Marriage (Same Sex Couples) Bill
Lord Mackay of Clashfern Excerpts(11 years, 2 months ago)
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Lord Mackay of Clashfern
My Lords, I declare an interest as the honorary president of the Scottish Bible Society and as a member of various Christian groups. I thank my noble friend for the way in which he initiated this debate and the Bill team for its help in piloting me through the complexities of this legislation.
The issues in this debate are extremely important but also extremely sensitive. I intend to confine myself to analysis of certain aspects of the Bill as I understand it and, if I am wrong, I invite correction.
The principle of the Civil Partnership Act 2004 was to construct a legal relationship as closely as possible to the legal relationship of married couples, and that was successfully achieved. The principle of this Bill is to open the institution of marriage to same-sex couples. An institution is more than just a name: it is defined by its purposes and by the conditions under which it may be entered. The institution of marriage exists for the mutual support of the spouses and to provide a suitable environment for the natural procreation of children by the spouses and for their growth and development.
It was realised long ago that if spouses were too closely related there was a risk to their children from inbreeding and therefore the prohibited degrees of relationship were laid down under which it was not lawful to marry. The extent of the prohibition has varied over time but it has always included close relationship by blood. So important a purpose is the natural procreation of children in the institution of marriage that the prohibition applied even when the parties were well over the age of childbearing or unable to bear children for other reasons.
While the natural procreation of children may be a possibility for a man and a woman, it can never be for a same-sex couple. Therefore a union between them, however loving, cannot have this purpose. Therefore the union proposed for a same-sex couple must be different from marriage since it cannot have this purpose. Non-consummation is not a ground for declaring this union void. A marriage is voidable on the ground of non-consummation, and this implies that it will generally involve sexual intercourse between the parties. There is no such implication in the union proposed in this Bill. Sexual relations with a person of the same sex as the parties is not expressly mentioned as a ground of divorce here.
For all these reasons I conclude that the union open to same-sex couples in the Bill is not the institution of marriage but a new and different institution which deserves a name of its own.
Marriage has developed over the years. No previous development is anything like this. This is not a development; this is a new creation. The express purpose of the Bill is to open the institution of marriage to same-sex couples, including those in a platonic relationship. I am satisfied that the Government have done the best that can be done and that no amendment in Committee or on Report will achieve that purpose. Therefore, if the amendment of the noble Lord, Lord Dear, is pressed, I propose to vote for it.
I am here because the Writ requires my counsel. I know that our constitution allows the elected House, if it wishes, to prevail over my view and that of this House if that is its purpose.
Enterprise and Regulatory Reform Bill
Lord Mackay of Clashfern Excerpts(11 years, 5 months ago)
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Lord Singh of Wimbledon
I thank the noble Baroness for that. I repeat: caste in no way relates to underlying and uplifting ethical Hindu teachings. It is simply questionable culture that has, over the years, managed to attach itself to Hinduism in much the same way as discrimination against women is seen by some as part of their faith.
The Sikh gurus were acutely aware of such negative cultural practices, and they openly discussed and criticised the prevalence of rituals, superstitions and cultural practices contrary to underlying ethical teachings. At a time when all religions all around the world were emphasising difference and exclusivity, the Sikh gurus stressed the importance of showing respect for sister faiths. The fifth guru, Guru Arjan, showed his respect for Islam by asking a Muslim saint, Mian Mir, to lay the foundation stone of the Golden Temple. The ninth guru, Guru Tegh Bahadhur, gave his life defending the right of Hindus to freedom of worship at a time of forced conversion by the Mogul rulers. At the same time, the gurus taught that people of all faiths must respect fundamental human rights and the equality of all people, including full gender equality.
While I have the greatest respect for a sister faith, I also believe that Hinduism without the old-fashioned concept of caste will be infinitely stronger. Similar negative cultural clutter exists in all our different faiths. Its removal would help religions work together for a fairer society, and it is in that spirit that I support this amendment.
Lord Mackay of Clashfern
My Lords, I fully support this amendment because it deals with a problem which ought not to disfigure our national life. My only point is somewhat technical. I notice that in one of his quotations, the noble Lord, Lord Avebury, mentioned race, of which he said caste is a subgroup. I believe it is quite reasonable to suppose that the definition of race in the Equality Act, including ethnic considerations, will include caste. The fact that an additional power was taken to make orders in relation to caste puts that, in the context of the Equality Act, in a certain amount of doubt. However, it is quite important that we recognise that “ethnic” is a broad consideration and idea. According to the Shorter Oxford English Dictionary, which I suppose has a special authority in some parts of the House, “ethnic” means,
“relating to national and cultural origins … denoting origin by birth or descent, rather than by present nationality”.
It also has the definition of pertaining to or designating a,
“population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition”.
In effect, that is what caste is. In the context of the 2010 Act, the fact that a separate order-making power was introduced may have been unnecessary. However, it is worth recognising, as the quotation used by the noble Lord, Lord Avebury, shows, that caste can be regarded as a subgroup of race which, of course, is a characteristic that is at present the subject of antidiscrimination provision.
It looks to me as though we have here the necessary push behind this, but I would like the Government to consider it. It may be a reason for reconsideration at Third Reading, separate from other things that have been said, but it is important for a view to be taken about this matter.
The Lord Bishop of Hereford
My Lords, I pay tribute to the noble and right reverend Lord, Lord Harries, and others proposing this amendment, to which I give my full support. I do not want to delay this debate too much because it is quite clear what many of your Lordships think. However, I will make three brief points. First, I go back to the theme touched on by the noble and right reverend Lord, Lord Harries, and others about the Government’s plans to address this underlying issue by way of education. We have just been reminded about dictionary definitions. Education is from “educere” to lead us out; to lead us out, surely, into greater truth and the fullness of that truth; for us to flourish as human beings; and to become the best human beings we can be. Within that, I believe, the spirit of God leads us into the fullness of that truth of all being valued in the sight of God.
Secondly, we need consistency in how we approach these issues. Yes, there should be education but not only education. As we have been reminded by the noble Lord, Lord Deben, where does that lead? If it does not lead to the possibility of those who are being educated to treat others equally, to have the law support that as well, we let them down and fail them. Surely, our law is but the right ordering of our society. As we have been reminded by the noble and right reverend Lord, Lord Harries, this issue is about the public arena.
