Crime and Courts Bill [HL]

Lord Gilbert Excerpts

Wednesday 27th June 2012 Lords Chamber

[Lord Hart of Chilton]

I support the amendment for the reasons given by the noble Lord, Lord Pannick. I must declare two interests. First, I was a member of the Constitution Committee and heard the evidence and, secondly, some of my best friends are between the ages of 70 and 75. The evidence showed that there was a real risk that we were losing substantial talent from the Supreme Court. There was one particular example of losing someone just at his prime. It would be wrong for the Supreme Court to lose people of enormous proven energy and ability when they have just got into the driving seat of their full power, and to lose talent of that sort when people have risen to that point with only a limited time available to them in the Supreme Court itself.

[Lord Gilbert]

I hope that the Minister will explain why there should be any compulsory retirement age for Justices of the Supreme Court. I see no justification for it.

[Baroness Jay of Paddington]

My Lords, I do not accept my noble friend’s comments. As the noble Lords, Lord Hart of Chilton and Lord Pannick, said, we went into this in some detail in the Constitution Committee. For all the reasons advanced very eloquently by the noble Lord, Lord Pannick, I support the amendment, particularly because of the potential for increasing diversity both in the Supreme Court and, indeed, further down. Both noble Lords have expressed the potential for opening up more opportunities for people who have come through what is described as the non-conventional career path to reach the top of the profession. I—and many members of the Committee —have a personal interest in the concept that 70 is the new 50, so 75 should be the new 55.

--- Later in debate ---

[Lord Gilbert]

I am much obliged to the Minister for making reference to my remarks. All I can say is that I have listened to the debate with great care and I have not heard a single reason put forward for a retirement age for judges. Everyone says 70, 75, 80, 85—just picking figures out of the air. It is a nonsense. I am not a candidate for a position in the Supreme Court, but I see no reason at all why there should be any statutory limit for a candidate aged over 85 like me. Could we have a reason?

[Lord McNally]

As I said, this is hardly the audience for arguing or expecting support for retirement at 70. Indeed, sometimes when the noble and learned Lord, Lord Woolf, tells me about his itinerary for the following week, I realise that his idea of retirement is something quite different from that of most normal people. I am well aware that people can make a contribution.

The amendment is astute in singling out the Supreme Court, as it is in this court—which may be the pinnacle of a long career—where taking up office is more likely to occur when a judge is in his or her 60s. This can give rise to particularly unfortunate individual cases where a judge’s term of office may be rather shorter than we would have liked to see. I understand the arguments and the case that has been made. However, these individual cases need to be balanced against the bigger picture and the advantages of a uniform retirement age of 70 across the whole of the judiciary.

Mandatory retirement ages for judicial office-holders have played an important role in ensuring that the judiciary is, and is seen to be, independent. Quite rightly, once appointed to a salaried position, it is difficult to remove a judge from office before retirement. This, of course, is constitutionally correct and removes any risk of unwarranted interference from the Executive. While many judges may be able to continue to work, and to contribute as fully as ever, beyond the age of 70, that will not always be the case. Without the mandatory retirement age, if a judge beyond 70 insisted on continuing, there would be no way of removing him even where his colleagues considered that he was no longer quite as sharp as he used to be. Therefore, a standard retirement age, set at the right level, is needed. I do not think that anybody disagrees with that principle.

The Government consider that 70 is the right level. Indeed, this is at the higher end of international comparisons. It is also important in this context to consider the impact on public confidence in the justice system. The age of 70 strikes a balance between the desire of judges wishing to serve and the public interest in sustaining a judiciary that is fully effective in discharging its responsibilities. The amendment seeks to make a special case for the Supreme Court, so that the mandatory retirement age should be increased to 75. However, the reasoning for the age of 70 applies to judges of the Supreme Court as it does to other judges. People are people, whichever court they are sitting in. The age of 70 is, in our view, the right one—notwithstanding that it may seem premature in individual cases.

