HL Deb 15 December 1959 vol 220 cc397-415

3.42 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1 agreed to.

Clause 2:

Retiring age

2.—(1) A person who holds an office listed in the First Schedule to this Act shall vacate that office on the day on which he attains the age of seventy-five years.

LORD CHORLEY moved to add to subsection (1): Provided that this subsection shall not apply to any Lord of Appeal in Ordinary. The noble Lord said: I have put down this Amendment in order that Her Majesty's Government may have the opportunity of withdrawing, or perhaps I should say of modifying, a proposal which, it seems to me, if carried into practice will seriously damage the development of our great legal institution, the Common Law, which in some ways is our greatest contribution to the culture and civilisation of the world. I feel a good deal of diffidence in speaking in the presence of so many eminent members of my profession.

On the occasion of the Second Reading we had the advantage of a very clear and admirable speech from the noble and learned Lord, Lord Reid. I appreciate that some of his colleagues on the judicial side of the House might have a certain diffidence in following up what was said, but I am sure that I am expressing the opinion of your Lordships as a whole in hoping that they will not allow that diffidence to stand too much in the way, because obviously they are much better qualified than I and most other Members of your Lordships' House to express an opinion about these problems. I appreciate also that there is a certain inconvenience, because it was explained that there was some urgency about this matter, and it can be seen that the legislative programme and the administrative arrangements following thereon will to some extent, possibly, be put out of joint if this is carried through. But it seems to me that the efficient and rational development of our legal system is of such importance to the lives of our own people—and not only our own people, for this applies to our fellow-citizens all over the Commonwealth, which is very much affected by our Common Law—that I ought not to allow this difficulty to stand in the way of bringing this matter before your Lordships this afternoon.

Your Lordships will have noticed that the Amendment which I have put down applies to Lords of Appeal in Ordinary. In the Second Reading debate we discussed the age of retirement as a general matter, and I advanced the view that it might be a good thing to have an age of retirement for Judges working in Courts of first instance, since they have to handle witnesses, deal with juries and very often travel about on circuit, and in other ways to do a great deal of fatiguing work. Those Judges might well be subjected to a retiring age, possibly even lower than that provided in this Bill. Another point which I believe is very relevant here is that the Judge of first instance almost invariably is working on his own, and if his mind wanders for even a minute, as tends to occur more and more as a man gets older, he may well make a mistake which could be serious. In Courts of Appeal, on the other hand, where the Judges sit in groups, should that happen almost invariably one or other of the Judge's colleagues will bring the point to his notice and the matter will be put right. I suggested, therefore, that while trial Judges, so to speak, should be within this compulsory retiring age, appeal Judges should not.

The noble and learned Viscount was not disposed to accept that opinion, though he did not, I think, deny the substance of the argument. But he said that in the general deployment of the judicial power he sometimes had to use Judges in appeal work and sometimes in work involving witnesses, and matters of that kind. Obviously there is a point of substance from the administrative point of view, though I am not completely convinced by the argument. If one considers the actual situation in the Court of Appeal one finds that a Judge there rarely continues beyond the age of 75. The only outstanding case which occurs to my mind was that of Lord Justice Scrutton, certainly one of the great Common Law lawyers of the century, who many of us thought would have adorned your Lordships' House; so that, so far as the Court of Appeal is concerned, this is a rather academic matter.

It seems to me, therefore, that the substance of this problem is here in your Lordships' House, and that if we could withdraw this House from what lawyers call the"mischief" of this Bill we should have achieved the major objective. I cannot personally see any good reason why this House should be within the scope of this particular clause in the Bill. This House is not, of course, part of the Supreme Court of Justice. From earliest times your Lordships' House has exercised a supreme appellate jursidiction over the superior Courts of England and has done so as the High Court of Parliament. All your Lordships are members of the High Court of Parliament, and at one time any one of your Lordships would have sat on judicial work had he felt inclined to do so. But it has been the convention for some years that only Lords of Appeal in Ordinary and those others of your Lordships with judicial experience should sit on judicial matters.

