HL Deb 08 December 1959 vol 220 cc107-28

Debate on Second Reading resumed.

3.53 p.m.


My Lords, I should like to thank the noble and learned Viscount for the clear explanation which he gave of the Bill which is before us. Indeed, it is not a very easy Bill to follow. To understand it would be an almost impossible task without some such explanation as the noble and learned Viscount has given us. Therefore, in the normal course of events I should have registered a very strong complaint about the great haste with which this Bill is being taken. I would remind your Lordships that the Bill had its First Reading last Friday, when most of us were otherwise occupied, and it comes up for Second Reading to-day.

I recognise the courtesy of the noble and learned Viscount in notifying me of this in very good time and of giving me some explanation of the Bill in writing, but I think it is a most undesirable practice to give the House, in effect, fortuitously one sitting day in which to consider an important measure of this kind. If it had not been for the fact that we were meeting unexpectedly yesterday, we should have had the First Reading on a day when we do not normally sit and the Second Reading on the following sitting day. I imagine that there must be some urgency about the matter; and if the noble and learned Viscount will explain what is the urgency and whether it would make the slightest difference to Judges if this Bill were passed in February, say, as against some time before Christmas, there may be something to be said for the haste. But in the interests of those who try to take an intelligent interest in our proceedings I hope that this practice of rushing legislation in this way will be a very rare thing and will not become the common-place.

I think we are entitled to pride ourselves on the eminence of those who go to the High Court Bench. We are getting, I suppose, persons who are among the most eminent people in this country. They come to the Bench in the prime of life and certainly in the prime of their earning powers. Generally speaking, a person who goes to the High Court Bench is a barrister of the highest stand ing, earning large sums of money and is likely to do so for a good many years to come. It is in many cases a great financial sacrifice to accept the office of High Court Judge, even at the increased salary which has now been prevailing for some years. But obviously even Judges are not immune from material considerations, and a great many silks of the highest eminence have, to my knowledge, refused judicial office because the terms were not sufficiently attractive. It is to the credit of the Bar that so many silks of great eminence have accepted office and have made the sacrifice. However, we are not entitled to demand of people that they should make such great sacrifices in the public interest. Therefore I welcome this Bill which goes a long way towards making the position of the High Court Judge more attractive and more secure.

In the past the difference between a High Court Judge's earnings and a Judge's pension has been so marked that unless he had private means of his own (and in these days it is increasingly difficult for any professional man to acquire private means out of his earnings) retirement meant a tremendous drop in his standard of living. It is not surprising that Judges who might normally have been expected to retire have continued to function simply because they felt that they could not stand the drastic drop in their standard of living and were compelled to go on.

I do not wish to deal with the details of the Bill. It provides an increased pension and, as I have said, I think that it is welcomed. I was not able to follow very clearly whether the lump sum which is provided and the widow's pension are additional to the half-pension after fifteen years' service, but if it is so I personally do not grudge that either. But, of course, it is an additional attraction. One thing the Bill does which on the whole will be welcomed is to ensure retirement at the age of 75, and it even tempts existing Judges who are over that age to retire immediately. The noble and learned Viscount has discussed the question of the appropriate age at which Judges should retire compulsorily in the future. I suppose that whatever age one mentions, whatever age one decides upon, is bound to be arbitrary. There are bound to be people at 75 or even at 80 years of age who might be described as being at the height of their powers and capable of rendering great service. But one has to draw a line somewhere.

I have given serious thought to the retirement age. What is the age at which one ought to draw a line? One gets no assistance in deciding upon the age of 75 by comparing it with the retirement age in other professions or occupations which I would submit are equally arduous. If you take the case of the civil servant, he retires at the age of 60, or, at the most, at the age of 65; and if you judge by the recent increases in the salaries of the top civil servants, you find that a senior civil servant in this country receives the same remuneration as a High Court Judge. Presumably, therefore, he is of the same calibre—and, with some experience of senior civil servants I would not challenge that. The multiplicity of their duties, the complexity, and so on, are such that we really need people of that calibre. But, if that is so, why is it that they are required to retire at the age of 60, or 65 at the most? Are they not, many of them, at the height of their powers at the age of 75, or might they not be?

A county court judge is required to retire at the age of 72. Does that mean that county court judges are lesser lights, and presumably mature and their powers come to an end three years earlier than a High Court Judge? Directors of companies are required to retire at the age of 70 unless there is an annual resolution of the company enabling them to carry on until they are 75; but 70 is the normal retiring age. So I wonder whether there is any providence which especially protects High Court Judges against the ravages of old age, or whether this is a compromise which the noble and learned Viscount has been compelled to make and which is perhaps the best he could do.

