I beg to move, That the Bill be now read a Second time.
This important Bill has passed its stages in another place and now comes to this House for our consideration. It makes new arrangements for judicial pensions and amends the law relating to the date on which certain judicial office holders are required to retire.
It may help to inform our discussion if I say a little about the Bill's history and describe some of its main provisions. Let me start with pensions. As my noble and learned Friend the Lord Chancellor said in another place, the occasion for the Bill was the change in the tax position of pension schemes brought about by the Finance Acts of 1987 and 1989.
The Finance Act 1987 established 20 years as the minimum accrual period for a tax-approved pension scheme to provide maximum pension benefits. The Finance Act 1989 requires the salary on which benefits from tax-approved schemes are calculated to be capped at a specific level. That level increases annually in line with price inflation. The level for this tax year is £75,000. All private sector schemes were automatically capped by the 1989 Finance Act for new entrants from the time that Act came into force—for most people that was on or after 1 June 1989. The same result was achieved for members of public sector pension schemes by amending regulations.
By July 1989, the only group of pension scheme members who were excluded from the cap was the judiciary. The judicial pension schemes can be changed only by legislation, because the judicial schemes are statutory in recognition of the need to safeguard judicial independence. We are making the necessary legislative changes in the Bill.
The Bill, however, does much more than simply bring the judicial schemes more into line with the standards that now apply to all other pension schemes in the public and private sectors if they are to benefit from the privileges of a tax-approved scheme. The Government have taken the opportunity provided by the Bill to make some much-needed changes to the current judicial pension arrangements. Those changes were trailed in consultation papers published by my noble and learned Friend, the Lord Chancellor, and my right hon. Friend, the Secretary of State for Scotland, in December 1990. The Government announced in July 1991 how they intended to proceed; this Bill, introduced in another place on 4 June this year, is the result.
I said that changes were needed for the simple reason that the existing judicial schemes are rife with anomalies and inflexibilities. They are extremely complicated and carry a good number of difficulties for those who have to try to make out their rights under them. That is hardly surprising, given that each class of the judiciary has its own scheme. The result is some half a dozen different judicial pension schemes, all with different accrual rates.
For instance, in England and Wales, High Court judges, circuit judges and chairmen of industrial tribunals have 15-year accrual periods; stipendiary magistrates, district judges and members of the Lands Tribunal, on the other hand, have a 20-year accrual period; and for the immigration adjudicators, the accrual period is 40 years. Those disparities are perhaps even more marked when one looks north of the border and across the Irish sea.
Is it in the slightest bit surprising that there are different accrual periods when High Court judges are normally appointed in their 50s and immigration appeals adjudicators are normally young boys who have undertaken a qualification period of three years' practice at the Bar? It does not follow as a matter of reason or consistency.
We are making progress in the name of reason and consistency and I shall have more to say later about the age of appointment of High Court judges. Although my hon. Friend has already shown, not only by his text but by his tone, that he has a dispute with the measures currently on offer, I may be able to engage his sympathy in an alternative suggestion.
The book is not open.
There must be something to be said for having much greater homogeneity in the various classes of judges' pension arrangements, not least to assist the most able in gaining promotion. My hon. Friend the Member for Monmouth (Mr. Evans), perhaps with a measure of exaggeration, suggested that some adjudicators started as mere boys. Be that the case or not, I should like to see, and my hon. Friend might too, a more homogeneous overall pension structure that enabled people to be promoted and take greater responsibility without facing hideous actuarial decisions in middle life when they should be going forward without pressure or obstacle and taking greater responsibility.
I was seeking to describe the further range of differences that apply if one looks north of the border or across the Irish sea. For example, Scottish sheriffs have a 20-year accrual span compared with the 15-year span enjoyed by their English and Welsh counterparts, the circuit judges. District judges and supreme court masters in Northern Ireland have a 30-year span compared with the 20-year span of their English counterparts.
Those differences are the result of history and cannot be justified today. Apart from the glaring anomalies that exist between the different judicial offices, the different schemes can make it disadvantageous for a judge to move, on promotion, to a different office. I do not think that this is the right time to go into the technicalities of the aggregation rules, but their general effect is that a judge who wishes to take the pension of the second office loses the benefit of his years of service in his first office. A judge who wishes to aggregate his service in both offices may do so, but only on retirement and only on the basis of the salary and the pension scheme of the lower office. This is not only unfair, it can act as a disincentive—not merely an obstacle—to promotion.
There are other anomalies. For instance, certain judicial officers in schemes with a 20-year accrual span have to serve for two years before qualifying for a pension on the ground of ill-health. No minimum period of service is, however, required of office-holders in 15-year schemes.
It seemed to the Government that the obvious way to cure the existing anomalies and inconsistencies was to create a unified pension scheme in which service throughout a judge's career would count towards his or her final pension. The new scheme should cater equally for all members of the judiciary. So far as the public are concerned, a judge is a judge, regardless of the level of judiciary to which he or she belongs. The Bill meets those objectives and it does so on the basis that in general the new arrangements do not prejudice the pension position of those already holding judicial office.
By virtue of clause 1, the new scheme will apply to new entrants to the judiciary, to those in the existing schemes who elect to go into the new scheme and to those serving under the present arrangements who are promoted to an office with a different pension scheme after the new arrangements come into force. Clause 3 provides for a single accrual span of 20 years for all the judicial officers holding on a salaried basis an office listed in schedule 1. As I have already explained, the reason for the 20 years is that it is now the minimum period allowed for a tax-approved pension scheme.
Much time was spent in another place debating whether that period was appropriate for members of the higher judiciary. It was argued that those judges tended to take up appointment relatively late in life and that, with the reduction in the retirement age to 70, many of them would not be able to qualify for a full pension. It was said that that was contrary to the public interest because it would discourage those best qualified to accept judicial office. Furthermore—this was said with a particular reference to the circuit judges who currently have a 15-year scheme and can retire with a full pension at 65 provided that they have served for 15 years—it would encourage some judges to stay on the Bench for longer than perhaps they would otherwise wish, simply to accrue their maximum pension entitlement before their 70th birthday. That too was said not to be in the public interest.
The Government's answer, given many times in another place by my noble and learned Friend the Lord Chancellor, is this: the quality of our judiciary is, and must always be, paramount. The pension arrangements for all members of the judiciary must be as generous as the public purse will allow. However, there can be no reason, so far as the 20-year accrual is concerned, for treating the judiciary any differently from other members of society. What the Government can do—and have done—is to recognise the special position of the judges, who come to this career relatively late in life, by ensuring that they can keep in full the benefits of any pension arrangements that they have made prior to taking up judicial office. In other words, they can keep those, and are entitled also to whatever pension benefits they have accrued under the statutory judicial scheme.
The judiciary are in a unique position here. Revenue rules would normally require those in pension schemes with an accrual period as short as 20 years, to bring into account for pension purposes any retained benefits—that is, previous pension arrangements—in assessing at the end of the day whether their pension was within the Revenue's overall limit of two thirds of final remuneration. The judges do not have to do that—a significant benefit to those judges who have taken advantage of the tax rules to build up personal pension provision during practice. It is the position under the present pension arrangements. It is retained by clause 18.
It was argued in another place that that was all very well, but that that special concession was of no help to those judges who had no retained benefits. The Government's answer to that is this: the Revenue recently agreed that, provided retained benefits are brought into account, the judiciary may, if they wish, buy added years or make additional voluntary contributions to increase the value of their judicial pensions. As the scheme will be recognised as a tax-approved scheme, judges will qualify, in the same way as anyone else, for tax relief on their contributions. Clause 10 provides the means for establishing the voluntary contribution schemes for the new arrangements. Schedule 3 amends the existing legislation so that voluntary contribution schemes may now be established for those covered by the present arrangements.
Let me tell the House briefly what will be the pension position of those covered by the Bill. The full pension after 20 years' service will be half the salary paid to the judge in whatever period of 12 months during the previous three years gives him the best result. For service of less than 20 years, the pension will be one fortieth of the salary paid to the judge—in whatever period of 12 months during the previous three years gives him the best result—multiplied by the whole length of the judge's service, calculated in years and days. In addition, judges will be entitled to a lump sum of two and a quarter times the annual rate of their pension. At present, the lump sum is twice the rate of the pension. There will be provision for a death gratuity of twice pensionable pay. That was raised from one and a half times pensionable pay by a Government amendment in another place. As now, there will be provision for spouse's and children's pensions.
Any judge who has served for five years will be entitled to an immediate pension at the age of 65. Judges between the ages of 60 and 65, who have served for five years, will be able to take early retirement with an immediate pension that is actuarially reduced. Those limits do not apply to ill-health retirement, the payment of a death gratuity, or the payment of spouses' and children's pensions. As a result of amendments by the Government in another place, the Bill now provides for enhancement of service in respect of ill-health pensions and for an increase in the lump sum payable following early death after retirement. Again as a result of Government amendment in another place, the scope of those eligible to receive a children's pension was considerably extended.
