of my discussions. I am putting forward here what is the government point of view, and I have sought to explain the basis on which it rests.
Lord Simon of Glaisdale: My Lords, before my noble and learned friend finally sits down, is he going to say what is the financial benefit to the Exchequer of extending the accrual period from 15 to 20 years?
The Lord Chancellor: My Lords, it is quite difficult to make that sort of calculation. As I said before, and I say again, the best judgment that I can make is that the judicial scheme proposed in this Bill, compared with the schemes being replaced by this scheme, is broadly neutral. I do not think it is possible to be detailed about these calculations. Much depends on one's assumptions; but so far as the Treasury is concerned, if a judge goes on for 20 years he is getting exactly the same, so far as the pension provision is concerned, out of the scheme as he would under the
1068
present arrangements. The fact that the pension accrued when he had served 15 years does not make it any more costly to the Treasury.
Lord Ackner: My Lords, before my noble and learned friend sits down, could he tell us whether he is aware of Table 7 in the most recent report of the Top Salaries Review Body, which is headed Cost to Employer of Pension Benefits? It then sets out percentage of pensionable salary, and in relation to High Court judge and circuit judge it is 30 per cent.—hence Lord Simon's 7½ per cent. He has taken 30 per cent., and because the accrual rate is to go up by five years he has divided it by four; ergo,7½ per cent.
The Lord Chancellor: My Lords, the arithmetic that my noble and learned friend has put forward is apparent to anyone who has listened. My noble and learned friend mentioned the Top Salaries Review Body. That body commented on our proposals and made no suggestion that it was inappropriate at this time to adopt a 20-year accrual rate. My noble and learned friend has pointed to other criticisms that the TSRB made of our proposals, but as regards the point that we are discussing no criticism was offered.
Lord Donaldson of Lymington: My Lords, the reply of the noble and learned Lord on the Woolsack is deeply disappointing although not entirely surprising. In view of the fact that today—this was also the case in Committee—the voices were near unanimous in favour of this amendment, on this occasion I wish to give the non-voices an opportunity to express their views too. I therefore shall not withdraw the amendment as I wish to test the opinion of the House.
6.41 p.m.
On Question, Whether the said amendment (No.46) shall be agreed to?
Their Lordships divided: Contents, 89; Not-Contents, 94.

Division No.1

CONTENTS

Ackner, L.

Goff of Chieveley, L.

Ailesbury, M.

Graham of Edmonton, L.

Alexander of Tunis, E.

Grantchcster, L.

Archer of Sandwell, L.

Gridley, L.

Beloff, L.

Grimston of Westbury, L.

Benson, L.

Hailsham of Saint Marylebone,

Blease, L.

L.

Bridge of Harwich, L.

Harris of Greenwich, L.

Brightman, L.

Harrowby, E.

Butterworth, L.

Howell, L.

Campbell of Alloway, L.

Hylton-Foster, B.

Carmichael of Kelvingrove, L.

Irvine of Lairg, L.

Carnock, L.

Lane, L.

Carter, L.

Lawrence, L.

Cledwyn of Penrhos, L.

Lockwood, B.

Clinton-Davis, L.

Lowry, L.

Coleraine, L.

Lyell, L.

Colville of Culross, V.

Lytton, E.

Darcy (de Knayth), B.

Macaulay of Bragar, L.

David, B.

Mackie of Benshie, L.

Donaldson of Lymington, L.

Mallalieu, B.

[Teller.]

Malmesbury, E.

Elis-Thomas, L.

Mason of Barnsley, L.

Ewing of Kirkford, L.

Meston, L.

Foot, L.

Mishcon, L.

Gallacher, L.

Morris, L.

Galpern, L.

Morris of Castle Morris, L.

Geddes, L.

Morton of Shuna, L. [Teller.]

1069

Murray of Epping Forest, L.

Robson of Kiddington, B.

Mustill, L.

Roskill, L.

Newall, L.

Saltoun of Abernethy, Ly.

Nicol, B.

Seear, B.

Norrie, L.

Shannon, E.

Ogmore, L.

Simon of Glaisdale, L.

Oliver of Aylmerton, L.

Taylor of Gosforth, L.

Orkney, E.

Templeman, L.

Orr-Ewing, L.

Teynham, L.

Parry, L.

Thomas of Gwydir, L.

Pender, L.

Tordoff, L.

Peston, L.

Underhill, L.

Pitt of Hampstead, L.

Westbury, L.

Redesdale, L.

Wigoder, L.

Rees, L.

Wilberforce, L.

Renton, L.

Williams of Mostyn, L.

Richard, L.

Winstanley, L.

Rippon of Hexham, L.

NOT-CONTENTS

Aberdare, L.

Long, V.

Allenby of Megiddo, V.

McAlpine of West Green, L.

Alport, L.

McColl of Dulwich, L.

Ashbourne, L.

Mclntosh of Haringey, L.

Astor, V.

Mackay of Ardbrecknish, L.

Auckland, L.

Mackay of Clashfern, L.

Blatch, B.

Margadale, L.

Borthwick, L.

Marlesford, L.

Boyd-Carpenter, L.

Mersey, V.

Brougham and Vaux, L.

Milverton, L.

Bruce of Donington, L.

Monk Bretton, L.

Caithness, E.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Mountevans, L.

Chilver, L.

Moyne, L.

Cocks of Hartcliffe, L.

Munster, E.

Colnbrook, L.

Nelson, E.

Craigavon, V.

O'Cathain, B.

Craigmyle, L.

Onslow, E.

Cranborne, V.

Oxfuird, V.

Cumberlege, B.

Palmer, L.

Davidson, V.

Park of Monmouth, B.

Denham, L.

Pearson of Rannoch, L.

Denton of Wakefield, B.

Perry of Southwark, B.

Downshire, M.

Prentice, L.

Ellenborough, L.

Rea, L.

Elles, B.

Renwick, L.

Elliot of Harwood, B.

Rodger of Earlsferry, L.

Elliott of Morpeth, L.

St. Davids, V.

Elton, L.

Sanderson of Bowden, L.

Flather, B.

Savile, L.

Gardner of Parkes, B.

Seccombe, B.

Gibson-Watt, L.

Selborne, E.

Gisborough, L.

Somerset, D.

Goschen, V.

Stewartby, L.

Hardinge of Penshurst, L.

Strange, B.

Harmar-Nicholls, L.

Strathmore and Kinghorne, E

Harmsworth, L.

[Teller.]

Henley, L.

Swinfen, L.

Hesketh, L. [Teller.]

Taylor of Blackburn, L.

Hothfield, L.

Teviot, L.

Howe, E.

Trumpington, B.

Jeffreys, L.

Ullswater, V.

Jenkin of Roding, L.

Vivian, L.

Joseph, L.

Wade of Chorlton, L.

Kimball, L.

Wyatt of Weeford, L.

Kinnoull, E.

Wynford, L.

Kitchener, E.

Young, B.

Lauderdale, E.

Resolved in the negative, and amendment disagreed to accordingly.
6.50 p.m.
[Amendment No.47 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 48:
Page 4, line 19, at end insert ("provided that if the period in the qualifying judicial office does not amount to 6 years the judicial pension will be one quarter of his last annual salary;
1070
if the period amounts to 6 years or more, the pension shall be one quarter of that salary plus l/40th of that salary for each completed year of service exceeding 5.").
The noble and learned Lord said: My Lords, in moving Amendment No.48 I wish to speak also to Amendment No.76. If there is just a slight hint that the latter amendment might refer back to Amendment No.37 it is purely coincidental. This is an important part of the Bill because it focuses on what happens if a judge becomes ill or dies in office as a result of illness.
During the last debate I referred to the first Judicial Pensions Act, which was passed in 1799. As my noble and learned friend Lord Simon pointed out, that Act provided that a judge received a full pension if he had to retire as a result of infirmity, no matter when that occurred. That position continued for 160 years until, as my noble and learned friend pointed out, in 1959 the situation was amended. That amendment brought in a graduated pension provision and at the same time made it possible to obtain a pension without having to serve the full 15 years provided one had reached the age of 70.
The clause which I wish to insert in the Bill is the very clause which exists at present in respect of High Court judges. Perhaps I may give your Lordships an indication of the figures involved to show how important the matter is. It is, sadly, not unknown for a judge to fall sick after appointment. There has been the sad case recently of Mr. Justice Desmond Fennell, like myself a former chairman of the Bar. No doubt the stress and strains of that office, particularly during the passage of the Courts and Legal Services Bill, were an added strain in a stressful office.
Perhaps I may explain the position today and what it would be if the Bill were passed. I ask your Lordships to accept for the sake of convenience that a High Court judge's remuneration is £80,000. That is more convenient because it makes the mathematics easier; it is in fact £87,000. If the judge suffers a stroke in his first year in office, under the present situation he receives one half of the full pension which he would have earned if he had served his full 15 years. On a salary of £80,000 he would receive a pension of £40,000 if he had served his full 15 years in office. If he suffers a stroke in his first year and has to retire from the Bench he will receive £20,000—one half of £40,000, the maximum pension he could have earned. That is the situation today. If he dies during that year—and this is why Clause 76 enters into the equation—his widow receives one half of the pension which he would have obtained—one half of £20,000: £10,000.
The position today is that if a judge suffers a stroke and has to retire after one year he receives a pension of £20,000. If he dies during that year his widow receives half, £10,000.
After the Bill comes into force the wretched judge who becomes disabled in his first year receives £2,000, one tenth of what he receives now. The widow, logically, as the Bill provides, instead of receiving her £10,000, receives one tenth—£1,000. That position is arrived at by the simple process of abolishing the provision which I have set out in the amendment. It results from the simple fact that the Bill provides no fast accrual period after appointment but instead a slow, year by year, addition over 20 years of one

1071
fortieth. The judge ends up after 20 years with 20 fortieths. In his first year he receives one fortieth, hence my arithmetic of £ 2,000 — 40 x 2 equals £ 80,000—and, in the case of the widow, who receives one half of what he would have received, £ 1,000.
One asks why that is the case. There is no question of having to conform—the favoured word of the Government in this measure—with existing legisla-tion. This is simply and starkly a money-saving operation designed to achieve what I indicated to your Lordships at the outset. The judges who have to suffer—not a suffering which I emphasise—a reduction in their retirement age from 75 to 70 have to pay for it.
No one could have put the matter better than the noble Lord, Lord Benson, who said at Second Reading:
"In any pension scheme if one reduces the retiring age it increases the cost at an extravagant degree, depending on the number of people involved. The statement can therefore be true"
the statement in the Bill that the costs would level out only if the benefits paid to the new entrants under the new scheme have been correspondingly pared off to make up the difference".—(Official Report,16/6/92; cols.151 and 152.]
That is what has happened here. In order to pay for the reduction in their pension age judges are required to give up that which most judges look upon as vital—security for themselves and, in particular, for their widows in the event of their falling sick.
I remind your Lordships that in the past five years 76 per cent. of High Court judges were aged 50 years or over. That is known to be a vulnerable period. If the year by year accrual provided for in the Bill operated in relation to the ordinary employee starting at the age of 21,22 or 23, then the anxiety relating to early sickness would not arise.
The situation was commented upon firmly and critically by the Top Salaries Review Body in its comments to the Lord Chancellor on his paper in the following terms:
"Pension benefits calculated on the basis of pensionable pay and past service but payable immediately in the event of retirement on the grounds of ill health could be more generous. An alternative approach would he to base ill-health pensions on potential service to age 65".
Mr. Alexander of the well-known firm of consultant actuaries Watson & Sons (who advised the TSRB on pensions for Members of Parliament) was very sensibly retained by the Government to give his comments to them on the Bill. He reported:
"On ill-health retirement an immediate pension is payable based on complete service. Where service is short the pension payable will he relatively small, whereas it can he 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 common in public service schemes. We suggest that consideration is given to something simpler, such as inclusion of half the potential service".
I have more material to establish the undoubted hardship, unfairness and lack of justification of the present system in relation to the judge and his widow. Following the conclusion of the Committee stage on 30th June, on behalf of the judges we obtained a very detailed report from a consultant actuary, a Mr. Wynne-Griffith. senior partner in a well-known firm.
My noble and learned friend the Lord Chief Justice sent that to my noble and learned friend the Lord Chancellor by the end of July. At the end of September the comments from the Lord Chancellor were received and within the matter of days the comments of our experts on those comments were provided.
A meeting was sought by my noble and learned friend the Lord Chief Justice. That meeting was attended by my noble and learned friend the Lord Chief Justice, the noble Lord, Lord Benson, and myself. The Lord Chancellor had indicated that in regard to the question of sickness he was minded to consider whether some concession could be made. We have recently been informed that he is contemplating making an amendment. As I understand it, that will provide not for deemed service to the age of 65—which is in my Amendment No.76 and was in my Amendment No.37—but half that sum. Apparently the draftsmen found that the intervening four months between the end of the Committee stage and today was not long enough to enable them to put that into proper drafting form, and there is nothing before your Lordships now. Therefore, it would he pointless for me to weary your Lordships further with argument because I understand that that amendment by the Government will be provided at Third Reading.
Moderation (which is the hallmark of debates in this House) limits me to say that I find this an astonishing situation but one that has to be tolerated. Without further speakers addressing the House your Lordships may find it convenient at this stage for my noble and learned friend the Lord Chancellor to indicate whether I have accurately represented the Government's current position and perhaps to tell your Lordships the precise nature of the amendment that he has in mind for Third Reading which is to take place on an as yet unspecified date. I beg to move.
7 p.m.
The Lord Chancellor: My Lords, I undertake to produce at Third Reading an amendment which will provide for the relevant service of a person who retires on the ground of ill health to be enhanced by half the service outstanding to 65; in other words, if somebody retires at 50 on the ground of ill health he will have seven-and-a-half years—half of 15 years—credited to him as if he has served those in calculating the benefits for pension purposes. I am able to do that in the light of the discussions to which my noble and learned friend Lord Ackner has referred. I think it is fair to the parliamentary draftsman to say that this has nothing to do with him. I needed to consider the position with some care and the decision to make the change followed the meeting to which my noble and learned friend referred. I undertake to produce at Third Reading an amendment to give effect to that decision. I hope that in the light of that undertaking my noble and learned friend Lord Ackner will feel able to withdraw the amendment.
Lord Ackner: My Lords, my noble and learned friend has been kind enough to say that he undertakes to produce an amendment at Third Reading. Will he

