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Lord Williams of Mostyn moved Amendment No. 94:

Page 8, line 6, leave out ("order made under subsection (1)(b)") and insert ("designation order").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 96. These are, again, technical drafting amendments. They replace references in Clause 14(5)(a) and Clause 15(5)(a) to an order made under subsection (1)(b) with references to a designation order. That is consistent with the use of the phrase "designation order" in Clause 14(4) and (6) and Clause 15(4). It is also shorter. I beg to move.

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clause 15 [Reservations]:

Lord Williams of Mostyn moved Amendment No. 95:

Page 8, line 25, leave out ("Schedule 2") and insert ("this Act").

The noble Lord said: Again, this is a technical amendment. It amends Clause 15(5) so as to ensure that if a designated reservation is withdrawn, the Secretary of State can make the required consequential amendments to the Human Rights Act itself so as to remove what would otherwise have been an otiose reference to the designated reservation in Clause 15(1)(a). At present Clause 15(5) allows that only in relation to references to a designated reservation in Schedule 2 rather than the Bill as a whole. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 96:

Page 8, line 26, leave out ("order made under subsection (1)(b)") and insert ("designation order").

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clauses 16 and 17 agreed to.

Clause 18 [Appointment to European Court of Human Rights]:

Lord Ackner moved Amendment No. 97:

Page 10, line 4, leave out from ("judges)") to end of line 6.

The noble and learned Lord said: I shall speak also to Amendment No. 98. The amendments relate to Clause 18 which deals with the appointment to the European Court of Human Rights of judges of this

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country. The amendment is a cry for clarification. If one looks at subsection (4)(a), it provides, in relation to Court of Appeal judges and mutatis mutandis in regard to other judges:

    "a Lord Justice of Appeal or Justice of the High Court is not to count as a judge of the relevant court for the purposes of section 2(1) or 4(1) of the Supreme Court Act 1981",

which deals with the provision for the maximum number of judges. That is all straightforward. The subsection continues:

    "nor as a judge of the Supreme Court for the purposes of section 12 of that Act (salaries etc.)".

My next amendment relates to subsection (6) which provides:

    "The Lord Chancellor or the Secretary of State may by order ... make such provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".

I seek clarification. Section 12 of the Supreme Court Act is referred to in subsection (4)(a), which is the subject matter of my first amendment. It is an important section. It deals with the salaries of judges of the Supreme Court. Section 12(3) provides that:

    "Any salary payable under this section may be increased, but not reduced, by a determination or further determination under this section".

I do not understand--I am sure that it is my fault and I apologise in advance--why Section 12 of the Act is removed in relation to any Lord Justice and subsequent judges who are transferred or appointed to the Court of Human Rights. Nor do I understand, if a judge is transferred, what protection he receives in regard to his salary. Can his salary be reduced from that which he is entitled to receive as a Lord Justice? Can his pension be interfered with? Subsection (6)(a) enables the Lord Chancellor to:

    "make such provision with respect to respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".

Pensions are merely deferred salary. If the pension he determines is less than the Lord Justice, for example, is receiving, Section 12(3), which has hitherto protected the judge from any reduction in his salary, no longer operates.

My amendment merely seeks to obtain from the noble and learned Lord the Lord Chancellor an assurance that a transferred Lord Justice, or any other judge who is qualified for the Court of Human Rights, cannot as a result of the transfer find himself being paid less either by way of salary or by way of pension than he enjoys in the office which he holds. I beg to move.

The Lord Chancellor: I shall certainly reflect on the observations of the noble and learned Lord, but I shall endeavour to satisfy him here and now. Section 12 of the Supreme Court Act 1981 provides that judicial salaries, once determined, may not be reduced and are to be paid from the Consolidated Fund.

The purpose of the provision to which the noble and learned Lord calls attention is to be helpful and beneficial to the judge. It is to modify the existing law, which involves that a serving judge should have to

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resign his office if elected to the Strasbourg Court. We want him to remain in office as a High Court judge of the High Court, if that is what he is. Therefore, to that extent the provision is beneficial.