The Government believe that the new pension arrangements set out in the Bill are fair and reasonable to not only the judiciary but the public purse from which the pensions are paid. On 10 November, my noble and learned Friend the Lord Chancellor placed in the Libraries of both Houses, tables prepared by the Government Actuary comparing a range of pension benefits for stipendiary magistrates and district, circuit and High Court judges under the existing and new arrangements. I commend these to hon. Members. The tables include the improvements to the derivative benefits that I mentioned a moment ago. I believe that the information provided in the tables is sufficiently comprehensive to enable those studying them to form a fair view of the pension position under the existing and new arrangements.
The retirement provisions of the Bill are covered in clauses 26 and 27, with the accompanying schedules 5, 6 and 7. As with pensions, part of the aim is to introduce consistency. At present, judges and judicial officers have a variety of retirement dates. Not only are the ages different as between different judicial offices, but in addition some provisions relate to the attainment of a particular age, while others relate to the completion of the year of service following a particular birthday.
For example, the retirement age for circuit judges in England and Wales, sheriffs in Scotland and county court judges in Northern Ireland is at present the end of the year of service in which they reach 72, whereas High Court judges in England and Wales and Northern Ireland, judges of the Court of Session in Scotland and other senior judges retire on their 75th birthday. Furthermore, for some appointments, particularly in tribunals, there is no statutory retirement age, although in general in such circumstances comparable retirement ages have been applied as a matter of administrative arrangement.
In the light of consultations, the Government consider that a general age is desirable and that a retirement age of 70 is more appropriate to modern conditions. Clause 26 accordingly provides for a general retirement date at the age of 70. This will apply in relation to all the offices included in schedule 5.
My hon. Friend says that retirement at 70 would be more appropriate in modern conditions. Does he share my view that there is a danger in accommodating fashion? We are told that a judge is too old to sit on the Bench but when that argument is used, there is no appreciation of the fact that one is looking for intellectual skill at least as much as physical ability. Does not my hon. Friend feel that in introducing a common retirement age he has been blown off course and made to succumb to the fashion of attacking the judiciary and the establishment, by depriving judges of office on the ground of age?
I am not unsympathetic to my hon. Friend's point, which he made in his usual reasonable and lucid way. Perhaps he will allow me to reflect on it. If I do not refer to it later in these remarks, I shall return to it later.
The retirement age of 70 will apply only to those appointed after the legislation comes into force. Clause 26 and schedule 7 accordingly provide that persons holding judicial office when the new retirement provisions come into force will retain their pre-existing compulsory retirement date. Under the transitional provisions in the Bill, that arrangement will also apply if and when someone subsequently moves from one full-time office to another. For example, if a circuit judge is subsequently appointed to the High Court Bench, he will retain his present retirement date of the end of the year of service in which he reaches 72.
At present, there are powers to extend service in some, but not all, judicial offices beyond the retirement date otherwise applicable. The application of those powers, where they exist, has been helpful in providing flexibility to meet the needs of the courts and in ensuring that the ability and expertise of experienced office holders need not be lost prematurely if that is in the public interest. In making that last point, perhaps I laid the foundations for the answer that I shall give my hon. Friend the Member for Teignbridge (Mr. Nicholls).
Does my hon. Friend agree that the discretion thereby reserved for the Lord Chancellor to extend the retirement age of members of the judiciary where they can serve a useful purpose and there is a need for them in our judicial system meets the criticism that might be levelled if the arbitrary age limit of 70 had been imposed? Does my hon. Friend further agree that the retention of the Lord Chancellor's discretion will allay fears of premature retirement?
Yes. My hon. Friend raises a point that was made in another place by Lord Ackner and was comprehensively addressed—I thought, after reading Hansard—by my noble and learned Friend the Lord Chancellor. During the course of this evening, I shall endeavour to replicate my noble and learned Friend's reply. The questions being the same, there is no reason, in this day and age, why the answer should not be the same—and my hon. Friend shall have it.
It is considered appropriate to retain that flexibility and, with the introduction of a new retirement age of 70, to provide for the possibility of enabling service to be continued in the public interest. The Bill accordingly provides that service may be continued after the age of 70, but only if the Lord Chancellor or Secretary of State for Scotland, as the case may be, considers that desirable in the public interest, and then only for periods of no more than a year at a time up to, but not beyond, the office-holder's 75th birthday.
It is expected that that power will be used sparingly and applied only where it is clearly in the public interest to do so, taking careful account of all the relevant considerations, including in particular such things as the health of the judicial office holder in question. Because of the particular constitutional factors which are seen to arise in their case, the power of extension will not apply in respect of High Court judges and above in England and Wales and Northern Ireland or to their Scottish equivalents.
Under current provisions, judges who have retired from full-time service may be invited from time to time to serve in retirement on a part-time basis. We believe that it is no longer fair to expect them to be available indefinitely in that way, so the Bill provides for the overriding limit of 75 to apply in those circumstances also.
Clause 26 also provides that certain one-off appointments, to which the concept of retirement as such is not strictly applicable, should not be made beyond the age of 70. Clause 27 provides that a person who has retired or otherwise ceased to hold a judicial office may nevertheless complete unfinished business—for instance, by giving judgment in a case which he had been dealing with.
Any retirement age is of course a matter for judgment. Conflicting considerations must be balanced to achieve that which the person seeking to make the judgment believes to be right, both in the interests of the judges and in the public interest. On the one hand, the increasing burdens of judicial office must be acknowledged, but on the other, although the current retirement ages for the judiciary are higher than those for most other professional people, we must recognise that judges are appointed relatively late in life. They are usually drawn from those who have already established themselves in a successful career in the law and their years of experience are part of the necessary qualifications for the position. Accordingly, they bring with them maturity of judgment, which is essential for judicial office.
We think that three score years and 10 is an appropriate general age for judicial retirement, and that is, accordingly, the age for which the Bill provides.
I do not disagree with my hon. Friend on that point, but does he accept that it is appropriate for the Government to consider ways of attracting younger people to the Bench, of making appointments at a younger age and of broadening the entry so that judges are more representative of the people with whom they deal in court?
I am glad to be able to respond to that question in exactly the way that my hon. Friend would like. It must be the inescapable conclusion of those who hold the judiciary in high regard and respect that it must be sensible to start considering appointing people rather younger than is the tradition. I was surprised to find—my hon. Friend, too, may be surprised—that the average age of High Court judges is lower than 60, which is not a bad thing. He may be pleased to know that the Lord Chancellor has made it clear many times that, as the reservoir of those competent and qualified for appointment to the Bench increases—this seems inevitable from the statistics—more women and more people from ethnic backgrounds will be appointed. There will be no obstacle to them: their appointment will be encouraged.
I apologise. I am not very experienced in this job, and I find it an unusual experience to be replying to people whom I cannot see. No doubt I shall have to come to terms with that, and I shall address my remarks to you, Madam Deputy Speaker, as is proper.
My hon. Friend's thinking may be part of the future, but the thinking of the present is that it is unconventional to make appointments to the High Court Bench at any age younger than 45.
I do not disagree with a number of the important points that my hon. Friend has made, but what is most important is that nothing should deter the best candidates from accepting. appointments. Much concern was expressed by many Members of the other place, including many experienced judges, about the best being deterred from doing so, in particular by concerns about pension provisions, early retirement through ill-health and about the possibility of judges becoming stale if they are required to serve for 20 years to qualify for their full pension. Those are the greatest concerns that I and a number of hon. Friends share, to which I shall return later if I am successful in catching your eye, Madam Deputy Speaker.
I shall try to respond briefly.
I am anxious to tell my hon. Friend that there will be no derogation from the selection of the best candidates. It is not incompatible or inconsistent with that to say, on the one hand, that women candidates and candidates from ethnic minorities will be encouraged and, on the other, that selection will be confined to the best candidates. On the 20-year qualifications, I am sorry to have to invite my hon. Friend to come to terms with the Finance Act 1987 and Finance Act 1989, which created an anomaly in respect of judges. The Bill seeks to rectify that anomaly by putting the tax status of judges' pensions on the same footing as everybody else's. I do not think that he is pressing me to let judges have a tax-privileged pension scheme that is not available to anybody else. I remind him that judges are able to buy added years if they wish and retire earlier.
My hon. Friend seems to be adopting an aggressive tone. For that and other reasons I shall not oblige him. The Lord Chancellor, as he will know better than me, is in an absolutely unique position under our constitution. He is a contradiction of all the 18th-century nostrums about the separation of power. He is a Minister-judge; there is no other. The job goes back 1,360 years. It is scarcely surprising that he is treated slightly differently.
I am extremely grateful to my hon. Friend: I called him right hon., but I am sure that that is only a matter of time. What did he mean when he said that we should be encouraging women to be judges? Under the Bill, a woman practitioner who has to leave practice to raise a family will not be able to amass sufficient pension before she becomes a judge to make the pension that she gets as a judge worth while. Surely my hon. Friend is being rather optimistic in suggesting that the Bill will do anything to help women to become judges.
There is little evidence that people accept, or are deterred from accepting, judicial appointment because of the pension arrangements. Most people seem to regard the decision about whether to accept appointment as a judge as being altogether more important than pension arrangements, which are considered collaterally to the main decision. My hon. and learned Friend will have to allow me to stand by my earlier position and say that the Lord Chancellor looks forward—I do not think that he is alone in this—to the time when the reservoir of those available for appointment includes more women and more people of ethnic origins. On the same criterion of choosing only the best, many of them will be appointed, and most of us think that that will be a very good thing.
