HC Deb 03 December 1959 vol 614 cc1458-68
Mr. Willis

I beg to move, in page 1, line 22, to leave out "seventy-five" and to insert "seventy-two".

The Temporary Chairman (Mr. W. R. Williams)

I think that it would be for the convenience of the Committee if we were to take with this Amendment the hon. Member's Amendment in Clause 3, page 2, line 13, to leave out "seventy-five" and to insert "seventy-two".

Mr. Willis

I move this Amendment because I feel it would be in the public interest if the age at which judges retire were reduced below the age mentioned in the Clause, which is the age of 75. I am fortified in my belief by the fact that we have had two Commissions which recommended retiral at the age of 72, the St. Aldwyn Commission of 1913 and the Peel Commission of 1936. I am also fortified in my belief by virtue of the fact that, as I understand, in England county court judges have to retire at the age of 72.

This retiral age of 72 was laid down in the County Courts Act, 1934, and it was repeated as recently as this year. After twenty-five years it is still considered to be perfectly reasonable for a county court judge to retire at the age of 72. I know, of course, that there is a provision for the possibility of extension, but, nevertheless, that is the figure laid down.

If I understood correctly what the Attorney-General said on Second Reading, apparently the only body which wants the age of 75 and thinks it is a good one is the Bar Council. Of course, one can quite understand that. I would not have thought that was a very great recommendation for the age of 75. I am bound to say that, as distinct from the English Bar Council, people in the legal profession in Scotland have written to me against the proposal that 75 should be the age.

What are the arguments about this age of a judge? There is the argument that the job which the judge performs is a very important one. I think that the judicial and the legal profession have managed to create an enormous mystique about this. They talk as though a judge were some sort of tribal god to whom we all pay homage and whom we do not criticise to any great extent and whose wisdom and benevolence we accept as a matter of course. I, of course, do not agree with that. I think a judge is a man doing a job, just the same as any other man is doing a job. He is trained to do that job in the same way as many other people have been trained to do their jobs.

Nevertheless, we have to accept the fact that a judge is responsible in a great measure for decisions which might affect the liberty and the lives of other people, and which might affect their happiness for many years afterwards. Therefore, it is a very responsible job. If that is true, and I think it is, the people who appear before a judge have the right to expect that the judge should at least be in the full possession of all his faculties if he is the guiding figure in determining or deciding these very important questions which affect the lives of ordinary people.

I have never been able to understand why it is always accepted that, if one is a judge, one fails to suffer from the ordinary human ailments of everybody else, but seems to be able to retain one's faculties to almost any age. That is what we have accepted in the past, but everyone knows judges who ought to have retired long before they did. I am sure that the learned Solicitor-General and the legal hon. Gentlemen behind him will agree with that. I do not know if they would agree openly, but at least, they would in private conversation. I happen to live pretty near some of the judges, so I also speak with some experience of watching them.

The fact is that, like other people at a certain age, their mental powers begin to fail. They might face the loss of their hearing. It is very important to a judge if he cannot hear the evidence that is laid before him. They also lose their eyesight, and some of them become unable even to keep awake during the proceedings. I know that hon. Members of the House do, too, and I am not blaming the judges. Hon. Members find a similar difficulty in keeping awake in this Chamber, but when a judge is unable to keep awake during the proceedings that does not convince the litigants, or whoever happens to be the person whose case is being decided, that it is a good thing.

Then, there is the fact which is often argued—there may be some argument about it, and I myself have often heard it argued—that a judge ought at least to be in reasonably close contact with the community in which he lives and with the climate of opinion in it. I could quote cases in which I think this ought to have happened in Scotland, and the older one gets the less that applies. The more one's faculties fail, the less it applies.

When we fixed the age of retiral for judges at 75, we were creating a privileged class. I know of no other profession in which men holding very responsible positions are allowed to hold them until the age of 75. Why, then, do we create a privileged class in the case of judges? I suggest that, in the main it is due to this mystique that has grown up, which has been created by the legal profession itself for reasons which I can quite well understand. I think we accepted it in the case of the legal profession only because of this mystique.

There may be something in the arguments that are advanced for having the age which is commonly accepted as a suitable one for retirement, namely, 65. I have heard it suggested, and I think that there is a very great deal of truth behind it, that the most suitable age of retirement for a judge would be 68. Some people say 70, but others believe that the worst of all possible ages is 75. Therefore, we suggest in this Amendment, fortified by a great deal of very eminent support, the age of 72.