In my view, there ought to be a similar retiring age for all comparable occupations. While, as I have already indicated. I have the highest respect for the Judiciary of this country, I cannot think that they are specially protected and are of such a calibre that they have a three-year longer useful life than most of us. That, of course, does not apply to politicians and Members of this House. I realise that until now retire ment has been entirely at the discretion of the Judge himself, subject to a Joint Address by both Houses—and I cannot imagine that that was likely to happen. Judges have therefore decided for themselves as to their retiring age, and it may be that to fix the age at 75 is better than to have no retiring age; but it does strike me as a somewhat unsatisfactory feature of the scheme that this should be, I suppose, the highest retiring age of any in the country.

Furthermore, it does not apply to the Lord Chancellor, though the Lord Chancellor's pension is dealt with in the Bill. I know I can say this to the noble and learned Viscount who occupies the position at present, because he can view the great many years which still exist between himself and the present retiring age of 75 with complete equanimity, but if it is right that ordinary Judges should retire at 75, why is it not right that the Lord Chancellor, who has very heavy duties on his shoulders—not only judicial, but other duties, too; administrative duties—should not equally be required to retire at 75?

My Lords, these are some of the questions which occur to me, but I certainly wish to put no difficulties in the way of the passing of the Bill. On the whole, I think it is right that pensions should be increased. I should have liked further consideration to be given to the question of the retiring age, and no doubt there may be an opportunity when we get to the Committee stage of the Bill to have a further discussion on it; but, subject to that, I certainly approve the Second Reading of this Bill.

4.6 p.m.


My Lords, I propose to say little about the main purpose of this Bill, because it may be that, some day, I shall myself be affected by it. But there are two proposals which are tacked on to that main purpose, not in my view essential to it, on which perhaps I may be allowed to offer some criticism, I hope not too controversial, because these two purposes will never affect me. The main purpose of the Bill is to increase the amount of the pensions as they stand to-day, but what the Bill really does is to go a considerable way to restore part of what has been taken away by inflation in the last twelve or fourteen years. I take into account, of course, not only the figure of pension provided in the Bill but also the advantages which were granted in 1950 and which have already been mentioned. To add up the present position, including those advantages, and compare it with the true value of the pensions given in 1945 would no doubt require an actuarial calculation, but I think it fairly safe to say that the leeway has not quite been made up.

I make no complaint at all about that. So many people have suffered so much from the erosion of inflation that I do not think it would be proper to make any complaints of that kind. Nor do I complain that the pension is now to be only one-half of the salary, whereas traditionally it was considerably more than that. I think that the restoration of the position to what it was at the end of the war is reasonably complete, and one should acknowledge that fact. But there are two matters on which I do not see eye to eye with the Bill. As I say, I do not want to be controversial about them, but I think that the other side of the argument ought to be presented. Those two matters are the age limit and the reduction of the existing pension which would be payable to a Judge in the event of his being incapacitated by illness during his first few years of service. If I may, I will take the age limit first.

I know that there is room for difference of opinion on this matter, both as to whether there should be an age limit and as to what it should be, but the argument is far from being all on one side; and in my view an age limit is not in this case in the public interest. I wonder whether the noble Lord, Lord Silkin, would agree with a practical test to see what the effect of this will be. Let me suppose that this age limit had come into operation 60 or 70 years ago. I think that is fair enough, because I do not think that we or our successors are likely to age more rapidly than our predecessors—at least, I hope not. I also think that 60 or 70 years is a fair period, because those of us who have grown up in the law, at least, and probably many others, have either personal knowledge or first-hand information about the position during that period.

I do not think anybody would deny that outstanding services and contributions of permanent value in the develop ment of the law have been given during that period by a fairly large number of Judges when they were over 75 years of age. I think that there is no doubt about that. And, of course, if this age limit is introduced, all that will be lost. On the other hand, one must plainly admit that sometimes—not, I think, very often, but sometimes—a Judge has been known to remain in office for a year or two when it would have been wise for him to retire. I do not think that it happens very often, because a friendly hint often solves the problem; but it does happen. One has, therefore (and this is the test I would suggest to the noble Lord, Lord Silkin), to balance the advantages which have undoubtedly accrued within the last 60 to 70 years from the non-existence of an age limit against the disadvantages which will equally undoubtedly accrue. Balancing those two seems to me to be a matter of personal impression. My own impression is quite clear. On balance, we have gained a great deal more than we have lost by the absence of an age limit during that period.


My Lords, would the noble and learned Lord apply this to other professions?


