§ Second Reading debate resumed.
§ 4.19 p.m.
§ Lord Wigoder
My Lords, we now revert to the even more interesting topic of judicial pensions and retirement. The Companion to the Standing Orders makes it clear that only the speaker immediately following a maiden speech should refer to the maiden speaker. That directive is almost universally ignored on occasions such as this and I also propose to ignore it. Perhaps I may say both personally to an old and trusted friend, the noble and learned Lord, Lord Taylor of Gosforth, and on behalf of these Benches that we congratulate him on his appointment. We wish him well in the arduous office which he has undertaken.
No doubt noble Lords in all parts of the House will remember the noble and learned Lord's illustrious predecessor, the noble and learned Lord, Lord Lane.
138 We hope that in his well-earned retirement he will find time to come here and help us occasionally in our deliberations.
The observations that I have to make on the Bill are not in any way of a party political nature. They arise out of my limited experience as a member of the Bar for many years, who sat judicially part-time for many years and who has been for a long time the trustee of a substantial pension fund in the private sector. (I hasten to say that it is not the pension fund in everyone's mind at this moment). Therefore I propose to make only general comments at this stage. Detailed matters can wait until the Committee stage.
I wish to comment first on the pensions aspect of the Bill because it appears to me that logically it must be considered before we examine the retirement aspect. It is of little use to consider whether there should be an age of retirement and, if so, what it should be, unless we have at least established what should be the accrual period before a judge would be entitled to take his retirement on full pension.
It is clear that the Bill is not intended to be an act of generosity towards the judiciary. Indeed, it states that:the [financial] effect on public expenditure is expected to be broadly neutral".With those gloomy words it is clear that, added to what the noble and learned Lord on the Woolsack said, the object of the Bill is to iron out inconsistencies and anomalies; the object is not to indulge in generosity, if that can be avoided.
There seem to me to be three issues to be considered in the Bill at this stage, apart from the detailed issues: first, should the accrual period be 20 years or, as for most of the higher judiciary at present, 15 years? Secondly, should the pension be a half rate, 50 per cent. pension on retirement or, as the Bar Council and one or two other optimists have suggested, should it be increased to a two-thirds rate pension? Thirdly, should there be a retirement age? If so, should it be 70 or, as the Bar Council and others have suggested, the somewhat earlier age of 65?
On the accrual period of 20 years which is now written into the Bill, I understand that the Government's attitude is that, bearing in mind the Finance Act 1987, it is a logical period which would be consistent with what takes place in the private sector. The fact that it is logical and consistent with the private sector does not prevent my wondering whether it is sensible.
In passing, I congratulate the noble Lord, Lord Mishcon, upon his elevation to silk. For the reasons which he indicated, there is no comparison between the situation in the private sector where, for the whole of a person's working life, even though he may move from one company to another, his pension accrues steadily, and the situation where someone who is practising on his own account, probably until his early or mid-fifties, may then take employment on the Bench.
There is one other reason why I believe that the 20-year accrual period should be approached with hesitation. Again the noble Lord, Lord Mishcon, touched upon it. It seems to me that the essence of a 139 good judge is that he approach every case with a degree of freshness and enthusiasm, in the sure knowledge that it is the most important case that he has ever tried. Of course, it always is for the litigants. The essence of a good judge is that in those circumstances he will exercise total patience, total tolerance and peacefully endure the long-winded irrelevancies of some witnesses and perhaps also of members of the Bar.
As the years go by it is almost inevitable that a degree of routineness enters a judge's consideration of the cases which he is trying. The temptations on occasions to cut someone short or to show a lack of enthusiasm for the matter which he is trying are bound to increase as the years go by. Twenty years of trying cases one after another, day after day, is a strain upon a judge. I believe that it may be asking too much of those few judges who are not superhuman to expect them to be able to endure it for the period that is necessary, according to the Bill, before a full pension can be earned.
I turn to the second matter, the half pension against the two-thirds pension. I am aware that it is easy to get carried away by the consideration that in the private sector two-thirds pensions can be earned after 20 years and will be earned almost as a matter of routine by anyone after they have been employed for 40 years in any good company scheme.
The distinctions between this scheme and a private scheme should be borne in mind when we weigh up whether the 50 per cent. pension rate proposed in the Bill and which exists at the moment, is adequate. It must be borne in mind, first, that for this scheme pensions are not contributory, whereas with most private schemes they are. Secondly, for this scheme there is a tax-free lump sum payable on retirement at the moment of two-and-a-quarter times the amount of the pension and that is in addition to the full pension. However, under most private schemes, although a tax-free cash option is available, it can only be obtained by commuting part of the pension and the pension being reduced, as a result, if one wishes to take the cash option.
Thirdly, as with all Civil Service schemes, this scheme is fully index-linked. That is unusual, though not unknown in the private sector. Fourthly, there is one other consideration which affects not only the balance between a half rate and a two-thirds rate but also the length, whether it is a 15 or a 20-year accrual period. When many members of the Bar join the Bench they are in receipt of substantial incomes. It has been calculated that in the past three years the appointees to the High Court Bench, while at the Bar, have earned over £200,000 a year. That means that before going on the Bench many people have been in a position to make some contribution towards their own and their families' future. I believe that that factor ought to be borne in mind, should anyone suggest that the half rate proposed at present is in any way niggardly compared with the more generous provision in the private sector.
I hope that the noble and learned Lord will assist me on a matter which may become relevant if we 140 consider the detail of this issue in due course. In the private sector a person who is self-employed and makes pension arrangements for himself and then becomes employed in the private sector and earns a pension from his company finds that there is an immeasurably complicated relationship between the two pensions. I should be grateful to know exactly what the position is in relation to judicial pensions if a member of the Bar has provided himself with a private pension which might conceivably be greater than the judicial pension. Are the two to be added together or does he receive no judicial pension, or does he receive a judicial pension calculated on some basis such as sixtieths, which I believe is the practice in the private sector?
If the pension which he has provided for himself is less than that which he obtains under this Bill will he receive the two cumulatively, or will his judicial pension only be paid to him after deducting the amount that he has earned by his own efforts at the Bar? That again can happen in the private sector. I should be grateful for that information, but it seems to me that on balance at the moment the 15-year accrual period is a more sensible proposal than the 20-year one, and that the 50 per cent. rate that is proposed in the Bill is perhaps the right approach rather than the two-thirds rate that has been suggested in various quarters.
Finally, I turn to the proposal for retirement at the age of 70. I welcome that proposal. I welcome it not only because it is the current trend in all the professions and much of industry to have earlier retirement, but also because it seems to me that the strains that are put upon the judiciary are not always fully appreciated. A judge has to listen for four or five hours a day to every single word that is being spoken. One must not miss the odd sentence while one is wondering vaguely how the England team is faring at Lords in the Test Match, or whatever event it may be. A judge has to listen and simultaneously work out the relevance of the words in the case and the evidence as a whole. He has to consider whether issues of law are raised that will have to be commented on in due course.
In a criminal trial particularly, a judge not only has to listen but he also has to anticipate what may be said in the immediate future, because it may well be that firm action is required as a matter of law at that stage, in anticipation, before the trial turns itself into some form of mistrial. The physical and mental stresses of being a judge and doing that task day after day cannot be exaggerated. However physically and mentally fit people may be, in the ordinary sense of those words, after the age of 70, it is unfair and unreal to try to place those burdens on them on a daily basis once they have reached that age.
I also welcome the fact that under Clause 25 of the Bill judges will only occasionally have their retirement age extended beyond the age of 70. I myself see nothing in the clause, although I may well have misread it, that gives the noble and learned Lord power not only to extend a judge's term of office after the latter has reached the age of 70, but also to bring a judge back after he has retired provided that he has 141 not reached the age of 75. I hope that practice will not continue as I believe it is unfair on the litigants and it does not do the cause of justice good that there should be people who are known to have retired and who are being brought back after their retirement to try cases.
If we establish a retirement age of 70 for judges and an accrual period of 20 years, that will mean that we shall be seeking High Court judges by the time they have reached the age of 50. In all probability those people will have taken silk fairly recently. If one puts both parts of the Bill together and looks not only at the accrual period but also at the retirement rate, one can see that perhaps the shorter accrual period that is being suggested has a great deal to be said for it in the public interest. I am thinking entirely of the public interest and not the interest of the judiciary in this matter.
Looking at the Bill as a whole I believe that it has a great deal to commend it. The one principal issue which I have indicated concerns the accrual period on which I shall listen with great interest to the observations of those who have far more experience than I.
§ 4.35 p.m.
§ Lord Taylor of Gosforth
My Lords, I wish first to thank my noble and learned friend the Lord Chancellor and the two other noble Lords who have spoken before me for the kind personal remarks of welcome they made to me. Apart from the trepidation natural to a maiden speaker addressing this illustrious House I have today two additional embarrassments. First, as I have only recently taken office, it may seem premature and indeed perhaps defeatist for me to be speaking of retirement. Other noble and learned Lords will be addressing your Lordships in this debate. They are not only more experienced in the ways of this House than I, but, if it is not indelicate to say so, they are also closer to retirement.
It is written, not in the Book of Judges, but in the Book of Kings:Let not him that putteth on his armour boast himself against him that putteth it off".But, without boasting myself against noble and learned Lords who are more seasoned speakers, I feel it my duty as Lord Chief Justice to speak on this Bill.