What are the arguments against this reduction of the age from 75 to 72? The only one that I have ever heard advanced is that we may suffer as a result and lose the knowledge, experience and the ripe judgment of these fine old gentlemen. I do not say that in any disparaging way, but, naturally, I put it in a layman's language. That argument, however, assumes that they all possess these characteristics. It assumes that every judge is wise, full of knowledge and capable of very ripe decisions, but one knows, as every lawyer knows, that there are bad judges and good judges. This argument means that we have to accept the bad judges as well as the good ones, and, therefore, I do not accept it. If there is anything in it, it is equally true of several other professions. It is equally true of university professors or anybody else whom we lose as the result of retirement, and one could go right through the whole range of the professions.

The Peel Commission, reporting on this matter, said in paragraph 281: In our opinion the limit of 72 is sufficiently high to meet all the reasonable demands of those who stress the paramount importance of experience on the Bench: That was the conclusion of the Peel Commission, and I think that a great many people would agree with it. On Second Reading, what was the right hon. and learned Attorney-General's argument on this question of age? I have sought for it in HANSARD for 24th November, but all that the right hon. and learned Gentleman said, after telling us who would and who would not support it, was this: We have considered this question carefully and have reached the conclusion that there should be no difference between the retiring age of those to whom the Bill applies. We think that that age should be 75. We recognise that individual people vary so much that, whatever the statutory retiring age, it will not he right for everyone. That is what I have been arguing. The Attorney-General went on: We feel that in these days a retiring age of 75 is low enough to prevent judges continuing after their mental and physical faculties have deteriorated and high enough to ensure that the bench is not deprived of too much knowledge, experience and ripe judgment."—[OFFICIAL REPORT, 24th November, 1959; Vol. 614, c. 250.] That is not an argument. I suggest that if the Attorney-General had substituted 72 for 75, that statement would have been equally true. He could have made exactly the same statement. He could have said that the Government felt that a retiring age of 72 was late enough, and it would not have made one fraction of difference to his argument. We have been given no good reason why the age should be 75.

The Solicitor-General, who is now dealing with this Bill, also had a few words to say. He said: At the present time the Lord Chancellor finds it very difficult to appoint a man over a certain age to the Bench because he is faced with the position that either that man will not be able to earn his full pension, or he may have to go on on the Bench to a fairly advanced age to earn it. Under the new system of a graduated pension with a retirement age, anybody of the age of, say, 60 or 65, will be able to accept a judgeship knowing that he cannot earn his full pension if he is appointed at 65, but knowing exactly where he stands. That new source of recruitment to the Bench will be available to Lord Chancellors."—[OFFICIAL REPORT, 24th November, 1959; Vol. 614, c. 308.] 7.30 p.m.

These were the only two arguments used about the retiring age by the Government on Second Reading, and I put it to the right hon. and learned Gentleman that they apply equally to the age of 72 and to the age of 75. Apart from those statements, no reason has been given why this age has been selected as the age for retirement. If it were reduced to 72, it would give the public much greater confidence than some of them have at present in some of the judges. It has always been said that justice must appear to be done as well as be done. Many people have seen judges sometimes unable to hear and sometimes falling asleep on the bench. They have not a great deal of trust in persons whose faculties are failing. It might be true that some people's faculties are very good at 75, but it is equally true that some people's faculties are poor before they reach the age of 70, and there is nothing to compel them to retire, if they are judges.

Under the provisions of the Bill a judge can retire in the knowledge that he will receive a pension in accordance with the years he has served, but we all know the man who denies that he cannot hear but to whom we have to shout, and we all know the man who takes a pride in the fact that his memory is not failing when, in fact, it is. Many men refuse to recognise that their faculties are deteriorating. That is a common experience in life. Such men can remain on the bench until they are 75. In the face of experience and of the recommendations which have been made, I suggest that 72 is a much better retirement age than 75.

We sometimes hear it said that we are all living longer. What is happening is not so much that people are living much longer but that a great many more people are living to old age. There were people in the last century who lived to great ages and retained their faculties until they were well advanced in years. We know of people who did that in the 18th century, too. I therefore do not think that that is a very good argument.