I commend the Bill to the House.
The debate has taken on a rather churlish and acrimonious tone—largely, I fear, as a result of the interventions of the Minister's hon. Friends. That makes one look forward with a certain amount of glee to the Committee stage, should it so please the House, when one fancies that the Minister will have an even rougher ride.
Quite so. Perhaps Conservative Members who have expressed what I consider to be a welcome interest in the subject have scuppered their chances of ever serving on the Standing Committee. Places on the Committee will no doubt be the subject of much competition, as the attendance in the House this evening signifies.
The Opposition will attempt to return a certain amount of equilibrium and proper dignity to the debate, which is timely. The judiciary are now required to preside over a system of criminal and civil justice increasingly groaning under the strain of under-resourcing and understaffing. They also, especially the higher judiciary, have imposed on them an increasing burden of duties in serving on various bodies of inquiry established from time to time to deal with the troubles that the Government have got themselves into.
It is a good time to examine the judiciary, and I hope that in the course of the debate and, if the House wills it, in Committee, we shall take the opportunity to examine the wider issues that provide the context of the Bill, and which have already been raised by several Conservative Members. No doubt they will also be raised in due course by my hon. Friends.
The public perception of the judiciary at times lapses into caricature. The picture is of a figure such as Mr. Justice Cocklecarrot—elderly, wearing a wig and ermine, and as narrow-minded as he is short-sighted. It is of the sort of judge who inquires, "Who is Cliff Richard?" or "What is Spitting Image?"
Quite so, but I shall not succumb to the temptation of responding to that sedentary and entirely unfounded intervention.
The caricature, the lampoon, contains within it a grain of truth in terms of the public's perception of the judiciary, which has already been referred to in at least one Conservative intervention. It is important that the House should deal with that perception, because there is nothing more important than that the judiciary and the system of justice they serve should command the respect of the whole community, and that they should be seen as what, in the main, they are. They are a highly qualified and erudite body, a group of men and women—I shall deal with the composition of the judiciary in due course—whose intellectual ability and total incorruptibility are unmatched anywhere in the world. That must be said, and it is the background against which the debate takes place.
However, we must not be complacent about the institution of the judiciary, any more than we should be complacent about any other of our great institutions. To some extent, the judiciary stand apart and are unique. They, alone of all our great institutions, have at no time been the subject of any comprehensive reform. The monarchy, the House of Commons and the upper House, and the civil service, have all at some time been the subject of a comprehensive body of reform, after considerable public debate, and, in the case of the monarchy and this House, after civil war. The judiciary have never been subject to such reform.
Over the years, there has been a series of debates on the judiciary in the House, going back to the glorious revolution. They make interesting reading, and they have always tended to take place around the subject of the emoluments of the judiciary. That was for the good reason that it was important to ensure their independence—in those days, their independence from the Crown and from a variety of vested interests—and also because it was important that the ablest and most highly qualified people were drawn into the judiciary. That matter has already been addressed in interventions in the debate.
It is interesting to examine a debate held in the Chamber in 1825 which gives some flavour of the concerns which remain with us to this day. One hon. Member, a Mr. Leycester, saw his opportunity. Others may seek to emulate him tonight—who knows? Mr. Leycester took the opportunity to raise several general issues concerning the administration of justice. The Hansard of the time tells us that he thought that the debate presented
a favourable opportunity for correcting many evils in the mode of administering justice in this country.
Mr. Leycester sought to widen the debate, and was also prompted to observe that he did not think that a time when the price of corn was falling was the time to consider any increase in judges' emoluments, salaries and pensions.
The Chancellor of the Exchequer of the day responded. He was clearly a more generous Chancellor than the one who revealed in his autumn statement this year his attitude to the legal aid fund and the criminal and civil justice systems in this country. The Chancellor in 1825 strongly argued that it was important to do nothing that would in any way remove from the office its "just dignity", or anything that would diminish the
respectability of the judges,and their weight and character in the eyes of those for whose benefit the laws were administered.—[Official Report, 16 May 1825; Vol. 13, c. 612.]
Listening to what the Minister has said today, it seems to me that the reason for the Bill is similar—a concern to ensure that the independence of the judiciary is maintained, that the highest quality of persons with the requisite professional skills are drawn to judicial office at every level, and that there is a degree of uniformity in the way in which they are treated.
Sadly, the Opposition now part company with the Government. The Government have missed a golden opportunity to promote a debate and carry out a broader consultation than that involved with the Bill, in order to determine what we seek from our judges today, how they could best be put in a position to deliver what they are called upon to do, how we may ensure that the judiciary are best suited to preside over an institution that, increasingly, is required to deal with a complex and plural society in a state of considerable change and with a system of justice that is increasingly required to deal with a greater volume and a more complex body of law and of litigants than has ever been the case before.
The Government had an opportunity here, although they have missed it—the Opposition regret that—to bring forward a comprehensive package of reform of the judiciary. The Opposition intend to take the opportunity of this Second Reading debate and, if the House wills it, of the Committee stage to map out a number of areas in which the time has come for comprehensive reform and change. We also intend, here and in Committee, to table a number of amendments that will improve and assist the measure.
The public perception of the judiciary was recently revealed interestingly in an important survey conducted by the Law Society which was published in the Solicitors' Journal. It was a comprehensive survey across England and Wales, and some of the results were as follows. Some 65 per cent. of those surveyed agreed with the statement:
Judges are out of touch with everyday life and everyday people".
More than 79 per cent. of people questioned said that there should be more women judges. Some 86 per cent. thought that judges should retire earlier than the present judicial retirement age of 75, which shows considerable public support for reducing the retirement age. Interestingly, and significantly for our consideration of the Bill, about 47 per cent. thought that judges should retire at 65 and 23 per cent. thought that they should retire at 60. That is an interesting statistic.
The overwhelming conclusion about the composition of the bench was that judges were too old, too male, too white and too out of touch. Some 69 per cent. of people agreed that judges should be appointed to reflect the ethnic mix of England and Wales. That is the background against which our debate takes place.
To help us to place this useful survey in context and to understand something of the knowledge of the people who answered the questions, can the hon. Gentleman tell the House whether the people surveyed were asked whether they had ever been in court, whether they knew any judges, what the average age of judges was and how many female or black judges there were? If they were not asked those questions, it might suggest that they did not know the answers. That would tend to throw a less favourable gloss on the findings.
That is an interesting point from an hon. Member who is a member of the Law Society and who has experience of the judiciary at every level in a number of different modes. The importance of the survey is that it deals with public perception. Whether the public are right in that perception is an entirely different case. As it traditionally has been, the House must always be concerned about maintaining public confidence in the judiciary. The House must be aware that the public have those concerns and perceptions.
It may be of assistance to the hon. Member for Teignbridge (Mr. Nicholls) if I describe the public's perception of the make-up of the judiciary. An examination of the figures reveals that the public's perception of the age, gender and race of judges is broadly right. I leave aside the issue of whether judges are out of touch. The reality is that only two High Court judges are women. Only 19 circuit judges, 42 recorders, 31 assistant recorders and three deputy district judges are women. There are no women district judges. Only 18 women are in training for assistant recordership. The figures give no cause for complacency.
I am prompted by the intervention by the hon. Member for Teignbridge to consider the position of women in the judiciary. The view expressed by the hon. Gentleman, by the Minister and by the Lord Chancellor—that in the fulness of time, women would achieve higher positions in the judiciary in greater numbers—is not borne out by the facts. Many women were called to the Bar in the 1970s. The evidence is that they are not selected as readily as their male colleagues are for the beginnings of high judicial office, but are found in the office of recordership. Men are appointed as recorders from 12 years' call. No woman has been made a recorder at less than 16 years' call. The figure for the past five years for the south-east is 18 years' call.
Those figures come from another report conducted by the Law Society which was published last year. It should give all hon. Members and all those who want the judiciary broadly to reflect the gender mix of our society cause for concern. There is no room for complacency on that score.
The same could be said—I do not intend to labour the point—about the ethnic breakdown of the judiciary and about the number of persons drawn to judicial office from the ethnic minority Bar. We cannot afford to be complacent in that area, any more than we can afford to be complacent about the mix of those recruited to be holders of the higher judicial offices in terms of whether they come from the solicitors' profession or from the Bar. There remains a gross under-representation of solicitors as holders of judicial office.
Those important issues, which need to be addressed, are not addressed in the Bill. That is a missed opportunity and that is why we believe that the time has come for the creation of a judicial appointments commission which would, first and importantly, involve a lay element in the process. In a welcome recognition of the extent of the problem in relation to the public's perception, the Lord Chief Justice made it clear in the Dimbleby lecture that he now accepted the argument for lay observers in the system of judicial appointments.
The Opposition would argue, and would hope to find allies on the Conservative Benches, that that does not go far enough. There should be an institutionalised lay element within the judicial appointments commission. That would give a clear message to the public that the judiciary provide a public service of the utmost importance, that they should be recruited in circumstances that are open and subject to public advertisement and that the circumstances of recruitment should be transparent in terms of the manner of recruitment and the qualifications required to fill those judicial offices; and, importantly, the lay element should be involved.
