Public Service Pensions and Judicial Offices Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Hendy. I am sorry that he is not noble and learned; he is very learned, except in this House, and it is a great pity that he has never adorned the Bench himself. He must have appeared before generations of lawyers and in supporting the Bill, as I do, particularly the extension of the mandatory retirement age, I can hope only that his experiences of the more elderly generations have not been too disobliging for him.

I spent a total of 28 years on the Bench, although I held none of the great legal offices of state. Finding here the noble and learned Lord, Lord Mackay of Clashfern, an erstwhile Lord Chancellor, my noble and learned friend Lord Woolf, erstwhile Lord Chief Justice and Master of the Rolls, the noble and learned Lord, Lord Etherton, another Master of the Rolls, and the noble and learned Lord, Lord Hope, Lord President in Scotland and a Deputy President of the Supreme Court, I wonder why I am speaking. But here I am and I support the Bill, both its provisions as to judicial pensions, which I truly believe were necessary to cure the resentments and deep unhappiness felt in the judiciary over some years, but also on the mandatory judicial retirement age—what the erstwhile senior Law Lord, Lord Bridge of Harwich, called the age of “statutory senility”.

There is nothing that I really want to say about pensions. I am not expert in that field, and certainly not in a position to advise on any of the technical amendments suggested to be necessary by the Minister. As to the mandatory retirement age, I seriously think, together with my noble and learned friend Lord Woolf, that this will assist in the process of judicial recruitment, which has been a real problem over recent years. The fact is that in 1993, when the noble and learned Lord, Lord Mackay, introduced the change at one and the same time, if I remember right, he increased from 15 years to 20 years the time to be served as a judge necessary to earn one’s full pension. Overnight, it became necessary to be appointed by the age of 50 if you were to earn a full judicial pension, whereas I, like the noble and learned Lord, Lord Woolf, and most others here, was appointed long before 1993 and it was not retrospectively effective. I had the privilege and great pleasure, in fact, of serving until I was 75. I had done 28 years. I am not asking for nearly twice the judicial pension that I then did get but, in fact, I could have retired after 15 years and got it.

I know that there are arguments both ways on this and on judicial diversity and matters of that character. It seems to me that appointment eventually to the Bench becomes an altogether more attractive prospect if, when you are in your late 40s or perhaps early 50s, and if you are in a good way of practice and probably making quite a lot of money but know that you can continue that beyond 50 and still do your stint on the Bench—which I believe for most people is a contribution due to the public weal by practitioners who have been advantaged by the process—after the Bill proceeds, as I trust it will, then you would get a full pension by doing so, quite likely rather later than you would otherwise have had to make your decision.

Nowadays, of course, there is an ever longer expectation of life. There is a longer expectation, too, of good health in one’s later years; there is also, I believe, a parallel inclination on the part of many older people who would like to continue working rather than have imposed upon them ever longer periods of retirement and idleness. Surely it is an attraction to be allowed to continue in judicial office as of right for the additional proposed five years. Those words “as of right”, as the noble and learned Lord, Lord Mackay, suggested, are of great importance here. Once appointed to the office, now until 75, I hope, by an independent Judicial Appointments Commission that secures the position, you are not thereafter—after 70—at the whim of those who have power periodically to extend day by day, or whatever it may be, your judicial life.

The Judicial Appointments Commission, chaired as it has been for the last five years by the distinguished Cross-Bencher, the noble Lord, Lord Kakkar, has fierce independence and an unswerving adherence to the principle of merit above all else. We have a splendid body of independent judges. We currently retire them when most, or perhaps nearly all, of them are at the very height of their powers at 70. Many would want to serve longer and I believe we should let them.

Public Service Pensions and Judicial Offices Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Monday 29th November 2021 Lords Chamber

[Viscount Hailsham (Con)]

I declare an interest: I sit as a legal assessor for regulatory bodies, and I am very nearly 77—and therefore significantly older than the age of 72 proposed by the noble Lord, Lord Ponsonby. There are many other legal assessors of my sort of age sitting on regulatory authorities. I know full well that we are talking about judges, not legal assessors, but the principle is very much the same. If you were to say to legal assessors, “You cannot serve beyond 72”, you would lose an awful lot of quality which is now available to those regulatory authorities. I believe that the same is also true of the courts. I think judges should be able to sit until 75.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I join those who have indicated that they fully support Part 3 of the Bill and would raise the retiring age for judges—or rather return it to where it was 27 or 28 years ago—to 75, which it was for nine years of my own time on the Bench. I should declare that I too am well beyond the age when such as the noble Lord, Lord Ponsonby, might be having a discreet word with me.

I point out that this provision is fully supported by—as I understand it from Second Reading—the noble and learned Lord, Lord Mackay of Clashfern, who originally lowered the age to 70. He recognises that, all these years on, frankly, 75 year-olds now are a good deal younger than the 70 year-olds of those days past.

I suggest that the most important consideration is really that of judicial recruitment, which is still proving extremely difficult. The imperative surely is to get the most able people on to the Bench, whether they be men or women, whether they be gay, trans or straight, and whether they be young or old. The fact is that most cases are decided by a single judge. It is no good having the most wonderful judge trying the case in the next court if your judge is perhaps rather an indifferent one. So it is too with courts of three, five, seven or whatever.

Of course diversity is a highly desirable objective; obviously, public confidence in the justice system overall is enhanced if more people see themselves represented among the judiciary. In a three-judge, five-judge or seven-judge court, the wider the diversity of judges—including, of course, more women—the likelier the court is to bring to bear a wider experience and judgment on the questions. But I suggest that the argument in favour of 72 rather than 75 being supportive of diversity is, frankly, somewhat speculative; certainly, it is not sufficiently clear, I suggest, to justify sacrificing the goal of individual excellence on the altar of supposed greater diversity. Getting the best candidates to apply and appointing them on merit has to be the cardinal rule.

As to that, raising the MRA to 75 is, to my mind, assuredly going to assist in the recruitment of the ablest candidates, and I suggest that is so equally of women candidates as of male ones. First, it becomes more attractive because it is viable to take the job rather later in one’s career than at present. It gives candidates, male and female, longer to pursue whatever their initial career has been—it may have been in academe or in a range of areas on the borders of the law. It certainly gives practitioners a longer working life in which they can earn more than we all recognise they are going to be earning on the Bench.

Secondly, it gives candidates the option—it is not compulsory; they do not have to serve until 75—of being employed, useful and busy, as most of us would wish to be, for longer and later in their lives. Most of us do not actually want to be forced into compulsory retirement at 70—or, for that matter, at 72.

Thirdly, not only does a retirement age of 75 provide a yet better incentive than 72 for encouraging the best applicants to apply but it serves the public good. It retains supposedly skilled and experienced judges for that much longer. Despite what the noble Lord, Lord Ponsonby, suggests, it is surely not to be supposed that judges suffer a significant and noticeable failing in their abilities between the ages of 72 and 75 sufficient to draw the line at 72. It must therefore be in all our interests to keep these judges working, if they wish to, for that much longer.

Finally, I add as a footnote that it will save the taxpayer the need to pay these reluctantly retired judges a judicial pension for those three years for doing nothing.