We take the view that obligatory resignation might well dissuade potentially good candidates from coming forward when the office of UK judge to the Strasbourg Court has to be filled. So far so good. A consequence of the change is that we disapply for the duration of his service in Strasbourg the provision under which a judge is entitled to receive his United Kingdom salary. That is because he will be paid by the Council of Europe the generous sum of 1,100,000 French francs, tax-free, per year. That is about £114,000 at current exchange rates.

I entirely appreciate that the noble and learned Lord tabled his amendments in order to receive an explanation of the intention behind the provisions. However, if his amendments were accepted, the effect would be that the judge would be paid not only, by public service standards, a handsome salary tax-free to be received from the Council of Europe but also his United Kingdom salary, even though he was not performing his duties as a United Kingdom judge. I am sure that the noble and learned Lord would be the first to agree that that would be too much of a good thing.

If it is accepted that the judge should not be paid both salaries, subsection (6) is necessary in order to allow suitable pension provision to be made. That will be made, but I am not yet in a position to inform the Committee what precisely the arrangements will be. They are under consideration. I hope that with that explanation the noble and learned Lord will feel able to withdraw his amendment.

8.15 p.m.

Lord Ackner: I am not sure where we have arrived. I understand the explanation. I had assumed that it might well be financially advantageous to the judge to transfer to Strasbourg, and I have never doubted the ability and enthusiasm of my noble and learned friend the Lord Chancellor, consistent with his obligation to safeguard the independence of the judiciary, to ensure that their emoluments are not reduced. But I do not find any of that protection reflected in the statute. That is why I have underlined the amendments which would cause the Government to focus on the point.

I am not wedded to the amendments. I would not be the first to resist the judges' salaries increasing substantially. Therefore, I shall be grateful if my noble and learned friend will confirm that if I withdraw my amendment he will agree to look at the wording of the provision so as to ensure that the protection of the judge, particularly in Section 12(3), which provides that his salary cannot be reduced, will be continued.

The Lord Chancellor: I will certainly look at the provision. But the noble and learned Lord understands the point that the judge cannot be paid two salaries and that he is receiving a substantially larger salary, tax-free, in Strasbourg. The noble and learned Lord's amendments would entitle the judge to receive both salaries and would disable me from making suitable

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arrangements as regards his pension. The right outcome is that he should have one salary and not two and have suitable provision made for his pension, balancing what is suitable against the amount of the salary which he will be receiving from the Council of Europe. It is to the latter that I am currently attending.

Lord Ackner: I thought I had made it clear that I am not wedded to my amendment. My amendment was merely to bring up short the noble and learned Lord the Lord Chancellor against this particular situation. I do not expect the judge to receive two salaries. I do not urge that. I want to ensure that he receives the protection which he has at the moment.

There is nothing in the legislation, nor would I expect it, to say that when he goes to Europe, he will be paid more and it will be tax free. I am told that that is what is hoped to be the position but it may all change. The situation in Europe may oblige some radical alteration in the emoluments of a judge. I hope it will not occur but it is quite possible that it will and there is absolutely nothing in this legislation which protects him. Nothing in this legislation says he will be paid tax free and certainly there is nothing in this legislation which says that he will receive £10,000 more than he receives at present. I do not expect it to be in this legislation.

But I expect to find in this legislation the protection which I find in Section 12(3). If protection of that kind can be put into this clause, then I am quite content. But the amendment was not intended to be an amendment which I sought to have accepted. It was merely to oblige the noble and learned Lord the Lord Chancellor to explain the position, and I am grateful that he has done that. But, unless there is something in the Bill itself to protect a judge from having his salary reduced, then he has not met my point.

I thought that he was going to reflect on that--it may be that the current word is "ponder" and I am putting it too high--when he rose to address the Committee. Perhaps he will confirm what is the position.

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