THE RETIREMENT OF JUDGES. (Hansard, 1 March 1898)

§ *SIR EDWIN LAWRENCE (Cornwall, Truro)

Mr. Speaker, in rising to move— That in the opinion of the House it is for the interest of the public, with regard to the due administration of justice, that in all future appointments of judges a limit of age shall be fixed for their compulsory retirement, and that it is desirable that the Government should forthwith, by legislation or otherwise, provide for this object I desire to say that nothing that I say shall in any sense be regarded as an attack upon a particular judge. My Motion is entirely a general Motion on a matter of general principle. In almost every Department there is now a fixed time limit at which officials are obliged to retire while they are still in the full vigour of their powers, and surely it is not right that a man should remain, at his post as a judge when age has come upon him and lessened his powers; therefore, Sir, I desire that some time limit shall be fixed for the retirement of judges. Both in history and in fiction it has been shown that when a man is to retire at his own discretion, when he has lost his discretion he has not sufficient left to retire. There was a time, not so very long ago, when the members of the British Bench thought that the reputation of the Bench was suffering from the senile infirmities of one of their number, and they deputed a young judge to wait upon the old judge, to inform him that the Bench thought the time had come when he should retire. The old judge—a man of great power—looked at the younger judge, and, raising his eyebrows, said, "Have my brethren sent you to tell me this?" and the young judge left the room quicker than he had entered it. If this has been the case in fiction and in history, is it not reasonable to ask that the wisdom of the Legislature 341 shall do as it has done for every other office—viz., fix the time when the judge shall retire when age comes upon him? Well, Sir, I have no desire to fix a short period, but let us fix some period. When I was a student at the Bar in 1866 there was a grave scandal, because at that time there was a judge 92 years of age still sitting on the Bench. There was in the House of Lords considerable discussion on the question. But, Sir, 10 years before that—in 1856—in this House there was a discussion on the same subject, and the same judge's name was mentioned, when he was a young man of 82. Still, notwithstanding this discussion, this young man of 82 remained 10 years longer on the Bench, until he was a judge of 92, and even then there was the greatest difficulty to persuade him to retire. If this has been the case in times past, it is not impossible that it may happen again; and we all know that in a very large number of cases delays take place in Court because a judge is absent suffering from old age. I was told by a member of the Bar that quite recently a case lasted live days, which, if the Judge had been five years younger, would not have lasted two days. Another well-known member of the Bar told me that he tried to interest the Judge in a case he had in hand, when the Judge, in the most solemn tones, replied: "Do you think I am going to take the trouble to understand all these details? No, Sir; I shall send the case for arbitration." It was sent for arbitration, but the result was not satisfactory. There was an appeal, and the Judges said the case ought to have been tried before a jury. They ordered it to go before a jury, but by that time, £10,000 had been lost to the clients in litigation, and the case was no nearer than at first. I am sure we are all proud of our Judges; they are entirely independent of the Crown and the people, and it is only by an Act of Parliament that a Judge can be removed. I do not wish, for a moment, that any Judge should deem that any hon. Member of this House is desirous of compelling him to retire, but what I feel is that there should be a limit of age fixed for their compulsory retirement, and that by no means should they be allowed to exceed that age limit. The moment you give to the Prime Minister power to extend 342 the time limit, you render the Judge subservient to the Prime Minister. I want the Judges to retire while they are in the fullest vigour. We cannot allow a Judge to carry on the judicial business of this country after he has lost the full vigour of his powers. The country is realising that fact in nearly every other office. Our Generals and our Admirals, and others occupying the highest positions in this country, retire at an age limit; it is only with regard to the Judges on the Bench that no such limit is fixed. The Judges can retire at discretion, and when they have lost that discretion they have not discretion enough to retire. That has been our experience with reference to the Judges in the past, and I think it will be agreed that there are, at the present moment, a number of Judges on the Bench who have certainly passed the ordinary limit at which a man retains his full powers. While an old man may be able, for a limited time, to do as well as a young man—I myself could walk five miles against any young man, yet I could not walk 50 miles—it is impossible for an old man to continue persistent and constant labour in any direction for an extended period of time. From a Judge is demanded great mental and physical labour. Cases frequently extend over many days, and I assert, without fear of contradiction, that it is not within the possibilities of age to retain the power of persistent and continuous attention. I do not wish that any words of mine should force any Judge at present on the Bench to retire, but—[An unsuccessful attempt was here made to count out the House.]—As I was endeavouring to point out to the House, it is impossible that men can retain their full powers after they have passed a certain age. It is the opinion of a large majority of the members of the Bar, and it is an opinion frequently expressed in the public Press, that the lattitude allowed to Judges, of retiring at their own discretion, is a lattitude which has been, greatly abused in the past, and that the time has now come when this lattitude should be curtailed, and an age limit fixed for the compulsory retirement of Judges. It is not advisable, as I have already pointed out, that this time limit should be variable at the option of any Minister of the Crown, or of any body of 343 Ministers. The time of the retirement of a Judge, in order that he shall remain absolutely independent, should be certain, without the possibility of extension. Otherwise, if it were within the power of a Minister of the Crown to extend the time, a Judge might be open to the charge of playing up to that Minister in order to obtain his approval, and secure the desired extension. There is one Judge, the Lord Chancellor, whose office is not permanent, and who retains his office at the pleasure of the Prime Minister; that is to say, if the Prime Minister demands the retirement of the Lord Chancellor he can enforce it. Therefore, no time limit would apply to the Lord Chancellor any more than to a Prime Minister. But, in the appointment of all other Judges, an age limit such as I have mentioned should be fixed for retirement. I am glad my right hon. Friend the Chancellor of the Exchequer has just entered the House. It has been said that the Government will refuse to carry out the proposal contained in my Motion, because of the additional cost of pensions which will fall on the Chancellor of the Exchequer. I contend that the enormous cost of litigation, caused in a large measure by the fact that the Judges are too old to carry on their work, is of far more importance to the country than any number of pensions which might fall on the Chancellor of the Exchequer in carrying out my proposal. At this moment there is a fund of £60,000,000 sterling, called the Suitors' Fund. This fund has been already utilised to build the Law Courts, and I do not think the poor suitors, if they could rise from their graves, would at all object to a portion of their money being spent in pensioning off judges after their mental and bodily powers begin to show signs of deterioration. I feel that the time has come when there should be applied to judges, and to all other public officials, the same law as is applied to the Commander-in-Chief of our Army. Not so very long ago a great Commander-in-Chief 344 was forced to retire, having attained the age limit, and that being so, I do not think it is asking too much when I ask this House to say that in all future appointments of judges there shall be a time limit fixed for their retirement. I now move the Motion standing in my name.