Thirdly, and to which the noble Lord, Lord Alton, has drawn our attention, having had this debate, if we should turn away and not support this amendment, we are giving a worse signal than if we had never had the debate. We need the debate and we need it to be in the open. Having got to this point, we cannot let ourselves turn away. That would cause more harm, more damage and more discrimination. I hope very much that the Minister will accept this amendment and, if not, that it will have the support of all the Benches.
Equal Marriage Consultation
Lord Mackay of Clashfern Excerpts(11 years, 8 months ago)
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Baroness Stowell of Beeston
I understand the points made by my noble friend. I can only restate what I have already said. As regards the Church of England or any religious faith, we are putting in place safeguards to prevent any change to their religious definition of marriage.
As to why we are doing this and why it is different from civil partnerships and allowing civil partnerships to take place on religious premises, while civil partnerships were a significant step forward, and were embraced and welcomed by many people, especially those who have taken advantage of a civil partnership, there is still a distinction between a civil partnership and marriage. We believe that marriage should be available and accessible to two people who love each other, and who want to spend their lives together, and that they should not be discriminated against just because they are of the same sex. That is why we believe that it is right that a same-sex couple should be able to marry and to define themselves legally as married, as do other people who have the same feelings for the one they love.
Lord Mackay of Clashfern
Apart from the name, what difference is there to be between a civil partnership, as enacted during the tenure of the previous Government, and the proposals made here?
Baroness Stowell of Beeston
The key issue is that two people of the same sex will be legally defined as married in the same way as two people of the opposite sex. There will be no difference in the definition of their relationship in future.
Welfare Reform Bill
Lord Mackay of Clashfern Excerpts(12 years, 7 months ago)
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Baroness Howarth of Breckland
My Lords, I shall speak briefly, following the noble Baroness, Lady Tyler, who is about to follow me as chair of the Children and Family Court Advisory and Support Service. I speak as someone who has dealt over many years with some of the families who are in greatest conflict and need. The Minister will know that, of the families who separate, 10 per cent go to court. Those 10 per cent are the most difficult families. Often they are very close to families who come through public law, which are the families who really have child protection issues. However, we find in assessment that many of the families who come through private law divorce proceedings may well have these issues.
I agree that there is some need for reform. I welcome the money being put into relationship work and hope that some of that will find its way to CAFCASS, which does a great deal of that work with those difficult families. There is a proportion of families, though, where it is clear that the level of conflict between the families is detrimental so continued contact with both parents—judges have said this—may well not be the answer for those few children.
I am interested, as the noble Baroness is, in who is going to make that assessment and at what point the mother—it is usually a mother, although occasionally it is a father—will know that she is not going to have to continue to engage with an extremely aggressive and often destructive person who has damaged not only her own relationship but that of her children, and when she will be able to bypass all those procedures and be sure that she can actually get maintenance. The likelihood of the man giving her maintenance is slim, but she needs to be able to get by the procedures.
Lord Mackay of Clashfern
My Lords, it will be fairly obvious to most of your Lordships that these amendments are not entirely unrelated to the amendment that I am going to move in a little while. I am not certain of this, of course, but I have a feeling that the proposed amendments regarding the test for the discretion to be used have arisen out of discussions that I have had, which my noble friend Lord De Mauley has been at too, about the effect of the test in relation to charging. I will not elaborate on that now.
I would just be interested to know on what basis this test was originally put into the Bill. It must have been the subject of instruction; parliamentary counsel are extremely creative, but only on the basis of what they are asked to do. They are very good at finding words to express what you want. I wonder, and my noble friend may know the answer to this, what they were asked to do in the first instance. Does this reflect a change in the underlying request or not?
The third amendment concerns the review. That was certainly mentioned to me by the Secretary of State when I met him a week yesterday. I am entirely in favour of that. However, I suggested to him that it would be fair to do it on my basis and that that would be a real test of how good my suggestion was. However, it was suggested, “No, we will test it on my basis”—that is, on his basis. Therefore, from my point of view there is not much of an improvement as yet, but who knows what may happen? At present, the amendment is very welcome but, so far as I am concerned, it does not help me at all.
Lord McKenzie of Luton
My Lords, when the noble Lord, Lord De Mauley, introduced these fairly specific amendments, we had a bit of a broad sweep about the background to where the Government were going on child maintenance. I start by welcoming the £20 million of additional funding that has been announced. The noble Lord said that the Government were seeking to introduce tough enforcement and collection, with non-resident parents not being able to escape their obligations, and with HMRC gross data being used for the relevant calculations. We can sign up to that. In fact, we dealt with that in the 2004 child maintenance legislation, so that is in place; it is not new.
The noble Lord referred to the cost of the scheme—£450 million a year. One of the problems is that three schemes are operating side by side through a transition. I think it was originally planned that by 2012—this year—we should be down to one scheme based on gross data, which should significantly reduce costs. However, I think that has been somewhat delayed by the Government.
As regards tough enforcement and collection, following a question that I raised in Committee, the noble Lord wrote to me indicating that not all the powers included in the 2008 Act had been brought into force. If I am wrong on that, he may take the opportunity to correct me.
Amendments 62BL and 62BM appear, at first reading, to make it harder for parents with care to access the statutory maintenance service. The Bill as it stands provides for applicants to take reasonable steps to establish whether it is possible or appropriate to make maintenance agreements outside the statutory system. A key part of the Government’s reform of child maintenance was supposed to be the introduction of the gateway referred to by the noble Lord, the purpose of which is to ensure that all clients consider the range of their child maintenance options so that they can be directed into the family support services where appropriate. The Government’s White Paper states at paragraph 10 on page 18:
“In some cases the gateway will be a step towards an application to the statutory scheme. Where the parent wishes to pursue that and states clearly the reasons why, the conversation about other options available will be closed and they will be assisted in moving to make a full application”.
There were concerns that this process would be a way of screening out parents, particularly parents with care, from the statutory scheme. These were heightened by the potential loss of the statutory requirement to maximise the number of children benefiting from effective maintenance arrangements, which is an obligation of CMEC but is not to carry over to the successor—the executive agency—when that comes into being. Just a few hours ago we received a letter that purports to provide further clarity to the Bill. The noble and learned Lord, Lord Mackay, touched pertinently on that point. I am bound to say that it is regrettable that once again this information is released so close to our Report sitting. A crucial paragraph in that states:
“Therefore, we are now in a position to provide further clarity to the Bill by making it clear that the only engagement required prior to accepting an application to the statutory scheme will be to invite the applicants to have a telephone call with an adviser to discuss their options”.