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be kind enough to give the House an assurance that it will be available for all to see at least a week before Third Reading so we have time to consider it and be better able to analyse its repercussions?
Lord Chancellor: My Lords, I will certainly produce it as soon as I possibly can. I hope to be in a position to produce it before Third Reading, certainly in sufficient time for your Lordships properly to grasp its full implications.
Lord Ackner: My Lords, I do not wish to pursue my noble and learned friend. My request was a modest one, that it be produced one week before Third Reading. Four months have gone by. Our experience to date has not been a very happy one. That is why I ask for the assurance. With great humility, I suggest that it should not be very difficult to give it.
The Lord Chancellor: My Lords, I have given the best assurance that I can. I hope I may be able to produce the amendment more than a week before Third Reading. I shall certainly do my best to produce it in ample time for Third Reading. At the moment I am not in a position to say when Third Reading will be.
Lord Ackner: My Lords, in the light of the discussion that has taken place I beg leave to withdraw the amendment, although I am bound to say that at this stage the offer of one-half of what we have sought is hardly likely to prove acceptable.
Amendment, by leave, withdrawn.
The Lord Chancellor: My Lords, I have to say that if Amendment No.49 is agreed to I cannot call Amendment No.50.
Lord Ackner Lord Ackner moved Amendment No.49:
Page 4, line 21, leave out paragraph (a) and insert:
("(a) a person's "pensionable pay" is the greater of the following amounts, that is to say

(i) the highest pension-capped salary payable to him in respect of his service in qualifying judicial office in any one of the five years ending with the day on which he retires from such office, and

(ii) the highest annual average of his pension capped salary in any three consecutive years out of the ten years immediately preceding the day on which he retires from such office.

Provided that where pension capped salary is calculated by reference to any year other than the last complete year ending on the day on which he retires from such office pension capped salary shall be increased in proportion to any increase in the retail price index (being the index of retail prices compiled by the Department of Employment) from the last day of that year up to the said day.").
The noble and learned Lord said: My Lords, this is an awkward amendment to deal with before the adjournment when the intake of a little protein might have put one in a better position to explain it. It concerns what I understand is known as dynamisation; that knowledge having been recently massaged into me. It reminds me of the occasion when I was briefed to take part in litigation on performing rights. I revelled in two technical phrases. One was "needle time" and the other was "over-exposure", which had nothing to do with criminal litigation. Quite simply,
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dynamisation means that, provided one does not base one's pensionable salary upon the last year, the Revenue permits one to take other years and to add to them the inflation factor if in those other years one has not achieved or exceeded that inflation factor.
The Top Salaries Review Body, whose report received little sympathy in the Government, at least provided material which was not open to contradiction. One piece of material was that the real income of the group (that is, all the top salary earners taken as a whole) has risen around 7 per cent. over the period since 1985, whereas real average earnings in the economy have risen by 22 per cent. Even more significant is that the 200 or so most senior posts covered have had the worst experience, with a real decrease in their income of 3 per cent. Data from studies and surveys which are described more fully later in that report provide a further perspective. That is found at page 3, paragraph 14, of the report, which goes on to provide a figure which shows that senior private sector earnings have had a real increase of 41 per cent.
So down go the very top earners by minus three whereas the private sector goes up to 41. In my submission, it is only fair and proper that the judges should be entitled to have regard to what the Inland Revenue permit. The Inland Revenue permit "dynamisation". On many occasions my noble and learned friend has said that he has achieved the most tax efficient scheme obtainable. Therefore in tabling this amendment I ask whether he has sought to obtain the Revenue's consent to dynamisation being provided and if so with what result. Alternatively, if he has not sought its observations, would he be kind enough to do so? I beg to move.
The Lord Chancellor: My Lords, this amendment for so-called dynamisation is interesting. Notwithstanding my noble and learned friend's eloquent description of it, the precise wording leaves one with a certain degree of perplexity as to what exactly is in mind.
First, this sort of formula is not found in any other public sector scheme which I know. Secondly, it is quite obvious that it is quite a complicated formula to administer. So far as I have been able to follow it, I do not see how it would give any particular advantage in the case of the judiciary. The passage from the TSRB report to which my noble and learned friend referred would not suggest that the method of dynamisation proposed in the amendment would produce much of an increment. Under the present definition of pensionable pay it is the highest pensionable pay over the previous three years which counts. I cannot think it at all likely in present circumstances that any advantage is to be gained by increasing that period to five years. Moreover, if one takes into account the remuneration in line with the RPI, one will find that the remuneration which is payable is not at all likely to be increased by that particular approach.
Accordingly, apart from the fact that this would be an expensive scheme to administer, I cannot see that the advantages are likely to make it worthwhile. In the

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light of that explanation, I hope that my noble and learned friend will feel that it is not right to press the amendment.
Lord Ackner: My Lords, my noble and learned friend the Lord Chancellor pays me no compliment in thinking that I have not done my homework. Having obtained, after a delay, from his department figures for the earnings of High Court judges for the past 10 years—that is the relevant period—those figures were handed over immediately to our consultant actuary. The advice that he has provided is that it will make a difference of a few thousand pounds a year to the High Court judge.
If my noble and learned friend does not want to take the matter up because he feels that it will do the High Court judges no harm, I can dispose of that point. Perhaps he would be kind enough, on the basis that we can establish that it does the High Court judge and above positive good, to consider with the Inland Revenue if there is any reason why the Inland Revenue practice, which I have, recorded in IR9/91, should not be made applicable.
The point is one of principle. Other people are entitled to it under the Inland Revenue practices and we have heard the assurance that my noble and learned friend has achieved the most tax efficient scheme available. In this respect he does not seem to have achieved that. I should be grateful, on the basis that we satisfy him that it will make a significant financial difference to the calculation of the judicial pension, if he will tell us whether he will give it consideration.
The Lord Chancellor: My Lords, I am certainly prepared to consider any material that my noble and learned friend likes to put before me. My understanding is as I have said. Those are the reasons why I urge your Lordships not to accept the amendment. I am very willing to look at any information that my noble and learned friend has which he believes would serve to instruct me even better than I am instructed at the present moment.
7.15 p.m.
Lord Ackner: My Lords, I am most grateful to my noble and learned friend. On that basis, I shall withdraw my amendment with a view to bringing it back. I should inform the House that technical though it is, we have not bounced it on the Lord Chancellor. It was in our consultant actuary's report which was provided on a "cards on the table" basis to the Lord Chancellor. All we have done in the recent past, having obtained figures from his department, is to establish that it would be effective. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No.50:
Page 4, line 25, leave out ("he retires from such office; ") and insert (", within the meaning of section 590C(l) of the Income and Corporation Taxes Act 1988 (earnings cap), his participation in the scheme constituted by this Part ceases; ").
The noble and learned Lord said: My Lords, this is a technical amendment relating to the mechanics of pensions indexation. It covers the situation of a
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judicial officer who opts out of the new scheme to enter a personal pension scheme under the provisions of Clause 13 and elects for his pension rights under the Bill scheme to remain in the scheme until his retirement from judicial office. When such a judge comes to retirement and collects his pension, the clause as drafted requires that the pension be calculated by reference to the judge's pensionable pay at retirement, not at the time he opted out. However, his accrued rights under the scheme will already have attracted pensions increase—an annual up-rating designed to raise the value of preserved benefits to keep pace with inflation. To leave the clause unaltered in this respect would be to give a judge double inflation-proofing. It might also entitle the officer to get more than he should under the top-up provisions of Clause 19.
The amendment ensures that the pension of the judicial officer in this position is correctly calculated by reference to his pensionable pay at the time he opted out of the new scheme, not at the time of his retirement from judicial office. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.51:
Page 4, line 41, leave out ("and").
The noble and learned Lord said: My Lords, I have already spoken to the amendment with Amendment No.4. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.52:
Page 4, line 42, leave out ("there is a reduction in").
The noble and learned Lord said: My Lords, in moving this amendment I wish to speak also to Amendments Nos.53 and 54. They are purely drafting amendments which I have thought it wise to make following my discussion with my noble friend Lord Colville of Culross during Committee.
It might help if I explain the effect of subsection (3) (d) in a little detail. Subsection (3) (a) provides that, for the purposes of determining pensionable pay, the largest amount of pension-capped salary payable to a scheme member in any period of 12 months in his or her last three years of service will be taken to be the operative figure. Subsection (3) (d) deals with the situation where an officer's salary during those three years is reduced by reason of absence on sick leave. It provides that any such reduction in salary will be ignored for the purposes of determining pensionable pay.
There is, therefore, nothing in subsection (3) (d) which could affect a scheme member's decision when to retire, as any reduction in salary due to periods of ill health would not affect the level of pension the officer received. There is nothing in the clause which restricts, or alters in any respect, the present arrangements relating to sick leave, sick pay or retirement on the grounds of ill-health.
Turning now to the amendment, I must emphasise that this has no substantive effect. It merely redrafts subsection (3) (d) to make its meaning more transparent to the reader. I have considered my noble friend's suggestion that the three-year period should be extended to five, but given a clear understanding of

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the effect of this clause, I hope it is evident that there is little, if anything, to be gained by doing so. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.53 and 54:
Page 4, line 45, after ("above") insert ("is less than it would have been apart from the periods of ill-health,").
Page 4, line 47, leave out ("without any such reduction") and insert ("at the rate at which it would have been payable, apart from the periods of ill-health; ").
The noble and learned Lord said: My Lords I have already spoken to Amendments Nos.53 and 54 with Amendment No.52. With your Lordships' leave I beg to move put them en bloc.
Lord Renton: My Lords, I realise that the amendment has been referred to but I find the drafting of it difficult to follow. Perhaps my noble and learned friend would be so good as to give some idea of a salary,
"which is paid on terms which preclude rights to pensions and other benefits accruing by reference to it".
I did not know that there were such salaries within the judiciary.
The Lord Chancellor: My Lords, I am not sure that I understand the particular point to which my noble friend refers. At present I am referring to Amendments Nos.53 and 54.
Lord Renton: My Lords, I am sorry. I thought that my noble and learned friend had dealt with those amendments and was now moving to Amendment No.55. I must have misheard.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No.55:
Page 4, line 47, at end insert:
("(e) in determining a person's salary in respect of his service in qualifying judicial office, there shall he left out of account any part of the salary which is paid on terms which preclude rights to pensions and other benefits accruing by reference to it: ").
The noble and learned Lord said: My Lords, I have already spoken to Amendment No.55 with Amendment No.4. However, perhaps I may explain the reference to my noble friend Lord Renton.
There are some positions to which a judge may be appointed for a temporary period in which he may receive an additional salary. However, that salary is not part of his judicial salary and does not count for pension purposes. That is part of the terms on which he takes the appointment. The amendment makes clear that in that situation the additional salary which he receives does not count for pension purposes. One needs to make that clear. That is the purpose of the amendment.
Lord Renton: My Lords, I am grateful to my noble and learned friend for that explanation. Amendment No.55 was one of a dozen amendments referred to earlier and not every one could have been explained.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, Amendment No.56 may take a little time. It is almost 7.30 p.m. This might be a suitable moment to break if that is convenient.

Bankruptcy (Scotland) Bill
7.24 p.m.
Brought from the Commons; read a first time and to be printed.