In fact, Lords of Appeal form the nucleus of the House for Judicial work. As noble Lords will know, they are usually promoted from the Courts of Appeal or from the Court of Session, although that is not invariably the rule. We have on the Judicial side of your Lordships' House most eminent Members who have never sat as Judges in the ordinary way. Many here will remember Lord MacMillan, who for years rendered most distinguished service here; and he is not in any way a unique example in respect of this particular matter. So your Lordships' House stands apart, so to speak, from the ordinary, normal court system, and the exclusion of Law Lords from this compulsory retiring age can be easily justified, both on the logic of history and on the logic of membership. It is perfectly true, however, that the great majority of Lords of Appeal come here on promotion; and it is therefore natural that many of them (although of course there are quite a number of exceptions) should be approaching 70—certainly nearer 70 than 60—when they arrive in your Lordships' House. Most men who are appointed to the Judicial Bench at all are fifty-ish. It has been said by a very eminent authority that it takes a Judge five years to learn his work, and then it will probably be another three or five years before he reaches the Court of Appeal. In the Court of Appeal he will work for a further five or eight years, so that it is likely that, when he reaches your Lordships' House, he will in fact be approaching 70. And, of course, it takes quite a number of years before a Judge in your Lordships' House, a Lord of Appeal, reaches the height of his powers.

The work of this House, I think every lawyer will agree, is in many ways different from the work in the Court of Appeal; and, naturally, even a very able man does not immediately reach the heights of his powers as a Judicial Member of your Lordships' House. The result is that we find that we have always working in this House, ever since this system started, a substantial number of very eminent lawyers who are well over 70, over 75 or even into the 80's. Lord Reid, in his speech on Second Reading, suggested that research would amply bear out this view. I have not myself had time to conduct researches as I should have liked to do, but I have a certain amount of information which seems to me to be interesting and valuable, and I should just like to make a few points in relation to it.

At first, right back in the 1870's when this system started, there were only two Lords of Appeal in Ordinary. Both of them, it is interesting to note, were Scotsmen: Lord Blackburn, who came from the English Bench, and Lord Gordon. Lord Blackburn was undoubtedly one of the greatest lawyers of the last century. It is interesting that he retired voluntarily at the age of 73, at the height of his powers; and as the Dictionary of National Biography says, his retirement was regarded by the profession as an irreparable loss. He lived substantially longer. One interesting thing is that at that time there was no Act which allowed a retired Lord of Appeal to retain his membership of your Lordships' House. Lord Blackburn had to have a special Act passed so that he might come back to your Lordships' House, so to speak; and ever since then a Lord of Appeal has remained after his retirement, a Member of your Lordships' House. It is only fair to say that Lord Blackburn's view that he should retire fairly early was not peculiar to him. It has been followed in a number of other cases. I should not like to say how many, but Lord Blanesburgh, Lord Roche and Lord Maugham all retired, I think, before reaching 75. So there has been that view, and men who have felt that they have reached the retiring age have not hesitated to retire in good time.

Lord Blackburn was succeeded as a Lord of Appeal by Lord M'Naghten, a man at least as eminent on the equity side as was Lord Blackburn on Common Law. Lord M'Naghten came to your Lordships.' House straight from the Bar, without intermediary practice as a Judge, and served your Lordships' House with the highest distinction for some 25 years, retiring several years over 80. He certainly made a number of outstanding contributions to this House after he had passed his 75th birthday. Of almost equal eminence is another equity lawyer, Lord Lindley, to whom in particular we owe a great deal of the development of our Company Law. Lord Lindley had staved in the Court of Appeal but he did not come here until he was 71, and he was working here with great distinction until, at the age of 77, two years over the age in this Bill, he sustained a severe fall, damaged his head and had to retire. At that time he was at the height of his powers, and there cannot be any question that he would have worked in your Lordships' House until over 80 if it had not been for this accident. Slightly later we had the great Lord Moulton, who died in harness working here at the age of 77. At the same age died Lord Acton and Lord Porter, two outstanding commercial lawyers.