Like my noble friend Lady Sherlock, I would like better to understand what that means.
If this is the interpretation that the Government put on the two amendments, it will be important to have this on the record. However, I am bound to say that such an interpretation does not flow readily from the wording, which requires the applicant to,
“consider with the Commission whether it is possible to make such an agreement”.
The term “consider” at least implies a more deliberative process than just a phone call. The process being “with the Commission” suggests the two parties having to agree on some sort of basis. However, if this is not what is intended, it would be very important to have that on the record. Given the lateness of this item in our deliberations, we may have to return to this matter at Third Reading.
The cynic might say that this changed position is an attempt to undermine the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, by removing, in relation to Section 9 of the Child Support Act 1991, a requirement for an applicant to take “reasonable steps” to establish whether it is possible to have voluntary arrangements. We would not accept that, and the noble and learned Lord’s amendment continues to have our full support and stands separately from these amendments.
However, perhaps the Minister will tell us what the future of the gateway service is to be. To be fair, it was always envisaged that it would start by a telephone offering, but is that now to be its steady state? If not, and if it is to be developed into a more extensive engagement, how would that sit with the new government amendments?
To be clear, we have acknowledged the benefit of voluntary arrangements and the prospects of them being more sustainable. We support the development of family support services. We legislated to remove the requirement for benefit claimants compulsorily to use the statutory system and provide what has become the option service. Our strong concern in doing so was not that thousands would rush to use the free statutory service, but that parents with care would drift out of the system and fail to make arrangements at all.
As to Amendment 62CA, we would support a review of fees regulations. That does not mean we accept the structure of the fees proposed. We would prefer it to be done on the basis of the noble and learned Lord’s amendment.
“(3) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) there is inserted—
“(2A) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””
Lord Mackay of Clashfern
I move the amendment out of a sense of the need for fairness in these alterations. I should say at the beginning that I am a member of Barnardo’s and I thank others in the voluntary sector who have helped me in the work of contacting your Lordships.
After I sent my letter, one of my senior colleagues said to me, “I was surprised to receive a letter from a former Lord Chancellor inviting me to be a rebel”. I have thought about that. My primary motivation as Lord Chancellor was to get fairness and justice for our people, and I hope that I have not laid that motivation aside on laying down my robes for the last time.
My amendment is about a very simple matter of fairness. The government briefing dealing with the clause in its earlier form included the statement, which all of us may believe to be true, that,
“a significant proportion of parents will not be able to collaborate. For example, where an applicant has a former partner who refuses to engage or pay child maintenance voluntarily there would be no reasonable steps they could take”.
That is the group I am focusing on, because I do not believe that it is fair to require them to pay charges when they are not responsible for creating the need for the use of the service.
The obligation to maintain children is an obligation between the parent and the child which subsists for so long as the child needs maintenance and the parent lives. The mere fact that there has been disturbance and breakdown between the parents is in no sense a reason for not paying maintenance. Therefore, one of the key things that my noble friend Lord Newton and I thought, when this arrangement was being made originally in 1991, was that it was important to separate consideration of things such as contact and other detailed arrangements from the obligation to pay maintenance. That is a clear obligation which, as I said, subsists whatever the relationship between the parties.
My question is simply: is it fair to charge a parent in that group? The suggestion is that the use of charging will create an incentive on both parents to enter into an agreement. I agree that in many cases that will be so, but the quotation I have just given explains that that is not true in every case. I use the example of where the man declines to pay maintenance. It is usually the man as 97 per cent of the cases under the CSA are initiated by the mother as the parent with care. There are one or two where it is the other way round, but I use the mother for illustrative purposes, as long as your Lordships understand that that is not the universal situation. In my view, the only question that arises on application to the CSA—the names have changed once or twice but the name CSA is used in the letter that was kindly circulated this morning—is whether the parent, the father, is prepared to pay maintenance: is he paying maintenance and is he prepared to pay maintenance? That is all. He is not asked anything else.
The idea that I want to have an adjudication of whose fault it was that there was a breakdown is absolute nonsense. Those of your Lordships who have been here long enough will remember that I had some trouble getting through this House a law reform Act of 1996, which introduced divorce without fault. No-fault divorce seemed to me to be the only answer. I do not believe that any tribunal on earth is able to make an absolutely just appraisal of who is responsible for a breakdown in a relationship. I certainly do not want to put that task on the CSA—not at all. I want the CSA to be concerned solely with the question of maintenance, and the obligation of maintenance clearly arises when one is a parent, nothing else. It does not matter what else has happened. As long as I am the parent and the child is still in need of maintenance, the obligation subsists. That is the only question that arises at that stage. The idea that I want to have some kind of quasi-judicial bureaucratic process that will take a great deal of money out of the system is nonsense. I have no such desire.
Those of your Lordships who were here will remember the debate about the Bill—which, as I say, is still on the statute book, not yet implemented. The time will come when it is, probably; at least, I hope so. I am also very keen on what the Government are now saying about the need to try to get voluntary agreement. I am 110 per cent behind that. I believe that voluntary agreement on all the arrangements needed on separation is vital. If we could get that in every case, there would be no need for the CSA and very little need for a good lot of the family court arrangements that we have to have. Sadly, we are in the real world and that is not always possible.
That is the simple point that I wanted to make. I suggested when I had some of these meetings how this could be handled. My idea is that when somebody applies to the CSA and is serious about it, the application should be taken into account and immediately a letter would go to the non-resident parent—the NRP as we tend to call him—to ask whether he is paying maintenance at the moment or is willing to pay, and giving him something like a fortnight or a month to reply. There is no need for any quasi-judicial function or anything of that sort. That is what I want. On that basis, if he says, “I will certainly pay and set up a direct debit tomorrow”, there is no question of the CSA being involved. However, if the CSA is involved to force him to pay, he has the responsibility for bringing that about and the fees should be adjusted. The fees are still subject to discussion. There is no question at present about a strict standard of fee; the fees are subject to discussion. They should take account of the fact that this is the way the scheme operates.
The motivation of the Government for these charges is said to be to try to bring people to voluntary agreement. I am entirely in favour of that. But if that proves impossible, when the woman is at the stage of having nothing more that she can to, she has to pay. What does that do? If anything, it might make her not go to the Child Support Agency at all and the child will lose the maintenance. I cannot see that asking for that is an incentive to do anything that the Government want.
