The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are considering the issue in consultation with the judiciary and others.
Lord Pannick
I am grateful to the Minister. Will he congratulate the Lord Chancellor on his 70th birthday earlier this month, and suggest to him that to require Justices of the Supreme Court to retire at that age, if they were appointed to the Bench after March 1995, is a terrible waste of judicial experience, wisdom and knowledge? It is especially unfortunate when some Supreme Court Justices are only appointed to that court in their mid to late 60s.
Lord McNally
My Lords, I first assure the noble Lord, Lord Pannick, that the Lord Chancellor and I share the view that reaching 70 is not the end of a contribution to public life. In fact, in this House most think that it is only beginning. The age limit of 70 was brought in by the reforms of my noble and learned friend Lord Mackay. The Lord Chancellor is examining it, and he is also consulting carefully with the judiciary.
Lord Falconer of Thoroton
My Lords, I declare an interest: I am only 58. Does the noble Lord, who is a great friend of the Supreme Court, agree that the problem is now urgent? There is a member of the Supreme Court—the noble and learned Lord, Lord Collins—who will be forced to retire after only 18 months in the job of Supreme Court Justice. If the matter is not looked at and dealt with quickly, it will be a great loss to law in this country.
Lord McNally
I hear what the noble and learned Lord says. As he knows, there are ongoing arguments for making maximum use of the undoubted talent in the Supreme Court—his point—and about what others rather inelegantly call “bed blockers”. How to bring forward and rejuvenate the Supreme Court must also be fed into this debate.
Lord Trefgarne
My Lords, never mind extending the tenure of Supreme Court judges to the age of 75 —is there any provision for shortening their tenure if they prove not to be up to the job?
Lord McNally
One thing that the Lord Chancellor told me when I joined him in the Ministry of Justice is that the politicians and the judiciary kept well apart. I intend to follow that advice.
Lord Woolf
My Lords, further to a point that has already been made, may I remind the Minister that age is not the only consideration that must be borne in mind when finding a replacement for one of the Justices of the Supreme Court? In particular, there are members of that court who have a special expertise that is very difficult to replace. Although we have not mentioned his name, the member of the Supreme Court who is due to retire next May, and will then have been there less than two years, is probably the outstanding private international lawyer in the judiciary as a whole. The argument about keeping people there while holding up others does not apply when it comes to replacing that sort of expertise.
Lord McNally
My Lords, I hear entirely what the noble and learned Lord says. Without prejudging the issue to which he referred, dare I say that hard cases make bad law? However, there is a wider issue about our Supreme Court. It would perhaps be revolutionary to get our second woman and our first ethnic minority representative in the Supreme Court. A lot of work has to be done if we are to have a Supreme Court that reflects Britain in the 21st century but there is clearly room for 58 year-olds in it as well.
Lord Borrie
My Lords, does my noble friend agree that some of the finest judgments of the past century have been made by Law Lords in their 70s? Does he not think it sensible to retain people who in all probability are at the height of their intellectual powers when they are over 70 and ensure that they are not lost to the judiciary just because some slightly younger people aged 58 or 59 perhaps also ought to be there? You can always create more posts in total.
Lord McNally
These are very powerful arguments, which may be why the Lord Chancellor is looking at the matter. However, as I said, in parallel with the concern to retain the talent of the Supreme Court, there is, or should be, a similar concern to ensure that our Supreme Court better reflects our society in the 21st century.
Baroness Scotland of Asthal
Bearing in mind the comment just made by the noble Lord that breadth is important, and given that so many women have to take time out of their career, does he agree that one of the ways of ensuring that breadth is by identifying talent—not age or gender—as the criterion which should determine appointment to and retention of these posts?
Lord McNally
I treat that intervention with all the respect it deserves—and in that I do not make a joke
Lord Thomas of Gresford
The Minister will know that there is certain angst that Supreme Court Justices no longer get a peerage. Will they get an automatic peerage on retirement at 70, or will it depend on performance in the eye of the Government of the day?
Lord McNally
That is another matter which is under review and discussion. Arguments are being made both ways about how, when or if a Supreme Court Justice should get a peerage.