It is that duty which raises my second embarrassment. The custom of the House is that a maiden speech be short and uncontroversial. To be short I shall therefore confine myself to the main policy of the Bill and hope that, if on one or two proposals I sail close to controversy, your Lordships will extend your customary indulgence and courtesy. This is an important Bill with far-reaching effects not only for the judiciary but also for the public which it serves. The Bill has been brought in swiftly and I believe the House would not wish its timing to prevent my expressing my true views on it.
The two main thrusts of the Bill are to lower the age of judges' retirement and to increase the period they must serve to qualify for a full pension. Your Lordships may well think, and it is my concern, that those two thrusts are in opposite directions. As to retirement I strongly welcome the proposal in Clause 142 25 to reduce the normal compulsory date for future appointees to the age of 70. Indeed the judiciary has over the last couple of years taken the initiative in urging a reduced retirement age.
I also welcome the proposal to make that retirement age uniform, whereas it has been 75 for High Court judges and 72 for Circuit judges. Although reasoning powers may well be undiminished after 70, I believe there is a real risk that thereafter a judge may be less responsive to new laws and to changing mores. Also with the rest of the community moving towards earlier retirement the retention of the existing retirement ages for judges is, I think, unacceptable and rightly criticised by the public.
In principle I also support the proposal of an absolute bar on sitting after the age of 75. It would be anomalous to reduce the normal retiring age to 70 but to permit a judge, however spry and sprightly, to continue after 75. I must, however, point out that to introduce an absolute bar at 75 forthwith will substantially increase the problems we already have at present due to shortage of judges.
I hope that legislation can be introduced very soon to increase the number of High Court judges and Lords Justices but at present it is necessary, especially in the Court of Appeal, to rely upon retired judges to assist. If a Lord Justice falls sick temporarily or is diverted for months to head an Inquiry, the only recourse is to invite a retired Lord Justice to return.
The one point of principle in the retirement provisions of the Bill which does concern me, is the proposed machinery for extending the tenure of judges between 70 and 75. Clause 25(5) proposes that a judge may be authorised to continue in office after 70 for a year and from year to year up to 75. That authorisation is to be given solely by the appropriate Minister, should he consider it desirable in the public interest.
I have no doubt that my noble and learned friend the Lord Chancellor will exercise that power fairly and wisely. I expect him also, from the cordial consultations to which I have already been party, to consult with the Heads of Division as a matter of practice. Nevertheless, constitutionally your Lordships may consider it preferable that such consultation be made a formal requirement in the Bill. Senior judges not infrequently have to hear applications for judicial review of ministerial decisions. On occasion, they may concern the Lord Chancellor himself. It would be unfortunate if extension of a judge's tenure were under consideration by the appropriate Minister at or about the very time the judge was deciding such a case.
One possibility might be to adopt the procedure laid down for Scotland by Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which allows the Lord President:as a temporary measure … to facilitate the disposal of business",to extend a judge's tenure up to 75 with the consent of the Secretary of State. In English terms that would mean myself or one of the Heads of Division with the consent of the Lord Chancellor.
143 Finally, on the question of retirement, I welcome the assurance from my noble and learned friend the Lord Chancellor that the power to extend a judge's tenure from 70 to 75 will be used sparingly and not as a substitute for appointing new and younger judges. Otherwise, the new retirement age of 70 may be regarded as mere window dressing and the true retirement age will continue to be 75.
I turn to the pension provisions in the Bill. I fear that I shall not command the eloquence of the noble Lords, Lord Mishcon and Lord, Lord Wigoder, but I should like to adopt their criticism of one provision; namely, the main provision, which requires 20 years' service to earn a full pension. I hope that that may be reconsidered. The present term of 15 years has stood for a very long time—in fact, I am told, since before 1800. It has done so because, uniquely, judges begin their term of public service in middle age as a second career after practice as barristers or solicitors.
The normal age for appointment has in practice been between 50 and 55 and some judges are appointed even later. A pension accrual period of 15 years is appropriate to that age of appointment; but an accrual span of 20 years, coupled with the new retirement age of 70, will require either much earlier appointments or forced acceptance by appointees that they will not be able to earn a full pension.
At the present time many judges appointed at about 50 retire on a full pension after 15 years' service. That is especially so among circuit judges, who form the majority of our judiciary. Sitting as they do mostly in the same place, trying the same limited range of cases week in and week out, leads many of them to feel after 15 years that they lack the zest and freshness to continue.
I fear that the effect of the proposed change will be that appointees at 50 will feel they have to soldier on to 70 to earn their full pension. There will therefore be an increase, not a decrease, in the average age, certainly of the circuit Bench, whereas the Bill rightly aims at earlier retirement. Worse than that, judges who feel bound to do their 20 years, may in their last few years be functioning below their best, which cannot be in the public interest.
It can be said that judges will not be obliged to do 20 years. They can leave earlier with a due proportion of the full pension. It is also true that during their time at the Bar or as solicitors they will have had the right to make some provision for private retirement benefits.
I make three points in reply. First, the pension provisions of a public service appointment should, as a matter of principle, be on terms which do not require topping up from elsewhere and the accrual span should be that which is expected to be served.
Secondly, while the most successful Queen's Counsel may well be able to provide themselves with sizeable retirement benefits before going on the Bench, that does not apply to all judicial candidates. Successful advocates earning high fees are not the only or indeed necessarily the best candidates for the Bench. Lawyers who have heavy family and mortgage commitments, have children in education, and who 144 are not high earners may have little to put aside. In particular, women lawyers who have had breaks in their practice in order to bear and bring up children may not have achieved earnings sufficient to make provision for retirement. They will often be worthy candidates for the Bench but the 20-year accrual span will be a strong disincentive.
Thirdly, if it is proposed to facilitate the 20-year accrual span by appointing judges earlier, then there is a real danger that the practising profession will be prematurely deprived of its experienced members, upon whom the Bench relies in the heavier cases. That, too, cannot be in the public interest.
Accordingly, while I welcome on behalf of the judiciary many of the proposals in the Bill, I am concerned about the pension provision to which I referred. It is said that the proposed 20-year span is to bring the judiciary into line with others in regard to pension schemes and to eliminate an anomaly. Bringing into line is not necessarily and in all cases desirable. An exception is not always an anomaly. For the reasons I ventured to give, the judiciary is a unique category of public service.
The 15-year period has been maintained up to now for good reason. I am concerned that if it is extended to 20 years, not only will the policy of having a younger judiciary, at which parts of the Bill are aimed and which I applaud, be undermined; there will be serious problems of recruitment, judicial staleness and injustice. I therefore invite the Government to reconsider that provision of the Bill.
§ 4.48 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I originally put down my name to speak in this important debate because I felt—I still do—that, having served 12 years in a post which necessarily involved me in advising either the Crown direct or the Prime Minister in the Prime Minister's function toward the Crown in the appointment of judges, I might look at matters from a slightly different point of view than some others of your Lordships.
I came to the House this day intending to take my name off the list of speakers. I saw however that the noble and learned Lord who has just spoken was to make his maiden speech and that my name came immediately after his. I could not resist the temptation to keep my name on the list. I say with a full heart that it is a matter of great pleasure to me, I believe on behalf of all your Lordships, to congratulate the noble and learned Lord on the speech that he has just delivered. He need have no reservations about his decision—to which he rightly came—to err, if at all, on the side of the controversial. From his unique position, he is the person most suited to say what needed to be said from the point of view of the judiciary. Therefore, although many regard it as a requirement of a maiden speech that it should be maidenly in content, I am pleased that the noble and learned Lord on this occasion deliberately set out to express his own views and, I believe, those of many people who have experience of this matter.
I revert to the situation as I view it having been Lord Chancellor over two separate terms of office for 145 a period of about 12 years. The overriding consideration that everyone, not only Lord Chancellors, ought to have in mind in such legislation or in the discharge of their day-to-day functions is an adequate supply of properly qualified judges to fulfil the demands made upon them by the work of the courts. The quality and availability in suitable numbers of the Bench are an overriding consideration; it is not argument from first principles. Judges do not grow under gooseberry bushes if they are to be in sufficient quantity and of adequate quality. On the contrary, they are in an almost unique position, not only in the professions but in the world, as the noble and learned Lord has just reminded us.
I cannot help noticing that at the time I was called to the Bar, the noble and learned Lord, Lord Taylor of Gosforth, was just two years old. He was called to the Bar when he was about 24. If he had been born a Frenchman, or another member of the Continental system, he would never have been called to the Bar. After passing his law examinations in the university, he would have become a judge. It is a separate profession from the practising profession of advocate or adviser. He begins as a petit juge d'instruction and if he is lucky enough to reach the eminence of the noble and learned Lord he becomes the président de la cour de cassation, or the equivalent in other countries.
In other words, the Anglo-Saxon countries have the unique system of appointing judges, and that system involves appointing them from among the company of available experienced and successful practitioners. As the noble and learned Lord said, it is not every successful practitioner who would necessarily make a good judge. On the contrary, there is what Lord Chancellors have come to discuss as the temperamental hazard which inevitably afflicts us in making our recommendations. To some extent that has been overcome by the large number of part-time judges in the early stages whom we appoint without giving them pensionable appointments.
However, it means that the criteria by which we must judge the Bill do not depend upon its terms or the desirability—which I would say in the abstract is unquestionable—of removing anomalies or dealing with issues from the point of view of first principles. The real test is this: will we attain an adequate number of judges to appoint in the coming years, not at some future date?