My Lords, I am just going to do so. I know, of course, that the stock argument is that this is an anomaly. The stock argument is the fact that the age limit applies in almost every other profession. In my view, the age limit is often absurdly low when we look at the capacity of those who have to retire. And I hope that this answers the noble Lord's question.

In my view, the real justification for an age limit in other professions is that it opens the door to early promotion. If we look at the man who is retiring, in many cases it is almost absurd. But if we look to the good of the profession, to the fact that men could be promoted at an appropriate time, then I think there is a great deal to be said for an age limit, although, even so, some age limits are too low. But this does not apply in the least here. I have not heard anybody suggest that owing to the absence of an age limit Judges have to be appointed too late in life. On the contrary, my noble and learned friend who sits on the Woolsack has said that one of the advantages of this Bill will be that it will now be possible to appoint Judges even later than they are normally appointed at present. In my view, therefore, the main argument for an age limit in other walks of life does not apply here at all.

May I take the matter one stage further? In other services, earlier promotion normally always means an increase in income for those who are promoted. As the noble Lord, Lord Silkin, has pointed out, however, that is not often the case where a Judge is appointed. Very often he suffers a considerable drop in income, and the reason is not far to seek. If we take the existing judicial income, deducting income tax in order to find its purchasing power, and if we take the purchasing power of the judicial income before the First World War—at the time of the St. Aldwyn Commission, for example—we find that the present income of a Judge is less than one-quarter in worth of what it was 50 years ago. I do not complain about that, but it has this important result. In the old days a Judge was on a reasonable equality financially with leaders in other walks of life—in business, in industry and in the other professions. To-day that is not so.

That leads me to my second criticism of this Bill—namely, the matter of retiring pension when a Judge has to retire prematurely owing to illness. At the moment, although he may be paid much less in real value than other leaders in the country, a Judge at least has this advantage that even if illness overcomes him within a short time of his appointment, he has financial security. I do not think that there is any legal obligation to pay a pension, but for a long time there has never been a refusal to pay a full pension to a Judge who retired, however soon after he took office. For some reason which I am wholly unable to understand, this Bill takes away that security. I cannot think why. It is not done in order to achieve any considerable economy, because I do not think that there can often have been any period in recent times when there have been more than three or four, or perhaps five, men who have had to retire prematurely in their early years on the ground of illness. If we take the difference between a full pension of £4,000 and a half-pension of £2,000 and allow for income tax and suppose that there are five cases. at the outside, the net saving to the Treasury is £5,000 a year: that is all. Is it worth it? That is the question I ask.

It is true that this is coupled in the Bill with a new provision which is an improvement. I do not think that it amounts to much, but it is an improvement. It applies to Judges who are appointed over the age of 55 and enables them to retire at the age of 70, if they want to, although they are not in the least incapacitated. Of course, in almost all cases where a Judge accepts this option he will be getting a very large proportion of his full pension. I should not expect that a large number of Judges would so so. As I say, it applies only to Judges appointed over 55. Therefore the net cost to the Treasury is negligible. But why combine this, which is a voluntary matter applying to a limited number of Judges, with the other provision, which is compulsory and applies to every Judge who may be incapacitated at an early date?

What will happen, of course, is that every Judge who is appointed will feel so much the less secure financially than he does at present. He risks losing three-quarters of his income if he falls ill. He may have commitments. It may be a serious matter. Again taking the argument from other services, I know that in those cases no pension is given in the initial stages—or only a very small one. But, my Lords, there really is no comparison. In all the other services a man joins in his twenties. A man is rarely appointed to the Bench before he is fifty, and I think that 30 years' legal practice is not wholly irrelevant, if a comparison has to be made.

I do not think it can be denied that deliberately reducing the present pension which a Judge could get if he became infirm in his early years—because that is what is happening—is to some extent diminishing the security and the attractiveness of the Bench. To my mind, it is going to be difficult enough in 20 years time to fill judicial posts. At present the financial advantages, direct and indirect, in other walks of life for men of high ability are so much greater than in the law that it is going to be extremely difficult to keep in the law a sufficient number of the kind of men who will want to fill these vacancies in 20 or 30 years time; and I venture to say that every little impairment—and this is one—of judicial security is most unfortunate in the public interest. I cannot of course take this matter any further than posing the question: why should this be, looking to the extremely small saving which will result? It would be quite wrong to think of proposing any kind of Amendment and to impose a charge on the Exchequer, but I hope that, somehow and at some time, means will be found to repair what I can only regard as a blemish on this Bill.