Croydon Tramlink Bill [H.L.]
Baroness Gardner of Parkes: My Lords, I beg to move that this Bill be now read a second time.
This Bill is a Private Bill jointly promoted by London Regional Transport and Croydon London Borough Council.
I am pleased to introduce this Bill to your Lordships for Second Reading. The purpose of the Bill is to seek powers to enable the construction and operation of a system of trams running on partly conventional railway track, to be known as Tramlink, connecting the centre of Croydon to Wimbledon, Beckenham, Elmers End and New Addington.
London Regional Transport has a general duty to provide or secure the provision of public passenger transport services in Greater London. It must pay due regard to the current transport needs of Greater London and to the efficiency, economy and safety of operation.
Croydon council—one of the London borough councils—has numerous statutory duties in particular as a highway and planning authority, and is also empowered to produce an economic strategy. The district plan for Croydon, adopted in 1982, identified the need to develop public transport while at the same time promoting environmental policies as an important consideration in any new developments. The council considers that this scheme is a key element in those strategies.
As I am sure your Lordships are aware, London is suffering from severe congestion to its transport system both on the roads and on the existing public transport network. The Confederation of British Industry has estimated that the cost of congestion of London's transport system amounted to some £ 10 billion per annum. Your Lordships will also be aware that the environmental cost in terms of noise and pollution is equally substantial and studies have been undertaken to propose long term solutions to the problems of both central and Greater London.
In central London, studies were undertaken culminating in the publication of the Central London Rail Study published in 1989. This work identified two schemes: the Crossrail scheme and the Chelsea-Hackney scheme to provide long term congestion relief to the central area. Both schemes involve the construction of conventional underground railways and a Bill for the construction of Crossrail was deposited in November 1991.
Following the successful promotion of the Docklands Light Railway scheme, London Transport and British Rail carried out a joint study into the

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contribution which light railways could make to the improvement of transport in London. A report published in 1986 identified a number of areas where light railways could be of value. Chief among those was a system based upon Croydon using a mixture of British Rail lines and new construction to link Croydon with the adjoining boroughs. Further work was carried out with the active co-operation of Croydon Borough Council and in 1987 a system of three routes was identified as being financially viable, physically possible and of great benefit to the economic life of the area.
In 1989 further reports were prepared for the Department of Transport on the transport problems of various parts of London. They were known as the assessment studies. One of those, the south London assessment study, related to the area of south London with Croydon as its southern focus. The report identified existing transport problems, with traffic congestion probably being the most important issue.
The report examined a range of transport improvements for south London including better traffic management, junction improvements, road widening and new routes. Bus priority measures, restructuring of bus and British Rail routes were included. Croydon council has implemented many road and junction improvements to make the most of the existing road network but it concluded that a more ambitious approach to the problems of congestion was required which offered substantial environmental and economic benefits. Croydon council concluded that the Tramlink scheme offered the prospect of revitalised public transport and a credible alternative to travel by car which was reliable, quiet, efficient and accessible to all. The scheme would improve the environment and general amenity of the locality. As a result of that conclusion Croydon council resolved to develop Tramlink in conjunction with London Regional Transport.
Development work has been actively pursued since that date resulting in the Bill now before the House. The resulting scheme combines existing British Rail infrastructure with new light rail links to residential areas previously without such links and heralds the return to Croydon's streets of trams. The scheme is a bold and imaginative combination of a traditional form of public transport brought up to date with the most modern technology and design incorporated in an integrated transport system.
It may be of benefit if I briefly outline the scheme which centres upon central Croydon with branch lines extending to Wimbledon, Beckenham, Elmers End and New Addington. The Wimbledon branch of Tramlink will extend from a terminus near the main line British Rail and London Underground station at Wimbledon to central Croydon. The alignment will use the existing under-utilised British Rail branch line and will replace the existing rail service between Wimbledon and West Croydon. It will provide for interchange with other British Rail services at Wimbledon and Mitcham Junction. The line will provide a more frequent and attractive service,
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connecting residential areas with rail services into London at Wimbledon, Mitcham Junction and Croydon.
The branch connecting central Croydon to Beckenham will share an existing alignment with British Rail services. Disused British Rail alignment will also be utilised together with the construction of new track where necessary. This line will connect the highly-developed commuter areas of Beckenham, Elmers End and Woodside with Croydon.
The branch to New Addington will utilise in part disused British Rail alignment with new track being constructed through open land. This new line will provide the first ever rail service to the New Addington estate. New Addington has a total population of around 25,000 and is the largest residential area in London without rail services.
The central section of Tramlink will comprise a loop connecting West Croydon and East Croydon British Rail stations to the Wimbledon, Beckenham and New Addington branches of Tramlink. This central section of Tramlink will be constructed in the street as a conventional tramway incorporating a variety of road traffic schemes to integrate the new tram system into the existing transport network.
The promoters have striven to design Tramlink to meet the needs of all members of the community and particular attention is being given to the needs of the elderly and disabled. Accordingly, the promoters are committed to make the whole system accessible to people with disabilities. All aspects of the scheme, including the design of the stops and the rolling stock, will be subject to the closest scrutiny to maximise accessibility. For example, the floor level of the tram vehicles is likely to be only one foot above ground level allowing easy access from raised footways and low platforms to be provided at tram stops.
I do not intend to describe the Bill clause by clause but your Lordships may wish to be made aware of certain important features. Although the Bill is promoted by London Regional Transport and Croydon council it is intended that the construction and operation of Tramlink will be undertaken by the private sector. The private sector will bear the commercial risks and responsibilities for the success of the system. The mechanism to permit close involvement of the private sector will be by means of a concession arrangement.
Clause 47 provides the necessary mechanism for the Secretary of State to transfer from London Regional Transport to the concessionaire the functions to enable it to construct or operate or to construct and operate Tramlink. Such an arrangement has the advantages of easing the burden on the public purse by maximising the private sector contribution to the scheme at a time when there are many competing demands for new transport projects and of reaping the benefits of the involvement of private sector enterprise and expertise. This active co-operation will allow the promoters to draw upon considerable worldwide expertise in the introduction and operation of modern light rail systems.
Substantial progress has already been made in establishing the involvement of the private sector in

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the scheme. A project development group comprising London Regional Transport, Croydon council and their selected private sector partners has begun to take forward the development and detailed design of Tramlink.
The scheme enjoys the support of Croydon council, which has voted unanimously in favour of it, and is strongly supported by the Croydon Chamber of Commerce and Industry which is a consortium of 1,300 local businesses. The scheme is also supported by local trade associations, environmental groups, and the neighbouring boroughs of Bromley, Sutton and Merton. A very high degree of public support was expressed during the consultation period. It is an exciting opportunity to introduce a modern, clean, reliable and above all safe transport system which will enhance the quality of public transport in a large area of south London and improve the environment by encouraging the use of Tramlink for a wide number of business and leisure journeys. London needs and deserves the best in modern, environmentally friendly and convenient public transport.
I hope that your Lordships will agree that this most worthwhile scheme should be given every encourage-ment and I urge the House to give the Bill a Second Reading.
Moved, That the Bill be now read a second time.—(Baroness Gardner of Parkes.)
7.38 p.m.
The Earl of Lytton: My Lords, it is a pleasure to be able to follow the noble Baroness, Lady Gardner, and I thank her for giving the House the opportunity to discuss the Bill. My contribution will be a poor innings compared with her splendid opening stand.
The Bill has been some time in gestation. It is a matter of civic pride and has received a considerable degree of support from all sections. However, an element of individual unease has been expressed by a number of people. It is on that issue, but not that alone, that I wish to speak. Strongly-held opinions exist on both sides and therefore the Tramlink proposals have generated a good deal of heat. However, I fear that not so much light has been thrown on the subject. My concerns are the cost benefits of the scheme and the effects upon individuals.
I was privileged to have correspondence on the Bill earlier this year with Lady Ewart-Biggs. I know that the effect on private households in particular was close to her heart. In paying tribute to her memory in the context of the Bill I hope that she would have approved of my contribution.
My involvement arises from my activities as a practising surveyor concerned particularly with the statutory compensation code. I had some involvement with the Planning and Compensation Act 1991. I have no professional or financial involvement with any party in connection with this scheme. My attention was drawn to the Bill principally because of the implications for blighted private residential property.
It follows that I am not against the Tramlink proposals as such. However, although it is clearly a
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public transportation scheme, the Bill would facilitate what is first and foremost a commercial undertaking. Therefore, the overriding public interest which may be pleaded by, for example, a government department is not something that can be taken as read in this instance nor can the promoters lay unqualified claim to it. It follows from that that the rights of individuals cannot be treated as secondary in that context.
Wherever a public scheme of works is proposed, there is often a blighting effect on private property. Within Croydon and governed by the route of the scheme there is a corridor in which the Tramlink scheme will now show up on every local search of property so that there is no possibility of selling or purchasing a property without parties to the potential transaction being aware of the scheme. For many properties that will have no significant effect and there will be no effect on the ability of individuals to deal in their property. But in other cases the effects can be quite severe and would have a material effect on any disposal or acquisition of property, whether it be by sale, purchase or indeed altering mortgage facilities and that kind of matter. My anxiety is also in respect of businesses but I am particularly concerned about the effects on private citizens in their own homes as they are affected by the scheme.
That problem is not unique to the Tramlink proposal. There are measures in general legislation to deal with the problem. However, I believe that there are some specific differences in this case. First, the process is protracted by the need for private legislation. The person suffering from the blighting effects of the scheme can wait an inordinate time before the normal statutory blight provisions can be implemented.
Secondly, in the current, very depressed, market conditions, particularly in the housing market, it may be difficult to sell properties or to deal with them at all, let alone to prove that that difficulty has been caused by the Tramlink scheme. Therefore, it is difficult to exclude the general economic factors from the specific ones relating to the Tramlink although it must be said that if a tram station is to be constructed just beyond the bounds of one's front garden, then the evidence must be fairly overwhelming.
Thirdly, the Bill will enable the Tramlink to be constructed within certain specified lines of deviation. The precise position of the permanent way, its embankments and so on are not, as I understand it, finally fixed. On Thursday last I made a trip to Croydon to the borough council's offices. I spoke with some of the officers there. At that meeting I was shown a revised plan of one section of the route which was described to me as being hot off the press on that day. Clearly, the detailed engineering input and the costs associated with that are matters which the promoters would not wish to undertake before they had to. However, I should point out that that causes acute problems for private individuals, particularly residential occupiers who may have some genuine need to move house, sell a property or whatever.
Fourthly, as I mentioned earlier, this is a Private Bill to facilitate a commercial undertaking. It seems to me that the most serious effects of any uncertainty

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which may arise as part of the scheme must be shouldered by the promoters and their commercial backers and not exported to private individuals without recompense.
Therefore, my first objective is that I am looking to the promoters to have in place, and immediately thereafter to implement, a scheme for buying in genuinely blighted properties when required to do so. That should happen not later than the time at which the Bill receives Royal Assent. I am reinforced in that view by the knowledge that the principle of best practice in acquiring blighted properties is employed in many areas of the country. Certainly British Rail seems to have found it expedient on its Channel Tunnel link and I suggest that it is an appropriate course of action here.
I am advised that the general law in relation to compensation provisions will apply to this scheme. That is an extremely important safeguard in the light of recent legislation on the subject. However, the Bill seeks to amend the general law provisions relating to betterment. I am not clear that there are good grounds for expanding beyond the general law those provisions which—I term it loosely—would provide for a contra-indication in the terms of the compensation payable on grounds of betterment to a claimant's other property. I make that point, although I do not wish to dwell on it, because as I understand the Bill, it seeks to depart from the general law.
The Bill's provisions would allow the exercise of powers conferred within five years. I assume that that is five years prior to serving the notice to treat, which is the statutory notice following the grant of a compulsory purchase order which is served on the individual. Section 4 of the Compulsory Purchase Act 1965 suggests that the powers of an acquiring authority should not be exercised after three years from the date upon which a compulsory purchase order becomes operative. Again, and because of the need for specific legislation in this instance, I believe that the time limit could operate substantially to the detriment of prospective claimants of blighted property. For example, Clause 51 provides for the development to be commenced within 10 years of the enactment of the Bill. It cannot be right to permit ill effects of that type to be visited upon private individuals and,—for that matter, companies—for such an extended period.
As I understand it, the Tramlink will also necessitate a diversion of a large amount of the vehicular traffic which currently travels along Addiscombe Road. Noble Lords may be aware that that is quite an important vehicular access route from the east into the centre of Croydon. The consequences of that are the subject of an environmental study and therefore do not form part of the Tramlink environmental assessment itself. So far as I know, the separate study is not complete and is certainly not available, to the best of my knowledge, in a published form. Petitioners in respect of the Bill could be forgiven for being anxious about the absence of an assessment on such a material consequence of the constructional work arising from the proposal. My understanding is that the effects of increased traffic on
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some roads may he significant. It seems to me that provision should he contained in the main environmental assessment. Certainly, I am not happy that matters of that nature are put on one side for separate treatment as part of a subsequent study.
I have seen a copy of an amended economic evaluation. That has not been produced by the promoters of the Bill. It was prepared for an organisation which is opposed to the Tramlink. I make no claim for it or against it. However, regardless of the circumstances in which it came into being and the terms of reference under which it was produced, it is clear that there may be some fairly significant side effects which should be addressed, having regard to the priority which will be given to trams over all other traffic. There is one particular area at Gravel Hill which I know is causing anxiety to some people.
I must rely on the premise that the promoters satisfied themselves about the figures. At the same time, I must point out that others dispute them. It certainly seems to me that there should be expert scrutiny on that specific point lest the proposal turn out to be another example of civic pride before commercial head, whether or not bolstered by the notion of some kind of safety net at public expense should it go wrong. I do not wish to sound pejorative about the scheme, but noble Lords will understand when I say that experience is littered with circumstances where exactly that has happened. It follows from that that financial soundness is the bedrock of the Bill. I have no doubt that when it is referred to the Select Committee it will receive representations on that point.
My second objective therefore is to draw attention to the need for detailed consideration of the economic background of the Tramlink and the factual and financial provisions that underpin it.
I turn to the Motion standing in my name on the Order Paper which I shall deal with at this juncture rather than separately. It is undeniable that a number of properties already are and will continue to be affected by the mere promotion of the Bill. Their values will be affected and they will be less saleable. For owners suffering in that way Parliament needs to be satisfied that the promoters have sufficient financial wherewithal to carry out the proposed project.
There is an example of that in recent times in the case of the Jubilee Line extension where, as I understand it, the value and marketability of properties was damaged severely. There is now some doubt as to whether or not that scheme will go ahead and it leaves individuals and companies affected by a blight having, in many cases, incurred considerable expense and been unable to do anything about it. I do not expect that all owners of property can or should be protected from the ill-effects of every measure of this nature. But it is something that should be taken into account in this instance.
For all those reasons I shall move the Motion which I believe to be an important safeguard. I should also like to associate myself with the Motion standing in the name of the noble Baroness, Lady Nicol. The environmental impact on parkland is of great importance, particularly in that area of London.