In my speech on the Second Reading I referred to the longevity of commercial lawyers and mentioned the name of Lord Sumner. I was wrong about Lord Sumner. In fact he was not 75 at the time I had in mind: I believe that he died at the age of 75—again, I think, in harness. However, at the time that I was thinking of I was coming a good deal to your Lordships' House, because I was then devilling for an eminent commercial advocate; and at the time I am thinking of, which is in the fairly early 'twenties, it might well be that the Court assembled here would consist of Lord Finlay, an ex-Lord Chancellor, who did not become Lord Chancellor until he was 74 and who at this time was about 80 and still a Judge of the greatest ability; Lord Dunedin, who was going on for 80 at this time and retired several years later, I think at 82; Lord Atkinson, who retired at 83, a very common-sense lawyer who certainly retained his faculties until well over 80; Lord Craigmyle, who at the time was over 75 and who I think retired at 79.

The Scottish element remains a prominent feature, because not only do we get Law Lords from Scotland direct from the Court of Session, but they also come from our own Court of Appeal; and as a matter of interest it is probable that over long periods of time there have been more Scotsmen than Englishmen as Lords of Appeal in your Lordships' House. So your Lordships will see that in the early 1920's this Court, your Lordships' House in its Judicial capacity, was almost entirely composed of Judges over 75; and I defy anybody to find a more able Court than that was. All who were practising before the House at the time appreciated enormously the work that was done. Others who had passed the 75 mark by several years were Lord Russell of Killowen, 78; Lord Romer, 77 and Lord MacMillan, 79; and Lord Wright, another very great commercial lawyer, who I am glad to say is still with us, was working here until he was over 80. Those were all Lords of Appeal. But there have been several ex-Lord Chancellors who have rendered outstanding service after they have passed the age of 80. I have already mentioned Lord Finlay. Lord Maugham was over 70 when he became Lord Chancellor.

Perhaps the most remarkable of all was the great Lord Halsbury, who after he was 80 years of age commenced the illuminating series of judgments on the Workmen's Compensation Act, 1906—a series which did more to build up the jurisprudence of that Act than anything else. He regarded the Act as the workman's charter, and he came to it with a very liberal attitude. That is a very interesting fact, because the politics of a man are not necessarily reflected in the liberality of his approach to legal problems in any sort of way. Nor is it our experience on the whole, I think, that a Judge becomes more conservative with age. Once he has taken up a certain line, whether it is a liberal line or a conservative line, in respect of the development of the law, he seems to pursue that line during the remainder of his career. The service which Lord Halsbury rendered in connection with this Act of 1906 is the sort of valuable service which is provided by Members of this House: because this was not an Act that was in any way unusual. Acts of social legislation of this kind have to be expounded authoritatively in a way which can be effectively done only in your Lordships' House.

My Lords, I have referred to those former Lord Chancellors to show how very lively and able a man's mind may be legally after he has passed the age of 75. Of course I realise perfectly well that ex-Lord Chancellors continue to serve in this House after they have become pensioners, and I take it that the Lords of Appeal in Ordinary, after they have reached the compulsory retiring age, will still be entitled to sit in your Lordships' House. But I am afraid that in most cases they will retire to their estates, and it is unlikely that we shall have the advantage of their help here, even if it is theoretically possible that we should do so. This would provide material for an interesting research if I had the time to do it. In the case of Lord Blackburn, although an Act was passed enabling him to come back here, I have looked through the Law Reports for the three years after his retirement and, so far as I can see, he never did come back. The same applies to Lord Blanesburgh and Lord Roche. I have looked through the Law Reports covering the couple of years after they retired, and I cannot find that they ever came back. So I am afraid that, while theoretically this power to continue sitting after retirement somewhat mitigates the mischief of this provision, in practice it would not help us very much.