The Opposition are disappointed that, in the consultations on the Bill, the Lord Chancellor did not feel it necessary to consult anyone outside the body of the judiciary. Judicial pensions and judicial appointments are not matters solely for the judiciary. They should be matters for the general public and for consumer and professional organisations. The process should be more open and more transparent than it is at the moment.
The Bill misses another opportunity which has been alluded to in the debate, albeit by a side wind. That missed opportunity relates to judicial careers. There is absolutely no reason why we should not accept that it is perfectly proper and appropriate for the profession—solicitors and barristers—to consider judicial office in career terms.
There is no reason why we should fail to grasp the opportunity of so structuring our pension arrangements as to encourage the principle that it is proper to appoint people to judicial office at a much earlier age. That should begin with and include the office of stipendiary magistrate and recorder; move through to the circuit court, whether district court or Crown court, to, where appropriate, the High Court and the higher echelons of the judiciary. There is no reason why that path should not be embarked upon at an earlier age—perhaps in one's mid-30s. The pension arrangements that we are considering should reflect that and have a degree of portability.
Mr. John M. Taylor:
As the hon. Gentleman is addressing rather constructively the possibilities of advancement within a hierarchy that permitted promotions, does he not concede that the pension arrangements that we have introduced today are homogeneous, without internal boundaries, and conducive to what he has suggested?
That is why we do not oppose the principle today and why we look forward to the debate on the issue in Committee. However, we would go further.
There should be a time when those who hold judicial office should have a contributory pension. I noticed that at least one Conservative Member gasped when I said that. However, I do not see why a Conservative mouth should gasp at that concept. After all, is not the Conservative party in the forefront of encouraging contributory pensions? What is sauce for the goose should be sauce for the gander. Why should this calf be so fatted and we be incapable of appreciating another means of achieving that end and providing a means by which people might be able to contribute to their own pensions?
After the hon. Gentleman's farmyard metaphors, does he accept that we are not comparing like with like? I believe that the salary of a High Court judge is about £87,000 a year. While that may sound a vast salary to the great mass of the public, in comparison to the salaries of the most senior and effective members of the Bar, it is relatively low. The fact that the pension arrangements for the judiciary are non-contributory is, in part, a reflection of that. Anyone earning a huge salary is in a far better position to fund his own pension arrangements than a member of the British judiciary.
Quite so. I do not for a moment call that into question. However, I dare to suggest that there is no reason why the arrangements and their generosity should be immutable and fixed. It is perfectly proper for there to be a broader consideration, within the context of an overall career structure for the judiciary, of a contributory pension and a corresponding increase in salary.
I raise that matter as an issue for discussion and debate. I understand how the current arrangements have evolved and I do not complain about them. However, it is important that there should be a comprehensive review of the appointment of the judiciary, their career structure and place within the overall scheme of the public service. That is a proper exercise which should be engaged upon with alacrity.
That brings me to the retirement age. It is not automatically obvious to the general public or to many hon. Members why there should be a distinction between a senior judge in the service of the administration of justice and various other servants of the Crown in the civil service. Why should it be thought that it is automatically presumed and required that senior civil servants should retire at 60 and judges at 70?
There are one or two good reasons. Our emoluments are in no way comparable, in case the hon. Gentleman has not noticed. Our role is in no way comparable. If the hon. Gentleman, as a new Member and no doubt welcome on his own side, thinks that he is as important as a High Court judge, he has another think coming, because I can tell him, with more experience here than he has, that he is not. He will discover otherwise.
As I have more experience than the hon. Gentleman at the Bar, can he tell me why, in private practice as a lawyer, there is no requirement to retire at a particular age and why Crown servants should be shackled in this arbitrary fashion?
I have clearly stung the hon. Member and become the subject of the wrath that he was reserving for the Parliamentary Secretary. I should have refrained from drawing him in that way.
The point I make is this: it is not automatically clear why this distinction should be made. I take the view of one Conservative Member that the mere fact that one is old does not mean that one is out of touch or in some way impaired in one's intellectual capacity. That simply is not true.
It seems to us to be entirely desirable that judges should retire at 65 and that that is a reasonable proposition and one which is in keeping with the requirement. of ensuring that there is maturity and a degree of wisdom that are reflected in age on the Bench and also, importantly, is in keeping with the need to ensure that levels of judicial staffing are maintained. But having said that, 65 as a retirement age is reasonable and it ensures that public perception of the Bench is not one that conforms with caricature and lampoon. It is also important, given the number of years required to acquire a full pension under the provisions of this Bill, that it is an added incentive to earlier appointment. I stress that it is desirable that appointment to high judicial office should take place earlier than at present.
Before giving way to Conservative Members, I would say one thing that goes to the whole issue, sadly untouched in this Bill, of a career structure for judicial office. On reflection, is there any reason why consideration is not given to the appointment of High Court judges on a fixed-term basis? It would be useful to know whether the Lord Chancellor's Department has given any thought, in the context of the present shortage of judicial manpower—and manpower it is, with the gender make-up of the judiciary—to the proposal first aired by a Conservative Lord Chancellor as long ago as 1900.
If eminent lawyers are not prepared to make the real sacrifice of earning capacity or life style that a permanent commitment to the Bench inevitably brings, why should not consideration be given to the appointment of High Court judges for a fixed term of five or eight years so that it is possible for a High Court judge to be drawn from the solicitors' profession, the Bar or academia for that period to serve in judicial office and then to go back to their previous occupation in the law? Why is that not at least considered by the Lord Chancellor? It was considered in 1900; why not now?
The hon. Gentleman asks why it has not been considered since 1900, but one could ask the same thing about many Labour Governments since then. However, I rise not to question him on that point but on his earlier interesting points about an enforced retirement age of 65. Can he say a little more about the cost of his proposals in increased pensions and additional salaries for replacement judges, or is this yet another Labour proposal that has not been costed?
I wish that I had not given way to that intervention. That is not worthy of the contributions the hon. Member made earlier in this debate. Is it to be suggested—I can see it now—in three or four years' time, or probably sooner, given the conduct of some Conservative Members, when we have a general election, that our proposal for a judge's retirement age should be costed and thrown against us at the hustings as an indication of Labour irresponsibility? Not even Conservative Members can sink that low when we are seeking a rational discussion about the shape and role of the judiciary.
The fact is that in terms of the administration of justice, Conservative Members have been all too ready to be influenced by the Treasury as opposed to the demands of the administration of justice and that is precisely why they have, time and again, ignored the pleas and criticism of successive Lords Chief Justice and other Lords of Appeal and members of the Court of Appeal for an end to the scandal of the repeated use of deputies and part-time judges in the High Court. That is entirely as a result of the sort of quite improper consideration of costing by the Chancellor of the Exchequer that is imposed on the Lord Chancellor. It is self-defeating.
Mr. John M. Taylor:
The hon. Gentleman has followed the pastoral phase of his speech with some more aggressive comments. I shall respond to his remarks on the availability of part-time judges. It is my opinion that they increase flexibility to cope with peaks and troughs in work load, and to cover the absence of full-time appointees due to illness, or caused by the time lag which often occurs between a post becoming available and the appointment of the new post holder. Part-time sitting also builds up an experienced pool of practitioners, from which future appointments to higher judicial office are often made. Those are respectable arguments in favour of part-time officers on the Bench.
The respectability of that argument can be judged against the views of successive Lord Chief Justices, of the overwhelming majority of both wings of the profession, and of the City of London, the consumer organisations, the Bar Council, the Law Society and the overwhelming weight of informed opinion. They find that the continued use of part-time High Court judges and deputy High Court judges is offensive in terms of the independence of the judiciary—an important constitutional argument—and also self-defeating for the role of London and the Royal Courts of Justice as a centre of international commercial litigation, which earns this country in excess of £500 million a year in invisible earnings. I am afraid that that argument is not respectable, and that view is not shared outside the House by those most intimately concerned with the subject.
I have given way more than enough during this speech. I do not want to be drawn any further down that path, save to say that those issues are worthy of consideration and that they will be considered in Committee, during which we will inevitably seek to amend the Bill constructively so that it is in a state which will merit and warrant the support of the whole House at Third Reading.
This is a welcome opportunity to debate the role and structure of the judiciary—an opportunity which we shall take—but it is a missed opportunity for the Government. It is an opportunity for the House to contribute to shaping a future for the judiciary, and their role within the civil and criminal justice system, that will strengthen and reinforce public support for that institution, will cause it to represent the skills and excellences which the Bar, the solicitors' profession and academia can bring to the law, and will ensure that it is broadly representative, in race and gender, of a cross-section of our society, so that it can go into the next century strengthened and ready for the challenges that lie ahead. Opposition Members will do all that we can to ensure that that happens.
In what I shall describe as the pastoral phase of this speech, I shall begin by congratulating my hon. Friend the Minister on avoiding almost completely the dreadful invitation that we have just heard for a comprehensive review of the judiciary.
The judiciary have been the distinguishing great feature of our country since 1688, when Mr. Justice Powell was not overawed by King James at the trial of seven bishops. There have been successive serious reforms of the judiciary since then and, until the unhappy events of latter years, they have alway been thought to be of the highest quality, with the highest degree of independence and integrity. I am sorry that anything else should have been said.