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It would be wrong for me not to thank the many people who have helped me. I should particularly like to single out the way in which the petitioners, their advisers and officers of the London Borough of Croydon and London Regional Transport helped me in my consideration of the matter. Clearly it is appropriate that the Bill should proceed to a Select Committee and I am grateful for the opportunity of addressing the House on the matter.
7.53 p.m.
Baroness Nicol: My Lords, I too should like to thank the noble Baroness for the way in which she introduced the Bill. At the outset I should like to say that I strongly support the idea of the Tramlink and should like to see many more such schemes in progress. I believe that it is the way that transport must go, particularly in London and the surrounding areas.
The purpose of my much more limited Instruction to the committee is quite different from that of the noble Earl. Its purpose is to remind the committee of the provisions of the Acquisition of Land Act 1981. However desirable a development may be, it should still be carried out within the rules and legislation unless there are good reasons for doing otherwise. That is the purpose of my Instruction—to enable the Committee to decide for itself whether or not there are good reasons why the Acquisition of Land Act should be ignored. Section 19 of the Act requires that when a compulsory order is made on,
"any land forming part of a common, open space or fuel or field garden allotment, the order shall be subject to special parliamentary procedure unless the Secretary of State is satisfied—(a) that there has been or will be given in exchange for such land, other land, not being less in area and being equally advantageous to the persons, if any, entitled to rights of common or other rights, and to the public, and that the land given in exchange has been or will be vested in the persons in whom the land purchased was vested, and subject to the like rights, trusts and incidents as attach to the land purchased".
There are exemptions to that but they are not appropriate in this case. As we all know, the amount of open space available for public enjoyment is rapidly diminishing. It is particularly vulnerable to pressures in an urban environment and it is just such an environment that makes open space particularly valuable. As it stands, it appears that the Bill would result in a permanent loss of approximately 40 acres—I know that that figure is in question but nobody doubts that a considerable amount of land would be permanently lost to public enjoyment—without any provision for replacement elsewhere.
It is being argued that since the development in question is a tramline, the use would be intermittent and the line itself no barrier to public enjoyment of the land. But I find that argument unacceptable. However careful the landscaping may be and however intermittent the use of it by trams, the line itself represents a degradation in environmental terms.
We then come to the financial value of the land. I should like to quote to your Lordships from a Department of Transport report dated March 1992
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entitled Assessing the Environmental Impact of Road Schemes. I feel that it is equally applicable in this case. Paragraph 14.12 states,
"Much of the land acquired for road-building has a low existing use value, because it is in the countryside, or is open space. For these same reasons it may have a high environmental value. It is also unlikely, under our system of development control, to have much development potential. [I am sure that that is true in this case.] Very often it has none at all. The result is that this element of the capital cost of the scheme is likely to be quite low; and the imperatives of the search for value for money may encourage a cost-conscious Government Department to prefer to take such land, rather than developed land, where the cost of acquisition is likely to be greater".
Paragraph 14.13 states,
"The acquisition of the land for road-building now frustrates the very purpose for which the land was being reserved. Therefore, for social cost-benefit analysis purposes, its value should equate to the price which society was previously willing to pay for the benefit, now removed, of the earlier restriction".
I see no reason why that advice from the Government's Standing Advisory Committee on Trunk Road Assessment should not apply in this case. It appears that the local population is to lose out in financial as well as environmental terms. I urge the Select Committee to look closely at that aspect of the Bill.
It is surprising also that not only is there no provision for replacement of the land, but also Clause 48 of the Bill allows the local authority to dispose of the land at a price,
"less than the best that can reasonably be obtained".
Putting those two items together it is hard to believe that the authority is acting in the best interests of all its constituents. The least they should expect is that the open space that they previously enjoyed should be replaced. I hope to move that Instruction at the end of the debate.
Lord Winstanley: My Lords, before the noble Baroness sits down perhaps she will allow me to intervene for a second. She will have noticed that no noble Lord from these Benches put down his name to speak in the debate. However, it may be helpful to the noble Baroness to know that there are those among us who may support the Bill—knowing the experience of the tram system in Manchester which now operates extremely successfully, I am one of those—but who nevertheless share the anxieties expressed by the noble Baroness and expressed by the Open Spaces and Footpaths Preservation Society and the Ramblers Association.
As the noble Earl has said, it is true that there are provisions in the law which may minimise these difficulties. But the fact remains that open land is a resource which is in desperately short supply in England and under ever-increasing heavy demand. I thought that it might be helpful to the noble Baroness to know that some of us on these Benches support what she said.
Baroness Nicol: My Lords, I am very grateful to the noble Lord for his support.
8 p.m.
Lord Jenkin of Roding: My Lords, I hope that the House will give the Bill a Second Reading. The project seems enormously imaginative. I shall say something about both the speeches preceding mine to which we have just listened with much pleasure. It is right to point out that a very large part of the route for the proposed Tramlink makes use of railway lines which ceased to be used for rail traffic in some cases many years ago. That will mean bringing back into effective use assets which have been lying dormant.
I was given a copy of the Croydon Area Light Rail Study 1990 by a firm called MVA. Without wanting to weary the House with too much material there are three or four statements in the report which seem to me to lend weight to the very powerful case which my noble friend Lady Gardner of Parkes made in moving the Second Reading.
There was consultation with a large number of what are called "decision-takers" in Croydon—that is to say, people running businesses and retail shops and senior management personnel. The conclusion was that the,
"light railway was welcomed and recognised as playing a major role within a strategy aimed at resolving Croydon's transport problems".
I shall not go into the detail. There are objections on the part of people whose properties are likely to be affected; there are objections to the alternative going across open land—a bit of both. In the light of those problems one must remember that Croydon and surrounding areas suffer very serious traffic congestion. That is a point which the council and business people in the area, and no doubt a very large number of residents, are well aware of. They see traffic congestion which is strangling, or is liable to strangle, the economic life of Croydon. Something has to be done.
The next conclusion of the report to which I wish to draw the attention of the House is that,
"the expenditure on light rail would represent significantly better value for money than the construction of roads".
When the south London road assessment study was done the public outcry in the area was huge. There would have been very little prospect of securing the necessary public consent for the kinds of road schemes which the Department of Transport had asked its consultants to look at. As regards Tramlink—and I question whether this is still a valid statement—I am told that the very widespread public consultation which Croydon council undertook showed 80 per cent. support for the scheme.
If one takes those factors together the system is essential for the economic life of the area. It is infinitely better than the alternative. It is also a great deal better than trying to build up bus services which add to congestion. The scheme has wide public support. The case for it becomes overwhelming.
I turn now to points made by the noble Earl, Lord Lytton, and the noble Baroness, Lady Nicol. I shall take them in order. Finance is obviously crucial, but I simply cannot accept that if a project is thoroughly desirable in the public interest, the fact that there is going to be a healthy input of private capital and
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enterprise to bring the scheme about somehow creates a different duty for safeguarding the interests of individuals.
The interests of individuals must be protected. That is why one has the provisions of the compulsory purchase laws and the procedures which will be open to individuals, groups of individuals and local associations to put in petitions, as many have, so that they can have their particular circumstances properly examined by the Select Committee.
The noble Earl seemed to indicate that because private capital is involved then somehow there needs to be an altogether higher duty to protect the public. I am not sure that I accept that. I adopt his words in that if there is to be proper protection, then individual members of the public should not bear the cost of the detriment which the scheme may introduce without compensation. There seems to he every prospect that the operation of the system,
"would provide a healthy surplus of revenue over operating costs, and would make a significant contribution to the overall funding of the scheme".
If that is right, and given that we all recognise the reality of what the public expenditure situation is likely to be for some years, the choice is whether one goes ahead with such a scheme, with a significant private sector input and many other advantages, or one does not have the scheme and continues with the ever-worsening congestion in the area.
As regards that point, I am not sure that the noble Earl did not overstate his case a little. The promoters of the Bill have assured me that they are acting within the provisions of the national compensation code as set down most recently in the Planning and Compensation Act 1991 to which the noble Earl referred. Undertakings have already been offered to some local residents whose property is likely to be affected.
In defining the route alignment—this may he a disappointment to the noble Baroness—the primary objective of the council and London Transport, as I understand it, has been to minimise the amount of property required. As I said, two-thirds of the route lies on existing BR lines which will be transferred to light rail or on disused rail corridors. I am told that no more than 25 properties will be required of which two are commercial and the remainder residential. I regard that as a great triumph for planning because this is an 18-mile network in a heavily populated area of south London.
Of course, blight goes wider than the properties which will be taken. In his past life the noble Earl may have drawn up particulars of sale of properties. What do they say? "Convenient public transport close by." That is put into estate agents' jargon and I have no doubt that they put it a great deal more colourfully than that. The number of properties that will benefit from having a convenient public transport system close by has to be offset against the few that will have a new tram station nearby. It is only a stopping place. The average is about 600 metres between each stop. It is much more like tramways as we used to know them. Those factors have to be weighed in the scales.
I agree with the noble Earl when he says that it is important that there should be proper regard paid to