I am afraid that I have detained your Lordships for some time, but I feel that, before I sit clown, I ought to say a few further words about the significance of the Judicial work of this House. This House is more than a mere court of appeal, deciding whether or not the Court of Appeal is right: it takes an essential and outstanding part in the development of the law. The noble and learned Lord, Lord Reid, made this point very clearly in his admirable speech the other day when he referred to its contributions of permanent value in the development of our law. Perhaps it is only lawyers who can appreciate this to its full extent, and perhaps it is only those of us who have worked in the university law schools, and have taught there, who appreciate it to its fullest value. I hope, therefore, that if I try to say a few words more about it to your Lordships, I shall not be attempting to"teach my grandmother" too much.

The law which affects the lives of ordinary people—the law relating to contracts and civil wrongs, to many aspects of property, family life, and matters of that sort—is Judge-made law. The principles and rules have been worked out by the Courts in relation to the changing needs of the community, and have been worked out in the main by a comparatively small number of great Judges. The problem of adjustment and development of the law is one of considerable nicety, calling for a maturity of judgment, great knowledge of affairs, and a poise which it is easier to recognise than to describe. Long practice and very long experience in the law are required in order to equip a man fully for this work—even a man who has the necessary eminence of intellect and the necessary judicial qualities to make a great Judge. The number of men who achieve this eminence is very small, but they do establish the milestones of legal development, and their work is of outstanding importance. During the years since the 1870's, when the present system was brought into being, all but a minute fraction of these men have worked in your Lordships' House. Their wisdom has redounded not only to the advantage of the people of this country, but to that of the citizens of every part of the Commonwealth; and not only of our own Commonwealth, but also of the United States of America, where they share with us the heritage of the Common Law.

My Lords, I think I have said enough to bring out the essential fact that this wisdom, this maturity, is at its best between the ages of 70 and 80; and I hope that your Lordships will feel that this House and this country ought not to be deprived of the services of these great men, as they will be if this clause of the Bill goes through as it stands. I beg to move.

Amendment moved— Page 1, line 23, at end insert— ("Provided that this subsection shall not apply to any Lord of Appeal in Ordinary".)—(Lord Chorley.)

4.6 p.m.


I find myself in complete disagreement with my noble friend who has just spoken. Having listened to him, one would imagine that the ideal age for a Lord of Appeal in Ordinary is somewhere between 77 and 85, and that until you have reached the age of 77 you are not really qualified to act with that wisdom and knowledge of affairs, and so on, that is required. I am bound to say that, much as I admire Lords of Appeal in Ordinary—and I do, and we all do—they are human beings, and subject to all the weaknesses and frailties of ordinary human beings. Even my noble friend had to admit that sometimes their minds wander, but he consoled himself with the fact that there was always another Lord of Appeal in Ordinary whose mind would not be wandering at the same time and who could put him right. But it might happen, by sheer coincidence, that the minds of all the Lords of Appeal in Ordinary might be wandering at the same time—and then what happens?

However, seriously, we have made it a rule—and I hope it will become law—that Judges of the High Court will retire at 75; and a Judge of the High Court is of the same quality and the same calibre as a Judge in the Court of Appeal and a Lord of Appeal in Ordinary. There is no sudden chemical or other change in a Judge once he becomes a member of the Court of Appeal or of the House of Lords which enables him to carry on longer than an ordinary Judge. As I said on the occasion of the Second Reading of the Bill, there is no Providence which particularly protects Members of the House of Lords from the ravages of old age; and while one would admit that there have been outstanding Judges—of course there have been—and outstanding judgments, I would ask noble Lords to consider whether, if they had not been there to deliver these outstanding judgments, other Judges would not have appeared and delivered equally outstanding judgments. Let us bear in mind that every time a Judge of 85 is sitting as a Lord of Appeal in Ordinary he is depriving a younger man of the opportunity of doing the same thing: and, other things being equal, I would rather have a man of between 65 and 70 sitting as a Lord of Appeal in Ordinary than a man of 77 to 85.