There are other considerations that I would like to mention briefly. As I say, I am entirely in favour of putting as much money and effort as possible into getting people to reach agreement when they fall out—if possible, repairing the relationship, and if not, trying to sort out the consequences of its breakdown. The Government propose an exception to this in respect of domestic violence. I believe that my amendment would take them out of the hole of trying to define domestic violence by reaching the conclusion that where there is the threat of that sort continuing at the time, any kind of agreement between the parties on maintenance is just not possible and therefore not appropriate in terms of my amendment. Your Lordships will notice that the terms of my amendment came out of the terms of the clause before the amendment that was proposed a few minutes ago. It has the full approval of parliamentary counsel obviously, and a very excellent draft it is. This would deal with the question of the exception in favour of those who have been the subject of domestic violence. I do not think that the Government have yet worked out exactly how they will establish that. I have every sympathy with them and offer them an easy way of dealing with the matter.
The statutory provision for charges came in as a result of Sir David Henshaw’s report. He makes it clear that he did not want to see charges as a disincentive to the use of the system. At the stage that I am dealing with and for the group I am dealing with, that is the only possible purpose of it. This does not carry the approval of Sir David Henshaw in his advice to the then Government to bring in the power to charge. This seems to be the situation. It is simple and I am extremely sorry to find myself in a position of opposing the Government. I was anxious if possible to reach an accommodation with them but so far nothing has been offered to me that would be an explanation to your Lordships of why I withdrew from this very principled position. I beg to move.
Lord De Mauley
Perhaps the noble Baroness will permit me to come to her specific questions in a while.
My noble and learned friend proposes that this could be handled by allowing a CSA staff member to make what I am suggesting would be a subjective decision, and for that decision to be appealable. I ask your Lordships to consider whether legislation that confers on officials a subjective decision and then asks for an appeal system to police those decisions is the right way forward. It is not the Government’s position that that is the case. It would add to the costs for the taxpayer and complexity for parents and staff. One lesson we have learnt since 1993 is that legislation, with the best of intentions, will not work if it is highly complex or subjective in delivery. This approach with its subjective decisions and appeals again risks conflict, and surely none of that is in the interests of the child.
However, to offer your Lordships some views on the costs involved, we have also looked at an alternative approach to delivering the amendment. This would be based on a self-declaration from the applicant that reasonable steps had been taken. This is obviously a porous test that could be open to false reporting. Even then we estimate that the amendment would increase costs in the statutory schemes by over £200 million to the end of March 2019, making these reforms unaffordable. I hope that my noble and learned friend will therefore understand that, in our view, there is a tension at the heart of the amendment. It applies either a test we cannot police or a test that everyone can pass because we are not able to police it. Further, however the amendment is applied, it undermines the core of why we want to introduce charging. To reform the system and maximise the number of effective child maintenance arrangements, we must have an affordable but clear financial incentive on both parents to collaborate. We discussed in Committee what the noble Lord, Lord McKenzie, also mentioned, which is that the concept of charging was introduced in the 2008 Act.
Parents who can collaborate outside the statutory scheme will be provided with the help and support they require. Correspondingly, an application charge for all provides a clear incentive for parents with care to consider collaboration outside the statutory service, with all the benefits that has for children. Without a financial incentive in the form of an application charge, we risk recreating the CSA caseload we currently have, with parents using it despite ultimately telling us they could collaborate. The evidence is clear that we have a system at the moment where 50 per cent of parents using the CSA believe they could make a collaborative arrangement with the right support.
The ongoing collection charges will promote collaboration both outside and within the statutory scheme, and will create a real incentive in the non-resident parent to pay the parent with care direct, in full and on time. If, under Clause 135, the non-resident parent chooses to use this option, which is known as maintenance direct, neither parent will pay collection charges. Furthermore, the parent with care can be safe in the knowledge that if payments are not made, their case will be brought straight back into the full statutory enforced collection service.
The Government also believe that following the introduction of a demonstrably better future scheme it is fair to ask for a contribution to the costs of what, as I explained in the last debate, is a heavily subsidised service. To reiterate, I mentioned that the cost of a typical CSA case is up to £25,000, and that can rise to £40,000 where we need to take substantial enforcement action. It is a system that on average costs around 40p to move every £1 between parents. Furthermore, we will not start collecting charges until the scheme has been running for at least six months to allow the new system to demonstrate that it is delivering an improved service for parents.
We have had a fairly spirited debate on the principle of charging. However, I hope that noble Lords will reflect on the principles I have described and the assurances I have given. We do not want to return to the days when the state was encouraging parents to blame each other since we know that is the worst thing for children. We have a coherent package of reforms starting from a very different place to the 1993 CSA, and charges have a role to play within it.
I turn now to the questions raised by noble Lords. I shall paraphrase what my noble and learned friend said: “I do not want an adjudication. I just want a test of whether the father will pay”. I accept the intentions of my noble and learned friend, but his plan is for a letter to be sent to the father to ask if he will pay outside the scheme. That would be costly and complex. We have over 100,000 applications each year, and the most difficult element is finding the father. Mothers often do not have the father’s latest address, and often that is not the father’s fault, so importing the trace aspect of the application is costly and complex, and will delay us being able to start to process applications for those who need it most.
My noble and learned friend referred to Henshaw’s intentions. The Government agree that we do not want to dissuade those who need it from accessing the scheme. That is why we are carefully considering the level of the charge. But Henshaw was clear in recommending that charging should be introduced to users of the administrative scheme because it,
“would contribute to the objectives of the new system by incentivising private arrangements”.
The noble Baroness, Lady Howarth, asked a number of searching questions. She referred to the risk of the non-resident parent demanding contact as a condition of maintenance. That is a key part of what we have been addressing and we agree entirely with her. If a case enters the system we will use data, for example, from HMRC. There will be no need to obtain this direct from the non-resident parent. A calculation will be made based on that data and he will be required to pay, if necessary by order on his bank account or from his benefits. There will be no requirement, particularly for victims of domestic violence, to have any contact or to reveal their contact details.