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the deleterious effect that that may have on some properties. I have no doubt that this is a matter that will be looked at carefully by the Select Committee. It is what the procedures are for. I am not sure that I agree with the noble Earl as regards his point concerning betterment. It seems to me that if an owner has property which will suffer and therefore seeks compensation, and has other property which will gain, I do not see why the public should be asked to ignore the gain and pay out for the "worsenment", if I may call it that.
I should like to ask a question although I do not know whether I should put it to my noble friend on the Front Bench or to my noble friend who moved the Second Reading. In the case of the Jubilee Line, it is said that there should be very substantial contributions from the landowners, principally businesses, who have premises close to the stations because there is not the slightest doubt that when that line is built their property will increase substantially in value. It may be too late now to do that for the Jubilee Line. But is there any proposal that those whose land will become much more valuable because of the access that will he given by light rail should be asked to make some contribution to the scheme? I should like to be sure that that matter has been fully examined before we ask the public purse to disburse money for this line. Because of the congestion advantages, there might well be a case for a grant from the public sector, but the issue of "betterment" should be considered at the start of a scheme such as this. One can only do so at the start of a scheme: such provisions cannot be added later, as has been discovered with the Jubilee Line.
Because the line involves so few houses, it passes through a great deal of open space. I have some sympathy with many of the points made by the noble Baroness, Lady Nicol, in her wish to see the matter better handled by the Bill. I am told that the figure that she mentioned—over 40 acres—means that all the land that might potentially be taken, if the maximum deviations were adopted, has been added in. That seems a highly unlikely state of affairs. A more reasonable figure is that something like 13.2 acres of public open space, green belt and parkland will be required, of which 9.2 acres comprise parks and open spaces. That is a rather less alarming figure. Nonetheless, if it is right, the noble Baroness has a point.
The Instruction which the noble Baroness has expressed the intention of moving asks that that land be,
"replaced by land of equal amenity value in an accessible area".
I have some experience of this. Considerable parts of my former constituency formed part of Epping Forest. Epping Forest conservationists, who have faced pressure over the years not only from road building but also from other developments, have always insisted that whenever an acre of land is taken from the forest, an acre should be added back. However, if one takes an acre from Epping Forest in the middle of the London Borough of Walthamstow,
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one cannot then find another acre of forest in the London Borough of Walthamstow, so the land that has been found has been out at Epping and beyond.
Therefore, I venture to suggest to the noble Baroness that her Instruction is impractical. Indeed, the Select Committee might he considerably hindered in its work if it had to take account of an Instruction which asks for what may very well be impossible. Having said that, however, I should like to add my voice to that of the noble Baroness and I hope that my noble friend Lady Gardner of Parkes can give the House some assurance on this point in her reply. I hope that the London Borough of Croydon will make every effort to try to replace with additional open space the open land that has had to be taken in the course of the construction of the Tramlink although I realise that it may well have to be open land elsewhere.
I warmly support this initiative. It is an imaginative scheme and I hope that it will come to fruition. As always, the Select Committee will read what has been said in this debate very carefully and will take the fullest account of the points that have been made, particularly by the noble Earl, Lord Lytton, and by the noble Baroness, Lady Nicol, both of whom have raised perfectly valid issues. I hope, however, that they might be persuaded not to press their Instructions to a Division. It is my experience that that adds considerably to the length of the committee proceedings and therefore, inevitably, to the cost for both the promoters and the petitioners. Learned counsel are very well able to make the maximum use of Instructions which have found their way into the committee's deliberations. It is my experience that it is very much better if the members of the committee take the fullest account of what has been said. I hope that this evening we shall allow the Bill to proceed to the Select Committee unadorned so that the measure can receive the full consideration that it merits.
8.15 p.m.
Lord Clinton-Davis: My Lords, the House is indebted to the noble Baroness, Lady Gardner of Parkes, for the way in which she introduced the debate, and to all noble Lords who have participated. Prima facie, some strong points were made by the noble Earl, Lord Lytton, and by my noble friend Lady Nicol. I hope that those points will be properly considered and digested when the Select Committee considers the Bill.
Perhaps I may draw to the attention of the noble Lord, Lord Jenkin of Roding, the fact that my noble friend Lady Nicol was not asking for land of equal amenity to he secured in a place comparable to Walthamstow. She has referred specifically to land "in an accessible area". I believe that that meets the criticism made by the noble Lord.
I very much welcome the Bill and the imaginative and, I hope, exemplary concept of Tramlink. A number of interesting experiments have been undertaken, sometimes under the aegis of local authorities, in other parts of the country. In this case, we are referring to Croydon and to a public authority. It is absolutely right that one should contemplate the best way of progressing these ideas. If the scheme

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involves the introduction of private capital and if that can be procured, that is all to the good; but it is the service that is to be provided that is all important as far as the passengers are concerned, not the way in which the service is owned.
I believe that this form of transport will prove to be environmentally friendly, clean and attractive and that it will reduce congestion and offer much greater convenience for passengers. I also believe that it will prove to be cost-effective. After all, one has only to consider the number of cars that it would take to convey the same number of people as can be carried by one of these vehicles. If full, I believe that about 220 people can be conveyed. Carrying that number of people in cars would probably involve using about 90 cars. I do not need to make the point in greater detail about environmental benefits.
At the very beginning of her remarks, the noble Baroness, Lady Gardner of Parkes, pointed out that people with physical disabilities will find these vehicles suitable for their use. I hope that the same will apply to people with other mobility handicaps. I refer, for example, to mothers with pushchairs who find almost any vehicle difficult to negotiate. That problem could properly he confronted by this very modern form of transport.
The questions that have been raised about other environmental concerns are powerful points which need to be properly considered. I am not sure that we are in the best position to do that tonight and it is for my noble friend Lady Nicol to determine whether she wishes to push this to a vote.
Some question was raised about the effectiveness of the environmental impact assessment which has been or is to be carried out. I am not sure whether that process has been completed. I doubt it, but I should like to hear from the noble Baroness on that point.
Whatever may be the position, I am sure that in the course of the development problems could well arise. My hope is that the promoters of the scheme will see the value of transparency and openness with a public who, by and large, have overwhelmingly welcomed the scheme, as the noble Lord, Lord Jenkin, pointed out. If problems arise, as undoubtedly they will in a scheme of this complexity, I make that plea for transparency and openness. It is in the best interests of the scheme itself to abide by that precept.
I turn now to the forecast use. The February 1992 briefing stated:
"It is hoped that the system would be integrated into existing ticketing arrangements such as Travelcard and that fares would be comparable to those paid by bus passengers with concession rates available for certain groups".
I wonder whether, nearly nine months later, the House could hear from the noble Baroness how far those hopes have been translated into much firmer assurances. What discussions have taken place in the interim?
Much of the investment, particularly for the infrastructure and also for the supply of equipment, is to be procured from the private sector. A figure of around £ 140 million is involved. That was stated in the briefing nine months ago, since when we have been enveloped in the cruelest recession in modern times. Are those projections still valid, or do they need to be
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revised in any way? In that event, or in any event, what kind of grant will be required from the Government? Are the Government responsive to that need?
The issue of compensation is raised in Clause 24, in Part III and in Clause 40. Can we have any idea in global terms what is contemplated in this regard?
My final point may be one of detail to be filled in at a later stage. I make a plea for an up-to-date method of fare collection. We seem in this country and in this metropolis to be eons behind the well-tried and successful methods of fare collection which apply in a number of cities in Belgium—contrary to most people's belief, from time to time I did actually travel by public transport rather than in the Commission car—in France and in other places. The idea of being able to punch a ticket when one boards a tram or a bus seems infinitely better than the arrangements we have in this country. Perhaps the noble Baroness can say a word about that and allay some of my concerns.
I conclude where I began. This is a bold and imaginative scheme. I wish it well. Although the noble Lord, Lord Jenkin, had some doubts about the Instructions, they are matters which give rise to issues which certainly ought to be considered by the Select Committee, whether or not the Instructions are put to a vote.
8.24 p.m.
Viscount Goschen: My Lords, I join other noble Lords in congratulating my noble friend Lady Gardner of Parkes on her introduction of the Bill. I welcome this opportunity to set out briefly for your Lordships the Government's position in respect of it.
The Government support the Bill in principle. Indeed, a light rail scheme for Croydon and the surrounding area was one of the recommendations of the four London assessment studies carried out on behalf of the Department of Transport back in 1989.
Tramlink would help ease widespread traffic congestion in Croydon and the surrounding area, providing an environmentally attractive alternative to increasing capacity through new road building or the widening of existing roads. It would also provide an orbital public transport link, linking Wimbledon, Mitcham Junction, West Croydon, East Croydon, Birkbeck, Elmers End and Beckenham British Rail stations, which would complement the predominantly radial links that exist at present. Finally, it would provide travellers with a real alternative to using their cars.
As my noble friend Lady Gardner of Parkes has said, Tramlink is to be a private sector project, albeit one that might require an element of public sector grant. The Government firmly believe that Tramlink provides a good opportunity for the private sector to contribute to the public transport needs of London. I am pleased, therefore, to be able to say that the promoters have established a private sector project development group, comprising Tarmac Construction, AEG (UK) Ltd. and Transdev, to take forward the development and design of Tramlink. Shortly before Royal Assent the promoters will hold a further competition to select the private sector concession company or consortium that would

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actually build and run Tramlink. No commitment has been or can be given on the provision of public sector grant: the case will be considered on its merits in the light of the availability of resources and other competing priorities at the appropriate time. Public spending is under particular pressure at present.
Your Lordships will note that there are some 40 or so petitions against the Bill. Petitioners will have the opportunity of presenting their objections to the Select Committee. The Select Committee will be in a very much better position than we are tonight to examine in detail the issues involved and it will have the added advantage of being able to hear expert evidence.
I therefore ask your Lordships to support the Second Reading of the Bill so that it can pass to a Select Committee for detailed examination.
8.27 p.m.
Baroness Gardner of Parkes: My Lords, I am most grateful to all those who have spoken in the debate. I should like to reply briefly to some of the points that have been raised. Perhaps it would be slightly easier if I were to deal with them in the order in which they were brought up.
I have great sympathy with many of the points made by the noble Earl, Lord Lytton. I took an active part in the Planning and Compensation Bill. I remember supporting his views about blighted property. One of the difficulties on which he then commented and with which I completely agreed is that people often consider their houses to be blighted when they are slightly beyond the point where they would get compensation. I always feel that those people are perhaps the most unfortunate of all. Those who receive statutory compensation at least know where they stand. But those who are slightly affected and yet do not qualify for compensation find themselves in a difficult position. At the moment, however, it is almost impossible in London terms to know whether blight is caused by the economic climate, the lack of buyers, the number of repossessions or other factors. There are so many blights at this stage that it is not easy to quantify that effect.
The noble Earl referred to the 10 years allowed by the Bill. I am grateful to see that it is only 10 years. When I was a member of the GLC I remember that certain houses had the right of route through them protected for 25 years and even as much as 40 years. The people in those houses had been blighted for all that time. At the end of the period we were selling the houses off and removing the blight. Until the moment comes when something is going to be done one does not really know whether it will ever happen, but I do hope and believe that the Bill will proceed to become an Act and that the Tramlink will become a reality.
In his Instruction, the noble Earl made the point that funds should be available to buy those properties in advance. He asked, in particular, whether that would be related to Royal Assent. I must tell him that it will not be related to Royal Assent, but that it would be related to the moment when contracts were let. Royal Assent would be at a certain stage of the Bill and then specifications and detailed contracts would
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be drawn up and tenders sought. But until a tender has actually been accepted one cannot be sure that an acceptable tender will be offered. That is the point—as soon as a tender has been accepted—at which the promoters would be perfectly happy to proceed immediately to compensate or purchase. A number of properties have been specifically identified where, in some cases, there would be real hardship. They would certainly be prepared to buy those properties at once so that people would not even suffer the noise or disturbance of work beginning around them, much less continuing.
It must be appreciated that no major construction of any type can be carried out without an element of disturbance during the time involved. The noble Lord, Lord Clinton-Davis asked about that point. There will be a code for the construction and very specific restrictions on what hours are worked, and so on. I thought that the noble Lord's remark was ambiguous. I did not know whether he was asking about the inconvenience at the time or at another time.
The noble Earl, Lord Lytton, also spoke about British Rail and its willingness to purchase properties in the line of the Channel Tunnel. That both interested and surprised me. I have written to British Rail about quite a hard case concerning an elderly widow who needed to move but could not sell her house because it was on the line. British Rail replied that there was nothing that it could do in her case until the location of the line was firmly settled. Sure enough, the line has been settled at a different place. Therefore, although I understand the reasoning, my experience in that respect has been different.
The noble Earl made a point about betterment, as did my noble friend Lord Jenkin of Roding. I am sure that will be carefully studied in debate. However, it is not a subject upon which I can comment at present. The noble Earl said that local searches will show up such matters. Well, planning permission has just been approved for an enormous development of four acres immediately opposite my home. It will be most difficult for people living in the area. But, again, no one knows whether it will ever be built. I believe that with all planning permissions and all such schemes we can only believe that they will happen. Clearly, once they are going to happen, the sooner they are developed and completed the better for all concerned. That applies especially in this case because there will be such a great advantage in terms of public transport.
Many petitioners and this comment applies to all speakers—have and will present their case to the Select Committee. Therefore, I do not think that any of the arguments, including those raised this evening, will be rejected without full consideration. We believe that there will be 25 properties directly affected. Of those,23 are residential and two are commercial. All will probably require demolition and all the affected occupants have been notified. One speaker suggested that the whole matter should be very transparent and that people should know where they stand. I think that we can say that that is being done.
I turn now to the remarks made by the noble Baroness, Lady Nicol. She spoke about replacement land being vested in the person from whom it was