We must consider the position of the Bench as a whole. I said on Second Reading and I should like to say again that, in many cases, members of the Bar make a great sacrifice in becoming High Court Judges, and one of the inducements—and I think that we ought to hold out inducements to them—is the opportunity which may arise of their becoming members of the Court of Appeal and Members of your Lordships' House. These are perfectly honourable inducements for Judges to look forward to, and it ought to be something which a man who is eminent at the Bar should be able to hope for; but if his path to promotion is blocked by men of the age that my noble friend has in mind, that is going to act as a deterrent to a man who may think of becoming a Judge.

We have all known cases of barristers whose earnings have been £30,000 or £40,000 a year who have made the sacrifice and become Judges at £5,000 a year, as the salary now is. They have done this because of many factors, but one of them is the hope of becoming in due course a Member of your Lordships' House. If we are going to have this solid block barring promotion, it is going to act to the great detriment of men joining the Bench. My noble friend seems to imagine that the only qualification for a Lord of Appeal in Ordinary is the ability to deliver eminent judgments, but even a Lord of Appeal in Ordinary has to listen to Counsel and weigh up evidence. He must have his mind very much on the matter before him, and in the nature of things there are bound to be most difficult cases coming before your Lordships' House. The easy ones are disposed of earlier. He must have great patience and health and many other qualities besides the ability to think clearly.

I do not dispute that we have had many examples of men who have satisfied every qualification required; nevertheless, I do not think that a Judge himself is necessarily the best person to decide whether he ought to retire or not. I suppose that most of us, when we have reached the age when we ought to retire, feel that we are quite competent to carry on. Few of us are big enough to admit that the time has come when we ought to retire. When there is an automatic age limit of 75—and that is, in all conscience, high enough—it will not depend on the Judges; it will not be a matter for discretion; it will simply be the case that the time has come and a Judge will retire accordingly. I hope that your Lordships will not be impressed by the case that has been made and will allow the Bill to go forward as it stands.

4.14 p.m.


The noble Lord, Lord Chorley, put his case with great knowledge and with deep affection for the law. At first sight, he made an attractive case; but when one looks into it, its attractions grow less. I believe that it would be invidious to our Judges if there were such a distinction as this. This is illustrated by what happened when the latest appointment was made, when the noble and learned Lord, Lord Jenkins, was elevated to your Lordships' House as a Lord of Appeal in Ordinary. He had a great"send-off" from the Court of Appeal, where he had presided with much distinction for many years—an almost tearful"send-off"—yet within a week or so, rather to his embarrassment, I believe, after what had been said to him only a week or so before, he found himself back in the Court of Appeal presiding over a hearing, owing to the fact that there were so few Judges available at the Court of Appeal.

The noble Lord, Lord Chorley, bases part of his case on the great contribution made to the Commonwealth by Lords of Appeal in Ordinary. So far as the Commonwealth is concerned, I feel that there is great merit in having an age limit, and it may be that the age limit ought to be less than 75. The Lords of Appeal in Ordinary are the core of the Judicial Committee of the Privy Council; and as your Lordships' House is the Supreme Court of Appeal for the United Kingdom, so is the Privy Council the Supreme Court of Appeal for most of the Commonwealth. With the rapid means of communication available today, it is my belief that if the Judicial Committee of the Privy Council were really to do its job properly, it should not meet in Whitehall all the time but should meet periodically in the various Commonwealth countries.

From my own experience, I know that many cases would be brought before the Privy Council if they sat from time to time in the Colonial and Commonwealth countries. The fact that the Judicial Committee always sit in London and the expense and uncertainty of coming here have precluded many people from taking advantage of the fact that there is this great Court. Not only from the point of view of justice to the individual litigant but also from the point of view of binding the Commonwealth together, the Judicial Committee of the Privy Council should meet in the main cities of the various Commonwealth countries to hear appeals. That would mean that members of the Judicial Committee should be comparatively young men. It could not be expected that gentlemen of 80 should go flying off to Nigeria or Australia. So that is one reason why we ought to have an even earlier retiring age than in this Bill. I presume that the noble and learned Viscount the Lord Chancellor is going to reject this Amendment and I would support him in doing so.

4.19 p.m.