The retirement age also contributes to the need to bring in newer judges. Turnover in the senior judiciary is not significant as many judges remain in post until retirement. Given the statutory limit on the numbers of judges who can sit in senior courts, in particular the Supreme Court which is limited to just 12 judges, the opportunity to promote talented members of the judiciary from the lower courts is limited. Extending the retirement age to 75 in the Supreme Court would further limit movement from the Court of Appeal, which would, in turn, reduce opportunities for promotion to the Court of Appeal and have a trickle-down effect through the courts. This would also have the effect of delaying some of the positive impact on diversity, which that we would otherwise see through promotions from the lower courts.

Furthermore, it would be very difficult in practice to sustain a different retirement age just for the Supreme Court. Court of Appeal judges would be very likely also to make the case for extended retirement. A Court of Appeal judge who considers himself or herself a good candidate for appointment to the Supreme Court may find it difficult to accept that he or she had to retire at 70 if the Supreme Court were made up of judges who would automatically go on for another five years. If the age of retirement for the Court of Appeal were also extended, then why not the High Court and so on? If there is a clear business need, it is still possible for judges to continue to serve over the age of 70. Following retirement, members of the Supreme Court may go on to the supplementary panel. As a member of that panel, they might be asked to act as a judge of the Supreme Court. This enables the court to continue to make use of their experience and knowledge —but on a short-term basis.

I have listened to the contributions of the noble Lords and to the plea of my noble friend Lady Bottomley against ageism. Although the Government will keep this under review, we consider, for the reasons outlined, that the current mandatory retirement age of 70, together with the arrangements for sitting ad hoc after retirement, provide a careful balance between using experience, ensuring that the quality of the judiciary is maintained at all levels and ensuring the advancement of fresh talent. I also consider that differential retirement ages of different courts may be very difficult to sustain. We will keep this under review but, in the mean time, I ask the noble Lord, Lord Pannick, to withdraw his amendment.

House of Lords: Reform

Lord Gilbert Excerpts

Wednesday 22nd June 2011 Lords Chamber

[Lord Lloyd of Berwick]

I am not sure that that answers the point that I am against appointment by the Prime Minister. I would also be against appointment by so small a body as the seven eminent men who are apparently proposed. To have seven people appoint the whole of one Chamber of a bicameral Parliament seems to me to be wrong in principle.

Secondly, it would mean that the voice of the people had not been heard in choosing any of the Members of this House. The noble Baroness, Lady D’Souza, argued yesterday that the voice of people is heard, and often heard, in this Chamber. That is true and I entirely agree with her. However, it is not heard in choosing the Members of this Chamber, which is a very different thing. That was the great point made yesterday by the noble Lord, Lord Ashdown. Perhaps even more relevant, it was the great point made by the royal commission under the chairmanship of the noble Lord, Lord Wakeham.

The noble Lord, Lord Armstrong, in his measured speech this morning, was not against reform but he said that we should take it slowly and even think of appointing a royal commission to take the matter forward. Surely he was forgetting that we have already had a royal commission. Its membership could hardly have been more distinguished—eight were Members of this House out of a total of 12, I believe. They took a mass of evidence, both expert and non-expert. May I say in passing that I am really surprised that so little has been said so far in any of the speeches that I have heard about the work that that royal commission undertook? I think that the noble Lord, Lord Wakeham, himself was the only person who has mentioned it, and he was far too modest about the merit of the proposals in that royal commission. It reached very clear conclusions, one of which was that a significant number of Members should be elected to represent the regions—the north-east, the north-west, Scotland, Wales and so on. There are 12 regions in all. That seems a very good idea. The commission went on to consider various models of how it might be achieved; under model B, there were to be 87 elected Members to represent the regions, or 15 per cent of the total, while under model C it was somewhat more. A majority of the royal commission favoured model B, and so would I.

I am in favour of a partially elected House. There are two main arguments against having any elected Members at all. First, it might lead to friction between elected and non-elected Members; secondly, it might lead to friction between this House and the other place—and perhaps even call in question the conventions that we all know. The royal commission dealt with each of those objections at considerable length and rejected them both, and so would I. Of course, a wholly elected House would challenge the primacy of the other place. That almost goes without saying. That of course is what is proposed, but it is not what the royal commission proposed and not what I favour.

