Public Service Pensions and Judicial Offices Bill [HL]

Debate between Lord Hope of Craighead and Lord Mackay of Clashfern

Report stage
Monday 29th November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I too believe that the Government have made the right choice in going to 75 in one go, as my noble and learned friend Lord Etherton put it. We have to bear in mind that what is being suggested is a maximum; I think my noble and learned friend Lord Brown was making that point in passing in what he was saying a moment or two ago.

I am not sure that the examples that my noble and learned friend Lord Etherton gave of people going on until 70 is a very sound guide as to how people will behave if the age is raised to 75, for the very particular reason that a factor that someone has to bear in mind in choosing the age of retirement is whether he has served long enough to earn the full judicial pension. In my day, you had to serve for 15 years; now, you have to serve for 20. For those who have gone on to the Bench in their early 50s, the age of 70 does not give them long enough. When they reach the time when they have achieved that, they may well take the decision to go then, rather than going on for the extra few years, because they have actually earned their full pension. So we are, to a degree, in an area of speculation. We are having to consider human behaviour and how people will behave in view of the two choices of age that we are being given.

We are also contemplating human behaviour in the problem of diversity. I pay tribute to what my noble and learned friend Lord Etherton was saying about the need to increase diversity at all levels on the Bench. I had the responsibility for a while, as Deputy President of the Supreme Court, of being on a commission considering applicants for the position of justice. One of the issues that concerned us at the time was the lack of diversity in the applicants coming before us—a point that I think has been hinted at by my noble and learned friend Lord Brown of Eaton-under-Heywood. Again, we are trying to speculate about human behaviour. There is an immense amount to be said for the diversity element, but I do not think one can be sure that choosing 75 instead of 72 is going to be as damaging as has been suggested.

As for the in-one-go point, I think my noble and learned friend Lord Etherton was referring to me when he mentioned someone who said at Second Reading that the opportunity to legislate on this issue comes quite seldom. I would be concerned, if we were to settle on 72 this time, as to when one would ever get back to the age of 75. As it happens, the Bill has enormous importance behind it because of the need to deal with pensions, which is a pressing issue. It has been possible to bring in the retirement age element and other parts of the Bill because the Bill is already there and the issue fits quite neatly with its broad aim and subject matter. How soon could we be sure that we could ever get back to this issue? For that reason too, the in-one-go point has a lot to commend it.

There is even more to be said for the points made by my noble and learned friends and the point that we are dealing here with an element of speculation, since we are setting a maximum age, not a compulsory one, and it will have the benefits that have been referred to. I believe the Government have made absolutely the right choice here.

[Lord Mackay of Clashfern (Con)]

My Lords, I am in the rather unusual position of having brought the judicial retirement age down, all those years ago, to 70 from 75. Your Lordships will remember that 75 was a fairly recent innovation because, originally, judges were appointed for life, and if they did not care for resignation, that sometimes meant fairly long periods in office.

I am very given to wishing for diversity on the Bench, and I realise what the authorities responsible for appointments have done over the past few years. I do not think the noble Lord, Lord Ponsonby, or the noble and learned Lord, Lord Etherton, can be sure that if they get 72 instead of 75 there will be an increase in diversity on the Bench. I had a great deal of experience—it is a long time ago—of trying to work with the ethnic minorities to improve their chances of getting to the top. Indeed, the death of one of those appointments—Mr Kadri, the first Muslim Silk who originated from Pakistan—was reported just the other day. During my time in office, I struggled to bring up the standards of ethnic minorities at the Bar because I felt that was the way to build up a chance of diversity. One of the difficulties in doing that was getting the arrangements needed for that purpose. I was of the view, and am still, that the best chance for ethnic minorities is not Chambers that are entirely of an ethnic minority but diverse Chambers with people from different backgrounds. That has happened to a considerable extent in recent times. It has produced some ethnic-minority members on the Bench, although nothing like as many as I would have liked.

I am convinced that the situation is very different now from what it was 27 years ago, as the noble Lord, Lord Ponsonby, said. Just after the Supreme Court was set up, the noble and learned Lord, Lord Irvine of Lairg, and I wrote to the then Lord Chancellor suggesting that the age limit for Supreme Court judges should be raised to 75 from 70 to accommodate for a reasonable length of time some of those who were there and had the potential to be very good examples of service in the Supreme Court. I am not sure that diversity has necessarily increased very much since then. It is perhaps worth my commenting that the President of the Supreme Court and the Deputy President of the Supreme Court are from Scotland. That is a very important move, although it is not in the way of diversity. It shows that those making the appointments are doing their best to secure the best quality they can at this time. However, it is important to do everything we can to raise the quality of those who are thinking of going to the Bench.

I do not know on what basis the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, whose experience and position is a matter of great importance so far as I am concerned, know that if this is left at 72 there will be greater diversity than now. The people making appointments are as keen on diversity as we are, but they find it difficult in the context in which they are working to bring it forward. I do not believe that it is at all likely that 72 will be more fruitful in that respect than 75. There is no doubt in my mind that going to 75 will increase the possibility of people in senior positions at the Bar taking the appointment. That is one of the things that I realised. The reason is simply that, as has been pointed out, the pension is important in these situations. People who are at the top of the profession are rather unwilling to take a judicial appointment unless they have a pension that encourages them to leave the Bar, with what they are making. I support this move to 75 very strongly, although I know it reverses what I did all those years ago.

Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Hope of Craighead and Lord Mackay of Clashfern

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Hope of Craighead (CB)]

I have some difficulty in understanding what exactly the amendment is trying to achieve. I have the greatest respect for all four noble Lords who have tabled the amendment, but to take the point on Article 7 of the European Convention on Human Rights, I do not think that the amendment meets the terms of the article. It seeks to address the position when the sentence was imposed, whereas Article 7 refers to the situation at the time when the act that gave rise to the criminal offence was committed. It is worded in such a way that the individual should have been aware at the time of his conduct what sentence he was likely to receive. The amendment does not address that, as it is not addressed to that point in time. On Article 7, it misses the point, and does not achieve anything.

The noble Lord, Lord Anderson, said that the convention was a sideshow. That brings me to the other point, which I think I do understand, on the value of retaining the Parole Board at halfway through the sentence, partly for the reason that changing the system for those who have already been sentenced seems instinctively rather unfair to them. It also has a value in getting the Parole Board in as early as possible, because the longer it has to assess the element of risk, the greater the possibility that it can achieve something useful at the end. To shorten it, which seems to be the effect of the Government’s amendment, reduces the opportunity for the board to get into the depths of the mind of the individual and to see what it can do about the risk. If that is the purpose of the amendment, why not have the same rule for everybody? It is accepting the Government’s amendment for the newcomers—those who have not yet been sentenced. It would be more logical to apply the same rule throughout.

That goes back to the point made by the noble and learned Lord, Lord Falconer of Thoroton, when he asked what the change from a half to two-thirds would achieve, given that the Parole Board will be involved anyway. If it comes in halfway through, there is no question of the prisoner being released until it is safe for them to be released, which could well be right up until the end of the sentence imposed by the judge. Logically, it would be sensible to have the same rule for everybody, rather than split it up. The other point, which is worth emphasising, and perhaps an answer to the noble and learned Lord, Lord Thomas, is that a great deal has been said about automatic release, but it is not unconditional release. This point was made very effectively by the noble Baroness, Lady Chakrabarti, when describing the deficiencies of the Parole Board system.

When the original scheme was devised with release subject to conditions, it was understood that these conditions meant something. I remember cases in which I was involved where people were returned to custody because they had breached their conditions. It was not just a day in custody; they were in for a substantial time until it was regarded as appropriate for them to be released again. In the case of life prisoners, sometimes they went backwards and forwards because they had breached conditions, and they went back in again. This is what we have lost, I am afraid. It bears thinking about that the release halfway through is not unconditional; it is a conditional release subject to the licence terms. That has a bearing on whether this is something that attracts the Article 7 attack in any event. For the reasons I have indicated, I am slightly puzzled by the amendment, and I am not sure that I would support it.

[Lord Mackay of Clashfern (Con)]

My Lords, I will not apologise to your Lordships for not speaking at Second Reading. It is, rather, a matter for congratulation—noble Lords have not had to listen to me twice.

The situation is one of severe crisis in respect of the damage that has occurred as a result of the release of persons described in this Bill. That is a matter of the utmost importance for Her Majesty’s Government, because if any human right is vital it is people’s right to be protected against danger, by their Government. That danger has been illustrated vividly by these two incidents.

I do not imagine for one minute that anyone thought that the man involved in the London Bridge incident was going to do anything like that. One of the people murdered was doing his best to look after him and to bring him into ordinary life in a good way, yet that man was struck down. I do not believe it is possible to discern who is dangerous and who is not, because the problem with this type of danger is that it is not necessarily there when the man or woman is originally sentenced. It is danger that, to a great extent, seems to have arisen as a result of the experience in prison, and that is most unfortunate.

On the other hand, if you had an opportunity to ask somebody to change his mind, you may find it difficult if he has a religious persuasion. The people trying to get rid of this danger in prison are finding that it is very difficult to succeed and mightily difficult to know when, if at all, the attempt has succeeded. The concentration therefore has to be on the circumstances in which one of these people is released. One way of dealing with that, to get a bit of time, is to postpone the release. That is what is done in the move from half to two-thirds. Of course, there is still a third of the sentence left.

The second point that has been made clear is that there is a substantial number of convicted prisoners up for release quite soon. The Parole Board’s investigations are quite substantial, and I do not believe it would be possible for the board to deal with a large number of these satisfactorily in a very short time. We have to remember the decision the board is going to take. Personally, I would not like to be a member of the Parole Board taking that responsibility. I am glad to say that there are people who do that and who have the skills to do it properly. On the whole, the Parole Board’s decisions have been pretty well received. One or two—I remember one in particular—have been by no means well received, but generally they have been. So it is important that it gets a proper opportunity to carry out its task.

The rule is to be that when the two-thirds is up, the prisoner is released or not according to whether the Parole Board is satisfied that it is safe for the person to be released. That seems the best possible solution to a mighty difficult problem. However, it is only a temporary solution, because when the sentence is fully served, the person is to be released in any case, without anything from the Parole Board. That matter must be dealt with in the Bill that is to come. In the meantime, with respect to the noble Lord, Lord Anderson, I cannot see any justification for dividing up the original division with this amendment. The Bill would be better without the amendment.