For that, we must reflect on some disquieting facts. First, there are the increased demands of the courts. I am not good at quoting figures but I do not believe that they are out of scale. Since the war indictable crimes coming before the courts have increased at about the rate of 10 per cent. compound interest. The same has been true of family law work dependent upon the breakdown of marriage. The same has very largely been true of the construction industry and the official referees' work. The number of personal injury cases depends upon the number of vehicles on the road; that has been increasing in proportion also. It also depends upon the use of machinery in factories. There is hardly a field of work which has not increased disproportionately.
146 Secondly, we have created a vast number of tribunals, often with legal chairmen, to discuss questions relating to unfair dismissal—they would previously have come before the ordinary courts, if at all—fair rents, and so on. The pool from which one draws those chairmen is very restricted. If one limits oneself to successful practitioners, whether one relies on solicitors and barristers, or barristers alone, one is confined to the pool of persons called to the Bar or admitted as solicitors 20 years ago. It is no good saying, "Let us have more women" unless one considers how many women were called to the Bar 20 years ago and have continued to practise. The same argument is true of the ethnic minorities. When I state that good judges do not grow under gooseberry bushes, I am pointing to one of the fundamental difficulties with which any Lord Chancellor is bound to be faced.
I do not recommend the terms of the Bill as bedtime reading. If anyone has tried to read it he or she will be greatly puzzled. However, the speeches which have already been made make clear that there are two not separate but inter-related problems that we have to face: the age of retirement; and the accrual period for full pension. It is no good regarding those as separate questions because they are related.
Thirdly, the Lord Chancellor of the day has to compete with, first, the enormous fees earned within the practising professions. He has often to compete with the attractions of going into full-time employment with Shell or one of the major banks. There are even those suitable for high judicial appointment who prefer to become heads of colleges and live in comfort and love ever afterwards although they may not have quite the income that they earned at the Bar. That reduces the pool still further.
We have to ask ourselves whether it is very clever or well timed to bring in a Bill which reduces the retiring age in future—whether or not that is intrinsically desirable—and at the same time increases the period of accrual of pension. I must offer an unqualified apology to my noble and learned friend on the Woolsack. He was gracious and good enough to invite me to a quiet discussion with him which I greatly welcomed and accepted. Unfortunately having passed what would now be the retiring age, I omitted to observe that the only date available for the conference would have been the date of the Garter service, which was yesterday. I had to send the noble and learned Lord a hasty telephone message. I should like it to be known that it is not fair of me to criticise him without apologising sincerely for my oversight. I came to the only possible conclusion: that the Garter service was a must.
I have said enough. Everyone is in favour of the removal of anomalies. No one wants judges to go on after they may have become past their best. However, if one is to recruit adequate judges on a sufficient scale to meet the vastly increasing demands of the courts and tribunals and is limited to a pool that was created 20 years ago, one has to be a little careful before one starts messing about with the retirement age, the 147 employment of retired judges, and the accrual of pension. That is the note of caution that I wish to utter.
§ 5 p.m.
§ Lord Donaldson of Lymington
My Lords, I echo the remarks made by noble and learned friend Lord Hailsham in welcoming the new Lord Chief Justice to this House and in welcoming his maiden speech. I say with real sincerity that I hope he will appear in this House on many occasions. I say that for a particular reason; this House is well supplied with in-house legal talent but it lacks a number of Members with a daily experience of the problems, the trials and tribulations, of the judicial workface. The Lord Chief Justice of the day is able to supply that experience. It is needed by a legislature which is involved with passing Acts that affect the courts or which must be interpreted by them.
Perhaps I may now turn to the Bill. I am not sure whether under the rules of the House I must declare a financial interest.
§ Lord Donaldson of Lymington
My Lords, I am obliged. I have only a small financial interest because Part I of the Bill relating to the pensions provisions has no application for me, unless I were to elect to apply it. I have not the slightest intention of doing so. My only financial interest relates to Clause 25 which, if it stood part of the Bill, would deny me the possibility, and no more, of receiving a modest supplement to my pension —that is based on the assumption that I am still around on my 75th birthday in October 1995. I hasten to add that I have far better reasons for criticizing that clause.
The Bill is welcome because it eliminates a number of injustices which at present arise when a judge is promoted to another office which is subject to a different pension regime, as my noble friend the Lord Chancellor pointed out. That apart, the Bill's principal features are the reduction of the normal retirement age for judges to 70, subject to possible annual extensions up to 75; a requirement that judges shall hold one or other judicial office for a period of 20 years before qualifying for a full pension; and a total bar on performing any judicial function after reaching the age of 75. I misread that clause because I read it too quickly. I thought at first that Parliament was saying that we could not do anything after the age of 75, but on rereading the clause I realise that it meant in a judicial capacity.
I wish to comment on each of those aspects. In doing so I shall inevitably cover ground that has been or will be covered by other speakers. However, I should like to make my voice heard for what it may be worth. I can see great merit in reducing the age of retirement from full-time judicial office from 75 to 70. The extent to which mental and physical powers, and above all energy, decline with advancing years varies enormously from individual to individual. There is no magic about the age of 70. If one drew a graph recording the probability—and I am talking in terms 148 of probability—of a significant decline in powers, be they mental or physical, and in energy between particular ages, the line would not be straight; it would show a significant upturn between the ages of 70 and 75 and an even greater upturn beyond that age.
As regards judges, I believe that if the graph were extended backwards to cover the age groups 60 to 65 and 65 to 70 I do not believe that one would find it other than a straight line. In those age groups illness strikes, as it does at any age and in almost any occupation. However, as regards judges I do not believe that any decline in powers in those age groups could be said to be age-related. That being so, I believe that the choice of 70 is right and I wholly support it.
I turn to the proposal that a judge's tenure of whole-time office should be capable of being extended year by year from 70 to 75 at the invitation of the appropriate Minister; in the case of England and Wales that is the Lord Chancellor. That provision appears in Clause 25(3). That proposal is superficially attractive because we all know of judges who have carried out their best work during their seventies or later. A similar provision exists at present and applies to circuit judges under Section 17(2) of the Courts Act 1971. Whether or not that is a good idea in relation to circuit judges, I believe that it is objectionable constitutionally and as a matter of principle in the context of High Court judges, Lords Justice of Appeal, Lords of Appeal in Ordinary and, perhaps above all, in the case of the four designated judges who have special responsibilities under the Courts and Legal Services Act 1990, of which I happen to be one.
The crucial difference between those judges and circuit judges is twofold. First, unlike circuit judges those judges are responsible for resolving disputes involving the Executive as a party, in particular in the field of judicial review. The four designated judges have placed upon them the additional duty of concurring or refusing to concur in constitutionally important decisions taken by the Lord Chancellor of the day. Secondly, unlike circuit judges those judges are not dismissible by the Lord Chancellor under Section 17(4) of the Courts Act 1971. They are removable only by a joint address of both Houses of Parliament. By a parity of reasoning any extension in their terms of office should be subject to special provisions.
Accepting as I do that the Lord Chancellor of the day and the judges concerned would not allow themselves to be influenced by any conflict of interest, I cannot believe that there would be the appearance of justice if a judge were hearing a case involving the Executive, which might include the judicial review of a decision of the Lord Chancellor, at a time when it was known that the question of extending that judge's term of office was under consideration.
I wish—I hope as always—to be constructive. No one would wish to lay off highly experienced judges who wish to continue to serve the public and who are capable of a few more years of good work, certainly not on the basis of some arbitrary cut-off date. There are two possible solutions. The first would be to require all High Court judges and above to retire at 70, but to use the power in Section 9(1) of the Supreme 149 Court Act 1981 to enable some of them to continue to sit as retired judges on a part-time basis. The alternative and possibly better solution would be to allow the four designated judges to extend a judge's period of service from year to year up to the age of 75, subject to the concurrence of the Lord Chancellor.
The crucial distinction is that the initiative would lie with the whole-time, non-political judiciary. It would be left to the Lord Chancellor to concur, or refuse to concur as would be his right, in the context of the provision of resources. Special provision would have to be made in the case of any proposed extension to the tenure of office of the four designated judges themselves. Someone could work that out without much difficulty.
I agree with my noble and learned friend the Lord Chief Justice that extensions should not be the rule. Like him, I am glad to hear that it is not intended that they should be. Where I venture to disagree with him is in his suggestion that a statutory requirement of consultation with the designated judges or any of them would remedy that defect in the Bill, leaving the Lord Chancellor to be the decider. Again, I hope that my noble and learned friend the Lord Chancellor will not take it amiss if I say, as a general proposition, that we all know that consultation is an extremely broad term which has many connotations. It can start and sometimes end with telling the person consulted what it is that you intend to do. Therefore, I should prefer something different from that.
I turn now to the proposal that judges must serve for 20 years if a full pension is to be secured. Although that can be presented as merely constituting the removal of an anomaly, in truth it is nothing of the kind. What is anomalous, as has been pointed out in particular by my noble and learned friend Lord Hailsham, is not the accrual period but the fact that judicial appointments in this country involve embarking upon a second professional career in late middle age.
The existing 15-year term would not be as long-standing as it is if it were merely an anomaly. In fact, it reflects the curious character of the judicial profession in this country. I hope that nobody on the Government Benches will think that I am carping about this, although the Treasury will understand the point, but I should also point out that a non-contributory pension is in reality deferred pay. Therefore, the proposed change represents a concealed reduction in the salaries of the judges to whom the new scheme would apply, to the extent of 25 per cent. of that deferred pay each year.
