HL Deb 27 October 1992 vol 539 cc1020-7

3.29 p.m.

Report received.

Clause 1 [Persons to whom this Part applies]:

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 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 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 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 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 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—

  1. (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
  2. (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 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 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 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.