Unhappy recent events, which have undoubtedly, and very sadly, clouded the reputation of justice—faulty police evidence, false police evidence, wrong verdicts by juries, or the quaint and eccentric statutory shackles upon the criminal appeals process—are not properly matters of complaint to be laid before the judiciary.
I would understand the need for a comprehensive reform of the judiciary if it had been directed to a specific cause or to something more serious, and less frivolous, than an opinion poll in the Solicitors' Journal. Frankly, that was just another example of a crude tabloid public opinion poll, of the sort that has disgraced our public life. If one asked people, "Are you satisfied with, or do you think that members of the Labour Front bench are out of touch with the country?", the odds are that a great majority would say yes. The Law Society is to be deplored for the low standards of journalism employed in conducting that poll, and in publishing it.
Let us consider the substantive arguments of the hon. Member for Brent, South (Mr. Boateng). A judicial appointments commission has been seen in certain professional quarters as an attractive and plausible possibility. The difficulty with it is simply this: who does the choosing and who chooses who will make the choices? At the moment, a Minister of the Crown makes appointments and, however strange they may sometimes be thought to be, he is responsible to Parliament, and not to a quango containing self-perpetuating oligarchs from the professions.
An example of a similar amount of plausible pressure, which led to a calamitous state of affairs in another institution of state, is the removal of parliamentary responsibility for the appointment of bishops in the Church of England by the Crown Appointments Commission, which has turned the episcopal Bench into a self-perpetuating oligarchy, which is not accountable to anyone. A judicial apppointments commission is a deplorable idea, which should be rejected on the most elementary principles of parliamentary accountability.
The second great innovation suggested by the hon. Member for Brent, South was that a judicial career should begin at a much earlier age. My hon. Friend the Minister thought that that was the basis for some friendly across-the-party-divide co-operation, and that the hon. Member for Brent, South was assisting his argument. If he considers the matter more carefully, he will appreciate that there was more danger in what was being proposed than he perhaps understood at first blush.
Again, it sounds plausible that one should start as a baby judge and work one's way up to a Lord of Appeal in Ordinary, but that would undermine the independence of the judiciary, because the promotion depends on the Lord Chancellor and not on anyone else. The importance of the existing system is that traditionally in this country we have believed that one gets the best judges by having the best practitioners, who have learnt how to prepare and present cases, and have experience of assessing them. One takes leading practitioners from among the most able and makes them into judges. That is what has singularly distinguished our judiciary and that in certain parts of the Commonwealth, in contrast to the system in continental countries.
Does my hon. Friend not accept that his view that we need experienced and able judges should not preclude young practitioners, who happen to be experienced and able? We need more of them on the Bench.
People should be appointed to the Bench because they are distinguished by their ability and character. I regard age discrimination as immoral. One should judge people purely on their talents and abilities and not on whether they happen to be born in one year rather than another, in so far as that can properly be avoided.
Whereas in the House one can work one's way up from the lowest form of life to the Cabinet, with a judicial career it has never been the case that the lowest judicial appointee can proceed all the way up the ladder. I think that the immigration appeals adjudicator is the lowest judicial appointment—my hon. Friend will correct me if I am wrong, but he dared to mention it—for which the minimum qualification is three years' practical experience at the Bar or as a solicitor. I do not think that an immigration appeals adjudicator has ever proceeded up the judicial ladder, let alone to the circuit Bench, let alone to the High Court Bench, let alone to a Lord of Appealship in Ordinary. The way in which the system has always operated is that certain practitioners at certain levels go into the judiciary at certain levels simply because they have experience of doing that sort of case properly. That has been the tradition and it should be defended.
Mr. John M. Taylor:
I may not, from instant resource, be able to satisfy my hon. Friend in the matter of an adjudicator achieving such instant elevation. However, we have an existing case of a district judge, whom practitioners as old as I used to call a registrar, who has become an Appeal Court judge—and she a lady, too.
I am well aware that there have been from time to time, and I welcome them, promotions from both the district Bench and what I, too, would call district registrars, to the circuit Bench and upwards, but that is a very different thing. I expressed to my hon. Friend earlier—admittedly slightly aggressively—the sheer outrageousness of his suggestion that immigration appeals adjudicators are part of this process; that is simply nonsense.
The third suggestion made by the hon. Member for Brent, South regarding his comprehensive reform of the judiciary was to dredge up an idea put forward by Lord Halsbury, who might be described as belonging to a rather opposite school of legal patronage thinking. The objection, again, to fixed-term High Court judge or other judicial appointments, is that they undermine the independence of the office, because in the last year either one is wondering what will have happened to one's practice when one goes back to it or one is hoping for further preferment from the state. The whole point about judges since our glorious revolution is that they are appointed for so long as they conduct themselves properly, and seldom have they had to be removed. That is the basis of our rule of law and our constitutional liberty.
It may well be that the civil servants, in particular, who sit not so far from my hon. Friend, find it very difficult to comphrehend the traditions of the British legal profession and of the British Bench. Those traditions have been based upon sturdy independence and a total rejection of any idea that people should be beholden to the powers that be who appoint them. Judges are appointees, not creatures of any politician or any Lord Chancellor. That is the basis of our constitutional liberty that we must defend.
I turn now to my hon. Friend and, first, to part I of the Bill. He has, I respectfully submit, a very much better case in certain regards than the one that he put to us. Yes, I entirely endorse the view that arrangements whereby circuit judges get promoted to the High Court Bench and run into difficulties over their pension scheme are anomalous. There is a need to sort this out and the Bill is welcome in so far as it tries to sort it out. What my hon. Friend is really doing, however, is following the dictates—which I, as a Conservative, welcome—of the Treasury that the Bill is intended to be fiscally neutral. It is not intended to increase public expenditure and, as a good Conservative, I find that a very attractive proposition. But this means that he has to balance the books; he has to balance the benefits and the disbenefits. If that had been stated rather more clearly, it would have been, I respectfully say to him, a more attractive argument.
The argument that was put was, first, that somehow a 15-year accrual period for a judicial pension could no longer be tolerated because the Finance Act 1987 had given certain taxation privileges to pensions of more than 20 years' accrual period. It is all very well to say that the Lord Chancellor is a noble ornament of our constitution and should still be exempt from this new arrangement, but it rather weakens his case when one reflects that the Prime Minister, former Speakers of the House and field marshals, for example, are equally privileged in this regard in respect of pensions, and the 20-year accrual period does not apply to them. It is extraordinary members of the higher judiciary should suddenly find that they are to be treated on any different basis and why that should be used as the reason to do so. By all means balance fiscally the benefits and the debenefits in this Bill, but the argument which my hon. Friend uttered was, in my submission, wholly mistaken.
The second point that my hon. Friend made concerned the benefits of unifying all the various judicial pension arrangements. I can see the force of that in terms of practicality and justice, provided that there is no attempt to oversell it on the basis that there is a judicial career and a pattern of judicial promotion. Judicial promotion remains, and ought to remain, very much the exception. I think that it is the general professional view that individuals who are promoted are singular examples of the failure of patronage in the first place. In other words, they are singularly distinguished and able persons, who amply and quickly demonstrate that they ought to have been preferred to a higher level in the judicial hierarchy in the first place. They are examples not of the success of the present system but of the failure of the decision-making process in the first place.
There are a number of odd points in part I which are important in principle. I note, for example, that it appears that in 1990 widowers' pensions were first introduced for judges. I ask my hon. Friend if that is indeed the case under the present Bill as it is drafted.
The second point on which I ask for elucidation is the situation in respect of children in further education. On the Queen's Printers' copy of the Bill, in clause 7(1)(a), an "or" has been missed out which is certainly there in section 21 of the Judicial Pensions Act 1981. The effect of this would be to stop any pension to a judicial child if he or she underwent further education beyond the age of 16. I cannot believe that that is what the Government intended; I am sure that it is a slip-up, and I should be grateful for clarification by my hon. Friend.
The totality of part I is welcome. It is not generous compared with arrangements in Australia or Canada, for example, and I can understand why this portion of the Bill was attacked with such vigour and enthusiasm in another place. But the fact remains that we must balance the books and make sure that the fiscal effect of this is neutral.
However, I must say this to my hon. Friend. I did not drop my jaw with such surprise as the hon. Member for Brent, South thought. What I find extraordinarily anomalous is that in 1992 we should be discussing judicial pensions, or indeed civil service pensions, at all. I believe that the whole thing should be privatised and that individual practitioners, individual judges, should be paid enough to enable them to make individual arrangements which suit their individual circumstances.
We have got ourselves involved and enmeshed in the genius of the British civil service at thinking up complex rules which are wholly inconsistent and produce obvious anomalies. They then have to be thought through again and reworked, and the same process goes on and on. The time has surely come for an end to it. If my hon. Friend had come to the House and said that he was proposing to increase official pay by some modest amount to allow for the fact that there would be no further judicial pensions, I for one would have welcomed that.
It is on part II, in particular, that I must part company with my hon. Friend. I do not know what modern world he lives in when he quotes the Old Testament figure of three score years and ten and says that it is in accordance with the modern climate that one should retire at 70. The hon. Member for Brent, South was at least a little bolder and said 65.