I appeal to the right hon. and learned Gentleman to give this matter very serious thought. He must remember that we are serving not just the judges but the people of this country and that we want the best service available. This is a modest Amendment. We do not propose the age of 65, which is the retirement age which applies to most people. We are prepared to give the judges a year or two as a concession to the argument that it might be a good thing to retain some of their knowledge on the bench, but surely the Government must be prepared to make a concession to the people of this country and to dispel some of the fears that many people have today. I therefore trust that the Government will consider the Amendment favourably.

The Solicitor-General

I think that the Committee agrees that the Amendment has been moved forcibly and entertainingly by the hon. Member for Edinburgh, East (Mr. Willis), although I was alarmed at some of the pictures of senility which he drew. He is entitled to claim, as he did, that he has the authority of two Royal Commissions to support him in his proposition, although lit is right to point out that the St. Aldwyn Commission recommended retirement at 72, but with extensibility to the age of 75.

I do not think that anyone, either on Second Reading or in this debate, has suggested that, on balance, it is desirable that there should be the power to extend the service of the High Court judge. I see that the hon. Member for Edinburgh. East assents. Indeed, the right hon. and learned Member for Newport (Sir F. Soskice) gave convincing reasons on Second Reading against it.

We are, therefore, left in the position that we have to fix an absolute age, incapable of extension. The hon. Member pointed out that county court judges have to retire at 72, although, as he pointed out, there is the possibility of extension to 75. The Act this year whereby that was continued was a consolidation Act. The provision for retirement at 72, and also, I think, the provision for extension to 75, date from 1888. Since then, and, indeed, since the St. Aldwyn Commission, the expectation of life has increased. I do not put great weight on this point.

Mr. Willis

The increase in the expectation of life is very small.

The Solicitor-General

I am not a statistician, and I find it difficult to know which is the right figure to take; but I was told that at 65 a man's expectation of life has increased by one year since 1910–12, and, as one considers lower ages, the increase in expectation is more striking.

A far more cogent reason is that, having decided against an age capable of extension, we must fix an age which will not result in a waste of judicial manpower. The judiciary differs in certain respects from a career such as the Civil Service and other careers to which the hon. Member drew attention. There is not the same strain as there is on a high civil servant. On the other hand, I think that in the judiciary those qualities to which my right hon. and learned Friend the Attorney-General referred—knowledge, experience and ripe judgment—are particularly important.

Learning and judicial experience continue during the time on the bench, and I can think of some great judges who continued to give wonderful judicial service even past the age of 80. There was a great Scottish judge—the hon. Member knows the judge I mean—who was sitting in the House of Lords until well into his eighties and making excellent contributions to the law.

We have to fix an age which will not result in the premature retirement of good judges, and it is a matter of judgment what that age should be. On the one hand, county court judges may have their service extended to 75. The St. Aldwyn Commission recommended a power to extend to 75. It is right to answer the hon. Member in this way. He said, in effect, that by reducing the age to 72 we should get rid of many of the less good judges. On the other hand, if we believe, as I think the people of the country feel, that our judicial service is very well manned, we should be getting rid of more of the good judges than of the less good judges.

The hon. Member drew attention to what I said about the late entrants and said that, of course, the argument is good even if the age of 72 is substituted. That is absolutely fair and right. There is a strong argument still for the graduated system, even if we have a retiring age of 72; but it is a stronger argument if the age is 75, because anybody who is appointed at 65 can look forward to ten years' pensionable service on the judicial bench instead of only seven years.

For all these reasons, and for the reasons which the right hon. and learned Member for Newport gave on Second Reading, we would be well advised to put the age sufficiently high to ensure that we do not waste our judicial manpower, with all its ripe experience, knowledge and powers of judgment, which, in these days, do not start to deteriorate in general until people are well on in the seventies. Indeed, in many cases they continue unimpaired until long after that. For all these reasons, I would advise the Committee not to accept the Amendment.

Mr. Willis

The Solicitor-General has been very reasonable and courteous, as he usually is, in his reply, but he has not convinced me that 75 is the right age. I did not accept a number of his arguments. He did not say why 75 was more suitable than 72. Most of the arguments which he adduced in favour of 75 apply to almost every profession. It would be a good thing in almost every profession to keep the experience, the "know-how," the judgment, the ability to make decisions after the age at which people retire, but we do not do that because we think on the whole that it is better that a person should retire at 65 or 70 or whatever the age might be.

