COMMONS AMENDMENT (Hansard, 14 July 1999)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 91. I shall speak also to Amendments Nos. 95, 133 and 236.
Amendment No. 95 inserts a new clause to correct an unfortunate anomaly in the law relating to the holding of judicial office. It will allow serving UK judges to be seconded to international and European courts.
At the moment, if a serving judge wishes to take up a temporary appointment on an international or European court, he has to resign from the Bench. That is obviously unsatisfactory. The judge must give up office with no promise of later appointment and this country might lose the opportunity of demonstrating commitment to the international court by being represented on it by a senior serving judge of high quality. That is in marked contrast to arrangements in other countries which use, frequently represented abroad by some of their most distinguished judges.
469 Parliament took the opportunity in the Human Rights Act 1998 to rectify that anomaly for appointments to the European Court of Human Rights. The United Kingdom is now represented on that court by a High Court judge. This new clause makes more general provision than was possible within the scope of that Act.
The clause applies to the courts of the European Community and allows the Lord Chancellor or the Secretary of State for Scotland to designate other international courts to which judges can be seconded. While a judge is seconded, he or she will retain their UK office without having to perform any of the duties of that office. On the other hand, they will have no right to receive their United Kingdom salary and they will not accrue any additional benefits from their judicial pension scheme.
Provision is also made to ensure that the United Kingdom courts do not suffer through the absence of one of their judges by providing that a seconded judge does not count against the maximum number of judges permitted by law. Because the end of a secondment may not coincide with the retirement or promotion of a judge whom the returning judge could replace, power is taken to make transitional provisions when an appointment to an international court ends.
Amendment No. 133 provides for new Clause 68 to apply to the whole of the United Kingdom, and Amendment No. 236 extends the Long Title of the Bill. The Motion standing in my name to move Clause 47 will bring together the various clauses about judicial posts.
This simple measure will allow the United Kingdom to demonstrate its commitment to the courts of the European Communities and of the wider international community and ensure that those courts benefit from the best judges this country has to offer.
As I said, the new clause is modelled on the provision already included in the Human Rights Act. However, the new clause differs from the version in the Human Rights Act in one particular respect which concerns judicial pensions. The amendments put down by the noble and learned Lord, Lord Ackner, seek to change the new clause so that it replicates exactly what was in the Human Rights Act in respect of judicial pensions. I should like again to acknowledge the role played by the noble and learned Lord, Lord Ackner, in securing the earlier provision during the passage of the Human Rights Act. But I hope to explain why I believe that in this case his amendments are not appropriate.
In the case of the Human Rights Act, the relevant section provides that, subject to the making of an appropriate order, a judge seconded to the European Court of Human Rights can continue to accrue rights in his UK judicial pension scheme for the period of his service abroad. It was appropriate to make this provision because the Council of Europe does not itself provide pensions for judges of the European Court of Human Rights. The new clause does not replicate this facility for a judge seconded to other international courts for the reason, quite simply, that this new clause is designed to apply to international courts which do provide pensions 470 or equivalent benefits to their judges. My understanding is that all of the various courts in relation to which we can envisage this provision applying either do, or are likely to, provide pension benefits. The European Court of Human Rights was therefore an unusual exception in this regard.
Clearly, if an international court already provides pension benefits, there is no need also to provide benefits under the UK judicial pension scheme. I am sure that no one would accept that a judge should receive pension benefits twice over in respect of the same period of service on top of a generous and tax free European salary.
It is possible, of course, that a new international court or tribunal could be created at some time in the future which does not provide pension benefits to its judges. In that event we could consider whether it was appropriate to make a further legislative provision regarding judicial pensions which would—like that contained in the Human Rights Act—be specific to the particular court. However, as I said, we are not presently aware of any instances where this is likely to be necessary.
In view of that, it would be risky to create in this new clause—as the noble and learned Lord's amendments would do—a provision which could have the effect of obliging us to provide benefits under the UK judicial pension scheme even where a judge was also receiving pension benefits from an international court at the same time. As this new clause can potentially apply in relation to any and all international courts, I submit that it would not be sensible to make such an open-ended commitment.
I hope therefore that the noble and learned Lord will be reassured that the reason for the difference on which he has focused attention is not to deprive judges of pensions to which they would properly be entitled; rather, it is that there is simply no need, in relation to courts other than the European Court of Human Rights, for the particular provision on judicial pensions which he seeks. If an example arises in future where the need does arise, we can consider it at that time. I accordingly invite the noble and learned Lord to withdraw his amendments. I beg to move.

§ Lord Ackner
My Lords, I am most grateful to my noble and learned friend the Lord Chancellor for setting out the reason why the generosity which so affected me and my recollection could not be repeated. Perhaps he can tell me this: do the other courts that all have pension facilities have facilities of the same value as are achieved in this country? If they are not of the same value and are less, or significantly less, they may as a result of this clause put off the judge most appropriate to be seconded because of the effect on his pension. Can my noble and learned friend help me in that regard? I would have thought it surprising if these international courts all had pension facilities which would equal or surpass that which is available in this country. I say that without prejudice to my view that the pension provisions 471 in this country are grossly inadequate compared to what is payable in Australia, in Canada, in New Zealand and obviously in America.

§ The Lord Chancellor
My Lords, I thought at first that the noble and learned Lord was comparing British judicial pensions favourably with those on the continent of Europe when he was fearing the possibility that pensions there might be less. But he quickly corrected himself and said that all of this was without prejudice to his general position that judicial pensions are inadequate in this country—although basically they provide that after 20 years service the judge will retire on half pension, index linked and with a fairly massive tax-free capital sum as well.
Of course I cannot tell the noble and learned Lord that I know the detail of every possible pension scheme that may arise in these international European courts in the future. But the remuneration packages are very generous and I would be surprised if the pension benefits were not equally generous. But if any problem of this kind arises in the future, we will address it in the circumstances of the time.