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Lord Donaldson of Lymington moved Amendment No. 149:


"Judicial Pensions and Retirement Act 1993 (c. 8)

In section 26 (7) (retirement date for holders of certain judicial offices etc.)—
(a) at the end of paragraph (a), insert the words "or a person who has been a Lord of Appeal in Ordinary or a judge of the Court of Appeal";
(b) at the end of paragraph (b), insert the words "or a person who has been a Lord of Appeal in Ordinary or a judge of the Court of Appeal"; and
(c) at the end of paragraph (c), insert the words "unless he is a person who has been a judge of the Court of Appeal"."

The noble and learned Lord said: There have been many times when I wondered whether this day would ever come. The provision was the last amendment. It has been overtaken by some later amendments. But the day has now come and I am very happy to move the amendment.

Let me clarify that where the amendment states,


    "In section 26(7) (retirement date for holders of certain judicial offices etc.)",

we are not concerned with retirement dates but with "etc". Section 26(7) of the Judicial Pensions and Retirement Act 1993 states:


    "After the day on which a person attains the age of 75, he shall not hold any relevant office nor shall he—

(a) be a member of the Judicial Committee of the Privy Council. . .

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(b) participate in the hearing and determination of any appeal, or any petition for leave to appeal, to the House of Lords, unless he is the Lord Chancellor;

(c) act as a judge under or by virtue of section 9(1) of the Supreme Court Act 1981".

My amendment does not affect the question of whether anyone shall continue to hold a relevant office after the age of 75 because it refers throughout to former holders of office.

So when one strips it down, one comes to this position: if the amendment is agreed, we shall restore the position to that which existed when I ceased to be Master of the Rolls in 1992 whereby, when pressed for judicial manpower, it is open to the Master of the Rolls to invite those who have retired, usually recently retired or who have been appearing recently as members of the court, to assist on a daily basis.

The great saving grace of that system was that particular retired lords justices could not arrive suddenly and say, "Now I should like to sit" if the Master of the Rolls had grave doubts about whether age had overtaken their usual faculties. So there was no problem about that. In my experience I thought it right—no one has ever suggested that I was wrong in this respect at least—to invite Sir John Megaw and Sir David Cairns to sit from time to time, often at very short notice (a matter of hours) in the Court of Appeal. I gave up inviting them when they each reached the age of 84, not because they were not as bright as buttons (if I may use the expression) but because they themselves felt that perhaps the age of 84 might create some criticism if anyone ever discovered it. No one ever did discover it because it was certainly not apparent from the way in which they framed judgments and so on. That is what I suggest, but it is a matter not for me but for the Master of the Rolls, the noble and learned Lord, Lord Phillips. When I spoke to him on this matter, he said that he was in favour, as he is very pressed indeed.

I hope that the amendment commends itself to the Minister. I should make it clear that, prima facie, I have a considerable interest in this matter because it would enable me to sit as a member of the judicial member of the Privy Council and as a Member of this House judicially, which I have never done. I could also go back to the Court of Appeal. However, let me make it clear that wild horses—including the Master of the Rolls—will not drag me back. When one has not done that kind of thing for 10 years, the strain of doing it again would be overwhelming. The amendment intends to enable those who have recently retired to be brought in and to help out. If they have kept their skill up, those of a considerably greater age might be invited to come back. But that is a matter for the Master of the Rolls, not for me.

Having declared my interest and negatived that interest, I beg to move.

7.30 p.m.

Lord Borrie: I commend the noble and learned Lord for introducing the amendment. It is not surprising that a number of people in this House are not keen on compulsory retirement ages. I commend the noble and

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learned Lord for striking a blow at compulsory retirement ages. For example, the age of 60 for civil servants is absurdly young.

On the other hand, of course—and I am sure that the noble and learned Lord will agree with me, although I have not discussed it with him—there is a particular justification for a compulsory retirement age for High Court judges.

Lord Donaldson of Lymington: I did, I hope, make it clear that I was not striking blows in relation to retirement ages. I referred only to post-retirement.

Lord Borrie: I am not sure that I have fully understood the difference. If the noble and learned Lord intervenes in the course of my remarks, I shall happily give way to him.

I believe that he will agree with me that there is a particular justification for the existence of a compulsory retirement age for High Court judges, which has existed since 1959. They enjoy a substantial security of tenure, which is justified in its turn by the constitutional imperative to ensure the independence of the judiciary. High Court judges, as all your Lordships know, may be dismissed only by a vote of both Houses.

The difficulty before a compulsory retirement age was introduced was that, inevitably, some judges who did not appreciate their declining abilities stayed in their posts for too long. Professor Robert Stevens was, until recently, the Master of Pembroke College, Oxford. After delving into the records of the Lord Chancellor's Department, he wrote of the very great difficulties that successive Lord Chancellors and their Permanent Secretaries have had when struggling to ease out judges who were past their prime.

The late Lord Denning referred in his memoirs to a High Court judge in the 1950s who was strongly criticised by the Court of Appeal for his unusually extensive questioning of counsel. The then Lord Chancellor arranged for the judge to continue to sit for a little while and then to resign, which he did a few months later.

The extension of the service of a judge for a certain period, after the compulsory retirement age of 70, depends no doubt on careful consideration by the Lord Chancellor's Department in consultation with senior judges. If a judge is asked to continue to sit as a judge until he is, let us say, 75, his sitting does not depend on the decision of the judge himself; it is of course a request that is periodically renewed by the Lord Chancellor's Department.

However—I mention this because it was the view of the Peel Commission, in 1936—there is at least a theoretical risk that the power to extend a judge's judicial life may be used as a means of control over judges. He will get the opportunity, he may think, to continue to be asked to sit only if he acts in a way that he thinks the authorities would approve of. In 1936, the Peel Commission—on which some distinguished judges sat; it was chaired by a former member of the

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Cabinet, who I think was the first Earl Peel—thought that any such power to give a conditional extension to a judge's judicial life was undesirable.

Unfortunately, the noble Lord, Lord Lester of Herne Hill, is not in his place. I have not discussed it with him, but he might say that the European Convention on Human Rights is not being complied with if judges can continue to sit on the say-so of the Lord Chancellor's Department or of particular heads of particular courts. That service can, of course, be discontinued. I have great sympathy with the flexibility of Amendment No. 149, but I wonder how it would fit with the European Convention on Human Rights.

Although the noble and learned Lord himself referred principally to the example of the Master of the Rolls—a position which he held, as we all know—asking judges to continue to sit from time to time, his amendment is much wider than that and refers to other courts including, as he himself mentioned, the Judicial Committee of the Privy Council. I myself see no reason why a judge beyond the age of 75—into his eighties, if you like—may not be perfectly fit. But I am not sure that I like the idea of judges being allowed to sit only on the say-so of senior judges or the Lord Chancellor's Department. I am not sure that I see that as fitting in with the principle of an independent judiciary.

Lord Donaldson of Lymington: Perhaps the noble Lord will accept it from me, first, as I said, that this amendment has nothing whatever to do with retirement; and, secondly, that the retirement age is not 70 for a large number of judges. Anyone appointed after 1993, I suppose—I forget the exact date—is subject to 70. Up to that date, the age is 75. As for the noble Lord's idea that any sort of pressure would be exerted on a retired Lord Justice because of the possibility that the Master of the Rolls might not wish to ask him back to the Court of Appeal, all I can say is that he can never have met them.

Lord Borrie: Of course the noble and learned Lord is absolutely right. However, it is a matter of perception. I can assure him that the Peel Commission, in the 1930s, was worried about that risk. He may also think that the European Convention on Human Rights is somewhat concerning in this respect.


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