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Supreme Court: Retirement Age

Volume 709: debated on Wednesday 25 March 2009

Question

Asked By

To ask Her Majesty’s Government whether they will consider raising the retirement age for Supreme Court justices to 75.

My Lords, the Government have no immediate plans to raise the retirement age of Supreme Court justices but are keeping this issue under review.

My Lords, I thank the Minister for that slightly encouraging response. When he looks at this matter again, will he agree that special consideration should apply to judges of the Supreme Court, in that they are the cream of the judiciary and inevitably take time to rise to the top, normally after serving for several years in the High Court and then in the Court of Appeal? Is it not therefore a terrible waste of our most valuable judicial resources to dispose of them after a short stay in the Supreme Court?

My Lords, as the House would expect, the noble Lord puts a powerful argument. However, there are arguments on the other side. We have to try to strike a balance between retaining experience and ensuring the flow of high quality applicants to the highest judicial office. When we consider this—we consider it all the time—it will be only in relation to Supreme Court justices.

My Lords, is the Minister aware that a large number of High Court judges are not appointed until the age of 55? Consequently, if they have to retire at 70, they will serve only 15 years on the Bench and it becomes difficult to get through to the Supreme Court in time to do more than 18 months or two years. Is he also aware that the noble and learned Lord, Lord Carswell, the former Lord Chief Justice of Northern Ireland, was 70 when appointed—he is about to retire—but that the noble and learned Lord, Lord Scott, was 67? The noble and learned Lord, Lord Bingham, was also 67, I think; if we had lost him as the senior Law Lord, we would have lost a huge amount of jurisprudence.

My Lords, I am grateful to the noble and learned Baroness for that information, some of which I knew already. She puts forward powerful arguments, which will have to be balanced with other considerations that, I dare say, will be put in the next few minutes.

My Lords, I had responsibility for introducing to Parliament the Act on which this difficulty arises. Of course, there have been many changes to the judicial system since then—many more than I had ever envisaged. This difficulty has shown up particularly in relation to the Supreme Court. The age limit of 70 came in when the Pensions Act became law and, therefore, it applies only to judges who were appointed after that time. In this situation, the quicker one arrives at the Supreme Court, the more likely one is to be cut down by this provision. That is a serious loss of talent. It is difficult to generalise, but those who reach the Supreme Court the quickest will, on the whole, be among the best of the talent available. I hope that this review will happen quickly and will have the outcome for which the noble Lord, Lord Pannick, has asked.

My Lords, I am grateful to the noble and learned Lord. We have to balance the arguments for and against. I acknowledge him as the author not of our difficulties but of what we consider to be the sensible rule that judges should retire at 70.

My Lords, the retirement age for senior judges was introduced for the first time in 1959, when it was established at 75. Later, in the early 1990s, under I believe the Lord Chancellorship of the noble and learned Lord, Lord Mackay, it was reduced to 70. Is it not rather odd that the retirement age is being reduced at a time when the physical and mental abilities of people in their 70s have never been higher?

My Lords, I shall have to answer my noble friend with some care if I want to get out of this Chamber alive. Of course, it is right to acknowledge those in their 70s, but it is also right to acknowledge that we want to allow those who are coming through the system to get to the top jobs at a younger age.

My Lords, I declare an interest—no one else has done so—in that I am 72. Of course, this is a totally unbiased House of elders whose average age is about the age that we are talking about. In considering the 1992 scheme of the noble and learned Lord, Lord Mackay, will the Minister and his colleagues bear in mind the fact that the supreme courts of Australia, South Africa and New Zealand in the Commonwealth, the supreme court of Ireland outside the Commonwealth and the European Court of Human Rights all have retirement ages of 70, the only exception being Canada, as a result of the imperial Constitution Act 1867? Will he also bear in mind the fact that the scheme established by the noble and learned Lord, Lord Mackay, very sensibly provides for a supplementary panel so that one can go beyond 70 and sit until 75? Will he consider whether that is proportionate and fair if one wants to enliven and enrich the Bench and have diversity, rather than simply being ruled by rather old people?

My Lords, interestingly, the average age of this House is below 70, but only just, I think. We will consider the points that the noble Lord makes. As I said, there are points to be made on all sides of this argument. It is a serious matter, and we want to consider it seriously.