Public Service Pensions and Judicial Offices Bill [HL]

Viscount Hailsham Excerpts

Report stage
Monday 29th November 2021 Lords Chamber

[Lord Woolf (CB)]

My Lords, it is a pleasure to follow my noble and learned friend Lord Etherton, in this debate, but it was of great concern to hear what the noble Lord, Lord Ponsonby, said in his remarks. I am hugely impressed by the other names that have been supporting the suggestion that the age should be raised to 72 rather than 75, as the Government have proposed.

I have the advantage that the noble Lord, Lord Ponsonby, perhaps has not—not yet, at any rate—of being considerably older than 75. I address the House on the basis of what I have learned during the period that I have been a judge and a former judge. I am absolutely committed, as, I am sure, are colleagues, to the need to have a judiciary that is as diverse as possible, to persuade the public that they can continue to have the faith in the judiciary that they have had up to now, and if all the evidence is looked at, I am convinced that the fears so eloquently described by my noble and learned friend Lord Etherton and the noble Lord, Lord Ponsonby, are unrealistic. They leave out of account another very important issue which, I suggest, is realistic.

Unfortunately, the evidence is that the change made 27 years ago to reduce the age from 75 to 70 produced a situation that was very dangerous to the judiciary’s standing. The most senior posts—the posts that should be most active and attractive to applicants—were not being taken up. There was a risk that we did not have the quality of applicant for those posts, which I am sure both previous speakers would agree is critical. Above all, the very best people available should be appointed to the most senior judicial posts of this country.

We have, fortunately, international standing as a judiciary because of its quality. I venture to suggest that advancement applies not only to the more junior judiciary but, above all, to the most senior judges in this country, who, when they retire, are offered all sorts of opportunities to serve in a judicial capacity elsewhere, where they recognise the quality of our judiciary.

The most telling evidence on this important and difficult question is the fact that now, for 27 years, we have had the reduction in the retirement age of the judiciary not to 72 but to 70. Attention must be paid to all the views expressed by colleagues with whom I served and whom I hold in regard. Surely the diversity in our judiciary that they and I desire would have been fulfilled in those 27 years. The fact is that the lamentable situation today is that we still do not have sufficient numbers in the two grades of the judiciary which have been referred to in argument.

My conclusion is that there is a real difficulty in getting the very best judges by changing the age to 72. There is a danger which is supported by evidence. There is no evidence to suggest that anyone else would apply if the age up to which they could retire was 72. Unfortunately, the people we wish to apply who currently support our position in respect of diversity do not see it as their chosen career at that stage.

I say to the House that the Government are right. The evidence from their consultation supports what I say, and that is what we should do—not adopt a compromise that serves no particular purpose.

[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.