Since in a debate of this kind, one should always come down and say what one does actually want, perhaps I can say what I would like to see and to have considered by the hardworking committee that will consider all these matters. I would like to see a House of 400 Members—rather more than the 300 proposed in the Bill. There is more than enough work for 400 Members to do. Of those 400, 320 would be appointed by the new Appointments Commission, of whom 100 would be Cross-Benchers. The remaining 80 would be elected by proportional representation to represent the 12 regions, as recommended by the Wakeham commission. I am easy as to the form of proportional representation, as long as independent Members are not discouraged from standing. They would serve for two terms, renewable; they would not be eligible for election thereafter to the House of Commons, so the House would not become a stepping stone for ambitious politicians. All Members, whether appointed or elected, would be paid the same salary, which would be taxable.

I accept that of course what I am in favour of is a compromise between what is proposed in the Bill, which I do not like, and the wholly appointed House favoured by very many. But a compromise may yet become necessary if we are to reach a consensus with the views held in the other place, whatever they may turn out to be. I would not expect such a compromise to be popular in either place, but then compromises are never popular until they become inevitable, and often not then.

[Lord Gilbert]

Perhaps the noble and learned Lord could enlighten us as to how a Prime Minister should proceed when he finds that there is no material in the other place adequate to form a Government, which has been the effect on every Prime Minister for the last 50 years, and probably many before that.

[Lord Lloyd of Berwick]

I am not altogether clear as to the relevance of that point to what I was saying. I am not suggesting any alteration in the other place; I simply referred to what I would hope might be regarded as incremental reform of this place, to use the expression of the noble Baroness yesterday.

[Lord Gilbert]

If I might help the noble and learned Lord, I heard him say that he was against any appointments to this place by a Prime Minister. If a Prime Minister cannot have total freedom to choose his Government, what is he going to do under the noble and learned Lord’s recommendations?

[Lord Lloyd of Berwick]

Of course the Prime Minister can choose the Government. There is an argument, which we have already had, as to whether he should be entitled to choose Ministers to sit here, but what I am against is the Prime Minister choosing, as he does, the vast majority of the Members currently present.

--- Later in debate ---

[Lord Gilbert]

My Lords, I propose to address most of my remarks today to those Members of your Lordships' House who were previously Members of another place or have, in the course of their careers, suffered election to obtain their advancement. It is my view that the final decision on these matters will actually be taken down the other end of the corridor; in this respect, I am much more sanguine than my noble friend Lord Brooke, as I sense already a distinct change of tide at the other end of this corridor, which relates to the sorts of people who might arrive in your Lordships' House, were membership here to be by election. They are suddenly beginning to realise that at the other end.

Before I dilate on that, I would just like to say how much I enjoyed three speeches in particular that I was able to hear in the course of the last two days. First of all there was the speech of the noble Lord, Lord Low, who produced one of the most elegant speeches that I have heard since I came to your Lordships' House, about 14 years ago. Secondly, there was the ferocity of my noble friend Lady Boothroyd. I had the pleasure of having a constituency that abutted directly on hers for nearly 27 years. Thirdly, there was the speech of the noble Marquis. I think he is the only one we have who ever speaks, but I thought that he produced a most professional contribution.

Now that your Lordships have heard that, it will therefore come as no surprise to hear that I am a fervent supporter of the Bill proposed by the noble Lord, Lord Steel of Aikwood. I hope that he persists in his efforts. I hope very much, too, that my noble friend Lady Boothroyd will test the opinion of the House at the end of this evening’s proceedings. She can be sure that I will be in the Lobby beside her if she chooses so to do.

I challenge one of the idées reçues of this debate, which is that if we have elected Members, the power of the Whips will be considerably enhanced. I simply do not believe that. Whips derive their power from two things: the ability to bribe and the ability to threaten. Once you have your seat here for 15 years, I cannot see that any Whip can say to anyone, “Thou shalt have that”, or, “Thou shalt not have something else”. As far as I can see, the Whips will be absolutely powerless over Members, once they are here.

