Pensions Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Scott of Foscote

Tuesday 15th March 2011 Grand Committee

[Lord Scott of Foscote]

My Lords, I express my complete agreement with what has been said to your Lordships by the noble and learned Lord, Lord Mackay of Clashfern, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Murphy. I want to add a brief word on the nature of the judiciary in this country, which your Lordships will have to take into account in considering this amendment. I declare my own interest: I have been in the law for the whole of my working life, 23 years as a barrister and then 26 as a judge.

The judiciary in this country, and in many Commonwealth countries that have followed our system, is unusual in that it is not a profession that people decide to enter when they are at law school or when they leave law school. A number of continental countries have judiciaries of that sort: you decide that you want to go into the judiciary; you make an application; you become a member of some tribunal, whatever the country may be; if you are good, you work your way up the ladder; and then eventually you become a judge in a senior court. We do not do that.

The bulk of the judiciary in this country—perhaps all of them, barring a few who come from legal academia—come from the ranks of practising lawyers. As practising lawyers, they have a structure in their careers. If they stay in their firms, they can build up provision for their families and of course for themselves when they retire, and they can hope to leave something to their children. They can hope for affluence as the result of a successful professional career. In the old days, there would come a point in that professional career when the individual would get a tap on the shoulder and someone would say, “Now, would you consider becoming a judge?”. Now they have to apply, but I do not believe that that makes a significant difference to the type of people who become judges or to the stage of their career when that happens.

As has been said, an element of belief in public service influences the choice. If lawyers stay in their professions, they will have the expectation and hope—sometimes realised, sometimes not—of reaching comfortable affluence for their old age. When they enter the judiciary, it is and always has been a significant feature of the terms on which they enter that they will look towards a pension for themselves, and for their widow if they leave one, after service of an appropriate number of years on the Bench.

If there is a movement of the sort indicated by Clause 24 of the Bill, which establishes the ability of the Executive to alter to an individual’s disadvantage the terms under which they joined the judiciary—the terms on which they supposed that they would be able to rely for the purpose of building up whatever was necessary for a reasonably affluent old age and retirement—there is a danger that that may affect the type of judiciary that we have. It may affect the willingness of people to accept the degree of adoption of service as opposed to self-aggrandisement that is a feature of almost everybody’s decision to apply for—or previously to accept—a position on the Bench.

The noble and learned Lord, Lord Mackay of Clashfern, made the point strongly that for statute to interfere with the contractual terms of appointment is a very strong thing that must be carefully justified. In addition, I respectfully suggest that it is likely in the long run to change the nature of the judiciary in this country, to the disadvantage of us all. I support the amendment on that ground in particular.

[Lord Falconer of Thoroton]

My Lords, the amendment is in my name also. It is intended to prevent a fundamental break with the constitutional principle that we have adopted to protect the independence of the judiciary. We are talking about 800 or 900 people in all. The idea that the proposal would have a significant impact on the economy of the country is overstated.

The principle was clearly put by the noble and learned Lord, Lord Mackay of Clashfern, in the Second Reading debate on the Bill. He said:

“The principle that a serving judge shall not have his terms of service adversely affected without his consent during his term of service is a fundamental principle, part of the rule of law and internationally recognised. It has been followed by Governments in this country, so far as I know, as far back as I can tell”.—[Official Report, 15/2/11; col. 634.]

I agree with that; it is a brilliant statement of the position in relation to the terms and conditions of judges.

The amendment would give effect to principles agreed internationally—including by the United Kingdom—on the independence of judges, best expressed recently in the Bangalore principles, to which the United Kingdom is a signatory. The principles state:

“A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom”.

It is important to emphasise what the consequence of Clause 24 will be. It will allow the Executive, first, to introduce contributions by a serving judge in respect of his or her pension. That is something that the Executive cannot currently do. Secondly, it allows the Executive in future, without the consent of the relevant judge, to increase the amount of those contributions without reference to any index or to any precedent contractual terms.

I invite noble Lords to consider the Bangalore principles again. Do the proposals give the Executive an inappropriate influence, or the appearance thereof, on what judges do? I say without a shadow of doubt that if, as Lord Chancellor, I had been asked to advise another country on these terms, I would have regarded them as an obvious breach of the principle enunciated by the noble and learned Lord, Lord Mackay of Clashfern, and in the Bangalore principles that the United Kingdom helped to draft, adheres to and promotes throughout the world.

If we are serious about the rule of law, we must preserve the independence of the judiciary. The noble and learned Lord, Lord Mackay of Clashfern, is right to say that if the provision goes forward in this form, it would be the first time—in my experience—we had broken our constitutional principle of not giving the Executive the power, by waving a wand, to say, for example, “We will reduce the judiciary’s terms”. We incorporated in the Senior Courts Act 1981 a provision that prevents the Executive from reducing judges’ pay to reflect in principle the substance of the memorandum that the noble Baroness, Lady Murphy, read out. That is why the noble and learned Lord, Lord Mackay of Clashfern, indicated at Second Reading that the pension changes that he introduced in 1993 could apply only to new judges. There is nothing to prevent the state from extracting significantly reduced terms from new judges, if that is what it wants to do, to show that we are all in this together. However, the one thing that I respectfully ask the Executive not to do is to introduce a power that means that they can hold the sword of Damocles over the judges and reduce their terms and conditions with a click of the fingers if the judges—as a group or individually—do something that they do not like. It would be a significant breach of the constitutional principle to which we have adhered for as long as I can remember and which records show to be the case. Therefore, I respectfully ask the Executive to think very carefully about the damage that they would do to our constitution with this rather mild-looking provision. I support the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Murphy.