Finally, if I am not detaining your Lordships for too long, I think I ought to say a word or two on the two Royal Commissions which have been used as advocating these changes. Both of them were making general reviews of the position in the King's Bench Division (as it then was). The St. Aldwyn Commission in 1913 almost assumed that an age limit was a good thing, and the discussion there was really on whether the age should be 72 or some other figure. I did not find in that Commission's Report any substantial acknowledgement of the fact that valuable services would be lost by the imposition of such an age limit. But when I came to the part of the St. Aldwyn Report which dealt with the question of reduction of pensions of Judges who have to retire prematurely, I found it illuminating, and not, I think, helpful to the advocates of the change. One argument was the one that I have been dealing with: that it is done in all other services; and the other was that it is not fair to the taxpayer that this tax should be paid. Of course there was some substance in that in the year 1913. In those days the judicial pension was £3,500, which was a very large sum of money, and I can well understand the St. Aldwyn Commission thinking that the taxpayer had an interest to see that reduced. But what did the Commission recommend? They recommended that the pension should be £1,500 a year if the Judge had to retire during his very early years—and I would note that the purchasing power—again after allowing for tax, as is proper—of £1,500 a year in 1913 was more, and considerably more, than the purchasing power of the whole salary of a Judge—namely, the £8,000 a year which he receives to-day if in office. It does not in the least follow, because the St. Aldwyn Commission thought £1,500 at its then value was a suitable sum in 1913, that it would be thought that £2,000—well we know how much less that is worth than it used to be—would be a suitable sum to-day.

The Peel Commission dealt with retiring age rather more at length, but they incorporated in their Report a note which I think it worth reading. They said—and of course they were dealing only with the King's Bench Division (as it then was): Men of exceptional legal ability will in most cases have found their way to one of the superior courts before reaching the retiring age for Judges of first instance. So that the Peel Commission were far from advocating a universal age limit for Judges. I should say at once that if there is to be a limit at all, I agree that it ought to be universal; you cannot pick and choose. But the Peel Commission cannot be quoted as advocating a universal age limit. On the reduction of pensions, I do not think they added anything to what had been said before. I hope that I have not said anything that in my position I ought not to have said, or have detained your Lordships unduly long. I felt that it was desirable, and indeed necessary, to put on record the objections to these comparatively small parts of this Bill, but that does not in the least weaken either my welcome or my support for the Bill as a whole; and on that note I would conclude.

4.27 p.m.


My Lords, I should like to say a word or two on this Bill, because it seems to me that up to now most of the points made, while no doubt important ones, have not brought out what to my mind is the real importance of the Bill. This, in a way, is an historical Bill, because it is the first time in history—or for many hundreds of years, at all events—that a retiring age for Judges of the High Court has been fixed. One can imagine how delicate a matter it has been to bring in a retiring age, since it is not less than 46 years ago that the St. Aldwyn Commission reported on the subject. According to Professor Dicey, the normal time in this country for a new idea to arrive on the Statute Book is 30 years, so this one has taken a good deal longer than is normally the case; and I must congratulate the noble Earl, Lord St. Aldwyn, in seeing, as a Chief Whip to a Government, his grandfather's recommendation coming into effect. At what age a Judge should retire is, I suppose, largely a matter of opinion. I should have thought that it was a sensible thing, having regard to all the circumstances, to provide that a Judge must retire at 75, but can retire, if he so desires, from the age of 70 onwards.

In this country we are most fortunate in the standard and calibre of our judges. There are those of us who know other systems who would be prepared to say that there is no other country with a judicial standard as high as ours. The reason for that is that we have, I suppose, somewhere between 40 and 50 Judges of the Court of Appeal and the High Court for a population of some 50 million, whereas in most other countries they have a large number of judges who are career judges and who are not particularly well paid, and they cannot expect to get the very high quality that we get here. We are able to do this by reason of the fact that well over 90 per cent. of our criminal cases are heard by magistrates, who are laymen. I gather from the noble Lord, Lord Merthyr, that he does not want to see that percentage in any way diminished; and I think he is right.

I do not want to say much on this Bill, other than to welcome it and to make one or two points. In the first place, I hope that the noble and learned Viscount the Lord Chancellor will now, under the provisions of the Bill and, in particular, the provisions of Clause 4, feel entitled to appoint more Judges from the county court. I have often wondered over the years why more county court judges were not promoted. It seems to me that this is an excellent training ground for High Court Judges, and now that county court judges often have jurisdiction in divorce—they sit as Commissioners of Divorce—I feel it would be a great encouragement to them if more of their number were promoted to the High Court Bench.