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taken. It is interesting to note that the promoters of the Bill are prepared to introduce an amendment to Clause 48. I am sure that the noble Baroness will be pleased to hear that a category is to be brought into the clause stating that, if the land ever ceases to be a tramline, it will revert to the original owners. Or, presumably, if it is a case of a private property it might go to the successors in title for that private home if the land happens to be a garden. That represents quite a change to Clause 48.
The noble Baroness quoted the permanent loss of the 47.5 acres or 19 hectares. I was all in favour of acres until I realised that there were even more of them than there were hectares. I am now in favour of quoting hectares because it does not sound quite so frightening. That quantity of land will not be required. There is an update on the matter. The amount required will he only 9.5 acres of parkland or public open space; that is, 3.8 hectares.
I do not think there is anything sinister as regards the limits of deviation. It is simply that the final line is not precisely determined until the plans are completed. The reason that piece of open space is being used is because that is the route needed; it is not because of any intent to deprive people of amenity land. It is simply that, in order to provide the very good amenity of efficient public transport the system must be linked, and that was the only place, under this marvellous new scheme, where it could be linked without an enormous loss of homes. Of course, people would be very unhappy if many homes were to be lost.
Each section of the tram will carry 60 passengers. On the whole, there will be two unit sections, but there could be as many as four unit sections. They will certainly carry many people. I am happy that the trams will be powered by overhead wires. They are much safer than a third electrified line on which we know so many children have been killed. Even where old British Rail track is being used the electrified line will be taken out and replaced with overhead lines. That is a good improvement in my view.
Several speakers, especially the noble Lord, Lord Clinton-Davis, asked about wheelchair users. I emphasise the fact that there will be easy access for wheelchair users, prams and people who have difficulty in raising their feet more than a certain height. Low platforms will he provided as well as low access vehicles. Moreover, where existing old British Rail stations are used they will be rebuilt to make the platforms lower and ramps will be supplied to ensure easy access to the low level platforms. In my view, this is the first form of public transport which will be wholly available to wheelchair users.
The safety measures will have to be approved by Her Majesty's Railway Inspectorate. We expect those concerned to be very particular. Personal safety will be controlled to a very large extent by the fact that each stop of the tram will be monitored by closed circuit television. That should help people waiting on the platform. That is the system used at present on the Docklands Light Railway and has proved to be most successful.
The noble Baroness, Lady Nicol, was concerned, quite rightly, about the loss of amenity land. My noble
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friend Lord Jenk in made the good point that it might not be possible to put such land exactly where it would be desired. It is rather difficult to assess equal amenity value or equal value and accessibility. The way that the noble Baroness has phrased the Instruction makes it seem a rather difficult equation. That is one of the reasons why I cannot accept it.
The noble Lord, Lord Clinton-Davis, asked about fares. At present, nothing is quite settled in that respect. It may be necessary to impose a premium fare in order to pay for what must be a very expensive construction. However, it is hoped that travel cards will be used. I personally raised with the promoters the possibility of an easy system of ticketing. I hope that the system will be similar to the one in Strasbourg where travellers pre-buy their tickets and on boarding the vehicle simply punch it into a machine. They seemed most optimistic and indicated that such a system was under consideration.
The noble Lord also asked about public sector funding. That will come under Section 56 of the Transport Act 1968. But that is only a possibility, because the availability of such funding is subject to the general economic constraints and will be determined in the light of prevailing circumstances at the time.
Lord Clinton-Davis: My Lords, does that mean that if the Government are not forthcoming with a grant in this respect, the scheme will become fatally flawed?
Baroness Gardner of Parkes: My Lords, I hope that is not so. The belief is that the combination of London Transport, Croydon Council and the private developer would produce this result. But Section 56 of the Transport Act might make public funds available, and that would be an additional source of funding.
I should like to make clear that the Instructions are valuable and carefully thought out by Members of this House who I know take their responsibilities seriously, and I would not underestimate the importance of what they have put. However, it is not appropriate to send such specific Instructions to our opposed Bill committee. This debate will be studied carefully and every word that has been said here tonight will be considered. For that reason I do not think that the Instructions are necessary.
Further than that, I hope that the Committee will look not only at these two serious matters raised tonight but at every other appropriate and necessary point in this Bill, and many of these are being raised by petitioners. We are fortunate in having such excellent people willing to serve on these committees and giving their time to consider every aspect of these Bills. One past hazard in London transport Bills has been the matter of the time they have taken. Even the Jubilee Line Bill took an enormous amount of time. I understand that if specific Instructions on any particular point are given, that might add three or four days to the proceedings and therefore create additional cost for the committee hearing. I take seriously what has been said, and I thank those people for making their contribution, but I hope that they will not press their Instructions tonight.
On Question, Bill read a second time, and committed to a Select Committee.
[The Motions in the names of the Earl of Lytton and the Baroness Nicol were not moved.]

Judicial Pensions and Retirement Bill [H.L.]
8.43 p.m.
Consideration of amendments on Report resumed. Clause 4 [Lump sum on the judicial officer's retirement or death]:
Lord Ackner Lord Ackner moved Amendment No. 56:
Page 5, line 27, leave out ("two and one-quarter") and insert ("three").
The noble and learned Lord said: My Lords, this amendment relates to the lump sum to which a judge is entitled on retiring together with his pension, which is half his salary if he has done, according to this Bill,20 years' service. Perhaps I should put this in its historical context. Until 1950—that is more than 150 years after pensions became payable to the judiciary—the pension was two-thirds of the salary. But pension philosophy moves on, matters change, and it became fashionable, and indeed desirable, for a person to have as part of his pension facilities a lump sum. Accordingly, in 1950 two alterations were made in the judicial pension schemes.
First was the payment of a pension to widows and orphans, and the other was the reduction of the judicial pension from two-thirds to one-half in exchange for the judge having a lump sum equal to twice his pension. He lagged behind what happened in the public sphere, because in the public sphere it was three times the annual pension. The payment for widows and orphans came conveniently not out of the Treasury but out of the lump sum, so that he had his lump sum subject to contributing the appropriate portion thereof towards maintaining the widow and the orphans.
The two themes upon which there have been slight variations from time to time so far as the Government are concerned are, first, that the judges must conform to modern legislation, and, secondly, that my noble and learned friend the Lord Chancellor has triumphed in achieving the maximum tax-efficient scheme that was available. Whenever one has sought to achieve what occurs in the private sector, from whence of course the judges have been recruited, the answer inevitably is, "This is not what happens in the public sector, and you have now joined the public sector by ceasing to be self employed and becoming a member of the judiciary". This does not apply in this particular situation.
The current position is that the judges get twice their pension as a lump sum. Or, expressed more simply, once times their annual income, subject of course to the fact that the once times the annual income is the annual income that they are receiving at the moment of retirement. This is valuable because in the past—it may take some time for it to occur in the future—when there have been pay increases, however
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limited, a judge who retired on 2nd April following a pay increase on 1st April had his pension calculated upon that new salary with the increase. Now that is to be changed. Another downgrading of the pension facilities for judges, because his pension is based on the annual salary that he had averaged over the last year.
Coming back to the lump sum, it is once times what he is now in receipt of as his annual income on the moment of retirement, or, which amounts to the same, twice his annual pension. What is proposed in the Bill is to put that lump sum up to 2.25. That superficially sounds an improvement, but it is only superficial because there are what are known in this Bill as capping provisions. The judge's pension is not capped, kept down, to a sum that the Revenue consider to be the maximum sum, but the lump sum is capped and it is capped at £ 75,000.
If one takes the lump sum which is achievable by a Lord of Appeal in Ordinary on retirement—and I speak with some knowledge, having had that particular experience a matter of a few weeks ago—the lump sum is just in six figures, £ 100,000. But if I was appointed after the Act came into force the apparent generosity of 2.25 would soon disappear because anything above £ 75,000, which in that particular case would be £ 25,000 would be taxed at 40 per cent. Therefore, one must not be thought to be overlooking generosity when it does not exist. What we are seeking to do is to achieve a lump sum which is that which is achieved not merely in the private sector among those who commute their pensions—over 90 per cent. do so—but also in the public sector to which we are so frequently redirected whenever we refer to the private sector. In the public sector three times the annual pension is what is paid, and has been paid for a long time. Accordingly when the Top Salaries Review Body was asked its views on the situation it reported in the following manner. I wish to draw your Lordships' attention to what the Top Salaries Review Body stated as reported at col.712 of Hansard of 30th June during the Committee stage of the Bill. The TSRB said:
"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".
That is 2¼ the figure to which I referred.
I now wish to stress the following remarks from the TSRB's comments to the noble and learned Lord the Lord Chancellor as regards his scheme. The TSRB further stated as reported in Hansard at col.713:
"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 view of the TSRB the lump sum under the proposed scheme for the judiciary should be improved from 2.25 to three times the annual pension. That would result in conformity with what occurs in the public sector.
My noble and learned friend the Lord Chancellor had the benefit of the advice of his own independent consultant actuary, Mr. Alexander of Watsons. Mr. Alexander said in paragraph 3.10 of his comments:
"After 20 years the total personal retirement benefit is a pension of one half of final pay plus a lump sum of 1.125 times final pay".
That is the same as 2.25 times the pension. He continued:
"This equates to the Inland Revenue maximum pension of two-thirds of final pay if the lump sum is converted using a factor of £ 1 p. a. pension for each £ 6.75 of lump sum. By reference to the standard Inland Revenue conversion table this implies that retirement takes place on average at about age 73".
He was unaware, of course, of the new maximum age limit. He continued:
"However this standard table does not necessarily represent fully the value of an index-linked pension".
I would add that that is the pension proposed under the Bill. Mr. Alexander continued:
"By reference to a table which does so, the average retirement age implied by a factor of £ 6.75: 1"
that is the 2.25 factor—
"is around 77".
Therefore the 2.25 figure which applies the Treasury approach, or the Inland Revenue approach, presupposes that a judge retires not only two years after the present maximum retirement age but also seven years after the maximum retirement age under this Bill. Mr. Alexander shows therefore the mathematical fallacy of choosing the figure of 2.25. As I have indicated to your Lordships, we judges in the interim consulted our own independent consultant actuary. I have already said that we have sent a copy of the report to my noble and learned friend the Lord Chancellor. The independent actuary states at paragraph 4.7 of the report:
"The recognised standard is a lump sum of 3 times the pension. However, an even higher multiplier should be given on the grounds that the lump sum is intended to replace the difference between the pension actually payable to a judge compared with what might have been paid to an equally senior employee in the private sector".
In the private sector the pension would be two-thirds of salary whereas for a judge it is to be one-half of salary. The difference is one-sixth of salary. An index-linked pension is worth about £ 12 for each £ 1 of pension and therefore a pension shortfall of one-sixth of salary should be compensated by a lump sum of 12 times one-sixth of salary, that is twice times salary, or four times the pension of one-half salary. The multiplier should therefore be four times and not 2.25.
We appreciated what would happen if we suggested the figure of four times. We realised that we would be told that that is what we might get in the private sector but that we were not in the private sector. Therefore we return once more to the public sector. Those in the Civil Service receive three times the lump sum—that is the public sector—so why on earth should not the judges receive that when they are being forced into this mould in other respects? I beg to move.
Lord Benson: My Lords, I am afraid I may repeat a certain amount of what the noble and learned Lord, Lord Ackner, has already said. I judge this matter on simple grounds. There seem to be five criteria by which this matter should be judged. First, in the private
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sector the lump sum usually works out, in the way the pensions are computed, at three times under current practice.
Secondly, in the public sector the figure is three times. Thirdly, the TSRB supports the figure of three times. Fourthly, the actuary whom the judges themselves had to consult, in default of proper advice being available to them, supports the figure of three times. Fifthly, the adviser to the noble and learned Lord the Lord Chancellor said:
"good practice is represented by a lump sum of three times".
Those are five separate criteria by which to judge this matter.
In Committee the noble and learned Lord the Lord Chancellor said that he had concluded that two and a quarter times was reasonable having considered all the material. I am puzzled about what constituted the material he referred to. What other factors have been concealed from us which are known to the noble and learned Lord the Lord Chancellor? I hope that in the course of his reply the noble and learned Lord will be able to tell us what the material was that he considered which led him to arrive at the figure of two-and-aquarter times in the face of the five separate criteria which point to a different figure.
9 p.m.
Lord Simon of Glaisdale: My Lords, my noble and learned friend Lord Ackner introduced the amendment with his astonishingly lucid command of detail. He has been seconded by my noble friend Lord Benson with his vast professional experience and computerised mind. It is quite unnecessary and indeed would be idle to try to rival or repeat their expertise in the matter.1 merely wish to emphasise one or two points very shortly.
First, when lump sum payments were introduced into the judicial pension scheme for the first time in 1950 they were paid for by the judiciary. They were paid for by the judges consenting to a reduction of their pension from two-thirds of salary to one-half. Secondly, one must remember that in 1950 the rates of taxation were very much higher and the lump sum was proportionately more valuable than it is today.
Thirdly, on the face of it this seems to increase the lump sum by one quarter, but there are two factors to be set against that. The first is that, as my noble and learned friend said, that sum will be capped. Secondly, for that quarter improvement the judges have to work one quarter longer. Therefore, even if it were uncapped the judges would have no advantage. To treat that as an act of generosity or of bounty must remind your Lordships of Mr. Squeers ordering half a glass of milk, filling it up with water, sniffing it and saying, "Here's richness! ". I support the amendment.
The Lord Chancellor: My Lords, as my noble and learned friend Lord Simon of Glaisdale said, one has to take account of the tax position in considering these matters. The position is that tax is payable on the lump sum above the cap as a result of the general law. However, the actual amount of the lump sum is increased from two times the pension to 2.25 times the pension. I believe that it is right to look at that apart from the tax question.

