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Sheriffs (Widows' Pensions)

Volume 888: debated on Monday 17 March 1975

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3.38 a.m.

Despite the lateness of the hour I am delighted that the Consolidated Fund Bill has given me the opportunity to raise the anomalies and the unjust situation which has persisted for many years regarding sheriffs' widows' pensions.

Although a whole class of people are affected by this measure, I make no secret of the fact that my awareness of the seriousness of the situation arises from the representations which have been made by one of my constituents—namely, the widow of the late Sheriff Duncan of the Lothians and Peebles. Sheriff Duncan sat on the bench for almost 15 years. He died in 1955. For the past 20 years my constituent and people in a similar position to her have campaigned against the injustice that at present exists. Although they have won the sympathy and, no doubt, the understanding of successive Governments, they have not received any form of action to meet the problem that faces them. They are clearly concerned not merely with their own particular circumstances but with the principle that is involved. I shall outline it as shortly as I can.

First, there is the problem of the inequality that exists between the pensions to which sheriffs' widows are entitled compared with similar judicial colleagues south of the border. Secondly, and perhaps even more important, even where salaries are comparable, pensions have until fairly recently been determined on a different basis, to the detriment of those north of the border.

The first problem is quite straight forward. It would be accepted by most people that a Scottish sheriff is comparable to an English county court judge. Indeed, the Grant Committee, in paragraph 407, when considering the sheriff courts in Scotland said:
"county court judges … are obviously comparable … to … sheriffs-substitute. … The civil work of the sheriff courts is certainly not of a lower standard than that of the county courts and the criminal work of the sheriffs is in our view more important than the civil work."
The position of sheriffs is comparable in terms of responsibility, seniority and general workload with county court judges in all respects but one—namely, financial. For the purposes of the debate, I am concened with the financial aspect relating to pensions.

We see alarming and persistent differences. I should like to refer the House and the Minister to a letter from the Civil Service Department dated 22nd May 1973 in which the gentleman in charge of superanuation points out that the widow of a sheriff at Edinburgh, one of the heavier sheriff's loads, who died in 1973 with 14¼ years' service would be entitled to a pension of £931, whereas the widow of a county court judge—a judge, as was pointed out by the Grant Committee, of comparable status and responsibility—who died in the same year with the same service would receive a pension of £1,543.75. That is not quite double, but getting on that way. Obviously a serious difference exists.

I do not suggest that the emoluments, including pensions, of the Scottish judiciary should be comparable in all respects with those presently obtained by their colleagues south of the border. If one were considering the more senior members of the judiciary south of the border in the English courts where the population workload and the amount of litigation are greater, one would not suggest that the financial emoluments should be the same. But judges of the seniority of sheriffs in Scotland and of the county court in England are comparable. Therefore, the pension entitlement should be the same. This is a matter of more general policy.

I turn now to the specific anomaly which has been recognised by successive Governments, although they have failed to make any allowance to meet it. Even in a situation where a sheriff had the same salary as an English judge of any particular type, until 1961 the position was that the pension entitlement of his widow or of himself was worked out and established on a totally different basis, to the detriment of the Scottish sheriff's widow. That was the situation until 1961.

I am sure that the Minister is aware that in 1961, by the passing of the Sheriffs' Pensions (Scotland) Act, that anomaly was recognised, but only for the future. The pension entitlements of widows of sheriffs who died subsequent to 1961 were established and determined on the same basis north and south of the border. That was not a retrospective measure. It applied only to sheriffs who died subsequent to 1961.

The constituent to whom I have referred and others in a similar class whose husbands died before 1961 in no way benefited from that legislation. Indeed, they were specifically excluded by it.

The basis on which the law was changed in 1961 was not a trivial matter or of little importance. Several significant differences were met by the 1961 Act, but, because it was not retrospective, certain differences still exist for the widow of the late Sheriff Duncan and others in a similar position.

First, there is the simple fact that the entitlement of the widow of a sheriff who died before 1961 began only if he had served 10 years before his death. If he had served for 10 years his pension was established on the basis of approximately one-eighth of what his income would have been. It made no difference prior to 1961 whether he served 10, 11, 12, 13 or 14 years. Only if he had served for 15 years did the proportion of his salary that was taken into account rise from one-eighth to one-quarter.

The late Sheriff Duncan can be used as an example of the anomalous situation. He had served on the Bench for 14¼ years at the time of his death in 1955. In other words, his widow missed by a mere nine months the entitlement to have her pension reckoned on the basis of 15 years' service.