I derive a couple of conclusions from that. First, two types of people will arrive here. There will be those who come for the money and the title. It will vary from family to family who is keener on which, the husband or the wife, the money or the title. I make no judgment. Also there will be some ambitious people arriving here who would like to be Ministers. All these ridiculous restrictions, such as that you are here for 15 years and you cannot stand again down the other end for five years, and the idea that all the present arrangements between the two Houses will persist—it is all absolute nonsense. If anybody actually believes that, I have a bridge I can sell them somewhere. I will take bets on it. You do not have to worry about that—it is going to disappear. It is absolute nonsense. Anybody coming here for the first time, once he is here, if he is not the cash and title type of creep, will be the sort of oik that wants a job, and he is going to fight for it. He will be in a position to make it very uncomfortable for the Government of the day. He will have 15 years to go on making it uncomfortable. I know what I would do. The first thing that I would say is, “Hey, what about the Parliament Act—we’ve had enough of that, thank you very much”, or, “Hey, what about supply—can we have that, please?”. “Finally”, he will say, “we are going to have our share of Cabinet Ministers”. There would be no stumbling block to put in the way of any Parliament not to concede those things to Members of this House who were determined to have them.

As was said in the debate earlier, this House has huge powers. The trouble is that it has not used them; it has funked the fight. But the powers of this House to obstruct are absolutely enormous, and there will be enough people who will use them once they are elected here.

I said a moment ago—I do not think that this has been said in your Lordships' House in this debate—that there was a change of attitude appearing at the other end of the corridor, and the reason is that they are discovering something. They are just beginning to realise who will be getting into this place: it will be the people who Members of the House of Commons beat to get their own seats there, and they hate each other—you had better believe it. Whether they are men or women, and however long they have been there, the people who will be after the seats here will be the so-and-sos who tried to stab them in the back and prevent them getting selected in the first place. No love will be lost at all. So I am afraid that I disagree again with the noble Lord, Lord Brooke, on the likely attitude of Members down the other end of the corridor. Through all of this, that factor is changing very fast indeed.

There was this other nonsense about constituency work. Really, does anybody think that the public will not come to elected Members of this House saying, “The other fellow is no goddamned use. You sort the problem out for me; he has failed”? Anybody who has been down the other end knows that that is what will happen. Of course it is. You cannot stop it, and that will be another source of friction.

I am so glad to see the noble Lord come in. I have his name down here: the noble Lord, Lord Phillips of Sudbury. That was not meant to be sarcastic. I apologise to him, as he made my afternoon, and I congratulate him on what he had to say. Moreover, there were only two other Members from his party on the Benches around him when he got up to speak, but he managed to increase that number to four. That is a major achievement. One thing that I have noticed about today's debate is that although this is a coalition Bill, I have not heard many Conservative speakers get up to say how much they want it. Even more surprisingly, I have not heard any Liberal Democrat speakers get up to say that they want it. There is one following me, and I know that he will have a go. That is why I regard myself as a little unfortunate today, because I normally prefer to speak rather later than this in your Lordships’ debates. We will see that that does not happen again. I am damned if I am going to have a Liberal Democrat replying to me in any future debate in your Lordships’ House, particularly one with the abilities—I will not specify how I value them—of the noble Lord, Lord Tyler.

I have said all that I want to say. I seriously hope that my noble friend will press her Motion to a vote today. I support it very much, just as I support the Bill from the noble Lord, Lord Steel.

Parliamentary Voting System and Constituencies Bill

Lord Gilbert Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord Gilbert]

The noble Lord, Lord McNally, is probably too young to remember the referendum of 1975, which was shamelessly rigged by the Government of the day—a Government of whom I was a member. The no voters were allowed to have a leaflet published and distributed at public expense, as were the yes voters. But the Government then brought out a third leaflet, which said yes; it was rather bigger, as I recall, than either of the other two leaflets. The referendum was therefore totally rigged. The rigging was done not by rich millionaires, as the noble Lord, Lord Lamont, seems to fear, but by the Government of the day. Can we have an assurance that there will be no repetition of that behaviour?

[Lord McNally]

I am sad to say that not only am I old enough to remember that referendum but I was adviser to the Foreign Secretary of the day. My memory of that referendum, which gives me real confidence about this one, is that the Labour Government had an agreement to differ, which allowed the various parts of the Labour Party to campaign vigorously on either side of the debate yet come together again after the decision of the people. That is why I have every confidence that the same will happen again next May. I have no doubt that individuals in the coalition will take different views. I think that my noble friend Lord Strathclyde has said that he hopes to campaign up in Scotland with the noble Lord, Lord Foulkes, which is a frightening thought for anybody.