It seems to me that precisely the same arguments apply to judges. I fail completely to understand in what way a judge is different from any other person. I started by saying that in my view he is a man doing a job which his training and experience fit him to do. What makes him the rare bird who ought to be employed until he is 75? The position now, of course, is absolutely absurd. What makes a judge an exception in the whole of our society? We have not had any arguments along these lines at all.

The logic of the proposal in the Bill is that we should be raising the retiring age for all sorts of other people so that we should not lose their skill and experience. We are desperately short of skill and experience in a vast number of other professions, but it is mot thought advisable to raise the retiring age. What gives the judge this extra ability so that his faculties are good much longer than anybody else's? The legal profession is the most powerful closed shop in the country. We talk about the nonsense which the City of London creates round finance, but what about the nonsense the lawyers have created round their profession?

I find that those who are in the law are admirable on the whole, but I do not find that their faculties last any longer than anybody else's. In fact, some of their faculties are impaired more quickly because of some of the habits which are associated with the legal profession. Are there not competent lawyers and Queen's Counsel who are waiting to get on the bench? The Solicitor-General for Scotland comes to the House of Commons to get on the bench. I do not blame him. It is the recognised ladder of promotion in the legal profession in Scotland. We see Solicitors-General for Scotland and Lord Advocates coming in succession to the House and I have not noticed that they have been any more fitted than anybody else to carry on their work until they are 75.

7.45 p.m.

A few years' experience of the Scottish Grand Committee would probably lead to quite a contrary view to the one expressed by the Solicitor-General. In Parliament House, in Edinburgh, there must be scores of Queen's Counsel waiting to get into Parliament so that they migh get on to the bench. That is the only reason why they come to Parliament. That is the only reason why a lawyer in Scotland comes to the House of Commons. I am sure that the Solicitor-General for Scotland could inform the Solicitor-General that there are quite a number of people in Scotland who are anxious to step up this ladder of promotion. I cannot see why they should not be given the opportunity if they have the capacity.

Why should they be kept out of these jobs until they are 65 and even older? Under the Bill they can be appointed judges at 70 and then retire at 75 on a quarter of the salary, which means, for an English judge, £2,000, and that is not bad. What is the justification for this proposal? I am certain that it is not in the best interest of the judiciary and I am sure that most people would be quite content to see the age fixed at 72 instead of 75.

Mr. Eric Fletcher (Islington, East)

I wonder whether the Committee would allow me to say a few words about the Amendment. I have listened with great attention to my hon. Friend the Member for Edinburgh, East (Mr. Willis) and to the Solicitor-General. My hon. Friend will not expect me to comment—in fact, I am not in a position to comment—on the ladder of promotion to high judicial office in Scotland, but I have had some experience of the functioning of the judiciary in England.

The first observation that should be made is that in so far as my hon. Friend is arguing that there should be some lower retiring age for judges than is fixed in the Bill, I think he should appreciate that the Bill, for the first time, fixes a retiring age at all. Therefore, to that extent the law is being modified in the direction in which he would wish it to be. The only issue on the Amendment is whether it would be more appropriate that the retiring age should be fixed at 72 instead of 75. I agree with what was said by almost every hon. Member on Second Reading—that it would be very undesirable to fix an age, whether 70 or 72 or some other period of years, and then permit a further extended period.

Mr. Willis

I agree.

Mr. Fletcher

That would be thoroughly undesirable. We all agree on that.

Therefore, the only question is whether 72 or 75 is the most appropriate age limit to fix for the compulsory retirement of High Court judges. I agree with the views expressed by the Solicitor-General. I have no personal interest in this and many other members of the legal profession have no interest in it. I prefer to look at the matter from the point of view of the public interest, which, I am sure, is the way in which hon. Members should look at it.

My experience of High Court judges, judges of the High Court of Appeal and in the House of Lords, is that looking back over the last twenty-five or thirty years the country would have lost a great deal if there had been in force in the last generation a retiring age of 72 for judges. The public interest requires that we should make the best possible use of judicial skill and ability. I believe that most people with experience of practising in the High Court will agree that it has been, as a matter of experience and judgment and not as a matter of theory, the exception rather than the rule to find that a High Court judge over the age of 72 has passed beyond the limit at which he can fulfil his judicial functions, although, of course, there have been cases where, exceptions having arisen, judges have retired below that age.

I hope that my hon. Friend will take it that, in so far as my experience goes, the Committee would be right in adhering to the limit of 75 years suggested in the Bill.

Amendment negatived.

Clause ordered to stand part of the Bill.