The noble Baroness asked about the people who take the calls. Advisers will be using training which has been developed with the input of a large number of voluntary and community experts. Self-declaration of domestic violence will be sufficient, and no application charge will need to be paid. The noble Baroness also asks who will arbitrate on whether the non-resident parent has to pay. What I am trying to get across is that there will be no need for arbitration. The non-resident parent will have to pay based on the calculation. She intervened to ask about discretionary decisions. As I have said, there are around 100,000 applications each year and the nature and scale of the judgments are issues which, I am afraid, fundamentally flaw the amendment.
I am grateful to my noble friend Lady Berridge for her intervention, and of course I contend that she is absolutely right. I do this with trepidation, but I ask my noble and learned friend to consider withdrawing his amendment.
Lord Mackay of Clashfern
My Lords, I am grateful to all those who have supported me, as well as to those who have spoken but who have not supported me, of whom the number was fairly small. I pay as strong a tribute as I can to my noble friend Lord De Mauley, who, as I said, has been with me at all the meetings in recent times. The noble Lord, Lord Kirkwood, and I had a meeting with the Minister in the Commons, Maria Miller, way back in July. I intimated then, to the highest level of the Government, that I intended to table this amendment, so there is no question of an ambush or anything of that sort.
I re-emphasise that the question that we are debating is whether the non-resident parent will pay maintenance—that is the only question—and the simple way to find out is to ask him. I do not for a moment want to adjudicate on who is to blame for non-payment—that would be idiotic. Apart from anything else, it would be very difficult, just as it will be difficult to police agreements in domestic violence cases unless the Government kindly accept my amendment as a way of doing it. The amendment proposes a very simple, straightforward way of doing it, because, under it, a factor would be whether it was “appropriate” to make a maintenance agreement.
I thank all noble Lords who have supported me, particularly those who have put their names to my amendment. I thank also my noble friend Lord Newton of Braintree, who made it clear in our discussions with the Secretary of State that many of his views were based on constituency representation, of which I have none. Fortunately, three of my ardent supporters have a great deal of such experience.
I regret that I have no real option but to press the amendment. If one is a supporter of a coalition, as I am thoroughly of this one, one has a duty if there is a slight deviation from the norm to do one’s best to bring the situation back on to the correct pathway. It is in that spirit that I invite the House to give its opinion on the amendment.
Welfare Reform Bill
Lord Mackay of Clashfern Excerpts(12 years, 9 months ago)
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Baroness Lister of Burtersett
My Lords, I have happily added my name to this amendment because I think it is very important. The noble Lord, Lord Ramsbotham, has moved it so ably that I wish to make only one point.
The Minister constantly evokes responsibility on the part of claimants and, similarly, everything that is written about the Bill emphasises the responsibility of claimants. The amendment would help to ensure that officials exercise their powers in a responsible manner. There needs to be a quality in the contract between claimants and officials. I am not suggesting that officials should be fined or receive a civil penalty if they get it wrong. However, the amendment would help to ensure that officials consider the impact on living standards and the knock-on effects of likely debt and exercise their power as responsibly as possible.
Lord Mackay of Clashfern
My Lords, there is, in my view, a principled reason for having something of this kind. However, I am not sure whether the noble Lord has necessarily got it right and obviously he wishes to discuss the detail with the Minister and his officials. For instance, I wonder whether the amendment would have caught the two examples that he gave. Subsection (1)(f) states that the Secretary of State shall consider,
“evidence of the impact that a sanction or penalty may have on the ability of the claimant to fulfil obligations to third parties including those relating to the fulfilment of benefit entitlement conditions”.
We are saying that before imposing a sanction you should ascertain whether the obligations to third parties,
“including those relating to the fulfilment of benefit entitlement conditions”,
prevented the attendance or whatever it was that is being sanctioned. It is not the sanction that does it; it is the fact that the sanction should not be imposed because of the obligations the claimant already had.
Baroness Sherlock
My Lords, I would like to add just one point for the Minister to think about in his response. The noble Lord, Lord Ramsbotham, made a very powerful case. If the Minister does not like this way of doing things, could he help the Committee to understand how he can guarantee that his officials will undertake what seem to me to be the eminently reasonable strictures contained within the clause? If this is not the way, then what is?
Amendments moved by the noble Lord, Lord Kirkwood, and others in Committee have drawn the attention of the Committee to the fact that many of the people who will be receiving this benefit are living on the breadline. They are living on incomes which are so tight that what may seem to be relatively small sanctions can tip somebody into misery, as the classics will tell us. Could the Minister therefore consider how we in this Committee and in the House can have the confidence that nobody in that situation will be plunged potentially into despair by having a sanction applied without due consideration being taken of the impact on their physical and mental health, and indeed on the well-being of any children in their family, as described by the noble Lord, Lord Ramsbotham?
“( ) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) insert—
“(3) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken all reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken all such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””
Lord Mackay of Clashfern
My Lords, in view of the Prime Minister’s speech, to which the noble Baronesses referred, I thought it right to write to him to give notice of the amendment which I am moving. I copied the letter to the Secretary of State, to Maria Miller and to my noble friend Lord Freud. I got a very substantial reply from Maria Miller quite recently, explaining to me first, that the Government’s point of view was to try to get people to reach agreement; secondly, that various improvements were to be made in the system for getting money off the recalcitrant parent; and thirdly, that the amounts likely to be charged to the parent in question in my amendment would be rather small. Unfortunately, on the main point the letter appeared to hold to the previous position, which is why I am moving this amendment.
So far as I am concerned, I am perfectly happy with an arrangement in which, in the words of the statute, before the commission or its substitute accepts a person as an applicant, the commission may,
“before accepting an application under those sections, require the applicant to take reasonable steps to establish whether it is possible or appropriate to make such an agreement”.
I am entirely in favour of that: the less that the CSA, or its successor, has to be used, the better.
Unfortunately, experience has shown that there are some people with an obligation to their children who are not willing to make such an arrangement. When I first became Lord Chancellor I distinctly remember receiving a number of heart-rending letters from people who had obtained decrees in the magistrates’ court and the defendant had disappeared. The people writing could not do anything about tracing the defendants. They did not have the necessary resources. It is difficult enough for a large international group to trace somebody who wants to hide. For a lady on her own—and usually it was a woman who was writing, although that does not necessarily follow—to try to find somebody who wants to hide from his obligations is an impossible task. That was one of the motivations I had in supporting, with my noble friend Lord Newton of Braintree, the 1991 Act which set the CSA on its rather troubled course.
