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The Lord Chancellor moved Amendment No. 62:


Page 10, line 5, leave out (" 12") and insert (" 12(1) to (6)").

The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 63, 64, 67 and 74. The issue which the amendments address was most helpfully drawn to the attention of the House in Committee on 27th November by the noble and learned Lord, Lord Ackner, when he moved his Amendment No. 97, as it was then, and spoke in the subsequent debate. I hope that the noble and learned Lord will regard the amendments that I now move as a completely satisfactory response by the Government to the issues which he then explored.

The Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. It is possible, although not necessary, that the appointment will be made from among the ranks of serving judges. If that happens, the judge will be in a unique situation; and, in announcing the pension arrangements that will apply to him, I emphasise that no precedent is being set that could apply to any other position. The Government are concerned to ensure that, should a judge already serving in the United Kingdom be the preferred choice for appointment to the ECHR, he or she should not be adversely affected in pension provision when compared to every other judge serving in the UK. The amendments taken together ensure that a UK judge who is for a time serving in the ECHR will be treated for pension purposes as if he had not left his UK office.

Amendment No. 62 paves the way for that process by restoring the provision about pensions in the Supreme Court Act. It is, as I have explained, no longer appropriate to apply the rest of Section 12 to an ECHR judge, as it would mean paying his United Kingdom salary in addition to his European salary, even though he was not actively performing any judicial duties in the

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UK. Therefore, he will not have two salaries, but only his European salary. However, it is obviously right that his pension rights should not be prejudiced.

As it is our intention that his eventual pension should be paid as if he had not had a period of service at the ECHR, it is right that the provision in Section 12(7) should remain applicable. Amendment No. 64 removes the general power to make pension provision for the ECHR judge; this is because it is replaced with a much more specific duty to make such provision. In changing the power to make arrangements to a duty to make specific types of arrangements, I am confident that the concerns expressed in Committee by the noble and learned Lord, Lord Ackner, will be met.

Amendment No. 74 introduces a new schedule to the Bill, Schedule 3. This schedule contains the detail of how that pension provision will be made. It is intended that orders made under Schedule 3 will be subject to the negative resolution procedure, and Amendment No. 67 gives effect to this. Schedule 3 imposes a duty on the relevant Minister, who will usually be the Lord Chancellor, to make an order making pension provision for any serving UK judge appointed as a judge of the ECHR. It further provides that any such order must allow a judge who is a member of a judicial pension scheme to remain in that scheme, that the terms of membership must be as if he had not been appointed to the ECHR and that entitlement to benefits will be calculated in accordance with the salary as increased from time to time of the UK office which that judge holds. The order may also contain provisions as to how contributions will be collected from the UK judge. This is needed because contributions towards dependants' benefits are normally deducted from the judicial salary received by a judge, but the judge serving in the ECHR will not be receiving a salary in this country so that alternative arrangements will be needed for the collection of these contributions.

There is also power to amend relevant judicial pension legislation in order to facilitate the proper administration of a scheme. This will enable the modification or disapplication of pre-existing legislative provisions, should this prove necessary, to enable suitable administrative arrangements to be made to give effect to the policy. It is not envisaged that this power will be needed to any extent, if at all, but the pensions legislation is inherently complex and such a power--limited for this purpose--seems prudent. These amendments together will ensure that a UK judge appointed to the ECHR will in due course receive the same pension as if the ECHR appointment had not taken place. I believe that this will remove what might have been a powerful disincentive for some of our most able and highly qualified candidates from the judiciary to seek appointment to the ECHR. I beg to move.

Lord Ackner: My Lords, in Committee, in my capacity as judicial shop steward emeritus, I raised the amendments which have resulted in my noble and learned friend the Lord Chancellor tabling on Report the amendments which he has just described. They were

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important amendments because they dealt with a constitutional matter of some importance. Section 12(3) of the Supreme Court Act 1981 states,


    "Any salary payable under this section may be increased, but not reduced, by a determination or further determination under this section".
Pension is but deferred salary. I was concerned that the judicial pension, whose value has been much reduced by the judicial retirement and pensions Bill by requiring a judge to work 20 years instead of 15 years to achieve his 50 per cent. pension--totally out of line with pension provisions in Commonwealth jurisdictions--should not be further prejudiced if a judge were to accept an appointment at the Strasbourg Court. I therefore raised the objection that if the noble and learned Lord the Lord Chancellor were to remove the protection of Section 12(3), something must be put in its place.

I am deeply grateful to the noble and learned Lord the Lord Chancellor for having fought my battle with those who normally would defeat the claim for the judicial pension to be safeguarded, and to have fought it so well, so ably and so effectively. It is an indication of the generosity of the noble and learned Lord the Lord Chancellor, although there are occasions when it is hidden so deeply that one does not immediately bear it in mind. I am most grateful.

Lord Lester of Herne Hill: My Lords, during the period since the creation of the European Court and Commission of Human Rights we have been fortunate in the quality of members of both institutions coming from this country. One recalls, for example, the very first British judge to that institution, the great international lawyer, Lord McNair, who was, I believe, the grandfather of my noble friend Lord McNair. One also recalls Sir Humphrey Waldock and Sir James Fawcett, who was, I believe, for 20 years a member of the European Commission of Human Rights. One comes to the present incumbents. I mention judges such as Sir Vincent Evans, and now Sir John Freeland, and Nicolas Bratza QC as the commissioner. They have all performed a vital public service, not always as well recognised in this country as it might have been. Most of them have been former senior legal advisers to the Foreign Office. None of them has ever been a serving British judge, or former British judge. In some ways that has been a pity because a more significant judicial contribution might have been made if we had had some of our great British judges serving in the European Court. There would have been a contrast with membership of the Court of Justice of the European communities.

I very much welcome these provisions which will enable effect to be given to some important principles. First, it is essential that members of this new European Court of Human Rights, who will become full time from November when the Eleventh Protocol comes into force, should be of the highest calibre, of outstanding quality. Some of us are concerned that with such a large court of perhaps 40 judges drawn from across Europe--east, west and central--it would be difficult to obtain judges of the highest quality.

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Secondly, as the noble and learned Lord the Lord Chancellor has indicated, it is important that we ensure that there are no disincentives so that distinguished British jurists, whether drawn from the Bench or otherwise, are not deterred from forming that critical mass of intellectual and moral leaders who are needed if the new court is to succeed.

I therefore think that these are important provisions. They will facilitate those objectives. I ask this question only out of curiosity. Do we have similar provisions, or are they needed in respect of members of the European Court of Justice to ensure similar treatment? In my ignorance, I do not know whether similar provisions are in place. In practice, there seems to be no such problem for the European Court of Justice. It has always had judges of outstanding quality who have often sat as judges in this country before going to Luxembourg. These provisions apply only to the Strasbourg court for the good reason that the Bill is concerned only with the European Convention.

I apologise for taking so long in explaining the provisions. I welcome the amendments.

On Question, amendment agreed to.

9.15 p.m.

The Lord Chancellor moved Amendments Nos. 63 and 64:


Page 10, line 26, at end insert--
("( ) Schedule (Judicial Pensions) makes provision about judicial pensions in relation to the holder of a judicial office who serves as a judge of the Court.").
Page 10, leave out lines 28 to 30.

The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 63 and 64. If Amendment No. 64 is agreed to I cannot call Amendment No. 65.

On Question, amendments agreed to.

Clause 20 [Orders under this Act]:


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