The major vice of this Bill is the combination of a reduction in the retiring age to 70 and the increase in the full term of office to 20 years. The message must be that if you accept judicial office, you are expected to serve for 20 years. That is far too long if the judge is not promoted or given different work. In my case I would have left the Bench had I been expected to serve any longer in the Queen's Bench Division, because I was fed up with the work. One needs a change. It would mean that appointments over the age of 50 would be exceptional. That will denude the Bar of its best members. Alternatively, they will soldier on, 150 accepting that their judicial career will be shorter and then they may find that the financial inducements in terms of pension are really unsatisfactory. Either way, the Bench and the legal profession will be the losers.
Finally, as regards the one point which affects me, the proposal that no one shall perform a judicial function after he reaches his 75th birthday seems to me to be both unnecessary and unwise. I say that it is unnecessary because no judge can act as such after he has retired unless he is invited to do so, nominally by my noble and learned friend the Lord Chancellor and in practice by the heads of divisions. He will not be so invited if he is not fully capable of discharging the duties of the office. He will not be so invited if there is a policy decision not to employ anybody over the age of 75.
It is extremely unwise to box yourself in with an absolute bar in this way because situations will inevitably arise when the only suitably qualified retired judge has passed his 75th birthday, perhaps by not very long, and if he cannot sit, urgent cases will simply not be dealt with.
I very much hope that that will be borne in mind because in the case of the Court of Appeal, which is my particular responsibility, I find that sickness strikes unpredictably. Equally unpredictable but constantly recurring are the sudden requests by Government for a Lord Justice to preside over an inquiry or to undertake an extra-judicial duty. Unless and until the Treasury agrees to there being spare Lords Justice to fill those gaps, which it certainly never will, we need to be able to look to retired Lords Justice to fill the gaps. One of my major problems at present is that there are too few retired Lords Justice who are able and willing to fill those gaps, although I am extremely grateful to those who do so.
I hope that this Bill, which is in many respects admirable, will not only be subject to a Second Reading but also to second thoughts.
§ 5.15 p.m.
§ Lord Renton
My Lords, it is with diffidence that I rise to follow the Master of the Rolls, a former Lord Chancellor who was in that office longer than anyone else in living memory and a recently appointed Lord Chief Justice. As nearly everything that I intended to say has already been said and magnificently said by those who are better qualified than I am, I shall be brief. However I cannot refrain from adding to the praise of the noble and learned Lord, Lord Taylor of Gosforth. I sat at his feet when he was Chairman of the Bar when he was about 40 and I was over 70. That is a few years ago now. Like everyone else, I was delighted by his elevation and most interested in his speech.
I say to my noble and learned friend the Lord Chancellor that there has been remarkable unanimity so far in this debate on the important issues raised by the Bill. I must endorse the view expressed first by the noble Lord, Lord Mishcon, that it is a fallacy to assume that judicial pensions should be treated in the same way as other pensions because, in the case of nearly all other pensions mentioned in this Bill—not all but a great majority of them—the person 151 concerned has been earning his pension since his early twenties, whereas we know that judges are likely to start to do so mostly after the age of 50.
The other point on which there has been remarkable unanimity is the criticism of the accrual period being extended for 15 to 20 years. I wish to add one further argument against that which, as far as I am aware, has not yet been mentioned. Under the present system of retirement and accrual, which has worked fairly well, judges retire voluntarily well before they are 70 in some cases and certainly before they are 75, having earned the full retirement pension, having served for 15 years. Of course, if the accrual period is to be extended to 20 years, there are not likely to be many voluntary retirements. As I understand it, that would go against the aims of my noble and learned friend the Lord Chancellor.
I must confess—and I may be alone in this—that I have some doubts about reducing the retirement age from 75 to 70. Surely it is a great mistake to generalise about the maturity of human intellect. Some people are burned out at the age of 60. Others—and perhaps I may venture to say that there are some among your Lordships who have spoken in this debate—have allowed their minds to continue to mature judicially after the age of 75. Such people have gone on to make formidable additions to the evolution of our statute law.
If we are not careful we shall deprive the nation of the services of the experienced members of the judiciary who fall into that category. There are some famous ones. Lord Reid continued at his best until he was over 80. The noble and learned Lord, Lord Denning, is still alive over the age of 90. I believe he retired when he was 83. Certainly up to the age of 80 he was making major contributions to the development of our law. We should therefore consider persuading the noble and learned Lord the Lord Chancellor that it would not be right to have a final retirement age of 75 but that he should retain the power to keep judges on in rare circumstances until after that age.
Perhaps I may say to my noble and learned friend that it would clear the air for future discussion on the Bill if, when he replies to the debate, he takes note of the eminent unanimity so far displayed in the debate on the question of the accrual period and of the equally important question of not insisting that judicial pensions should be treated like most others.
§ 5.22 p.m.
§ Lord Benson
My Lords, there appear to be some defects in the Bill as drafted. I am told that there is already difficulty in recruiting sufficient judges of the right quality. If that is so, those defects will have to be removed, otherwise the position will be exacerbated.
The first point that troubles me is on page iii of the Bill where under Financial effects of the Bill it states:The difference in cost between the existing arrangements and the new arrangements will take some years to emerge, but the effect on public expenditure is expected to be broadly neutral".I do not understand that statement. It seems to run counter to the immutable laws of arithmetic. In any 152 pension scheme if one reduces the retiring age it increases the cost to an extravagant degree, depending on the number of people involved. The statement can therefore be true only if the benefits paid to the new entrants under the new scheme have been correspondingly pared off to make up the difference. It is a puzzling point. I hope that the noble and learned Lord the Lord Chancellor will explain and comment upon it at the appropriate time.
Any scheme of salary, wages or pensions must be judged by two criteria. The first is whether the payments are comparable to those paid in other walks of life to people who carry similar responsibilities; secondly, whether the scheme will inhibit or encourage recruitment. Unless both questions can be answered affirmatively and positively one of two things will happen: either recruitment will stop altogether or only the second-raters will be recruited. We have no information on those points and therefore Parliament and the public are at a disadvantage in considering those two vital matters.
When the consultation document was circulated by the Government it went to a number of people and was sent to the Top Salaries Review Body. In February 1991 the review body commented:the Review Body has three main points of concern and a number of more detailed comments. These matters should be addressed, ideally with the assistance of an independent consulting actuary, before steps are taken to amend primary legislation on judicial pensions. The Review Body is also concerned about the need for a clearer exposition of what is proposed, particularly for the benefit of existing members of the judiciary who need to be able to compare their existing schemes with the proposed new arrangements".That is a disadvantage from which we all suffer. We do not have such a report before us to help us in judging the effects of the Bill. It would be helpful for such an independent and impartial report to be prepared before the Committee stage to enable us to decide what the effect is upon the judges as compared with what happens in other walks of life.
The main thrust of the Bill appears to be that the retirement age should be voluntary at 65 and compulsory at 70. The figure of 65 is already on the high side. In practically all other walks of life the retiring age is 60 and in most cases it is compulsory at that age. Therefore 65 is already too high.
The other main thrust is to reduce the accrual period at the same time from 20 to 15 years. The result is that if a judge wants to earn his full pension at the retiring age of 65 he will have to be appointed at the age of 45. In the normal run of things that will he before he has attained the experience and maturity necessary for the job. But there is an even more undesirable feature; that is, that one is taking a man out of the bracket when he is moving into his highest earning area and giving him a much lower salary. One therefore prevents him during his high earning period from building up resources of his own or a sensible money purchase scheme. The result will he that the able people will refuse appointment if it is offered to them. The quality of the judiciary will therefore diminish.
The principle of paying pensions to the judiciary is not unique to this country. Other countries experience exactly the same problems. I am not familiar with the 153 details and cannot speak with authority on the matter, but according to my information the accrual period in other countries is less. In Canada and Australia it is 10 years, in New Zealand it is 16 years and in the United States nothing at all. If those periods of accrual in other countries are comparable with the judicial arrangements in this country, it means that the scheme now proposed is of a pinchpenny or cheeseparing character and that will reap its own reward.
There is another aspect on the same theme. The lump sum provisions in the scheme provide for two-and-a-quarter times the retiring pension. It is presently two times, which means that there is already an uplift of one-quarter. However, that is not the criterion by which to judge it. The two-and-a-quarter must be judged by what is payable in other walks of life of comparable responsibility. According to my information, when the pension is fixed on the basis of half the retiring salary, the lump sum payment should be three times the retiring salary.
In that context I notice that the Top Salaries Review Body said in paragraph 4, after examining the subject in some detail, that in its view the lump sum under the proposed scheme for the judiciary should be improved from 2.25 to three times the annual pension. If the review body is right, again we have the situation where it seems that the proposals for our judges are of a pinchpenny character.
The consultation document which the Government circulated was sent to a large number of people and organisations directly affected by these proposals. I believe that all of them replied. But we do not know what any of them said because their replies have not been published. In trying to assess a proposal it is very important to know what the people whom it is likely to affect think about the scheme because we have to satisfy their needs and requirements. I believe that those responses should be published so we can see what is the effect on the people who will be directly affected.
I have difficulty with Clause 25 as well, but it is of rather a different character perhaps to that which has been mentioned so far. If a compulsory retirement age is fixed I suggest that it should be adhered to and not varied. The reason for that is that whenever people are endeavouring to come back from retirement, whether they are stage stars, athletes or professional people, they usually make a mess of it. I speak with particular knowledge of professional people because I have been through the mill myself. I have discussed the matter with a great many colleagues on many occasions.
The fact is that once a compulsory retirement age has been fixed the attitude of mind changes. One becomes out of date extremely quickly. Apart from that there are physical difficulties: there is an absence of storage space for the books, records and notes which one has built up through the years which one wants to refer to; one has no settled place to work from; one does not have a secretary or any kind of back-up service in order to help one; the day-to-day professional comments and dicta which are always circulated and not received; and there is not the benefit 154 of discussion with colleagues whom one meets day after day. For all those reasons I suggest that once a retirement age has been fixed it should be adhered to.