(VISCOUNT KILMUIR): My Lords, like the noble Lord, Lord Ogmore, I think that the noble Lord, Lord Chorley, moved this Amendment in a most interesting way, but I should like, fundamentally and most heartily, to join issue with him on whether his Amendment is necessary for the furtherance of the Common Law or the administration of justice. I should like to take him up, first, on the point he made that, broadly, the best work of Judges is given, in the bracket instanced by the noble Lord, Lord Silkin, between 77 and 85 or, as I am prepared to agree, in the late 70's.


With respect, I never said that that was so. I said merely that in a number of cases very good work indeed was done by men of that age, and that it is a pity that we should be deprived of that service.


I think the noble Lord will find that, carried away by his enthusiasm, he put it a little stronger than he now believes. But I am quite prepared to meet that argument. The noble Lord will appreciate that that reduced enormously both the width and the force of his argument. If the argument was, as I understood it to be from the noble Lord, that you need five years as a Judge of first instance, eight to ten years in the Court of Appeal and then five years in the House of Lords to come to judicial maturity, then that is a wider argument. If it is simply that some people at some time have given important judgments after they were 75, that is a much narrower and less compelling argument. But in case other noble Lords got the same impression as I did from the speech of the noble Lord, I should like to deal with that point.

The noble Lord suggested that members of the Court of Appeal came to the House of Lords at a rather late age. If he will look at it again, I think he will observe that many Judges have been Lords of Appeal for many years before reaching the age of 75, let alone the later age at which some of them retire. The noble Lord mentioned Lord Blanes-burgh. He was only 62 when he came to the House of Lords; Lord Dunedin was 64: and the second Lord Russell of Killowen was 62. It would be an error to believe that these Judges were only in the plenitude of their powers after they reached the age of 75. The noble Lord, Lord Ogmore, has, I think, pointed out that recently (and your Lordships will have in mind modern and existing examples that you see every day) Members have come to this House under the age of 60. But in the past, one of those whom I am sure the noble Lord, Lord Chorley, had in mind was the father of the present Lord Chief Justice, the first Lord Parker of Waddington, a very great Judge indeed, who came to the House of Lords at 56. Lord Sumner, whom the noble Lord mentioned on Second Reading and corrected himself to-day, came to the House of Lords at 54. While Lord Chancellors are sui generis (if I may claim to be in that category) the House will remember that my noble predecessor, the first Lord Birkenhead, came to my office at 47; and Lord Haldane came at 56.

But there is one other aspect of the matter that I hope will appeal to the noble Lord, Lord Chorley, because I should much rather convert him than merely defeat him on a Division. He, like myself, has a great love for the spread and development of the Common Law, and I think he would agree with me that most of us who have that affection see its development in cases which have especially remained in our minds from our student days. I have just taken some examples, and I hope the noble Lord, Lord Chorley, will think that they come within the category of great cases that are milestones in the law. I think he will agree with me that Entick v. Carrington, one of the great cases that limited the powers of the Executive, is one of these. Lord Camden was 51 when he gave judgment in that case, which was, I suppose, one of the greatest curbs on the powers of the Executive that the courts of law have ever imposed. I am sure the noble Lord will agree with me that Somersett's Case, the case of the freedom of the slave, is probably the best known judgment that the great Lord Mansfield ever gave. He was 67 when he gave that judgment.

The noble Lord, Lord Chorley, mentioned Lord Macnaghten, and I should not yield to anyone in my admiration and praise for Lord Macnaghten as a great Judge. I think the noble Lord will agree that the case that is most often quoted in causes concerning charities is Pemsel's case—certainly I shudder to think of the number of times that I have quoted it myself—which is a great guide in that field of the law. Lord Macnaghten was 61 when he gave his opinion in Pemsel's case, having already been in this House for some time. All the Law Lords in Salomon v. Salomon, a case of vital importance in the development of company law, were under 75.