This has two consequences. First, unnecessarily and unhappily, my hon. Friend has talked about the discretion given to his noble Friend the Lord Chancellor and the Secretary of State for Scotland to allow people, after this upper ceiling is reached, to sit from time to time—a power which, he has assured us, is to be used only sparingly. Unhappily, it is the practice, which has been commented upon adversely by several distinguished judges, that the existing powers to use deputies have been grossly over-indulged in. I would respect that argument if it were put more brutally in terms of Treasury needs to contain public expenditure, but there is something here which has given rise, unnecessarily in my submission, to public concern and criticism.
What sticks in my gullet about this proposed piece of legislation is the idea that at age 65 or 70 a person should be stopped from working and using his talents, in an arbitrary, discriminatory and unfair fashion. It is immoral. The moral basis on which we have founded legislation against race and sex discrimination is simply that one cannot be blamed and should not be penalised for what one is born. In like fashion, one should not be discriminated against simply by the year of one's birth. That is anomalous and unfair and wrong in principle.
That such an idea would casually emerge, no doubt without any malice, from the British civil service is eminently probable and plausible, because the civil service is the classic example of a statist system in which everything works according to age and cut-off by particular date. That is deplorable, and the Government's policies for reducing the civil service, creating next steps agencies and private arrangements and so on must be the future course against obsolete and increasingly odious privileges which the civil service enjoys.
Perhaps my hon. Friend will also shed a tear for the civil service, given that it too suffers from the maladies he is pointing out. There is no logic in forcing a talented permanent secretary to leave his office on his 60th birthday. The idea that he was capable of doing the job the night before and that, at the witching hour of midnight, he is not, is complete nonsense. So we lose not only the talent of judges in certain cases, but of civil servants as well.
I agree with my hon. Friend. It is wicked, irresponsible and wasteful. Why should we carry that model, which undoubtedly does no good for the civil service, into the sphere of the judiciary?
It is easy to say that one should be compelled to cease exercising one's talents at a particular age. For my constituents who are, say, small business men or farmers, there is no simple or easy retirement age. They make their own provision and choice, depending on their ability, health and resources.
What is being proposed is deeply deplorable, and it goes back to the tabloid opinion polls. The hon. Member for Brent, South was extremely careful—I admire and respect him for it—not actually to accuse but to say that what he was alleging was a matter of public perception. If the public are to make assessments of that degree of crudeness, then that degree of crude response is wrong, and we should say so.
I suspect—I trust that the Minister will give a categorical assurance on this—that the whole arrangement of a fixed retirement age of 70 is some scheme to balance the judiciary's gender or racial composition so as to make it more politically acceptable and more in touch with what is supposed to be popular opinion. We are talking about judges who are 69 or 68. It is hardly surprising that they do not reflect the gender or race composition of the population a generation younger than them.
I am grateful to my hon. Friend. Although the hon. Member for Brent, South did not actually say so, he seemed to derive some apocalyptic joy at the prospect of making judges younger, both by appointment and by their upper retirement age. Ageism as a form of immoral discrimination remains wicked, but it is worse than that. Law is not like politics. Nor is it like medicine, in the sense that where there is a scientific discipline, science moves on and one must become up to date, or, for a politician, one must become in tune with what one's electors say.
Being a judge, particularly at the higher parts of the judiciary, is a hard matter of intellectual expertise and accumulated knowledge. That expertise and knowledge have made the judiciary in particular so much an ornament of our constitution. It would undermine standards to force able judges to retire at an earlier age.
When I was a law student in the 1960s, Lord Denning, then the Master of the Rolls, had been appointed to the High Court Bench in the year I was born—[Interruption.] I think I heard the hon. Member for Brent, South say from a sedentary position that he was too old. That was such an ignorant, prejudiced and erroneous comment as to be most uncharitable and unfair. Every law student in the 1960s read Lord Denning's judgments for the joy of their prose and the fact that they could be understood, unlike the judgments of certain other distinguished members of the judiciary. They could be understood very easily and appreciated for their sense and prudence. As we get older and become more conservative, I have no doubt that we sometimes think that intellectually Lord Denning cheated a little, but that is a different issue.
The Minister should have come before us with detailed proposals to give a college of judges the power to compel members of the judiciary over a certain age to submit to a medical examination, if their condition was physically deteriorating or if their mental faculties were publicly obviously failing. In such an event, some judgment should be available to require them to retire. But to suggest that, say, a permanent secretary or a member of the high judiciary should be cut off from exercising the talents that God has given him, at an arbitrary date selected purely on grounds of political prejudice, is obviously wrong.
As my hon. Friend is speaking of God-given gifts, may I ask him to agree that God, in his wisdom, has given certain gifts to members of the solicitors' branch of the profession? Does he agree that, whatever their gender, age or race, they should be part of the new judiciary?
Yes, I do not disagree with a word of that, though what I am saying is more fundamental. It is that from whatever part of the legal profession one may come, provided one is in good health and able to discharge one's duties to the best of one's ability, one should not arbitrarily be cut off and prevented from doing that. It cannot be right or moral to do otherwise, and I urge that the whole matter be reconsidered.
Many members of the public watching the debate will wonder what priority the House gives to important issues of the day. We heard during the autumn statement that low-paid public sector workers would receive no more than a 1·5 per cent. increase in their pay next year. Today we are talking about the pensions—which are really just deferred pay—of judges earning in some cases more than £87,000 a year.
The House has not yet had the opportunity of discussing the public sector pay policy that is being imposed by the Government. Nor has it had the opportunity of looking at the effects of the reduction in the availability of legal aid, which will deny justice to many citizens. Even so, tonight we are considering the pensions and retirement age of judges.
Despite that, this is an important time to consider those issues because retirement and pensions are the framework within which the judicial structure will operate. They are the fixed points that will determine much of what goes below it, and the House must recognise—not in terms of the complacent language used by Conservative Members—that there is a crisis of confidence in our legal system today. There is prolonged delay, escalating costs and, as we know, a series of miscarriages of justices, and the judiciary has a heavy responsibility to bear in that respect.
It is not good enough to blame the police or juries. The judges have a responsibility, and public perception generally cannot be ignored. It is arrogance in the extreme to say that the public perception of how the judges operate can be ignored. The House has a responsibility to recognise the deep feelings that members of the public have about the way in which judges conduct themselves and their business. Judges must bear a heavy responsibility.
Reference has already been made this evening to the occasional quirkiness of some members of the Bench. Odd comments often make for a good after-dinner speech. We have heard about the judge who does not know about Cliff Richard or a launderette. Such comments are faintly amusing, but they show how judges are often out of touch with modern living. That degree of being out of touch does not concern me as much as the way in which that being out of touch has an effect on the sentencing policy, which often occurs.
There is a responsibility on judges to acknowledge the depth of public feeling on certain issues when they come to pass sentence. The House lays down a maximum sentence which can be imposed in many cases. There are many cases in which judges, because they are out of touch, fail to reflect the way in which the public feels about some serious crimes. Let me give a few illustrations. We all know of the many cases of men being violent towards women. We know that lenient sentences are often imposed on people who are convicted of such crimes. If the roles are reversed and the woman, who has often been subjected to many years of violent beating from a husband or partner, commits a crime, often in a moment of passion, a heavy and harsh sentence is imposed on her. Such decisions lead to a lack of confidence in the judiciary.
The age of the judiciary is an important factor. There must be a cut-off point at which judges need to retire. They cannot sit on the Bench for ever, as the hon. Member for Monmouth (Mr. Evans) said, subject to an occasional medical check-up. There must be more to it. The Bill takes a small step towards reducing the retirement age of members of the Bench from 75 to 70 years. That small step is welcome, but I feel that it goes nowhere near far enough. I agree with the Bar Council suggestion that there should be a fixed retirement age of 65 for the Bench. That would be wholly appropriate.
The Bill not only reduces the age of retirement from 75 to 70; it gives the Lord Chancellor a discretion to extend annually the services of members of the judiciary who are aged from 70 to 75. I do not feel that that is appropriate. There must be a clear cut-off point. We must not put ourselves in the position in which the Lord Chancellor has the power to renew annually a judge's term of office on the Bench. We have been told that that degree of power is essential to fill the gaps in the judiciary that may be caused by sickness or by a call to lead an important national inquiry.
Retired judges will be brought back annually to fill the gaps. That is an absurd way of proceeding with an important part of public life. If Manchester United has a long injury list, the call does not go out to Bobby Charlton, Denis Law or Nobby Stiles to get their kit and turn up at Old Trafford. The same should apply to members of the judiciary. When the Prime Minister is unable to attend Question Time because of his trips around Europe, the call does not go out to Baroness Thatcher.
Mr. John M. Taylor:
Can I take it from the hon. Member's remarks about recruiting from the cadre of the promising young players rather than yesterday's men—I followed his word picture, which was good and vivid—that he supports my earlier arguments in favour of the rationality and the sense that often lie behind part-time appointees sitting on the Bench in the higher courts? My argument is that one is training a cadre of younger people, who will be ready for promotion later, and addressing peaks and troughs in the availability of judicial officers. Does the hon. Gentleman favour that argument?