The other point I want to make is this. The sole source from which our Judges have been selected has been the Bar—and whether that is right or wrong is not for me to say at this moment. The solicitors' profession has never been a source either for High Court or for county court Judges. How long is the Bar going to be able to provide Judges of the high quality that we have both in the High Court and in the county court? It is no use shutting our eyes to the fact that the Bar is going through a crisis; that the able young men are no longer in a position in many cases to stay at the Bar. They have to go out to commerce, and it is no good blinding ourselves to the fact. I believe—and this affects the Lord Chancellor and whoever has to select Judges—that the Bar and the Law Society will have to get down very soon indeed to a realistic approach to this whole problem. The first approach will have to be a common training of both barristers and solicitors, and a common system of examination, so that the young man who goes in for law will not, as he does now, have to decide before he starts training which of the professions he is going into, but will be able to decide after he has passed his examinations—that is, if it is decided to keep two professions in being.

The second reform which is a matter of immediate concern is that the Bar should permit its members to form partnerships. I believe that this is essential for the health of the Bar. That does not take into account the more debatable point, as to whether there should be two professions or not. I will not go into that question to-day, because I think I should be out of order if I did. I have my own views on it, and I have no doubt that many of your Lordships have as well. I believe that these reforms can be achieved without any legislation, by the administration of the Bar and the Law Society itself. These reforms are urgent, and if they are not put into practice very soon I believe that the noble and learned Viscount and his successors will have great difficulty in maintaining the high standard we have known in the past.

4.33 p.m.


My Lords, the question of the age limit is obviously one of great importance and relevant to this Bill. I should like to say something about it, but I should also like to say a word or two on the point which has just been suggested by the noble Lord, Lord Ogmore, and by the noble and learned Lord, Lord Reid. The problem of recruiting the High Court Bench is obviously going to be a very difficult one in a few years' time, and I feel in sympathy with what the noble Lord, Lord Ogmore, has said. It has always seemed to me that it was quite unfair to the solicitors' branch of the profession, of which I have the honour to be a member, that it should be left out of the running for promotion to judicial office. Some of the solicitors with whom I have had to deal during my time at the Bar were lawyers of obviously great ability, and would have made admirable Judges.

I quite appreciate that the difficulty of selection is greater in the case of solicitors. They do not come before the supreme Tribunal or the Court of Appeal, so that at present, at any rate, it is difficult to form a judgment as to how capable they would be as members of the Bench. I think that if the suggestion of the noble Lord, Lord Ogmore, for more promotions from the county court were carried through seriously, and the opportunity were taken to promote solicitors to the county court in the first instance, it would not be difficult to discover how well they were carrying out their judicial duties as county court judges. In my time as a young barrister I appeared a good deal in county courts, and among the county court registrars, who used by agreement between the parties to take the small cases in order that everybody might get away fairly quickly, there were a number of really first-class judges. Three or four county court registrars, whose names I could mention, would have made admirable county court judges; there cannot be any question about it whatever. I think they might well have qualified with their experience as county court judges for the High Court Bench itself—one or two of them might well have done so. This would require legislation, but, as the noble Lord, Lord Ogmore, said, it is a little peripheral to the main subject and I will not take it further.

The question of the retiring age is one of great importance to-day, and the noble and learned Lord, Lord Reid, is undoubtedly right when he said that some of the finest judgments that appear in the law reports over the last fifty years would not be there if this 75-year retiring age had been enforced during this period. Some of the best Judges in the House of Lords in my own subject of commercial law were over 75 years of age. I am pretty sure Lord Sumner was over 75 when he was giving outstanding judgments, and also Lord Finlay and others, if one went through the ages and made a detailed comparison. I am unhappy about this point, because undoubtedly the job of being a Judge in your Lordships' House and in the Court of Appeal—though perhaps not quite to the same extent—is an occupation requiring unusual qualities of experience in the handling of judicial data which comes only to a man of outstanding ability, if he is to be a really great Judge of Appeal, after considerable practice in the problem. I have discussed this subject with one or two Members of your Lordships' House on the judicial side, and I do not think there can be any question about it. It is a special faculty which comes, in a sense, after unusually long experience, and then is often maintained for a very long period.

I have mentioned one or two outstanding cases in your Lordships' House. If we go across to the other side of the Atlantic, where our Common Law has been the legal basis of much of American life, we find that the two greatest judges of this century in the United States were, I suppose, Justice Holmes and Justice Learned Hand of the Second Federal Court of Appeals. Undoubtedly the Common Law has been enriched by outstanding contributions which certainly none of our greatest lawyers have bettered—though several of them have no doubt equalled them. Justice Holmes retired at over 90 years of age. It may well be that in his last few years he was not at his best, but he was certainly so when in his eighties. Justice Learned Hand retired two or three years ago and was well over 80 also. I feel that the Common Law would have been poorer if it had been deprived of the outstanding contributions of these men, and indeed of some who are Members of your Lordships' House at the present time.