I know that the noble Lord, Lord Chorley, is concerned with the industrial history of the country. As a matter of arithmetic (I hope and think that I have it right) the average age of the Law Lords in Allen v. Flood—and there were nine of them, including Lord Halsbury—was 68. I think the noble Lord would agree with me that one of the most interesting developments in our jurisprudence was the way the law dealt with problems of war after 100 years since Lord Stowell dealt with the problems of war at the time of the Napoleonic wars; and I think he would agree that the opinions in Zamora dealt with that problem in an outstanding way. Lord Parker of Waddington was 59 when he gave his opinion in that case, and Lord Sumner was 57.

But if I come to later days, just beyond the period to which the noble Lord, Lord Chorley, referred, again I think he would agree with me that the imaginative treatment of the law of torts and the law of negligence in Donoghue v. Stevenson makes it one of the most discussed cases of modern times; and that was in 1932. In Donoghue v. Stevenson, the average age of the Law Lords was 64; and the oldest. Lord Buckmaster, was 71. I hope the noble Lord, Lord Chorley, will acquit me of going through to find cases that suit my point of view. I think he will agree with me that these are all famous and outstanding cases which we all have in mind and to which we have all referred constantly.

There is another point which I do not think the noble Lord, Lord Chorley, has got right, even from the point of view of research, and certainly not from the point of view of intention of retired Judges. As he said, it is possible and often done for the Lord Chancellor of the day to invite retired Judges to sit judicially. I should like to say—and I am sure I am speaking for all my predecessors—how grateful we are to our retired colleagues for their generous help. If I might give an example, in the five and a quarter years that I have been on the Woolsack I have been indebted to Lord Porter who came back, and to Lord Birkett, who had not been a Law Lord, but who had been a Lord Justice of Appeal, and was given a Peerage, who has helped me constantly. In the days before I was Lord Chancellor, Lord Wright came back after retirement. I remember that he came back especially to adjudicate on the petition of appeal in the Australian Banks case, in which I was engaged as counsel. It is therefore possible—and not only possible, but probable and natural—for them to be available; and if one had a subject which was specially their metier one would undoubtedly ask them, if, of course, one was satisfied that they wanted to come and that their help was suitable, to return. I should have said that that need for occasional help at the selection of the Lord Chancellor of the day is no argument against the imposition of a retiring age for the ordinary permanent members of the Judicial component of the House of Lords.

The noble Lord, Lord Silkin, to-day put the point of promotion which I had touched upon on Second Reading, and the really serious aspect which that has. I do not want to repeat the general arguments that I advanced on Second Reading, but I want to draw attention to them. The noble Lord, Lord Silkin, has already pounced on, and dealt with, the remark of the noble Lord, Lord Chorley, about the wandering mind. In defence of my colleagues and myself, I should like to assure the noble Lord, Lord Chorley, that a wandering mind is not regarded as a good quality in the ultimate Court of Appeal, either in the House of Lords or the Judicial Committee, even if the wandering mind is of only one member of the Court. I will not go further, because Lord Silkin dealt with other possibilities, and I need not repeat his point.

There is, however, one very important aspect of this question upon which the noble Lord, Lord Ogmore, touched, and I should like to develop it from another point of view. Even if it is not possible at the present moment to have the peripatetic Judicial Committee for which he advanced an interesting argument—and there are obviously many, not all truly political, and I do not mean Party political, arguments in favour of what the noble Lord, Lord Ogmore, implied—it is vitally important that those who come from the realms of the Commonwealth and the Colonies should have complete confidence and be completely satisfied with the tribunal before whom they appear.

As the noble Lord, Lord Chorley, said, the Privy Council is manned regularly by the Lords of Appeal in Ordinary. In general, in Commonwealth countries, both in the independent members and in the Colonies, there is a retiring age for Judges. It is true that there is no retiring age for Judges of the Federal High Court of Australia, but there are retiring ages in the different States. As the noble Lord, Lord Chorley, knows, in certain cases there is a direct appeal from the State Courts. Canada, which has abandoned the appeal—but we have had still over the years what we call a phasing out of Canadian appeals; I sat in one only a few months ago—has a limit of 75. In New Zealand, which still maintains the appeal to the Privy Council, there is, I understand, a retiring age of 72. I went through all the details before, and I shall not trouble your Lordships with further examples.