If the reason for Clause 25 is that there are insufficient judges the solution is obvious: to take steps at once (why have they not been taken before?) to appoint enough judges. Clause 25 says that the measure is in the public interest, but I do not believe that people will find that it is. I do not believe that the public will have confidence in finding that the judicial system has to be bolstered by a miscellaneous body of persons who have passed their peak.
Taking the Bill as a whole, I cannot help feeling that there are some rather cheeseparing approaches and pinchpenny attitudes which will be extremely damaging. That will reap its own reward. It means that the persons appointed to the judiciary will be second-raters. That is particularly damaging because in many cases once a judge is appointed he cannot be got rid of earlier. It is very difficult to get rid of him even when you can do so. We have had one or two examples recently. Therefore, I suggest that what is necessary is to revise those clauses in the Bill which I have spoken about—I am sorry to say in repetition because everybody has virtually said the same thing —in order to prevent that situation arising.
§ 5.34 p.m.
§ Lord Ackner
My Lords, I add my congratulations to those already offered to my noble and learned friend the Lord Chief Justice, not only on the quality of his address to your Lordships but on his wisdom in ensuring that, even though the subject is potentially controversial, the House had the benefit of his view on a subject which affects the quality of the administration of justice.
Perhaps I may start my submissions, as I always try to do, on a note of harmony. I take positive pleasure in agreeing with the proposal of my noble and learned friend the Lord Chancellor that 70 years should be the compulsory retirement age. Indeed, I shall invite him to go further. It is an invitation which I hope he will find irresistible because it is based on applying the wisdom enshrined in a Scottish Act which is only seven years old.
I speak on the retirement age not with the fervour of a recent convert. Nearly 35 years ago I was responsible for the Bar Council, when there was no retirement age, compulsory or otherwise, recommending to the Lord Chancellor, Lord Kilmuir, that the retirement age should be 70. At that stage he was anxious to put up the judges' stipend from £5,000 to £8,000 a year. He knew that he had no chance of achieving that without offering a compulsory retirement age. I was responsible for what the Bar Council put forward.
The respect in which I shall be inviting my noble and learned friend to go beyond what is proposed can be stated quite shortly. South of the Border we currently destroy the underlying purpose of the retirement age by inviting judges who have retired having reached the compulsory retiring age, to continue to sit. Last year over 500 judge-days were sat by judges in the High Court and the Court of Appeal 155 who had passed the age of 75. Indeed, in the Court of Appeal no less than 100 days were sat by judges who had passed the age of 80. I make it abundantly clear that this is no criticism of my noble and learned friend Lord Donaldson of Lymington, the Master of the Rolls, who has consistently sought to increase the establishment of judges in the Court of Appeal.
In his review of the last legal year he said:retired Lord Justices provide the biggest source of reinforcement and without their help the work of the Civil Division would be in dire straits".He listed the eight retired Lord Justices who had sat during that year and five of them were over 80 years of age.
In Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 provision is made for the re-employment of retired judges if the Lord President considers it expedient—I quote the words missing from this Bill—as,a temporary measure … to facilitate the disposal of business".But that is not after they have reached their compulsory retirement age, currently 75 years. That was based on the proposition that if Parliament believes that 75 years is the appropriate age at which a judge should retire, that is an end of the matter. There is no provision in that Bill for the grant by a Minister of the Crown of any extension beyond the compulsory retirement age either "in the public interest", whatever that imprecise formula may encompass, or at all.
I believe that there are at least two very sound reasons for the Scottish legislation. They are essentially a constitutional one and a practical one. It is of the very foundation of the judicial independence that judges have security of tenure. I need hardly point out to the House that this independence enables them to act as checks on the Executive and as critics of the legislature. A vital part of their role is to stand between the state and the citizen and to maintain certain fundamental and historic principles such as the liberty of the subject, access to the courts, etc. In an entirely different context my noble and learned friend the Lord Chancellor would have seen those very words only last week in a learned article written nearly 10 years ago by my noble and learned friend Lord Wilberforce.
What is proposed under Clause 25(4) is that a judge who has reached compulsory retirement age should be given by and in the sole discretion of the appropriate Minister, without the obligation of his first obtaining the agreement of or even consulting the Lord Chief Justice or any judge, so to speak, a job at a time or an extension for a year at a time until he reaches 75 years of age. It cannot be controverted that, theoretically, his "contract"—for want of a better word —might not be renewed if he were to make decisions of which the Executive disapproved. I would ask those who say, "Oh, but this is merely theoretical", to contemplate the recent situation in which the High Court judge in the case of the haemophiliacs who contracted AIDS as a result of blood transfusions administered in National Health Service hospitals virtually shamed the Government into acting with proper compassion.
156 Could one be sure that the same courage would have been shown by a judge "on contract"? And if, as I hope, the answer is "yes", what would happen when his "contract" came up for renewal?
The practical ground is also a very simple one. The ability to use—it is so enshrined at present in the Bill —on a regular and consistent basis, not as a temporary measure, judges who have passed their retirement age is open to abuse. I would ask those who might again respond, "All this is theory", to refer to Hansard of 15th July 1991, where at column 8 the noble Lord, Lord Mishcon, asked Her Majesty's Government this question:What is their response to the statement of the Lord Chief Justice concerning the inadequate number of High Court judges and the immediate threat that this poses to the administration of justice.My noble and learned friend Lord Oliver of Aylmerton put this question at column 9:My Lords, will the noble and learned Lord explain to the House how the regular and consistent use of deputy judges under what I believe are the terms of Section 9(4) of the Supreme Court Act is reconcilable with the terms of that section which prescribe such action only as a temporary measure?The answer by my noble and learned friend the Lord Chancellor is most revealing. He said:My Lords, I have a degree of difficulty with that question. However, it is a temporary measure. As my noble and learned friend Lord Oliver knows better than I—he has been closely associated with the High Court of Justice for much longer —this practice has continued for a long time."—[Official Report, 15/7/91; cols. 8 and 9.]The contradiction in that answer will not have escaped your Lordships. This answer caused sufficient concern in another place for the point to be raised a week later as to what the position would be if a disgruntled litigant challenged the judgment of a deputy judge on the grounds that the judge had not been properly appointed under the statute—that is, that there had been an abuse of power. The reference is column 945 of Commons Hansard of 22nd July.
If judges are to retire at 70, there is likely to be a very large pool of judges available to continue to sit in a judicial capacity, many of whom, with a 20- instead of a 15-year accrual period, would not have yet earned their full but inadequate pension. In the five years to 1st January 1992, 36 High Court judges were appointed, of whom 28—that is, 78 per cent.—were 50 years of age or over when appointed. Over the same period, 186 circuit judges were appointed, of whom 94 —that is, 51 per cent.—were 50 years of age or over.
It may not be known that it is much cheaper to make use of retired judges. Not only do pensions have to be funded for the permanent judge, but he must be provided with a proper room, with a clerk, a library and other such back-up facilities. No such facilities are provided for the retired judge. I remember hearing my noble and learned friend Lord Denning being interviewed quite recently about the proposed new retirement age. He said, "Oh, I think that that is quite all right nowadays" but added, "It will cost the Treasury a pretty penny." But it will not, as one can see from the Financial effects of the Bill, to which my noble friend Lord Benson referred. It states:the effect on public expenditure is expected to be broadly neutral.157 How will that come about? Quite simply, by employing judges on contract—but perhaps I am characterising them unfairly. My noble friend Lord Alexander of Weedon and I have met that situation in countries in warmer climes where it has been found to he almost disastrous.
I submit with the deepest of respect that we must put an end to this hoodwinking of the public. Again I submit with respect that there is an element of wholly unacceptable hypocrisy in proposing what appears at first sight to be radical and sensible legislation and then, by a species of back-door mechanism, undermining its very purpose.
I turn now to pensions, which I shall deal with only briefly because of the time constraints. My first point is virtually a constitutional point. The Top Salaries Review Body was set up in order that Parliament might have the advantage of a body of independent experts—I stress those words—to advise on the proper remuneration of senior members of the armed forces, the Civil Service and the judiciary, insulated from the pressures of the Treasury. As my noble and learned friend the Lord Chancellor conceded in his address to your Lordships, pensions are a vital part of a salary structure. Indeed, in report No. 29, dated February 1990, the board said that there is difficulty in finding sufficient numbers of suitable candidates for the circuit Bench. It said that one reason for that is the judicial pension, which, it suggested,might be made more attractive in a manner consistent with normal practice elsewhere in the public services.I understand that Parliament, when it desired to have a proper pension scheme for its own Members, referred the matter to the board, which produced a scheme that Parliament adopted. I submit that this is precisely what the Government should have done in regard to judicial pensions. The matter should have been referred for a report to the Top Salaries Review Body. The board would have sought the advice of at least one independent consultant actuary—an expert, to whom I fear that my noble and learned friend the Lord Chancellor and his department never resorted. In case I have got that wrong, perhaps my noble and learned friend will be kind enough when he responds to the debate to tell us whether the advice of an independent consultant actuary was sought and, if so, what that advice was. What is the result of not referring to an independent body? So far from improving the pension facilities, they have been seriously downgraded.