The principle of it was perfectly reasonable. The only difficulty was to implement the full policy, because some additional policy considerations were put on to it, which made the formula and its application rather difficult. The situation we are in now is that the Government are supporting the view that, if possible, parents should reach agreement about their children. As I say, I entirely support that. It is the principle behind the Family Law Act 1996, which I was responsible for bringing to Parliament and which went on the statute book, but so far, as far as this part of it is concerned, remains unimplemented. I entirely agree with that. However, when a woman, as a typical example, has taken all reasonable steps and done all that she can to reach an agreement but cannot manage it, I do not agree that she should be charged by the CSA for her application. I entirely agree with the power given in the 2008 Act to require fees to be paid—that was perfectly reasonable and was to be done by regulation—but I want to make an exception to that power which would prevent fees being levied on a woman in the position I have just described. That is utterly unfair. If anyone is to pay for that, surely it should be the person who has caused the difficulty by trying to escape from his moral obligations. There is no question of the woman getting benefit from this—she is acting on behalf of her child.
In her letter, Maria Miller mentioned that they were raising the level of child support. So be it, but the last thing you would want to do with the enhanced level of child support—which, I assume, is considered necessary for the support of the child—is to use it to pay a fee to the CSA. I do not understand how this can be justified. It is purely a matter of justice and fairness and nothing else. It is a short point and very easy to state. With that, I move my amendment.
Lord Newton of Braintree
My Lords, I know other noble Lords have attached their name to this amendment but I crave the indulgence of the Committee for a few minutes. As my noble and learned friend Lord Mackay said, we were in cahoots on this 20 years ago. We are in cahoots on it today and I support him totally in what he has said and what he is proposing.
At one stage I thought it was a pity that this group of amendments had not been placed with the next group. I did not agree with everything that was said on the previous group, but I do not have the courage to say who I disagreed with and so I will keep my head down on that. I should like the Minister to explain to me sometime—not tonight—the overarching coalition philosophy that links the Public Bodies Bill proposition that Ministers should take all decisions and the NHS Bill philosophy which says that Ministers should take no decisions. He can think about that and come back to me at his leisure—which might be in about three years’ time.
I, too, am grateful to Gingerbread for some helpful briefing. I wish to cover some historical points, one of which indicates that I have some sympathy with one of the noble Baronesses facing me—namely, the noble Baroness, Lady Sherlock. My noble and learned friend has used characteristically more emollient language than I, but the original CSA proposals were made difficult by two things: one was that the Treasury wanted too much money out of it too soon; the second—and there have been echoes of this in the discussions today—was that the political classes, and I include myself in that, did not understand what they were dealing with.
There are four people in this Room who are former MPs—one of whom is in a Trappist position because she is the Deputy Chairman—my noble friend the former Member for the Cities of London and Westminster; my noble friend the former Member for—I forget what it was called but it was the Borders.
Lord De Mauley
I shall include that in the letter I will send out. In the light of what I have said, I hope that I can persuade my noble and learned friend not to press his amendment.
Lord Mackay of Clashfern
This is Grand Committee and therefore there is no other option open to me at present. However, I must confess to not understanding how it is thought to be just that an absent father’s neglect of his obligations to his children should be paid for to any extent by the children, which is ultimately what it amounts to. That is unfair in principle. I raised it with the Prime Minister—I could go no higher than that—as going against his own speech. As has been said, that speech was very clear. As I understood it, the Fathers 4 Justice people were inclined to think that it was extreme, but I think that its kernel was entirely justified. I cannot see for the moment—I expect to remain of this view—that it is fair to charge the children when one of the parents neglects his or her responsibility. The other parent is left with the children, looking after them, I am sure, to the best of their ability. I cannot see why they should be charged once they have complied with the Government’s new condition of going to the CSA.
I accept entirely that that is a very useful condition and I think that it is very reasonable. However, once it has been complied with, I cannot see that the person who has complied with it should, on behalf of her children, be punished by having to pay. I have no option but to withdraw my amendment tonight, but I think the noble Lord will understand that unless some change of heart occurs, I may raise it again. I beg leave to withdraw the amendment.
Welfare Reform Bill
Lord Mackay of Clashfern Excerpts(12 years, 11 months ago)
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Lord Mackay of Clashfern
My Lords, I have great admiration for the Secretary of State and his Ministers, not least for my noble friend who is the Minister in this House. I am delighted that they have tackled the difficulties of the welfare system and glad that, in principle, the noble Baroness, Lady Hollis of Heigham, who has great expertise in this matter, has embraced that principle. However, there are of course many details in the application of that principle which demonstrate why it may have been wise in her day to have it in the “too difficult” section.
I intend to speak about a matter that is only marginally connected with the Bill. It depends primarily upon inherited legislation. My right honourable friend the Prime Minister recently roundly criticised people who were non-resident parents—he referred to them as “runaway dads”—and who simply refuse to face up to their responsibilities to their children, leaving single parents who, as the Prime Minister acknowledged,
“do a heroic job against all odds”,
to manage alone. Their plight is not new. In my early years as Lord Chancellor, now rather a long time ago, I received many calls for help from mothers who had court orders for maintenance for their children but could not enforce those orders because they could not find the defendants.
Eventually, in association with my noble friend Lord Newton of Braintree, legislation was introduced and passed as the Child Support Act 1991, which set up the Child Support Agency. Sadly, it did not perform well. After the change of Government, I happened to be travelling with Alistair Darling, whom I regard very much as a friend. He said that the formula which we were using was too complicated and that it would work better with a simpler formula. Over the years, successive Secretaries of State have tried to improve the performance of this vital service. My understanding of the present Government’s policy, as exemplified by Clauses 131 to 133 and inherited legislation in force, is that demand for this vital service should be reduced and that, to this end, charges should be made on those who resort to the service—both initially and if they use the collection system.
I am entirely in favour of parents who have encountered difficulty in their relationships, for whatever reason, trying really hard to resolve the maintenance of their children amicably. Any support that the Government can make available to that end is to be welcomed. Sadly, there is a hard core of parents who will do everything that they can to avoid their liability. It is for those who are left with the care of the children that this service is essential, as the department's research itself shows. Where the absent parent is traced, I am all in favour of his having to pay for the consequences of his attempt to evade his responsibility but I cannot see any fairness whatever in charging the parent who has been left in the lurch for that service. In view of the Prime Minister's speech and its tone, I take it that he agrees with this view.