I am sorry that the noble and learned Lord, Lord Reid, felt that there was no difference between the Judge of the first instance going round on circuit and the Judge of Appeal and that the same rule should be applied uniformly. I would be prepared to say that that should not be so. I would be prepared to apply the rule to what one may call the hardworking Judge, who is buffeted about travelling on circuit, handling jury cases, and dealing with witnesses; and this would apply to the county court judges, many of whom have their circuits and have to get up early in the morning and work into the night. Undoubtedly that type of work takes it out of a man in a way in which work in your Lordships' House or the Court of Appeal does not. If the noble and learned Lord, Lord Reid, after reconsidering the matter, were to put down an Amendment at the Committee stage of this Bill, I should be glad to support him, because I feel that it is most important that in the highest ranks this 75-year age limit should not be imposed, otherwise some of the finest judgments we have in our law reports will no longer appear there.

4.40 p.m.


My Lords, I rise only for a few moments to express my own doubts about the compulsory age limit for retirement. May I say how delighted we all are to see my noble and learned friend Lord Reid back in our midst, restored to health and in such vigorous form.

We have heard something of the disadvantages of the proposed age limit; I think we have heard cited in its favour only the conclusions of two Commissions, and, I think, the view of the Bar Council. I am not suggesting for one moment that forcible reasons cannot be given, but I think it is a case for balancing advantages and disadvantages, and I am bound to say that the disadvantages of the age limit may be very great. I regret that I had not realised sufficiently early that this Bill was coming on this afternoon and therefore did not reinforce my memory by looking up the age at which some of our greatest Judges gave some of their greatest judgments. But I think that, if we applied the test suggested by my noble and learned friend, Lord Reid, of considering how this proposed age limit would have worked out over the last 60 years, we might find that some of the greatest judgments reported in every textbook would not have been there for us to see. If that were so had this age limit been applied in the past, it is likely to be so increasingly in the future, because on the whole the tendency to live longer and to remain vigorous longer is increasing; in a few years' time many men at 75 will be at least as vigorous as many men a few years ago were at a far earlier age.

Is not this provision really a provision for compulsory waste of great talents? If these men are in their full vigour—and I rather agree with the noble Lord who has just sat down that perhaps we think in this matter mainly of the Appeal Court and of this House—I think that the national loss through the waste of talent may be considerable. I agree entirely with my noble and learned friend, Lord Reid, in his reply to a cogent intervention by the noble Lord, Lord Silkin, that different considerations apply in the Civil Service; namely, the prospect of promotion of others. That does not apply in the same sense or to the same extent in this case for the reasons given, I think, by the noble Lord, Lord Reid. If, however, that were the answer, if what influenced the demand for this was really a desire to give better prospects to younger men to get promoted to the Bench, I think we should be told that. At the moment I do not think sufficient reasons have been given for this age limit, and I believe an examination would show that, had this been in force earlier, we should have been very much the losers. Even in the days since I was first called to the Bar, I can think of some cases of Judges in the King's Bench Division, as it then was, or the Queen's Bench Division, and still more in the Court of Appeal and in this House, who have certainly enriched the law of England at ages greater than 75, and I hope very much that full consideration will be given to this matter.

There was one other point that occurred to me when the noble Lord, Lord Silkin, raised the very interesting point about civil servants. I think it may be unfortunate that some of our best civil servants may have to go at the age of 60, but a civil servant in the position which he would occupy as the head of a Department does not enjoy one advantage that older men have in the Court of Appeal and in this House, of having cases before them very well argued by others; though the case before them will still need the most vigorous attention of very vigorous minds, it does mean that their life is not quite as strenuous as that of some civil servants might be at the head of their Departments. But the main purpose for which I rose was to say emphatically that I share the doubts about the age limit expressed by my noble and learned friend, Lord Reid.


My Lords, the noble Lord, Lord Silkin, said that the only persons who are to be allowed to remain in office until the age of 75 were the Judges. I would remind him that magistrates are retired at the age of 75. I am a magistrate; I have very nearly reached the age of 75, and that age limit seems to me absurdly low.

4.45 p.m.