I must reserve my detailed comments for the Committee stages of this Bill, when, relying largely on the TSRB's written responses to the consultative paper of my noble and learned friend the Lord Chancellor, I shall seek to identify the petty meannesses of a scheme which, as it now stands, is grossly out of date, particularly in its treatment of surviving spouses, orphans, illness and death in service. As has been pointed out by my noble friend Lord Benson, the scheme is mathematically flawed in terms of the lump sum.
I end by referring in two or three sentences to certain provisions in comparable jurisdictions overseas. In the United States a judge who retires at 70 158 needs only 10 years' service for his full salary to continue to be paid. In Canada the mandatory retirement age is 75 years, the pension is two-thirds of salary, and at 75 years this only requires 10 years' service. In Australia the federal judge must retire at 70. He is entitled to 60 per cent. of his judicial salary, payable from time to time, upon attaining the age of 60 and having served only 10 years. In New Zealand, as a strange form of compromise, the current retirement age of the Court of Appeal and the High Court judge is 68 and requires 16 years of service for the full pension, which is two-thirds of salary at retirement and is tax free.
Ultimately this Bill, if enacted in its present form, will diminish the quality of the judiciary and seriously debilitate the independence of the judges. It should therefore carry a government health warning, expressed in another place in these terms:Penny pinching in the servicing of the judiciary today, builds a disaster into our judicial system for tomorrow".
§ 5.51 p.m.
§ Lord Morton of Shuna
My Lords, it is usual in this circumstance, and very true, to say that everything has been said. As the first Scot, or perhaps more correctly the second Scot, to speak in the debate, I find it unusual to have Law Reform (Miscellaneous Provisions) (Scotland) Acts coming from left, right and centre. However, it is encouraging to know that they are actually read.
Perhaps I may start by dealing with the difficulty of reading the Bill, a point to which the noble and learned Lord, Lord Hailsham, referred. I direct your Lordships' attention to Clause 19(1) (b). The phrase in question also appears in Clause 19(2) (b). I spent a long time trying to work out what it means. I think that I have done so: it is confirmed by the Notes on Clauses. The provision states:the amount which constitutes the judicial officer's pensionable pay is less than it would have been, had the permitted maximum mentioned in section 3(3) (b) above been an infinitely large sum".That is a complicated way of saying something. My dim recollection of mathematics—the noble and learned Lord the Lord Chancellor will quickly put me right if I am wrong —is that any finite sum must be less than an infinitely large sum. Surely the proposition could have been put more simply.
Pension provision for dependants is completely inadequate. Let us consider someone who is offered a job by a large company and at the same time a judicial position. He asks, "What happens if I die of a heart attack in the first year?" If I understand the Bill correctly, the response of the noble and learned Lord's department will be, "Your widow will get a pension of one-eightieth of salary." Is that competitive with what would be given by Marks and Spencer or any another company taking on someone from self-employment into a big job? The treatment of relatives and dependants seems very mean indeed.
The 20-year period would undoubtedly have the effect that judicial appointments would tend to come at 50 and go on to 70. The 15-year period was introduced in 1959. Since then every Scottish judge appointed to the Court of Session has been under 60 159 with one exception—a judge who was at that time Lord Advocate and had to wait until a public inquiry report was published. There has been no Court of Session judge who has not done his 15 years' service before retirement; and that, I am sure, would be the position in regard to a 20-year period.
The effect on the Bar and on the conduct of cases in court would be very serious. Courts in the adversarial system depend on having very able counsel arguing on each side. They depend on certain rules, one being that every case, whether against you or for you, is argued. Those positions do not apply on the Continent where a separate judicial career can be adopted. Do the Government really expect that a Dean of Faculty of Advocates or a law officer—because most law officers tend to become judges at some point in their lives—will never be over 50? We would have lost several years of service of some law officers over the recent past if that had been true. It seems that the 20-year period would have a very deleterious effect in various ways, quite apart from the effect on judges.
I turn now to Clause 25 of the Bill. I fully agree with my noble and learned friend Lord Ackner and with the noble Lord, Lord Benson, that there is no point in having a retirement age if one does not stick to it. I do not see the point of saying that the retirement age is 70 but that the Minister can increase it.
I agree with everything said by the noble and learned Lords the Master of the Rolls and the Lord Chief Justice. In Scotland the constitutional position is worse because, according to the clause, it is not the head of the judiciary who makes the appointments; it is the Secretary of State for Scotland, who is one of the major litigants before the Scottish courts. He is responsible for the prison department, for roads, for all planning decisions and so on and as such he is subject to judicial review. How will the public regard someone making such a decision and then the Secretary of State considering whether he continues in office? The wording of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 is the appropriate one. The Act refers to the Lord President "after consultation with the Secretary of State." But there is no real reason for having any continuation when one can have, if I have read the Bill correctly, a retired judge continuing to sit in the period between 70 and 75. That would seem to cover all the possibilities and avoid the constitutional difficulties.
One of the problems that arises is the lack of judges, a point dealt with very ably by the noble and learned Lord the Master of the Rolls. We are using far too many temporary judges. That is just as true in Scotland as it is in England. Six years ago, temporary sheriffs were only used so that their time was the equivalent of two-and-a-half full-time sheriffs. However, last year, their time equivalent was 24 sheriffs. That represents one-quarter of the whole work. One just cannot run any efficient organisation, and certainly not any court system, where one-quarter of the judges are temporary; that is, one where they are here one day, gone the next or here one week and not available the next. That is an impossible situation.
160 It seems to me that the use of temporaries in judicial office, and also in the Crown Office as advocate deputes, has reached the stage where the quantity of use is reducing the efficiency of the courts.
§ 6 p.m.
§ Lord Alexander of Weedon
My Lords, as one would expect, the ground in this debate has by now been very well covered. My sole reason for speaking today is that I should like to say a few words from the perspective of someone who was, until very recently, at the practising Bar. I entirely agree that there should be a retiring age for judges and that that age should be 70. I could not attempt to improve on the reasons for that, given so eloquently by the noble and learned Lord the Lord Chief Justice in his maiden speech.
However, I should just like to put down a marker for the future. The noble Lord, Lord Mishcon, suggested that perhaps, ultimately, the retirement age should be 65. The Bar Council has also made that suggestion. In the course of 25 years of practice at the Bar, I have appeared before some great judges, many good judges and only a very few who were less than good. But those who were less than good were so by reasons of ability or temperament. They were less than good before they reached the age of 65 and they became no better, but no worse, between the ages of 65 and 70. Equally, I never found that a good judge before the age of 65 became less impressive to appear before between the ages of 65 and 70. Therefore, I warmly applaud the decision of my noble and learned friend the Lord Chancellor not to go below the age of 70.
Having said that, perhaps I may express my own concern, and one that has been expressed by a number of judges who have spoken, about the provision in Clause 25 which permits judges to be reappointed after the age of 70 on a temporary basis. My first point is a simple and constitutional one: if the reasons for retirement at the age of 70 are right constitutionally, then I think that they are probably right for all judges. I understand the pragmatic difficulties that lead to the need sometimes for the Master of the Rolls —and, indeed, the other Heads of Divisions—gratefully to draw on those who have retired. But I think that that is undesirable in principle.
If there are to be such arrangements, I understand that my noble and learned friend the Lord Chancellor would seek to formalise them. However, I believe that the very nature of the formality involved shows the weakness in the system. I say that because, from the perception of the Bar, we well know that many cases involve judges sitting where the state is a party. This is true of all criminal cases, many civil cases and, notably, cases of judicial review of the kind that have been cited by earlier speakers in the debate. It is possible that in some of those cases the Government will succeed and the claimant, or the defendant in the criminal case, will lose.
Disappointed litigants are not always rational. Their perception is important. I believe that we should seek to avoid a perception where it can be said in any quarter that there is even a risk that a judge's summing-up or a judge's decision would be affected by 161 the potential that he or she would wish to seek to serve on the Bench. Therefore, I would go either for an absolute embargo or for a provision of the kind mentioned by the noble and learned Lord the Lord Chief Justice where any appointment over the age of 70 was made by the Head of Division, after consultation with the Lord Chancellor. I believe that that would enshrine continuing judicial independence.
I turn now to what seems to me to be the compression factor in the Bill. Most of us are agreed that there should be a retirement age of 70. But, if that is right, what impact does the 20-year provision have? I believe that it is a cause of considerable concern. For many years stipendiary magistrates and, I believe I am right in saying, Masters of the Supreme Court have had to serve 20 years before retirement. In practice, that has meant that they sought to be appointed before they reached the age of 50. In some cases, when appearing before them in their latter years, one had the distinct impression that it was just conceivable that they might be soldiering on in order to earn their pension.
It is immensely important—and I was very glad to hear my noble and learned friend the Lord Chancellor state this—that many who go to the Bench should be mature and experienced. I add to that statement that it is also important that the Bar should not be denuded of talent too young. In recent years, the average age of judicial appointment has been 50 or slightly over. The parameters for appointment are, generally speaking, between perhaps 45 and 55 for the most part, although I appreciate that there are exceptions. If the average age is 50, that means that many will be appointed over the age of 50 and that none of those will have the opportunity of earning a full judicial pension. Quite simply, I believe that that is unfair to our judiciary. Either we push the age limit down so that judges are almost invariably appointed at under 50, which I believe to be undesirable, or we deprive them under the Bill of the opportunity of earning a full pension. I ask my noble and learned friend to reconsider very carefully whether that choice is a desirable one.