It is, I think, important that those who come here, and by coming here constitute an important Commonwealth link, should be completely satisfied and have complete confidence in the tribunal. In general, I would say to Lord Chorley that the possible sacrifice of Judicial talent makes it all too easy to overestimate the loss and does not outweigh the fundamental principle that the administration of the law should be in the hands of men who are not past their prime in the estimation of the general body of citizens, and that the exceptional cases—because that is really what the argument now comes down to—do no more than prove this general rule.

I refer to, without elaborating, the difficulty that I mentioned in replying to the debate on the Second Reading. Practical experience has shown that a Judge does not always know himself when the time has come for him to go, and on the need to make way for younger men to avoid promotion blocks which may prevent first-class Judicial material from being promoted. That is a point which one must face. I tried to face it on the Second Reading debate, and I do so again. The only way to face that is to have a retiring age of this kind, and I hope your Lordships will not accept the Amendment. In fact, I go further than that and ask the noble Lord, Lord Chorley, not to press it, in view of the answers he has had from the three quarters of this House.

4.38 p.m.


I am sorry not to have had any support for this Amendment. I do not want to take up much more of your Lordships' time, but I want to say a word or two in answer to the arguments made against me. I do not think my noble friend Lord Silkin gave much attention to what I was saying; it seemed to me that he had prepared his speech in advance. I was not for a moment suggesting that all the Lords of Appeal should stay at work until they are over the age of 80. What I was saying was that the system established in the 1870's had worked very well indeed. It had led to a proportion of the Law Lords making outstanding contributions after they had reached the ago of 75—a proportion of them. I was not suggesting that they did not begin to do their best work until they were over the age of 75, or that all of them stayed until they were over 80. That is obviously not true. But it seems to me that it is rather damaging, to interfere with a system which has worked so well and has enabled a substantial proportion of the Law Lords to make these contributions after the age of 75.

I have always supported Lord Ogmore's suggestion that the Privy Council should go round, and I hope that the authorities will give attention to this point. While I can see that it would be rather difficult to ask Members of your Lordships' House who were over 75 to go, there is always a sufficient number in the 60's, as the noble and learned Viscount pointed out, to get together a Privy Council which could in fact go round the Commonwealth. I do not think there would be any difficulty in getting the younger Members to embark on work of that kind.

The noble and learned Viscount quoted a number of outstanding cases in which, I quite agree, the speeches had been made by Members of your Lordships' House who were in their sixties, but it was suprising how many of those outstanding men had gone on and worked in this House after reaching 75 years of age. The two speeches in the Donoghue v. Stevenson case, which I agree is the most interesting case, are those by Atkin and Macmillan, both of whom worked here several years after they were 75. I think both the noble and learned Viscount and the noble Lord, Lord Silkin, were very unfair to me over my suggestion about the wandering mind. I was saying that occasionally the mind of an old man may wander; but whereas in the case of a Judge of first instance that may wreck the whole case because he is sitting by himself, in the Court of Appeal there are others there and obviously it is not such a serious matter. However, it is getting late and I see that I have not received the support I had hoped for and indeed rather expected, and therefore I ask your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether the clause shall stand part of the Bill?


One likes to understand exactly what one is doing, and I should like to ask Her Majesty's Government whether they are quite satisfied that if the clause remains in its present form they will always be able to arrange that a Judge is not in the middle of trying a case when he becomes 75 years of age. Will they always be able to arrange that, in all circumstances? Or, if the clause remains in its present form, will the Judge be able to finish the case in which he is engaged before his retirement becomes effective?


I can assure my noble friend, Lord Saltoun, that we shall always be able to deal with the problem he has raised and he need not worry about it. Which way it will be dealt with may differ in different Courts, but we can deal with it.


Thank you.

Clause 2 agreed to.

Remaining clauses and Schedules agreed to.

House resumed. Bill reported without amendment.

Then, Standing Order No. 41 having been suspended (pursuant to the Resolution of December 10), Bill read 3a, and passed.