One hears some funny things in this place over the years. To use the images of the hon. Member for Wallsend (Mr. Byers), he might remember that, as I recall, Stanley Matthews played for Stoke City at the age of 50 and that a man called Peter Shilton both manages and keeps goal for some remote southern team at present.
It is absolute nonsense to say that, because a man or a lady reaches a certain age, they are no longer any use. Good Lord! If that were the case, it would help the House to get rid of one or two hon. Members who I think should go. However, those hon. Members and many other people think that they can add something. The matter of age is sheer nonsense.
The Lord Chancellor of the day can examine the age of judges who are 70, 65 or whatever and decide whether to extend their service. That appears to be correct. All this stuff about gender, age and so on is nonsense.
I had the misfortune to see Stanley Matthews play for Stoke City against Norwich when he was 50 years old. It was a sad occasion. I remember Stanley Matthews when he was much younger. He was a much better player than he was when he was 50. It was a sad sight to see. I would not want to see the same thing happen to members of the Bench.
The scale of the use of retired judges cannot be underestimated. Let me give some illustrations. In 1990, 500 judge days in the High Court and the Court of Appeal were dealt with by retired judges aged 75 years or older. More detailed figures show that in 1991, in the Court of Appeal alone, 100 judge days were covered by judges aged 80 years or older. I do not believe that such statistics will instil confidence in the judicial system.
The hon. Gentleman gives a homely metaphor about Stanley Matthews playing at the age of 50. The point is that arthritis may stop people playing football, but it does not stop them judging cases. In a civil case of great complexity, it is possible that an 80-year-old judge will retain the expertise to understand the intellectual aspects of the case. The mere fact that he might have arthritic knees may stop him from playing football at the weekend, but it will not stop him doing a decent job. It is all about aptitude, not age.
The Minister will certainly have an interesting time with some of his hon. Friends in Committee.
I believe—I think that I am supported by my hon. Friends—that there must be a sensible cut-off point. Our view is that the cut-off point should be 65. The debate about where the cut-off should be will continue, although I hope that we will agree that there must be a cut-off point.
We should not endorse the principle in the Bill that the Lord Chancellor should have the power to renew annually the services of judges aged between 70 and 75. I know that it will be argued that we need that power and should maintain the retirement age beyond 65 as there are insufficient numbers of recruits of adequate ability to come to the Bench. That says more about the current method of appointment, and a careful scrutiny of the ability of those available might be helpful.
The chairman of the Bar Council, Lord Williams of Mostyn, has described the present system of appointing members to the Bench as "bizarre and farcical". The files may have been removed from the Kremlin, but they are still held in the Lord Chancellor's Department. Files are kept on individual barristers to determine whether they are suitable for service in the Bench. That cannot be acceptable in the 1990s, and has more to do with George Orwell's thought police of "1984". Behind the scenes consultations take place to decide whether an individual is appropriate to serve on the Bench.
It is little wonder that such a system creates a self-perpetuating elite and potential membership of the Bench. Human nature means that people appoint those in their own image—at the Bar they are male, middle-aged and middle class. The Bill does nothing to promote women in the judiciary. In many respects, the pension arrangements will make it more difficult for women who have had a break in their career at the Bar to bring up a family to obtain the pension entitlements normally due to them.
It is particularly disappointing that, when giving the Dimbleby lecture, the new Lord Chief Justice, Lord Taylor of Gosforth, took a complacent attitude towards the issue of appointments to the Bench. He refused to consider significant changes in the method of appointment. As my hon. Friend the Member for Brent, South (Mr. Boateng) said, the new Lord Chief Justice suggested that there would be an opportunity for lay involvement in the consultation process. However, that does not go nearly far enough. Such cosmetic changes—like the removal of the wig—do not address the fundamental issue that the House should be considering this evening. Such cosmetic changes are more like moving the chairs on the deck of the Titanic and do nothing to address the real problem—the lack of confidence in the judiciary and our public legal system.
We must have a judicial appointments commission where posts are openly advertised and applicants can apply. We can learn lessons from the way in which the recent vacancy for the Director of Public Prosecutions was filled. It was advertised nationally and proper interviews were held. Applicants were invited to apply. If that process was good enough for the Director of Public Prosecutions, why was it not good enough for appointments to the Bench?
If the hon. Gentleman's proposals were carried to their logical conclusion, those considering such appointments, even were they to be advertised, would face a dilemma. He is suggesting that there could never be any confidential consultations. When making public judicial appointments, it is essential for those who know the candidates best to have some confidential consultations. For the hon. Gentleman to suggest that we should have a system of positive discrimination—which is what he is doing—will create such a dilemma.
Many hon. Members will be aware of the way in which most appointments take place. I see nothing wrong in the normal procedure whereby confidential references are provided for applicants. There is no reason why that process, which applies to many other parts of public life, should not apply to the Bench. People involved in the world of personnel management say that the present system of appointments to the Bench is, effectively, indefensible.
I was hoping that the comments that I have just made would be seen as constructive, not controversial. I shall now turn to the contentious part of my speech. I hope that the House will consider whether we should continue with the traditional Anglo-Saxon method of appointing judges from the pool of existing practitioners, advocates or legal advisors. We are always told that we should move closer to Europe, so perhaps we should look at the continental system, where graduates go straight into judicial training. Advocates' confrontational skills—often demonstrated in the Chamber—are not best suited to members of the Bench, who should be able to defuse emotions and listen to what is said. Often, such skills are not to be found in members of the Bar.
Does the hon. Gentleman agree that the best way to learn how courts work and develop the skills required to serve effectively as a member of the judiciary is through the practical experience of being an advocate, acting either for the plaintiff or the defendant—prosecuting or defending? There is no way in which simply by studying books or anything else one can develop the level of training required to preside over the British legal system.
I understand the hon. Gentleman's argument, which is used in favour of the present method of appointing members to the Bench. However, I am not talking about a graduate studying the appropriate books and immediately taking up a place on the Bench. As I understand it, the position throughout the continent is that trainees sit with existing judges for a long period, and it is only when they have been trained effectively and properly that they sit as judges.
Does my hon. Friend agree that we would not necessarily have to adopt fully the continental approach in order to attract people to the judiciary from academic life? A number of recent appointments to the silk from academic life have shown only too clearly that that sector of legal life and the body of expert lawyers in this country could be a fruitful source of members of the judiciary at various levels. With appropriate judicial training, the objections of the hon. Member for Vale of Glamorgan (Mr. Sweeney)—which I understand—could readily be overcome.
I agree with my hon. Friend, and such a system could form part of the process of trying to broaden the way in which judges are appointed. I think that all hon. Members are genuinely concerned that judges are recruited from a narrow academic and social background, which is not helpful in promoting public confidence in the legal system—a desire shared by all hon. Members.
The judiciary are the one remaining sector of public service that has not been reformed, at least in this century; every other sector seems to have undergone reforms of one description or another. The judicial system is based on secret appointments, and there is no monitoring of performance and no appraisal scheme for individual judges. We should welcome initiatives to correct those faults.
The judiciary are given enormous powers. They are the guardians of our liberty; they should protect us against abuse by the state and defend the weak against the strong. In recent years a number of well-known cases have demonstrated that the judiciary have for one reason or another failed to achieve those objectives. The Bill provides an opportunity for radical reform of the judiciary. That refom is badly needed. If the House fails to seize the opportunity provided by the Bill, it will rightly stand condemned.
I heard what the hon. Member for Wallsend (Mr. Byers) said. What came across clear and strong was that he spoke with great sincerity but, as someone who has practised in both the criminal and civil courts, I do not recognise the picture he paints. It is easy to say, as he did a moment ago, that the history of recent times is about the judiciary having made wrong decisons, not standing up for the rights of the weak and not protecting people against an over-mighty state, but no matter how many times one says it, it is not true.
Any criminal practitioner can tell us what has being going on in recent years. The balance of advantage has moved so much in favour of the defendant from society, in whose name essentially we prosecute, that policemen bend the law. They should not do that. When they are caught doing it, they are rightly prosecuted and condemned, but the House has got the balance wrong.
One of the most demeaning and unpleasant experiences is having to go down to a cell to represent an incorrigible criminal who knows his trade and knows that all he has to do is keep his mouth shut for 24 hours and he will be away scot free. When we have a system like that, the police will break the rules and there will be miscarriages of justice.
It is a tribute to the judiciary that, very much against their basic inclinations, they have been able to see the way in which the law has been abused in certain cases, and have been prepared to step in and deal with it. One could expand on that at greater length on other occasions. The hon. Member for Wallsend believes that the present state of affairs has been caused by the fact that the judiciary are drawn from the middle classes. Of course they are. They have professional qualifications. That makes them middle class. It does not make them Conservative. They may be barking Marxists, but they are certainly middle class. To say that there are problems because the judiciary are drawn from the middle class is not a contribution of thought but an exercise in sloganisation.
My hon. Friend the Minister must be getting troubled because of the interjections from myself and from my hon. Friend the Member for Monmouth (Mr. Evans). I suspect he may be feeling that there is a vote around the corner, or he must be saying to himself, in the light of the contribution from my hon. Friend and the contribution that I intend to make: "How on earth can they with a clear conscience vote for the Bill?" It is inevitable in the nature of these things that one concentrates on the more controversial aspects. In many ways, this is a splendid Bill, which I will have no difficulty in supporting. Having said that, I should perhaps concentrate for a moment on some of the things which, had they been in a Bill in isolation, might have caused one to say to the Lord Commissioner, "I would like the evening off."