I do not wish to speak of the quantum of the pension. But the noble and learned Lord, Lord Ackner, has given signals, perhaps, of battles yet to come in Committee. I very much hope that, on an issue as important to the public as the pensions of the judiciary and their terms of service, any battles which can properly be avoided will be avoided. I respectfully echo the suggestions made by the noble Lord, Lord Benson, and the noble and learned Lord, Lord Ackner, that it would be highly desirable if this Chamber in Committee had the benefit of the comments on the Bill of the Top Salaries Review Body and of an independent actuary. That would ensure that there is fairness to the public purse and it would also ensure that there is fairness to the judiciary.
I make no apology at this time for speaking about fairness to the judiciary. From practising at the Bar, I know what an onerous and difficult task it is to be a judge. There have been many criticisms of the judiciary over recent years in connection with cases of miscarriages of justice which have caused public disquiet. Most criticisms of the judiciary have, in my 162 view, been misguided. The judiciary is not responsible for the quality of police evidence; it is not responsible for the verdict of the jury; and it is not responsible for the statutory system within which appeals are conducted.
I state this because I believe that this is a time when it is particularly important that we should hold the position of the judiciary in respect and hold its rights in balance. In order to do so, I believe that it would be fair to all involved if the proposal for an independent inquiry was to be considered, rather than there being a debate in Committee, conducted, no doubt, with the usual amity that prevails in such exchanges, which might have the effect of suggesting that there was real and continuing disquiet about whether the Government were providing properly for the judiciary. Therefore, I urge my noble and learned friend to consider putting before the Chamber in Committee some objective assessment of that kind so that all our considerations may be better informed.
§ 6.10 p.m.
§ Lord Bridge of Harwich
My Lords, I hesitated as to whether to speak in this debate, but I am delighted that I decided to do so if only because of the privilege it gives me of expressing the pleasure I had in listening to the maiden speech of my noble and learned friend the Lord Chief Justice. His appointment to that great office was universally welcomed by the legal profession in the knowledge of the outstanding talents he would bring to it. I have no doubt that your Lordships' House will cordially endorse that welcome in the knowledge of the outstanding contribution that he will make to debates in the House.
Having said that, I have to say that I am not entirely in step with him on all the points he made, or indeed with what appears to be the view of the majority of your Lordships. We live in an ageing society where the number of unproductive persons living on pensions becomes greater in proportion to those productive workers who have to support them. We live in an increasingly litigious society, where the number of judges required to perform judicial functions is constantly increasing. When I was first called to the Bar I think there were nine Lords Justices in the Court of Appeal; now there are 27 or 28. The pressure, as my noble and learned friend the Master of the Rolls has said, is continually growing.
In these circumstances can we not stop for a moment to question the wisdom of limiting the overall pool of those from whom persons to perform the judicial function must be drawn by reference exclusively to the date on their birth certificates without reference at all to their competence to perform the office? I question here too—I think in agreement with most of your Lordships—the possible combined effects of a retiring age of 70 and a minimum period of 20 years in order to earn a full pension on the availability of suitable candidates willing to accept appointment to the judiciary.
If we are to have a normal retiring age of 70 for all the judiciary, including the higher judiciary, then I, in contrast with some of the rest of your Lordships, welcome the power in the Bill to extend that tenure of 163 office from year to year until the age of 75, although I share the doubts expressed by my noble and learned friend the Master of the Rolls as to whether that power to extend should be exercised solely by the Lord Chancellor rather than, as my noble and learned friend suggested, by the designated judges in consultation with the Lord Chancellor.
I do not share the constitutional doubts raised by my noble and learned friend Lord Ackner. But then I very rarely share his perennial suspicion that any measure introduced by this Government conceals some sinister bureaucratic plot to undermine the independence of the judiciary. The answer surely to any constitutional objection to a power to extend a judge's service beyond the retiring age of 70 is that given by my noble and learned friend Lord Donaldson —that if done by the regular members of the judiciary, before designated judges in consultation with the Lord Chancellor, the constitutional objection disappears.
That brings me to the final point, of which I speak with the utmost diffidence for obvious reasons—the absolute disqualification of those over 75. As your Lordships will appreciate, I think I am the one speaker who will be immediately affected by it when it becomes law. While I appreciate that this reflects a public perception which has been much promulgated by the media—it may well provoke another broadside—I shall risk that in order to make three points on the subject. The first point has already been made but in a different sense from the sense in which I make it. Since the retiring age of 75 was introduced in 1959, both the Court of Appeal and the House of Lords have frequently called on the services of retired judges, retired Law Lords and retired Lords Justices often well beyond the age of 75 to fill the gaps that inevitably occur. The volume of appellate work in the Court of Appeal or the House of Lords fluctuates and from time to time it is necessary to call on somebody for a week here or there to fill a gap. Does it really make economic or any other sort of sense to insist that there shall always be a sufficient full-time judiciary in the Court of Appeal and in the House of Lords to avoid any such gaps ever arising? In my submission, it does not.
The second point I make is that of course no one should be qualified to sit after 75, even on an occasional basis, unless he is invited to do so, and the power to issue the invitation should rest with whatever authority has the power to extend a judge's service from 70 to 75.
Thirdly, and finally, I cannot resist making this point. Throughout the 19th century and most of this century some of the most outstanding judges who have sat in the Court of Appeal and as Law Lords in your Lordships' House have made some of their finest and most mature contributions to English jurisprudence after they passed the age of 75. If that has been so in the past why should it not continue to be so in the present?
§ 6.16 p.m.
My Lords, some of your Lordships may recall the television sketch in which John Cleese, clad in his wig and gown, stands up before the court and says to the judge:My Lord, my learned friend appears for the plaintiff and I appear for the money".Tonight I must declare an interest in the Bill because I am or am likely to be a person holding qualified judicial office on the appointed day, whenever the appointed day may be. But I am not in the least concerned about the money. I, like all existing judges, signed up for the existing provisions. We must have found them satisfactory when we signed and we cannot cavil at them now. The new provisions are certainly for us no less satisfactory. Indeed, in so far as we are given an option, they are beneficial to us and we ought to acknowledge that.
I should like to join with most of your Lordships who have spoken in drawing attention to the interaction of Clause 3, which prescribes a 20-year qualifying period for the full pension, and Clause 25, which introduces the compulsory retiring age of 70. Inevitably the optimum age to become a judge is on one's 50th birthday. I think that that is obviously so because if one goes on the Bench later one will get a smaller pension; if one goes on earlier one is likely to suffer the loss of earnings at the Bar which are likely to be at their greatest at that particular time. Also some people are reluctant to go on the Bench for the reason that I was reluctant to go on the Bench in my 40s, when I felt that I would be putting one foot in the grave, so to speak. I thought that that was a drastic step to take at such a young age. My guess however is that the average age will settle down at something in the mid to late 40s.
The noble and learned Lord, Lord Morton of Shuna, has drawn attention to the age of some of us. I went on the Bench at the age of 55, but the noble and learned Lord the Lord Chancellor who sits with us tonight went on the Bench, I think, at the age of 57. The noble and learned Lord, Lord Morton of Shuna, was 58 and the last but one Lord Advocate, the noble and learned Lord, Lord Cameron of Lochbroom, went on the Bench also at the age of 58. So when one thinks of judges having to retire at the age of 70, all these judges would qualify for substantially less than the full pension, which by contrast with other countries is not very great.
There is also a notable sub-effect and that applies to the Law Officers, as mentioned by the noble and learned Lord, Lord Morton of Shuna. Most of the Law Officers who have ascended to the Bench in Scotland have been well over 50. Are we then to envisage that all Law Officers will in effect retire from that particular post by about or indeed before the age of 50?
There has been some talk in the debate of judges becoming impatient, bad tempered, remote or out of touch with contemporary mores simply by reason of advancing age. That may be a possible effect of advancing age, but in my experience a much more potent cause of remoteness, arrogance and ill temper among the judiciary is the length of time that the 165 person has served on the Bench. The longer one is there the more remote one becomes from the struggle in which one was previously engaged. The overall effect of Clauses 3 and 25 is to encourage judges to stay on the Bench for 20 years. I deplore them for that reason.
If we have to work in round figures, I suggest that the best balance is to make the accrual period 15 years, as it is at present, and the compulsory retiring age 70. There is no need to go for round figures. We have had the example of New Zealand. I am sure that we can find others elsewhere. We could pick the best period—somewhere between 15 and 20 years is a possibility—and the ideal age, regardless of whether it is a round figure.
An entirely separate reason for questioning the wisdom of the whole thrust of the Bill is that it moves us stealthily towards the creation of a kind of career judiciary. That runs counter to our tradition. There may be good reasons—I do not know of them—for moving towards a career judiciary, but I am opposed to such a move as a mere by-product of a Bill which is intended to remove anomalies and anachronisms from existing pension provisions. Like others, I am interested to know what Clause 25 means. I do not like to see Ministers having the power to select judges. I want to endorse the point made by my noble and learned friend Lord Morton of Shuna that the Secretary of State for Scotland is an important litigant in Scotland. He is a litigant before me next week in the Appeal Court. He frequently litigates in our courts. It is not right that he should have the power, equivalent to the power exercised by the Lord Chancellor for England and Wales. I hope that that point will be looked at. I endorse the recommendation of my noble and learned friend Lord Morton of Shuna in that regard.
There are two points about which I wish to ask the noble and learned Lord the Lord Chancellor of which I have given him notice. The first is that under Clause 1 the Minister may prescribe the period of time during which a currently serving judge may elect between the existing and the new provisions. How long a period do Her Majesty's Government have in mind to allow such an election, and why does any period need to be laid down? Why should not the existing judiciary merely be given the right to elect in the light of their personal, financial and family circumstances at any time while they continue to serve?