There is a further anomaly that was met by the 1961 Act, but its provisions were not made retrospective. Prior to the 1961 Act, the income that was taken into account when determining the pension was worked out on the basis of the average of the five years preceding the sheriff's retirement or death. That might not seem—

Order. I draw the attention of the hon. Member to the fact that he is going rather wide. This is a very narrow debate, based on the increase related to the category of widow which he has raised as the subject for debate. We want to avoid getting into comparability over a wide spectrum, which I rather fear the hon. Member is elaborating in his discourse. If he keeps to the narrow point of the debate he will be in order, because that is strictly related to what we are debating.

I fully accept your ruling. Mr. Deputy Speaker. The point at issue is whether the increase in pension to which sheriffs' widows are entitled has been met by the circumstances that I have outlined and whether the increase is sufficient. I am pointing out that but for the anomalous situation to which I have referred the problem would not have arisen. The problem which I am putting to the House relates to the level of pension presently received by one of the recipients to whom the supplementary estimate refers. To this extent, I submit that the points that I am making are relevant and within the narrow confines to which you have referred me. I am not sure, Mr. Deputy Speaker, whether you are indicating that my previous remarks were out of order, or were in danger of becoming so. I should be grateful for some indication of the position.

I think that strictly speaking they probably were out of order, but they can be treated as coming to the point which the hon. Member wishes to make.

Certainly not.

The point that I am putting to the Minister is that because of the rules that existed, and still exist, the level of pension to which the class of person to whom I have referred is entitled is an anomaly that was not met by the 1961 legislation, and therefore the level of pension that she now receives is far less than many of us would respectfully suggest it ought to be.

As a result of the circumstances which I have outlined, when the husband of the individual to whom I have referred died in 1955 she received a pension of the grand sum of £169. That has been increased to the grand sum of £443. But for the anomalies to which I have referred, it would be about £1,200 per annum. There is a large difference here, and it is a difference and an injustice which has been recognised in the past but which has not been met by successive Governments.

Successive Governments have argued that, although they had great sympathy with the problem, any solutions would require retrospective action, and that has not been thought desirable. While the whole House would normally disapprove of any measure which retrospectively removed a former privilege or advantage, different considerations apply to retrospective measures to improve a citizen's position. The reference in the Grant Committee's Report to this very case shows the length of time that the problem has been before Ministers. It said that the evils in this case would not be repeated after 1961 but that it could make no recommendation to meet the problem.

While successive Governments have recognised the problem here—had they not recognised it, the 1961 legislation would not have been necessary—until now they have not been prepared to take the simple and non-controversial action which would be required to meet it. We are concerned only with a small sum and a small group of individuals. Even if the Minister cannot give an assurance tonight, I hope that he will tell us that the Government, by retrospective action or possibly by an ex gratia payment, will end a long-standing source of considerable grievance.

3.53 a.m.

Even if I wanted to become involved in a debate about the differences between the salaries and pensions of the judiciary in England and the sheriffs in Scotland, I am sure that the Chair would not permit it. However, I am not aware of any complaint by the sheriffs about the pensions and salaries negotiated on their behalf. I am sure that if they were not satisfied and wanted comparability with England. representations would have been made a long time ago.

If I speak briefly on this matter, that does not mean that I do not appreciate the serious concern expresed by the hon. Member for Edinburgh, Pentlands (Mr. Rifkind). As he said, Section 20 of the Sheriff Courts (Scotland) Act 1907, as amended by the Administration of Justice (Pensions) Act 1950, provided for sheriffs-substitute a pension of a quarter of their average salary over the last five years of service where the period of service was not less than ten years and a third where the period of service was not less than 15 years. However, these provisions were changed by the Sheriffs' Pensions (Scotland) Act 1961, to which the hon. Gentleman referred. Section 3(3) of that Act provides for a maximum pension of half of the last annual salary where the period of service is 20 years or more. Where service is less than 20 years, that Act also provides for a pension to be paid to cover the whole of the service—that is, every year, and not grouped into 10 and 15 years as previously. A pension is now payable after five years service equal to fifteen-eightieths of the last annual salary. Where the service exceeds five years but is less than 10 years, the pension payable is fifteen-eightieths plus one-eightieth for each completed year exceeding five years. Where the period exceeds 10 years but is less than 20 years, the pension payable is one-quarter plus one-fortieth for each completed year exceeding 10 years. Perhaps I should point out that this Act also stipulates that a sheriff must retire when he reaches the age of 72.