Debating the Bill will give us an opportunity to bring in amendments which deal with this, but I cannot see that the present policy is fair to the parent left with the responsibility. For that reason I hope that we will have an opportunity of reviewing this matter in Committee, because, of course, the idea of charging is not exactly new. We have to deal with something that is, to a certain extent, already legislated for.
Pensions Bill [HL]
Lord Mackay of Clashfern Excerpts(13 years, 5 months ago)
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“(4A) The appropriate Minister must not make regulations under this section where the effect of those regulations is either—
(a) to impose an obligation on the person who would be the recipient of the relevant benefits to make a contribution to the cost of those benefits, when there was no such obligation in the person’s original contract of service as a judge; or(b) to increase the level of any such contribution to a higher level than that specified in that person’s original contract of service, except where the increase is in accordance with the terms of that person’s original contract of service and the increase is authorised in line with the consumer price index.(4B) Where the appropriate Minister makes regulations in breach of subsection (4A), those regulations shall be void and of no effect only to the extent that they are in breach of subsection (4A), or consequential on such a breach.”
Lord Mackay of Clashfern
My Lords, this amendment, which bears my name as well as more distinguished names, seeks to follow up the point that I made at Second Reading about the situation of the judiciary in relation to their terms of service. My submission was, and is, that it is a principle of our constitution as it has evolved that the terms of service of a judicial officer shall not be changed to his or her disadvantage during their term of office. In response to that, the Minister who was then replying—not my noble friend Lord McNally but the noble Lord, Lord Freud—said that judges are subject to tax. Of course, but that is not a part of their terms of reference. The arrangements for taxing judicial remuneration and emoluments are absolutely free of any restriction of the kind for which I am arguing.
Secondly, the Minister said that there is already a provision for deduction in respect of dependants’ benefits. However, that is expressly provided for in Section 9 of the 1993 Act, but that makes no provision for any kind of deduction in respect of the judge’s own pension. That is sought to be introduced here for the first time. Undoubtedly, it is a provision adverse to the judge in respect of the terms of service that he undertook.
In this connection, one has to remember that, generally speaking, a judge takes office until he reaches the retiring age, when he must demit office. Apart from that, he is entitled to remain in office on the terms on which he was appointed, subject, of course, to upward changes that may be made during that time. However, in my submission, nothing adverse to his terms of service is appropriate. That does not mean that judges should not be called on to take part in any kind of tax regime that deals with the present situation. Tax is completely free as far as this restriction is concerned. In my submission, this restriction applies to the terms of service of the judiciary and I believe that it is sound. Apart from anything else, I have tried to demonstrate that from the fact that, when I introduced the 1992 Bill, which became the 1993 Act, we made it clear that it did not apply to persons already in appointment unless they elected to join the new scheme of the 1993 Act.
I believe that this restriction is generally recognised. For example, the Latimer House principles embody this situation. Perhaps I may illustrate the point by quoting from the constitutions of some Commonwealth countries. Section 125(2) of the constitution of India states:
“Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment”.
One can understand the importance of that in the constitution of India, where judges have played a very important part in the development of the rights and privileges of that great country. Article III, Section 1 of the constitution of the United States states:
“Judges … shall … receive for their Services a Compensation which shall not be diminished during their Continuance in Office”.
The constitution of Ireland states:
“The remuneration of a judge shall not be reduced during his continuance in office”.
Incidentally, in 2009 the Irish Government introduced a levy in respect of public service. However, they exempted judges from the levy because of this provision in their constitution. Article 176 of the constitution of South Africa, where judges again played an important part in the development of the country, states:
“The salaries, allowances and benefits of judges may not be reduced”.
Our amendment simply gives effect to that. It does not mean that judges are exempt from anything else, but it does mean that their terms of service cannot be altered to their detriment during their service. I am not arguing that new judges should not be subject to this provision. That is a separate matter, which has to do with recruitment—I am glad that I take no responsibility any more for that. I am arguing only that judges already appointed and presently in service should not have their terms of service as judges altered to their detriment during that service.
Our amendment allows also for an upgrading of the contributions in accordance with a formula. We are not wedded to any particular formula. The provision would be useful in the future and would avoid the need to make a lot of different orders. It would also mean that people would know, when they took office, what the position would be.
This is an important aspect of the constitution. The noble and learned Baroness, Lady Hale, speaking in the House of Lords in a case against the Attorney-General of Trinidad and Tobago, recognised that the security of emoluments is an important guarantee of the independence of the judiciary. I beg to move.
Lord McNally
I apologise if I am wrong on this, and I will write to the noble Baroness, but I believe that the 15 per cent right will be retained and judges will be able to make voluntary contributions, as they do now. I should have asked the noble and learned Lord to withdraw his amendment, even if he intends to return to the fray on Report.
Lord Mackay of Clashfern
My Lords, I need not make a premature decision on that. I will certainly withdraw the amendment, but I will say one or two things about the speeches that we heard. I am grateful to all noble Lords who contributed. It was good to have the support of the noble Lord, Lord McAvoy, who shares something of my accent, though possibly not everything.
My only point at Second Reading concerned the terms of service. The noble Lord, Lord Stoneham, must have been thinking of somebody else when he said that at Second Reading I referred to the quality of the judiciary. I do not think that I did. At Second Reading, I made the point that when I introduced the 1992 Bill that became the 1993 Act, I faced a terrific barrage concerning the effect this would have on the judiciary of the future. Fortunately, Parliament as a whole decided that the gloomy forecast was not correct. I think that I am right in saying that nobody, looking back, would say now that it was correct. The quality of the judiciary has remained very high. However, I did not make the point about the quality of the judiciary: other noble Lords did. I restricted myself to saying that, in accordance with our understanding of the constitution, the terms of service of a serving judge cannot be altered adversely during his term of service.
The noble Lord, Lord Stoneham, referred to contracts being changed with changing circumstances. Of course, most employees are in a situation where their contract has a definite time. The contract will run for that time and, unless there is agreement, it will be very difficult to change it. Judges' terms of service are until retirement because of the security of tenure that the Act of Settlement gave them. There is no question in my mind that we have thought for many years now that the terms of service of judges needed to be set out in statute. In 1993, we set out new terms that applied only to new judges: that is to say, judges appointed after the Act came into effect.