My Lords, I am grateful to your Lordships for your reception of the Bill, and I should like to deal as shortly as I can with the important points that have been raised. First of all, may I say to the noble Lord, Lord Silkin, about the timing of the introduction, that I think everything he said is justified as a matter of general principle, and in this case I throw myself on his mercy—for this reason. I am very anxious that Parliament should allow this Bill to be carried through before the Recess at Christmas, because, of course, apart altogether from the subjects that have been discussed, it means a general raising of the pension paid. That may mean that some Judges who did not wish to retire on the smaller pension will now wish to retire; and it would be most helpful, not only for them but for me—because I have to recommend replacements—if they could have the Recess and that I should know before the end of the Recess what changes I have to recommend, so that all the Divisions of the High Court could start work with the replacements at the beginning of next term. I hope that the noble Lord will not think that is an unreasonable ground, but it is the one which impresses me. But I do assure him that, as a general principle, I am entirely with him in considering that the notice was far too short. I have always tried in Bills with which I have been connected to give full notice, and I hope the noble Lord will not take this as a precedent.

The next point which the noble Lord, Lord Silkin, raised was one which has been discussed by your Lordships; that is, the question of the retiring age. The noble Lord, Lord Silkin, approached it from this angle: If civil servants are required to retire at 60, or shortly after, and company directors at 70 and county court judges at 72, unless of course there are compelling reasons of the national interest, why should a higher age be fixed for High Court Judges? To some extent, the arguments that have been advanced on the other side have been directed to meeting that point: that, broadly, there is a more reflective and deliberative quality required in the Judiciary, and especially in the Appellate Judiciary, which is a reason for having a higher age limit. As I have said, I have considered this matter most carefully, and I want shortly to reinforce what I said in introducing the Bill.

This matter was considered for King's Bench Judges by both the St. Aldwyn and Peel Commissions, and I would remind the noble Lord, Lord Conesford, that the Peel Commission included, among other distinguished members, one for whom he and I have particular respect, as well as friendship—my noble and learned friend Lord Monckton of Brenchley. Both those Commissions took the view that there should be an age limit of 72 for the King's Bench Judges who were hearing witnesses. Lord Reid has shown that there is a view that one should not discriminate. I chose the age of 75 for all the Judges. What I would say to noble Lords who have been doubtful about this proposal is that they must consider the whole picture. They must balance against some notable figures over 75 who have given judgments of high quality, those who before that age have found the strain of their work very heavy. It is a matter which must be considered. To use a cliché, justice must not only be done but must appear to be done. We say that every day, and in almost every connection. There have been cases—I should not dream of mentioning any names—where, even when the mental powers have remained, the appearance has been such that it is doubtful, to say the least of it, whether justice has appeared to be done.

I would also put this point (it was one that I put rather shortly in opening): that there is no more difficult problem in life than to judge one's own dispensability and expendability. We all find it, and some of us find that the problem gets more difficult as the years advance. But I ask your Lordships to face up to the existence of that psychological problem. It is in no spirit of levity but simply to illustrate my point that I recall to your Lordships a very old story of the law. There was one Judge—I shall not give even the country in which this took place—who was obviously failing; and when he left two Judges who were promoted, made an agreement with one another. They swore on all that was holy that each would draw the attention of the other if he saw in him any sign of failing. The time came, with the passage of the years, when one of the two began to fail, and the other thought hard,"What is the least difficult way in which I can approach him?" So he said to the other,"Do you remember that conversation we had on the retirement of X?", the other said,"Yes—and a more distasteful, inhuman and uncharitable conversation I never took part in."

I hope your Lordships will not think that I recall that story in any spirit of levity, but it does illustrate the great difficulty we have of judging our own powers as the years pass. Therefore, I say that, looking at the picture as a whole, it is better for the Judge and better for the community that there should be an age at which the Judge knows he will have to stop. As I said—and I repeat—I have been anxious in consideration, and I think reasonable in decision, in taking the age of 75, which is not too low, as the speech of Lord Silkin showed, giving that point of view, but, on the other hand, I think, not too high, in view of the arguments that have been advanced.


My Lords, before the noble and learned Viscount leaves that point, would he mind answering the point that I made as to the possibility of distinguishing between the trial Judge and the appeal Judge? He has rather brushed it aside. It seems to me that it is a most relevant point.


My Lords, of course I did consider that point. The noble Lord will appreciate that the St. Aldwyn Commission and the Peel Commission were considering the King's Bench Judges, and they fixed the age for them at 72. There was opinion (I am not going into this; if the noble Lord cares to look up the evidence he will find it interesting) the other way; there was opinion for his point of view. But I should have thought that, on balance, it was better not to make this distinction, because after all one is bound, in the general deployment of judicial power, to use people for both appeal work and for work involving witnesses. After a great deal of consideration I formed the same view as my noble and learned friend Lord Reid, that it was better to have an age for the Judiciary as a whole.