The Administration of Justice (Pensions) Act 1950, Section 2(1) and (2), provided a lump sum in addition to the personal pension and equal to twice the amount of the personal pension. Further, it provided for a widow's pension of one-third of the personal pension. This was paid for by a deduction from the lump sum at retiral of an amount equal to the annual amount of the personal pension. Since then, the Administration of Justice Act 1973, Section 10, as amended by the Judicial Pensions (Widows' and Children's Benefits) Regulations 1974, gives existing sheriffs the opportunity of uprating the widow's pension from one-third to one half with the option of paying contributions at 3 per cent. per annum from salary or by lump sum deduction at retiral. However, as the hon. Gentleman rightly says, none of the provisions to which I have referred is retrospective. Therefore, in that sense, they certainly do not have any effect on the particular case which has been raised under this Vote.

Turning to the particular case, the details as explained by the hon. Gentleman are correct. The sheriff died on 25th December 1954, and he failed by nine months to qualify for a pension entitlement above that of one-quarter of his average salary. At the date of his death the sheriff had served for 14 years and three months. Therefore, as I said, he thus failed by nine months to qualify for the larger pension.

Perhaps I should correct some of the figures given by the hon. Gentleman, because my information is that the pensions awarded to Mrs. Duncan on her own account and on account of the three children were based on 10 years' service only. All this obviously the hon. Gentleman accepts. Mrs. Duncan in fact received a lump sum of £1,687 plus a pension of £170 for herself and £128 for her three children. These pensions have since been increased under the Pensions Increase Acts, and Mrs. Duncan now receives £517·49.

We are aware that over the years—and this case has gone on for 15 years—Mrs. Duncan has expressed some dissatisfaction with the pension. Nothing in the estimates we are discussing tonight can do anything to alleviate the problem of which Mrs. Duncan complains.

Over the past 11 years this case has been considered by various Ministers including the Secretary of State, the Lord Advocate, the Prime Minister and the Minister of Pensions. The case has therefore had every consideration. In 1967 it was put to the Parliamentary Commissioner for Administration just after he was appointed, but he decided that such a case was outwith his jurisdiction. The case has been twice considered by the Treasury, but on each occasion the verdict was that the pensions awarded to Mrs. Duncan and her children were the amounts allowable by statutes and that there was no authority under which higher awards could be made.

The Grant Committee considered the question of retrospection and in its consideration a specific case was before them. Although no name was attached to that case it was the case of Mrs. Duncan. The report said
"The defects of the older pension scheme are exemplified in a particular case which has been urged upon our attention."
That was the case of Mrs. Duncan. The report continues:
"The sheriff substitute died, having completed just under fifteen years' service. The pensions paid to his dependants were calculated as though he had served for only ten years. They were also related to his average salary over the five years preceding retirement, which, in an inflationary period, was substantially lower than his last annual salary. The pension scheme under the Sheriffs' Pensions (Scotland) Act 1961 ensures that the evils that arose in this particular case will not recur, though of course, not being retrospective, it did not apply to a pension already being paid. It was put to us that something should be done about such hard cases surviving from the pre-1961 pension scheme, but we would find it difficult to recommend retrospective legislation for this purpose and we make no recommendation."
I am aware that what I have said tonight gives little comfort to the hon. Member for Pentlands and a great deal less to Mrs. Duncan. However, we are bound by the conditions of the previous pension scheme under which Sheriff Duncan served and the conditions that were applied as part of his terms of employment. Therefore with the greatest regret I must intimate to the hon. Member that it would be dishonest of me if I were to pretend otherwise than that there is no likelihood of any change being made in Mrs. Duncan's present position. I am sure that it would be wrong in such an emotional case to give false hopes. I state categorically that I am unable to give any hope for any alteration in the situation. I trust that the hon. Member will accept that statement in the knowledge that I regret having to make it.

I am grateful to the Minister for his frankness. Given that both the Grant Committee and he recognise the evils, as the Grant Committee put it, that have arisen because of the pre-1961 situation, may I ask why, notwithstanding the Committee's views, the Minister is so reluctant even to consider the possibility either of retrospective legislation or of some form of ex gratia payment?

The answer is perfectly obvious. The case has been examined over many years, by Ministers more senior than I in Governments of both parties. The have found that neither retrospective legislation nor an ex gratia payment could be applied. The case has been examined by practically every Minister from the Prime Minister downwards and by the Parliamentary Commissioner, although he found that the case was outside his jurisdiction. It has been looked at by Treasury Ministers on two occasions. I am sure that the hon. Member will agree that there is no change in the basic situation. It would, therefore, be wrong of me to hold out hopes. I regret to have to say that I do not see any likelihood of a change in the situation that would act to Mrs. Duncan's benefit.