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My noble and learned friend Lord Ackner pointed out that lump sums in the private sector can be one-and-a-half times pensionable pay—which would be three times the half salary or three times the pension—and in the public sector three times pension is also common, although in that case there is a 40 year accrual span.
In my submission the 12½ per cent. increase in the lump sum is appropriate in the judicial situation when one takes account of the fact that in the retained benefits to which I have referred once or twice in the course of these discussions the lump sum which is payable under the retained benefits also has tax advantages. Therefore, the distinction between the various schemes which have been referred to as comparable and this scheme is that in this case the retained benefits are available without their being taken into account. In other situations account would have to be taken of the lump sum element of the retained benefits in the calculation of what was available under the scheme.
Various advice has been referred to. That advice is based on what is available in the other situations. However, in my submission to your Lordships the distinction between those other situations and the present scheme is the existence of the retained benefits with their aspects of lump sum as well as of pension arrangements.
For those reasons I am not able to accede to the amendment.
Lord Ackner: My Lords, before my noble and learned friend sits down, will he tell us, bearing in mind that he has frequently said that he has achieved the most tax effective scheme attainable, whether he has sought the revenue's views as to whether it would accept that the judges should be treated in the same way as pensioners are treated in the public sector?
The Lord Chancellor: My Lords, I explained a moment ago that the distinction between those other schemes to which my noble and learned friend referred and this scheme is that under this scheme the pension holders are entitled to the retained benefits with the tax advantages which those benefits carry. It is for that reason that the 2.25 multiplier is appropriate here.
Lord Ackner: My Lords, I infer that that is a negative answer and that the revenue has not been asked as to whether it would accept that judges should be treated as other people are in the public sector.
I shall withdraw my amendment in the hope that by the time we reach Third Reading my noble and learned friend will make good his proposition that he has achieved the most tax efficient scheme attainable by consulting with the revenue, which controls these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No.57:
Page 5, line 29, leave out subsection (2).
The noble and learned Lord said: My Lords, I have already spoken to the amendment with Amendment No.40. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, if Amendment No.58 is agreed to, I cannot call Amendments Nos.59 to 61 inclusive.
Lord Ackner Lord Ackner moved Amendment No.58:
Page 5, line 34, leave out subsection (3) and insert:
("(3) Where a person dies within five years of retirement his personal representative 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: My Lords, this amendment was put before your Lordships at Committee stage because what was provided in the present clause resulted in a situation where a judge who died within one year of his appointment achieved precisely nothing. If he dies after two years, his widow gets very little. I need take little time on this for the simple reason that this is another of the proposed amendments in respect of which the draftsman found four months to be inadequate to put it into type. The noble and learned Lord the Lord Chancellor kindly indicated in a letter of 20th October addressed to my noble and learned friend the Lord Chief Justice (of which I have a copy) that he was considering an amendment on these lines. The letter reads:
"I propose to modify the method by which the lump sum paid on death following retirement is calculated. I intend that the lump sum should be five times the deceased's annual pension at the time of retirement less any benefits already received".
I do not know—I am sure it is my fault—what is comprised in the words "less any benefits". If it involves the inclusion of the lump sum, it produces precisely the nil calculation of which I have complained. There is little point in speculating on what is meant by the drafting in this letter. What one needs to see—it is promised for Third Reading—are the actual terms of the amendment. They may be precisely what we have put in our amendment. It may be overoptimistic but by temperament I am an optimist.
Once again, I ask my noble and learned friend the Lord Chancellor if he will give the House an assurance that it will get the terms of that amendment not later than one week before Third Reading. Of course, we shall be delighted to receive it earlier. No doubt my noble and learned friend the Lord Chancellor would like to indicate whether I have correctly understood the position.
The Lord Chancellor: My Lords, I wrote in the terms to which my noble and learned friend Lord Ackner has referred as a result of consideration of this matter. My intention was to take account in the calculation of the lump sum in the benefits received. But I would want to make clear, in view of the way my noble and learned friend has recounted this matter, that the decision I have taken has been capable of being taken only fairly recently. It is not the draftsman who has been waiting to do the work over the past four months; it is a question of being able to make the necessary decision. The draftsman has been instructed on the basis I described in the letter. I certainly believe it should be possible to produce the amendment in this matter at least one week before Third Reading.
Lord Ackner: My Lords, on that most helpful assurance, I beg leave to withdraw my amendment. Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 59:
Page 5, line 36, after ("pension") insert ("increased by any pension paid under section 19").
The noble and learned Lord said: My Lords, Amendment No.59 concerns another esoteric part of pensions law and practice. I hope I shall be able to explain it simply. The death benefit paid to a widow is at present capped. That means that if it is above £ 75,000, up to 40 per cent. of anything beyond that figure is paid by way of tax. If one is achieving the most tax-efficient scheme obtainable, there seems to be no reason to pay tax unnecessarily.
Therefore I rely first upon what the Top Salaries Review Body said in its comments to my noble and learned friend on this particular subject. I read from paragraph 3.12 of the observations sent to my noble and learned friend:
"A death-in-service benefit of 1½ x pensionable pay"—
which is to become at least twice having regard to my noble and learned friend's amendment—
"(capped) is low and there is therefore no need for the cap to restrict benefits. The cap on death-in-service comes into play only when the tax-free lump sum exceeds four times the capped salary at the date of death. The cap applies to the benefit, not to the pensionable pay".
If further support were required for the wisdom of that proposition. it is to be found in the assistance rendered to my noble and learned friend the Lord Chancellor by the Government's own consultant actuary, none other than Mr. Alexander of Watson's, to whom reference has been made earlier. On page 4 of his comments, he says:
"We further note that if pay exceeds the "cap", the gratuity in excess of 1½ x"—
shortly to become at least two—
"the cap would be paid from the unapproved scheme and would therefore be taxed. We recommend that instead all of the death gratuity is paid from the approved scheme, thereby ensuring that no tax would be payable. This is possible because in all cases 1½ full pay"—
I interpose again to say that that applies equally to twice full pay—
"will he less than the Inland Revenue maximum gratuity payable from the approved scheme of 4 x capped pay".
Our own expert, Mr. Wynne-Griffith, says:
"The part of the lump sum death benefit that relates to salary in excess of the "cap" will be taxed (as pointed out by the Independent Actuary)"
that is, Mr. Alexander of Watson's—
"It is possible to enhance the benefit up to 4 times the lesser of salary or the cap and so avoid the tax. This is common practice in the private sector. It seems peculiar that judges should have such a low level of benefit and still be exposed to tax on some of it when, in the private sector, the whole of a larger benefit is paid free of tax".
So all sides—the TSRB, the Government's own independent consultant actuary and the independent consultant actuary to whom the judges have been obliged to have recourse—make the same observation. Once again, I ask in the spirit of humility: how is it that this is the most efficient tax effective scheme when all three experts say that that should not occur? One is obliging the judges under the scheme to pay more tax than the Revenue requires. I beg to move.
9.15 p.m.
The Lord Chancellor: My Lords, as my noble and learned friend said, this amendment seeks to improve the level of lump sum payable on death in service or death in early retirement by ensuring that the whole of any such lump sum (including such part of those lump sums as is derived from salary above the pension cap) are not taxable. This pension cap is a part of the modern pensions law which applies to all other members of society, no matter what their career paths or the peculiarities of their chosen profession. One of its features is that our particular scheme is different from the general in respect of the retained benefits. Up to twice the salary, lump sum death benefit can be paid without taking account of retained benefits.
If the lump sum multiple should exceed twice the salary, retained benefits need to be brought into the calculation. That is the position. Therefore the reason for this system is the retained benefits arrangement which I have described and which I believe is extremely appropriate in the case of the judges.
My noble and learned friend made an observation in relation to one of the earlier amendments after I had sat down when he was withdrawing his amendment. It is quite inappropriate to suggest that I have not discussed all these matters with the Inland Revenue. As I have stated, I represent Her Majesty's Government; and all aspects of the Government are available to me. However, the explanation of the situation is the one that I have just given.
Lord Ackner: My Lords, before my noble and learned friend sits down, do I take it from his last answer that the Inland Revenue has declined to supply the same tax facilities to the judges in relation to capping benefits as applies generally to the remainder of the public?
The Lord Chancellor: My Lords, that would be a quite improper inference to draw from what I said. I stated that one has to take account of the fact that in this scheme the retained benefits are allowed with a tax advantage. With the schemes to which my noble and learned friend referred, that is not a feature. It is because of the additional feature of the retained benefits with their tax advantage, including lump sums, that the point arises.
Lord Morton of Shuna: My Lords, before the noble and learned Lord sits down, perhaps I may raise this point. We have heard much about retained benefits. That may be of great interest to people who have had very high incomes at the senior Bar in London. However, speaking as a Scot, that does not apply—as I am sure that the noble and learned Lord knows full well—among those who are appointed as sheriffs. I suspect that it does not apply in England and Wales to those who are appointed as circuit judges.
It is ridiculous if the pension scheme is to be worked out on the basis that those appointed as judges are expected to have had an income at the Bar of hundreds of thousands of pounds when that is demonstrably not true for the vast majority of those appointed.
The Lord Chancellor: My Lords, we are in danger of transgressing the rules of order. However, with the leave of the House, I answer in this way. The tax provisions which enable people, if they so wish, to have retained benefits apply to those who are at the Bar and become sheriffs in Scotland just as they do to those who may become members of the circuit Bench in England. The benefit is available to people with far more modest incomes than hundreds of thousands of pounds. I was never in that category by quite a long chalk.
Lord Taylor of Gosforth: My Lords, before my noble and learned friend sits down, perhaps I may ask how many deficiencies in this Bill are the retained benefits to be found to cover? To every point that has been raised, my noble and learned friend has prayed in aid the retained benefits. The retained benefits were the answer to the 15 years,20 years point. The retained benefits were the answer to the point that my noble and learned friend Lord Ackner raised a few moments ago. The retained benefits are the answer to this point. How many holes in the Bill can the retained benefits fill? How many deficiencies will they be prayed in aid to cover?
The Lord Chancellor: My Lords, one has to remember that with their advantages the retained benefits are a feature of the scheme. Therefore in so far as questions are raised, I require to refer to them as an aspect of the scheme which distinguishes it from another. It is not a question of holes in the scheme which are met by the retained benefits. It is that the scheme cannot be considered without giving effect to the fact that it allows for the retained benefits. They are intended to enable the persons who are in a previous career to make pension provisions during the time that they work in that career in a tax efficient way with the appropriate tax relief. It is during that part of their career that they have this opportunity. During the later part of their career when they become judges it is appropriate to take that into account as part of the arrangement that this provision allows for them.
Lord Ackner: My Lords, during the debate on the accrual period of 15 years (increased to 20) I set out four reasons why I respectfully submitted that the retained benefits are a red herring. Those reasons are recorded in Hansard and I do not propose to repeat them.
It is perfectly clear that if, as we all believe, a considerable proportion of the judiciary, certainly circuit judges and sheriffs, have no, or no significant, retained benefits because of the expense of dealing with their mortgages and/or their children's education, it would be totally wrong for them to bear the burden of suffering from an inability to enjoy what the rest of the public enjoy merely because there would be some High Court judges, in all probability, who had been able to afford to spend sizeable amounts of money on pensions before—and I emphasise this—they reached the age of 50 or thereabouts.
Accordingly, I give my noble and learned friend the Lord Chancellor notice that on Third Reading I shall seek to introduce amendments enabling judges to opt
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in or to opt out according to whether or not they ask for their retained benefits to be taken into account. I imagine that the circuit judges will say, "Keep the retained benefit concession of which you speak; I would rather serve 15 years than have my non-existent retained benefits taken into account. Keep your retained benefits concession; I would rather have three times the lump sum. Keep your retained benefits concession; I would rather have the death benefit uncapped", and so forth. By that means my noble and learned friend will have achieved that which he says is so important; that those who have valuable retained benefits must, so he believes according to the new philosophy, have them taken into account. It is totally inequitable constantly to reply in relation to those who have no, or no significant, retained benefits, "On behalf of the Government I have decreed that although you do not have this advantage you will nevertheless suffer the disadvantages which you would not otherwise have suffered had you been an ordinary member of the public."
On that basis, and with that suggestion of what will be contemplated in the future, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No.60:
Page 5, line 38, at end insert ("increased by any pension paid under section 19).
The noble and learned Lord said: My Lords, this is a minor amendment. I am told by those who know better than I that under the Social Security Act 1973, in particular Section 63(2), (3) and (4) and Schedule 19, there is an obligation for the Bill to refer to the fact that there is an entitlement, even though there has been service of only two years, to the appropriate pension for that period. That is my understanding of the obligation, which can be checked.
Whether or not I am right, it is wrong that there should not be in a Judicial Pensions and Retirement Bill a reference to an entitlement of which the judges will know nothing unless it is included in the Bill. That is the reason for this modest amendment and I hope that my noble and learned friend the Lord Chancellor will accept it. I beg to move.
9.30 p.m.
The Lord Chancellor: My Lords, I am sorry to say that I find it difficult to understand how Amendment No.60 provides a basis for the point which my noble and learned friend Lord Ackner has just made. However, I am happy to read carefully what he said. I believe that the Social Security Act payments are preserved under the provision, but I am willing to look at that matter. However, Amendment No.60 does not appear to bear directly on the point.
Lord Ackner: My Lords, it is entirely my inadequacy which has led to the difficulty. It is as simple as this. In view of the legislation in the Social Security Act 1973 every pension must provide that if a person has served at least two years he is entitled to whatever is the right figure for those two years. That is an obligation which lies upon the Government. Leaving aside the strict law, when putting the