I want now to say one or two words on the other points. I would say first to the noble and learned Lord, Lord Reid, that the distinction he drew as to promotion being in the sphere of a positive matter in the Civil Service and not in the law, is not one that I can accept. I have in my time seen long jams of a very serious nature, which in my view have driven silks away from the Bar to the City, because there has been the thought that promotion has seemed so hopeless. Therefore I do not put too much on this point; but I would not dismiss it, and I hope that my noble friend will not dismiss it.

Now I want to say a word or two about the graduated scheme. I am not going to follow my noble and learned friend Lord Reid into the details of the Reports of the various Commissions, but I would just point this out to him with regard to his illustration. He took the time when a judicial pension was £3,500 and the St. Aldwyn Commission suggested that the minimum pension payable should be £1,500 a year. The rise in the full pension is from £3,500 to £4,000, excluding for the moment the other benefits—that is, a rise of one-seventh. The rise of the minimum pension is from £1,500 to £2,000, a rise of one-third. I think he must take that into account. But the point one must face up to is that made by the St. Aldwyn Commission: is it right that this should be the only branch of people paid out of public funds who receive a full pension if they become permanently ill after serving a negligible time—a day, a month or a year?

I would remind the noble and learned Lord, Lord Reid, that this does not apply to the lower Judiciary at the moment: they are payable on a graduated scale. Nor does it apply to the Civil Service. Apart from that, there has been a beneficent financial reform since the days when anyone I see around me was working at the Bar. In our sad times we had not the advantage of the Finance Act, 1956, under which up to 10 per cent. of income, or £750 per year, can now be devoted to ensuring a pension, and set off against income tax. If that were done for ten years—and, after all, few people are appointed to the High Court Bench who have not been making £7,500 a year for a period of ten years; and most of them, of course, make a great deal more—that would provide a pension, at 70, of £1,500 a year, or a widow's pension whenever death may come, of £750 a year. It must be pointed out that the effect of the Finance Act is that that can be done out of monies which previously would have gone to pay income tax. That is an improvement which must be borne in mind.

I listened very carefully to the speech of the noble and learned Lord, Lord Reid, but he did not deal with the point which I have tried to put: that when a comparison is made with other people this provision is a fair and reasonable one. Nor did he deal with the point which one must bear in mind: that our Judiciary is probably the best paid in the world. There may be some offices in New York State which are better paid, but I cannot think of any other place where the payment of the Judiciary is as good.

That brings me to the third point (although I do not want to occupy too much of your Lordships' time) raised by some noble Lords and developed with an interesting suggestion which I am bound to consider, by the noble Lord, Lord Ogmore, about the position of the Bar. There is something unattractive in somebody who happens by good luck to be at the top of the ladder to-day shouting down the ladder to those who are coming up, and I hope your Lordships will forgive me if anything I say sounds like that. But I do not want noble Lords to let this defeatism about the position of my profession go out. To those who love it and who are attracted to it the Bar has attractions which better-paid industry can never have. It is a profession where one is free and one's own master. Secondly, it is a profession in which one shares in the continual joy of battle with one's peers in cases in the courts. These are attractions which are of tremendous importance. Thirdly, it is a profession in which one can make an enormous income—and I do not think I am exaggerating in saying that, even to-day, £40,000 a year is such an income. And even after paying tax there is a good deal left.

All the time of one's life one is sharing in a worthy cause—the administration of justice; and in the autumn of one's years one can devote oneself to the same cause and at the same time be adding to the law of our country. If one is to reduce the matter to terms of money—which I deprecate because I have spoken of the attractions which I hope will always call people to the Bar—then, after all, this is a profession where large incomes can be earned and one in which, when a man gets to the age of 50, there are 200 pensionable jobs for a profession whose whole membership in the range between the ages of 21 and whatever may be the age of the older members is only some 1,900. The number over 50 eligible for judicial appointment must be quite small by comparison—and there are 200 pensionable jobs.

From whichever way we look at this matter, my Lords, I do not believe that this defeatism about the Bar is justified to-day. When I was a young man at the university an old friend, afterwards a Member of this House—then Sir John Buchan—said to me: There is more nonsense talked about failure at the Bar than about most other things in life. If anyone really cares intensely for the Bar, is prepared to devote himself to it and make it his main interest, then, if he has no obvious defect he will get a practice. If he is anything better he will get a good practice. With all the reserve about the good fortune which I happen to have had, I believe that that statement is as true to-day as when Sir John Buchan said it to me, 40 years ago. I hope your Lordships will forgive me for rather going off the point and stating my own view on a matter so near to my heart. I hope that your Lordships will now give this Bill a Second Reading.

On Question, Bill read 2a, and committed to a Committee of the Whole House.