The noble Lord, Lord McNally, said that the 1995 regulations applied to everybody without exception. With the greatest respect, that is not correct. The 1995 regulations applied only to the arrangements under the 1995 Act, which applied only to those appointed after the Act came into effect. The main regulations came into effect on the same day as the Act. Therefore, the regulations were in place when the Act came into effect. Judges who were serving before 31 March of whatever year it was—I think it was 1995—were not subject to the arrangements. They had the opportunity of opting in to the 1993 Act arrangements, but were not obliged to do so, and a number of serving judges still have a retirement age that is different from that laid down in the 1993 Act.
The noble and learned Lord, Lord Falconer, said that he had an interest in this matter which he should declare. I made it absolutely clear—I thought that I had done so originally, but perhaps I did not do so today—that I was the Lord Chancellor for a while, including at the time the 1993 Act came into force, as well as when it was being brought through Parliament. I was also a judge in the Supreme Court in Scotland and a Lord of Appeal in Ordinary. But so far as I know, I have no financial interest in this whatever, and I am certainly not a spokesman for the judiciary—not at all. The judiciary must speak for themselves, though they cannot speak for themselves in this House any longer as serving judges are not allowed to speak here. Therefore, they will have to speak to the Minister for themselves, and I have no doubt that they will have an opportunity to do that. I am not privy to the sort of consultations they may have, although I have heard a little about it. I will have to leave being a spokesman for the judiciary to others; it is certainly nothing to do with me.
I appreciate the difficulty we are in in the present situation. I can see that everyone is required to make sacrifices. Of course, that is something that one can do under the tax regime. I am not confident enough to suggest how this could be done, but I feel certain that the tax regime is pretty flexible in getting money out of people. So there is no question that tax could be used; it does not infringe the terms of service of the individual. When there was a general reduction in the salary of public servants in the Republic of Ireland, the judiciary was expressly excluded for the reason that the constitution had that arrangement in it. I agree that longevity is an important part of the value of a pension but the terms of service here are perfectly clear, as set out in the 1993 Act. My point is that this is a breach of the general understanding of our constitutional arrangement that a judge’s terms of service should not be altered adversely during his period of service. Of course, I shall withdraw the amendment. Whether I return to it may depend on a variety of circumstances which I am not in a position to control at the moment.
Pensions Bill [HL]
Lord Mackay of Clashfern Excerpts(13 years, 6 months ago)
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Lord Mackay of Clashfern
My Lords, I have listened to many fine speeches on the Bill. I congratulate my noble friend on the way in which he opened for the Government and the noble Baroness, Lady Drake, on the way in which she opened for the Opposition—very clearly and very plainly. If anything is plain it is that this Bill faces huge difficulties. Some of these have been highlighted very clearly this evening. It is very good for us to have the opportunity of hearing these problems because the problems that confront the Government in this area are extremely great and very difficult to cope with. A suggestion, which occurs to me as attractive, is the one which would join a substantial increase in the state pension with these changes. That may or may not be easy. I must declare an interest in the Bill as a former Lord Chancellor, a former Lord of Appeal in Ordinary, a former judge of the Supreme Court of Scotland and a current state pensioner. As I understand the Bill, it does not affect me financially in any way whatever.
It is about 18 years since I introduced the Judicial Pensions and Retirement Bill to this House. The days between its introduction and its enactment were not the happiest of my life. 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. When I came to introduce the Bill to which I have just referred, I made it plain that it did not affect serving judges. Those who were already serving judges were not affected by the Bill, which was introduced in 1992 and passed in 1993, except that they were given an option to enter the new scheme if they wished, and some did so.
However, serving judges were not affected in any way. The reason for that was not because the Government did not want to change things quickly—I remember one of my colleagues saying that we would have to wait a long time before the pension provisions in the Bill took effect. The Government wanted to see change immediately—there is a certain aspect of that in politics which perhaps we should try to resist—but the Bill did not affect any of the serving judges, many of whom were not old; it affected only those who were appointed after it became law. That is fundamental and requires to be observed in this Bill.
The truth is that the newly appointed judiciary has quite a high turnover. It does not take all that long—although longer than my colleague would have liked—for the new regime to come completely into effect. There are some, but very few, existing judges who are under the 1981 system.
The noble and learned Lord, Lord Falconer of Thoroton, referred to aspects of this provision which are enacted. I think that he referred to the Supreme Court Act. He himself changed the title of that Act to the Senior Courts Act, but the statutory reference is perfectly plain, because when we had a new Supreme Court we had, needless to say, to change the title of the old one.
As I said, that was the provision that we made, and I believe that it is the right one. The question about what happens to new judiciary is of course not trammelled in any way by that. The noble and learned Lords, Lord Woolf and Lord Falconer, referred to the considerations that apply to that. I cannot get into that, because that is the area where I suffered a lot in 1993, when I was told that if the new regime of 20 years instead of 15 was introduced, we would not get any judges at all, or the ones that we would get would be people who were not worth having. That is perhaps a slight exaggeration of the way it was put, but it was put very strongly, I can tell you, and lasted for quite a while. The fact is that it did not adversely affect recruitment—at least, not as much as was suggested; I think not at all, but that is my view of the matter.
If that fundamental principle is to be observed, as the noble and learned Lord, Lord Falconer of Thoroton, said, it is necessary to restrict the operation of Clause 24, which makes an insertion after Section 9 of the Act, to those who are appointed after the Bill comes into effect.
The second point made by the noble and learned Lord, Lord Falconer of Thoroton, was about the contributions to be required of the more recently appointed judges. I do not think that it would be right to allow the Executive to increase them by order, but we could well have a formula set out in the statute which increased them—for example, in relation to the indices presently in question which concern how pensions are uprated. Some such statutory formula would be open. As I said, there would be a question about the effect on recruitment, but that is an open question on which people could have very different views.
That is all I want to say; it is a very simple point and the only one I really want to make. I think that it is a sound point that the law—the constitution of our country—requires that, once a judge has become a serving judge, his terms of service cannot be altered adversely to him without his consent. To give effect to that in the Bill would require a minor amendment—a small amendment in its scope—but an important one.
My attention has been drawn to some other problems about additional voluntary contributions and so on, but those are very subsidiary. I want to stick on the principle, which I think is an extremely sound one. My noble friend Lady Noakes says that I should not listen to the lobbying of the judiciary and must not cave in to it. I am not listening to the lobbying of the judiciary; I am applying a principle which we applied when we put our Bill in place and which I believe should be respected today.