Finally, Clause 31(2) contains the commencement provisions. I wonder when the provisions which affect the aggregation of pension entitlement for those who have moved from one judicial office to another are likely to be brought into force. Those are matters of detail, but I hope that the Government will think again about the main thrust of the two clauses to which I have referred and the overall effect of the Bill.
§ 6.23 p.m.
§ The Lord Chancellor
My Lords, I should like to say how much I enjoyed the maiden speech of my noble and learned friend the Lord Chief Justice and to congratulate him upon it. Like others who have, spoken, I am delighted that he thought it right to 166 express his view. I am pleased that his view on the matters about which he spoke should have been available in this way to your Lordships. I am sorry that I did not have an opportunity to have some discussions with my noble and learned friend Lord Hailsham before he spoke. I should have liked to have learnt why the anomalies of the present system have continued for so long. No doubt there is an answer to that question which will be forthcoming in due course.
Many of your Lordships have spoken about the 15-year accrual period. It is obvious that, taken by itself, moving from 15 years to 20 years is not helpful. One does not need to be especially perspicacious to discern that fact. But I have to take issue with the noble Lord, Lord Mishcon, in his reference to what I said. I said that the judges' pension system will have to take account of the general tax position. The general tax position is that the scheme should require an accrual system which is not more rapid than 20 years to benefit from the present pension scheme regime. It is extremely difficult to suggest that the judiciary as a whole should be in a special position relative to that. Of course the judicial pension scheme is intended to apply especially to the judiciary and to cater for its needs in the way in which, in my submission, it has; but one has to think about it against a background of the tax structure.
I have sought to ensure that the judicial pension scheme has features which make it proper and possible for it to enjoy the tax-free treatment which is available within the general law. That, as I sought to explain in my opening, is why we have two schemes; including a top-up scheme when one comes above the cap. My noble and learned friend Lord Morton of Shuna has referred to the elegant language of Clause 19 in which the draftsman has sought to refer to the cap. The idea is clear enough. If one is above the cap, there will be a separate scheme in respect of that part of the salary which is above the cap. If my noble and learned friend will allow me, I shall invite the draftsman to comment upon his comments to see whether an improved formulation can be put forward. That is the crucial reason why the 20-year accrual period has been arrived at.
I want to point out an important factor about which the noble Lord, Lord Wigoder, asked me: the retained benefits. My noble and learned friend the Lord Chief Justice of course understood the position about them and commented as to why they would not be of particular advantage in every possible circumstance. The question is: what does one do about it? One cannot have all sorts of specialties, and this is a special provision for this scheme. It allows retained benefits. The effect of that is that a person who contributes for a pension under the self-employed arrangement will have that pension in addition to the pension provided under the judicial scheme. The 15-year accrual period has been in existence for High Court judges for a long time, as has been pointed out. But the background against which it exists now is different from that against which it was originally set up. We have to take account of the general taxation system.
167 So far as I am aware, there is no pension scheme allowed for tax purposes which accrues at anything like the rate which is proposed in the Bill for the judicial scheme which allows the retained benefits to be added to the judicial pension. That is how the judicial scheme that I propose fits in with our desire to have mature people on the Bench. If we have mature people at the top of their practice at the Bar, they will be able fully to subscribe to a personal pension plan which will more than compensate in respect of any loss of years in the judicial system. If that is a good idea, it will mean that people will increasingly be able, without any detriment to their financial position, to continue in practice and then take not the fully accrued judicial pension but the proportion of it appropriate to their time in office.
Your Lordships have stressed that 15 years is better than 20 for an accrual rate. I understand that. However, noble Lords have not yet directed their attention to whether there is a good case for differentiating the tax treatment of judges from that of all other people, in particular whether the provision in the Bill for special tax treatment for judges on the lines I have described is the most suitable that can be devised.
We shall obviously have discussions in Committee about the detail of the Bill and I shall see what I can do to produce helpful assessments of these matters. The information I have about other schemes is detailed and is more appropriate for Committee than for me to deal with it here.
However, I am at least as devoted as my noble and learned friend Lord McCluskey to the system that we have for appointing the judiciary. There is no intention on my part to create the conditions for a career judiciary in the sense in which he described them. But it is most important to have a reasonably just arrangement for passing, for example, from the circuit Bench to the High Court Bench. I am extremely grateful to all noble Lords for their observations on this in the debate, but they did not deal specifically with the relationship between the judicial pension system for the High Court and the circuit Bench on the one hand and for lower judicial officers on the other. These matters are important because the more distinction there is at different levels the more difficult it is to have a degree of flexibility between them. I hope that your Lordships will consider it perfectly reasonable to encourage good district judges to become circuit judges and so on without in any way committing oneself to a completely career judiciary in -Which people do not start in the ordinary practice of the legal profession.
My noble and learned friend Lord McCluskey asked me two questions which I shall try to answer. The first is on the time of the election. The Top Salaries Review Body in its comments on the consultation paper suggested that flexibility should be introduced. I propose that the regulations should allow the existing judiciary to decide at the time when the benefits are in issue—that is, at retirement. I 168 believe that that is the longest possible time envisaged. That was announced in the Government's response to the consultation paper in paragraph 19.
The second question was when aggregation should be allowed to start. The answer is as soon as the provisions of the Bill become law and can reasonably be commenced. I should like some time for the detailed regulations to be made, but subject to consideration of the circumstances I should wish to see the Bill come into force as soon as possible.
Before leaving this part of my observations, perhaps I may also answer a question raised by the noble Lord, Lord Mishcon, about the remuneration of retired circuit judges. It has nothing directly to do with the Bill but nevertheless is an important question. Circuit judges who retire are sometimes invited and are entitled to sit as deputies. They used to be in the class C fee structure which is based on the salary of a district judge. In the course of discussion with the Council of Her Majesty's Circuit Judges, we have agreed that the fees should be increased appropriately, based on the salary of a circuit judge. Many of these part-time fees must be looked at and I have tried to set up a reasonably consistent system. It may take a little time for the arrangements to be put in place, but in principle we agree to the point made by the circuit judges.
I turn from the pension aspect to retirement, on which there is a variety of views. I shall not try to summarise them. First, there is general agreement that a retirement age of 70 is appropriate. Some ask, "Well, if that is so, should it not be absolute?". I can see the force of that argument. In other words, there should be no exceptions. Circuit judges are required to retire at 72 or at the end of the year of service in which they attain the age of 72, subject to a power vested in the Lord Chancellor for them to continue in office. I have exercised that power from time to time, after consultation with the presiding judges. It has worked reasonably well. I have had no complaints about the power being exercised in any way other than properly. It occurred to me therefore that when moving the age from 75 to 70, the period between 70 and 75 might be covered with a similar power. That is the origin of the proposal.
I have carefully considered exactly what the arrangements should be before putting forward the proposals in the Bill. Judges in the higher court and above, including the House of Lords, may be removed during their term of office only by resolution of both Houses of Parliament. I felt that the proper constitutional arrangement was that the responsibility for exercising the power, if it were to exist, should be in someone answerable to Parliament for its exercise.
Of course it would be the practice of the Lord Chancellor and, I am sure, also of the Secretary of State to consult the relevant judges. It is not quite so easy to see, for example, who the appropriate judges would be to consult in the case of the possibility of extending the term of office of a Lord of Appeal in Ordinary. There are difficulties about that and I am open to consider the matter further.
However, it is important that if the power is to exist it should be used by someone who is accountable to 169 Parliament for its exercise. An improper exercise of any such power would in any event be amenable to judicial review. These are matters to be considered in Committee. Unanimity has not characterised this aspect of the speeches.
As to whether judges should sit beyond the age of 75, I appreciate the views expressed that many great judgments have been given by those who were more than 75. A balance has to be struck on whether one should forgo that possibility in the future against the relative certainty of the age of 75. I agree that it is not absolutely necessary to have such a power. The policy could be used to reach the same result. I feel that in a matter as important as this it is right that the policy should be exposed to Parliament. Parliament should ultimately decide it.
The contributions which have been made show that we shall have lively discussions in Committee. It is reasonably clear that, as has been pointed out to me, there are two distinct thrusts in the Bill. One is to reduce the retirement age; the other has the effect of increasing the period of minimum accrual for pensions. I thought it was right that the two should be considered together because it would be most unfortunate to have a separate consideration of them. The system must be considered as a whole. The pension arrangements are part of the overall remuneration arrangements for judges. I am strongly persuaded that the motivation of those who accept appointments to the High Court in this country is not a desire for financial improvement. Obviously the terms are important to them but many of those who are appointed to the High Court forgo considerable earnings in private practice. In my experience those who are appointed to the High Court consider that an honour to be sought after.
My noble and learned friend Lord Hailsham, with his great experience, pointed out that this is a matter which needs to be considered. This Bill certainly has been considered. I have consulted on both the pension and the retirement aspects. Your Lordships will have an opportunity of considering all these matters in due course in Committee, as I am persuaded that your Lordships are willing that this Bill should have a Second Reading, the Motion for which I now renew.
§ Lord Ackner
My Lords, before my noble and learned friend sits down, I hope he will be kind enough to answer the question I specifically raised. Were the views of an independent consultant actuary obtained on the scheme as now put forward by the House, and if so may we know what those views are?
§ The Lord Chancellor
My Lords, I have already sought to answer that in my observations. I am not persuaded that I am in a position to put particularly useful views of an independent actuary before your Lordships. However, I shall certainly consider that matter carefully before the Committee Stage.
On Question, Bill read a second time, and committed to a Committee of the Whole House.