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entitlement of a judge to a pension into primary legislation, I should have thought that the Government should put in the totality of his entitlement and not expect him to have to look in other legislation to see whether there is something additional.
The amendment states:
"The appropriate Minister shall make regulations providing deferred pensions, lump sums and other derivative benefits at appropriate rates and subject to appropriate conditions for persons who cease to hold qualifying judicial office after serving two years therein without becoming entitled to a pension under subsections (1) to (4)".
The justification for the obligation is to be found at Section 63 and Schedule 19 of the 1973 Act. I have confessed to my inadequacies but I do not believe that I can make the matter any clearer.
The Lord Chancellor: My Lords, I believe that there is a misunderstanding. We are dealing with Amendment No.60. I believe that my noble and learned friend is speaking to Amendment No.65. I understand his point as covered by Amendment No.65 but I am suggesting that is not covered by Amendment No.60. I believe that there has been a misunderstanding.
Lord Ackner: My Lords, I apologise. Amendment No.60 deals with another technical aspect of pension practice. In the ordinary private sphere the widow of a senior executive receives two-thirds of the pension of her husband on his death. That is based upon his having a two-thirds pension himself. In the case of a judge, the pension is fixed at a maximum of one-half his annual salary, but, in addition, there is a mandatory lump sum. He has not, as in the private sector, the option to commute. He is obliged to keep to the one-half and accept the lump sum.
In order to equate the position with the widow in the private sector, the judge's widow should not be provided with one-half of the judge's pension as such but there should be included an increase resulting from the actuarial calculation of the value of the lump sum which has been paid or is payable. The object is to increase the widow's pension by taking into account not only her husband's pension of one-half but the lump sum which is part and parcel of the pension provisions. Otherwise, you are affording to the widow less than half of the husband's entitlement.
The Lord Chancellor: My Lords, again I have a little difficulty in connecting the noble and learned Lord's comments with the precise amendment. I believe that the matter is covered by what I said in relation to Amendment No.59. Indeed, I had understood that Amendments Nos.60 and 61 were to be grouped with Amendment No.59. The underlying principle is the same for all three.
Lord Ackner: My Lords, it may be entirely my fault but I fail to understand the answer to my submission. I am seeking to introduce into the legislation an entitlement for the widow's pension to be increased by the pension equivalent of the lump sum. It is an actuarial calculation to be added on to the one-half of the widow or widower's pension.
The Lord Chancellor: My Lords, I have a little difficulty in following that. It may be that the wisest course is for me to read what my noble and learned friend said and seek to deal with the matter in correspondence. The basic situation covered by Amendment No.59 is also the underlying principle that applies in Amendments Nos.60 and 61. The reasons I gave were concerned with that. If I have not properly understood the submission of my noble and learned friend, I shall endeavour to read it and understand it at more leisure later.
Lord Ackner: My Lords, on the basis that further thought will be given to the proposition, I shall beg leave to withdraw the amendment. It may assist my noble and learned friend to refer again to the report of our consultant actuary, Mr. Wynne-Griffith, which we sent to my noble and learned friend as far back as last July. The point is now covered. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.61 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.62:
Page 5, line 43, leave out ("one and a half times") and insert ("twice").
The noble and learned Lord said: My Lords, in this amendment I am proposing to increase the relevant benefit from one-and-a-half times to twice. That has already been the subject of discussion. My noble and learned friend referred to the fact that that is what I am doing. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No.63:
Page 5, line 43, leave out ("one and a half) and insert ("three").
The noble and learned Lord said: My Lords, this is a rival amendment to Amendment No.62. It relates to the death benefit.
My noble and learned friend the Lord Chancellor had the benefit of the advice of an independent consultant, Mr. Alexander, of Watsons, whose firm advised the Top Salaries Review Body on pensions for Members of Parliament. In his report to my noble and learned friend, he said:
"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".
In the light of that recommendation by the independent consultant I tabled the amendment. I beg to move.
Lord Benson: My Lords, I am puzzled by Amendment No.62 which inserts "twice". I can see no reason why the lump sum paid on death should be any different from that paid on retirement. As the House has heard, we have argued very strongly for the purposes of subsection (1) of the clause that payment should be three times. There is no reason why on death it should be any smaller sum. I share the views of my noble and learned friend Lord Ackner about the government adviser's advice which seems conclusive. I cannot understand why the noble and learned Lord the Lord Chancellor does not follow the advice of his own adviser.

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Also the judges themselves have taken advice on this and it is the same. Their advice is that in 75 per cent. of private sector schemes pay under these conditions is three and four times the salary. In the face of that evidence, on what grounds does the noble and learned Lord the Lord Chancellor put forward the figure of two? I say in parenthesis that I hope on this occasion that we shall not again have the question of retained benefits brought out. At this end of the Chamber we are getting rather tired of the subject. One can play the card once, but one cannot play the same card three or four times in the same game.
To change the metaphor, one simply cannot stop up every hole and every flaw in this Bill by crying out "retained benefits!"I hope that it will not be referred to again. But do not let me be deflected from the point that all the advice that has been given both to the noble and learned Lord the Lord Chancellor himself and to the judges is that the figure should be three times. On what specific ground has any different figure been chosen?
The Lord Chancellor: My Lords, I believe that technically we are dealing with Amendment No.63. So far as I am concerned the situation is that, having considered the matter in the light of what is available in the public service generally, the correct figure for this particular benefit is twice pensionable pay. That is the provision of the Principal Civil Service Pension Scheme. The schemes for Members of Parliament and the fire and police services have this particular provision.
The noble Lord, Lord Benson, does not wish to hear any more about retained benefits. I can understand why he says that. However, I have to point out that the retained benefit is a factor which distinguishes this scheme from others. I have no doubt that at least the noble Lord, Lord Benson, is suggesting that that is the answer to everything. It is an unavoidable characteristic of the scheme. Therefore, when any aspect of the scheme is called in question, one must look at the whole of it, including that provision.
The proposed lump sum on death-in-service benefit which I am proposing is twice the pensionable pay. That is equal to four times the full pension of half pay. That is higher than the retirement lump sum benefit and therefore surely it seems generous enough. For these reasons, I am unable to go beyond the twice figure that I have put forward in Amendment No.62 to which your Lordships have assented.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, will he take it for granted that from these Benches we are also a little fatigued at the repetition of retained benefits? Perhaps I may quote the rather adorable words of the noble and learned Lord, Lord Ackner, who said—and I do not know whether he noted it—that he thought that the suggestion was a red herring. Later on in his speech he said that it was inedible.
9.45 p.m.
Lord Ackner: My Lords, in the optimistic prospect that my noble and learned friend might give more thought to this matter, I quoted his own expert. Our own expert, to whom we were obliged to go, says this:
"The lump sum on death is only 1½ times salary. This is a very low level of benefit indeed".
I pause there. He was right because your Lordships have increased the lump sum to twice salary having resisted that attempt in Committee. So, our adviser was right in saying that one and a half times was too low. Let us see how he continues. He stated:
"It is seen to be even less generous when set in the context of the very low level of spouse's pension in these circumstances".
That is a reference back to the fact that a widow or widower gets no part of the pension equivalent of the lump sum.
He then went on to say:
"The private sector pays much more (75 per cent. of schemes pay 3 or 4 times salary: NAPF survey)—and particularly so to senior employees, in my experience".
There is the further material upon which I hope that my noble and learned friend will reflect. He is to be congratulated—and I do congratulate him—on recognising that one and a half times salary was too low and on increasing that to two. In the time before Third Reading, perhaps he will reflect upon the proposition that has been made by both his own adviser and our adviser that two is still too low and that the figure should be at least three. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.64 not moved.]
Lord Ackner Lord Ackner moved Amendment No.65:
Page 6, line 1, at end insert:
("( ) The appropriate Minister shall make regulations providing deferred pensions, lump sums and other derivative benefits at appropriate rates and subject to appropriate conditions for persons who cease to hold qualifying judicial office after serving two years therein without becoming entitled to a pension under subsections (1) to (4) above.").
The noble and learned Lord said: My Lords, I believe that I have already spoken to this amendment, but I shall do it again because I made such a poor showing. It may be that having said it once, your Lordships will be able to respond straight away and I will not need to take up the time of the House but now I shall reculer pour mieux sauter if that is not the case.
The Lord Chancellor: My Lords, I followed the argument when my noble and learned friend made it before, although it was slightly earlier in our proceedings. I find myself in the novel situation of trying to resist being given an additional regulation-making power by my noble and learned friend. I do so not because I do not wish to make regulations governing preserved pensions, but because I already have that power in conjunction with the Secretary of State under the provisions of Social Security Act 1973, Section 65.
The existing arrangements are established under the existing judicial pensions scheme by the Judicial Pensions (Preservation of Benefits) Order 1988. I anticipate that a new order will have to be made in connection with the new scheme, but I do not believe

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that any additional powers are necessary. I am sure that my noble and learned friend Lord Simon of Glaisdale and probably my noble friend Lord Renton would feel it inappropriate to give unnecessary regulation-making powers in this Bill when they already exist under the Act to which I have referred.
Lord Ackner: My Lords, that still leaves the deficiency unremedied, which is that in what is meant to be primary legislation covering judicial pensions, there is not inserted any reference to an obligation that exists to pay even though only two years has been served. For the purpose of ensuring that this primary legislation is as complete as it should be, I respectfully submit that that should be included otherwise it is a situation which is, so to speak, on a suppressio veri by not being brought to the attention of the judiciary who will look to this Act with no doubt a varying lack of enthusiasm for enlightenment on their pension facilities.
Lord Renton: My Lords, I take the point that something on the lines of what the noble and learned Lord implies in this regulation-making power should be dealt with but it would not mean very elaborate provisions to turn that into primary legislation.
Lord Ackner: My Lords, with the assistance of the noble Lord, Lord Renton, which seems to be now on offer, perhaps I can withdraw the amendment and see how we can better cater for it at Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.66 to 68:
Page 6, line 2, leave out ("(5)") and insert ("and,").
Page 6, line 3, leave out ("subsection (4) above") and insert ("this subsection").
Page 6, line 4, at end insert:
("(6) A person to whom a lump sum is paid under subsection (1) above but who resumes service in qualifying judicial office shall not he required to refund the lump sum; but if the whole or any part of it is not refunded, an amount equal to so much of it as has not been refunded shall he deducted from any lump sum which subsequently becomes payable to or in respect of him under subsection (1), (3) or (4) above.").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No.40. Therefore, with your Lordships' leave, I propose to put them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 5 [Surviving spouse's pension]
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No.69:
Page 6, line 8, leave out paragraph (b).
The noble and learned Lord said: My Lords, like those noble Lords whom I saw hesitating a moment ago I had assumed that we would not be progressing beyond Clause 4 and reaching the emotional subject of widow's pensions, their remarriage or lack of remarriage and the like, particularly as we have covered most of the contentious field on the pensions' aspect and further proceedings on the Report stage are scheduled for Thursday this week.
Lord Mishcon: My Lords, I have what I hope is a helpful submission to make to the House. I am told that it is by no means the rule of law—and certainly not of the Medes and Persians—but that it is customary to try to reach the end of the numbers shown on the groupings document. The last number is 74. I therefore assumed that the custom would be observed.
Lord Simon of Glaisdale: My Lords, we had a very long Statement in the middle of our deliberations. We have made very good progress. It is now eight minutes to ten o'clock and I suggest that what my noble and learned friend Lord Ackner proposed is right. The noble Lord, Lord Mishcon, mentioned number 74. In fact the last number is 77.
Lord Morton of Shuna: My Lords, while consultation appears to be going on through channels that are sometimes described as usual, it would seem unreal to go to Amendment No.74 which is half way through Clause 5 and more proper to stop at the end of Clause 4 where we are now. In addition, I have had some indication that the noble and learned Lord the Lord Chancellor may have some intention to make some changes in regard to the provision relating to widows, widowers and others. Perhaps by Thursday those amendments will be available.
Lord Mishcon: My Lords, from these Benches I certainly do not object.
[Amendment No.69 not moved.]
House adjourned at six minutes before ten o'clock.