Chauvel Charles: Judicial Matters Bill — In Committee 
Chauvel Charles: Judicial Matters Bill — In Committee 
[Volume:661;Page:9516] 
CHARLES CHAUVEL (Labour) 
: 
 As was said earlier the Labour Party will respect the agreement reached to support Supplementary Order Paper 108 but I ask the Committee to reflect on whether it is an entirely satisfactory state of affairs to have a matter of constitutional importance as this is come before the Committee by way of a Supplementary Order Paper. 
One of the important constitutional issues that we deal with in this place is the issue of judicial remuneration. Clearly it should not rest on an improper foundation; clearly we should not in any way threaten judicial independence by intimating to the judiciary that the remuneration that they are entitled to receive might by executive or legislative whim be reduced. So this is obviously the right thing to do as the reasons for judgment of Justice MacKenzie made it clear that the evidence before him indicated that this higher duties allowance if you like was paid on a very flimsy basis. 
Let us recall the basis that is set out in the judgment. It was an agreement between former Chief Justice Eichelbaum and the former Secretary for Justice. It was a memorandum initialled by the two of them made necessary because of the increasingly common practice at the time of using a member of the High Court on a substituted basis in what has become known as the Court of Criminal Appeal. Most members would agree that it is proper for a judge of the High Court to be paid some form of “higher duties allowance”—I will again use that colloquial expression—when discharging the duties of a judge of the Court of Appeal. Permanent judges of the Court of Appeal earn considerably more than a High Court judge even though the two share the High Court warrant as the basis for the exercise of their jurisdiction. The fact that this practice could go on for so many years based on simply an initialled piece of paper between the senior judge in the High Court and the administrative head of the Ministry of Justice is a matter for wonder. It is a matter that we all ought to reflect on in this Committee because it shows how flimsy and how shaky our arrangements concerning the constitution are. 
I well recall the rousing speeches made by the Minister in the chair the Attorney-General only a year or so ago when he was in Opposition. He talked about the urgent need for reform of the civil justice system. Well here we have obvious evidence of one of the principal reasons for that reform: the fact that for many years we could not even get put on to a sound constitutional footing the basis on which a High Court judge sitting in the Court of Appeal should be paid more for doing that. 
I record my gratitude that Justice MacKenzie set out the matter the way he did. It is a delicately worded judgment given the broad nature of the challenges that were put before the High Court and it is appropriate that this Committee address the matter. I would have preferred to see it addressed not by way of a Supplementary Order Paper but by way of a proper hearing before a select committee but as I say agreement has been made that that will not happen and we will deal with it in the Committee of the whole House without any public scrutiny. Let us though reflect on just how flimsy are the foundations some of these fundamental arrangements rest on. Let us resolve if we can to do something about that issue as we go forward.