I want to quote what my noble and learned Friend the Lord Chancellor said when introducing the measure, which has interesting implications:
It is in the interests of all of us in a free society that our judges should be men and women of the highest calibre, able and willing to carry out the heavy public duties which we expect of them. It is right, therefore, that the pension Parliament provides to our judges should be sufficiently substantial to attract, or at least not deter, those candidates best fitted to serve."—[Official Report, House of Lords, 16 June 1992; Vol. 538, c. 119.]
He went on to set that in the context of salaries as well as pensions.
That is an excellent principle for remunerating officers of the state in the person of judges. The Minister might feel sad because the same principle is not applied to ministerial salaries. We have got to the stage when ministerial salaries are not fixed with any relationship to what might be necessary to bring people in. We have achieved a state of affairs in which if someone is prepared to serve as a Minister, it may be because, like my hon. Friend, he is a man of vast but discreet wealth. Because the salary is so niggardly, we are fast approaching the alternative possibility that some people may get a pay rise when elevated to the position of Minister.
That is a troubling aspect. It is a pity that my right hon. and hon. Friends on the Front Bench have not been as successful as the judiciary. Much has been said in the debate about the age at which judges should retire. There seems to have been an assumption that, at a certain point in time, one can look at a person, be he a footballer, a Minister, a permanent under-secretary or a judge, and say that on one day he is capable of performing satisfactorily and the next he is not. I do not understand that.
Nor do I understand the references made in another place apparently in justification of an automatic cut-off date for the appointment for a judge. My noble and learned Friend the Lord Chancellor referred to three score years and ten. Like the devil, I can quote the Bible for my own purposes. I recognised the reference, but in biblical times three score years and ten was a good innings—it was over the top as an innings. These days, people of three score years and ten are capable of running the London marathon. It makes me feel ill even to contemplate them doing it. In biblical times, three score years and ten might have been a great age, but it is no great age today.
Lord Wigoder also made an interesting contribution in another place when he said that, essentially, we should be going along with a common retirement age for judges, because it would be in accordance with the current trend. I am fed up, sick and tired of fashion and current trends. The idea that one can justify a course of action because it is fashionable is ludicrous.
On a more serious note, one problem with fashion and current trends is that it has obliged Her Majesty the Queen to offer something in terms of taxation which, had she been properly defended in public, would never have happened. It is dangerous to base legislation and social attitudes on what is known in our former colonies as a politically correct attitude.
I accept that it may be politically correct to support a cut-off age for judges, but my hon. Friend the Minister, in a masterful and elegant contribution, glided around the point beautifully. To his credit, one never heard the justification for judges having to retire at a certain age.
It may be worth while dealing for a moment with why judges have to be older before they can be recruited to the bench. One could give a competent law graduate or newly qualified solicitor or barrister a pile of papers and say, "That was the evidence. How does the law apply?" That is an ordinary, intellectual exercise that any young law student should be able to do.
That is not where the skill is involved on the bench. A member of the judiciary needs the ability to weigh up evidence. That means knowing something about human nature. It means having spent years listening to people telling the story in the cells, hearing them give the same evidence in examination-in-chief and cross-examining them. It is all about the evaluation of evidence. Applying the law is the easy bit: that is straightforward.
What we look for in the judiciary, be it at stipendary magistrate level or in the House of Lords, is the ability to sift, understand and weigh up. The bit at the end where the law is applied is the easiest. It is in the very nature of things that we cannot get that experience unless we have people with years behind them.
What is the justification for saying that, even if we allow for that, there must be an age cut-off? That is an ism. It is ageism. I have been present at debates in the House when there have been howls of indignation from the Opposition about sexism and ageism. I remember the hon. Member for Newham, North-West (Mr. Banks) once accusing me of being a sizeist because some of us were urging him to stand up, and it turned out that he was standing. Isms are fashionable, but apparently ageism used to be a crime. It used not to be politically correct, but in some way it is politically correct now for judges.
It is ridiculous to draw an analogy with sporting occasions. I have already made the point, and I will not labour it, but a person could give judgment in a complicated civil case even if he had an arthritic hip, yet he would not be much good playing for Wolves, Accrington Stanley or the local football club. It is all about aptitude.
One of the saddest things I ever heard was when I was a Minister in the Department of Employment. I spent a lot of time going round the country, preaching to people that ageism was wrong, that it destroyed a valuable national resource—that it was inhuman and unjust. One chap came to me at a training scheme that I had launched and told me about an application that he had filled in for a job as a van driver. The age limit for the job was 35, and he had lied because his age was 37.
At the interview, he admitted what he had done and they refused to interview him for the job. He asked why they had an age limit and was told that he needed to be fit, and that someone as near 40 as he was could not be fit. He asked them if they knew how he had passed his time recently. He was, he told them, an internationally acclaimed fell runner. Here was a man who had the aptitude for a job and who was sufficiently fit to do it; the fact that his age told against him was completely irrelevant, and it ought to be the same with the judiciary.
If it is felt that nevertheless one should be able to retire a judge on the ground of extreme age, then in a sense the mechanism is already in the Bill—although, on this part of the Bill, it weakens the justification for it, because it is possible for the Lord Chancellor to extend the period of service in certain circumstances if he feels that there is a particular need for a judge to perform a certain function. It would be straightforward enough—perhaps this point will emerge in Committee—to say that there should be a cut-off at the age of 70 but that the Lord Chancellor may extend that in general terms. But the presumption that, once one reaches that age, one is incapable of doing the job is not borne out by the evidence.
We know what the problem is and where it comes from. It is very fashionable to attack judges because they are not female or black or disabled or because they are seen to come from a middle-class background. It is very easy to do that, but we should not be giving in to that sort of pressure. I must tell the hon. Member for Brent, South (Mr. Boateng) that I am completely underwhelmed by the fact that the Law Society has carried out a survey into people's perceptions. There is a degree to which hon. Members are supposed to lead and not merely follow. I never thought that I would hear from someone who presumably, however unrealistically, aspires to office with the great cry, "I am their leader. I must follow them."
Yes, the public perception of members of the judiciary is that they are all ancient, creaking creatures from the upper middle class and wearing wigs, but that is because of the sustained assault made on the judiciary for a number of years in popular society, and very often it is from the Opposition Benches that we hear these comments on the judiciary. The hon. Member for Brent, South and I would have been law students at more or less the same time, in the 1960s and early 1970s. I remember the contributions of the then Member for Ebbw Vale, Michael Foot, making slashing attacks on the judiciary; he turned the whole of his considerable oratory on them. If one keeps on telling the public that, every now and again, when there is a miscarriage of justice, it must be the judge's fault because he does not come from a "right on" background, in the end they will accept it.
How would the hon. Member for Brent, South feel if he were told at some constituency function that a tabloid newspaper had just done a study on the public's perception of the work of hon. Members? I have no doubt that such a study would ask whether people thought that Members of Parliament did not work hard and were overpaid. The people would no doubt reply in the affirmative, adding that hon. Members did not understand what it was like to live in the real world. Such a survey would be completely wrong about the way in which hon. Members on both sides of the House carry out their functions.
Are we supposed just to accept that this is what the public think? Surely we should try to do something about informing the debate. I would have liked to hear the hon. Member, when he produced that survey, make a point of saying that such a perception of the judiciary was not correct, that there was a great deal more to it, and that people's image of the judiciary is simply not true, but there was no element of that at all.
Having failed to find any party political rancour in any of the contributions from the Opposition side of the House, the hon. Member for Teignbridge (Mr. Nicholls) decides, quite arbitrarily, to inject some himself, and I resent that. His tone is totally uncalled for.
Will he respond to this? His noble and learned Friend the Lord Chancellor, who, after all, stands at the pinnacle of our common profession, has made clear time after time, and sought in a number of his appointments creditably to reflect the importance he attaches to underpinning public confidence in the judiciary, by making sure that it contains suitably qualified women and suitably qualified people drawn from ethnic minorities. He responds positively to what he rightly sees as a public perception, one that threatens to undermine the very institution that we should all be seeking to build up and support. There is absolutely nothing wrong in being concerned about how the public perceive those institutions which we should be in the business not only of protecting but of developing.
The hon. Member actually makes my point for me. Obviously, people who are suitably qualified should not be barred from being elevated to the Bench because they come from an ethnic minority or because they are female. Yet the hon. Gentleman says that they should be barried barred from going to the Bench if they happen to have been born an inappropriate number of years before the cut-off date he wants. That is the point that I am making to the hon. Gentleman.
I will say something else to him as well, and if he wants to put it down to party political rancour it is very much a question of wearing the cap if it fits: the sustained attack on the nature and composition of the judiciary has given the public a perception of the way in which our legal system works which is completely untrue. He and I, as members of the legal profession and as hon. Members, have a duty not merely to accept what the public feel but to try to inform them as well.
I do not for one moment understand the reasoning or logic in saying that, simply because someone is born before a particular date, he is incapable of carrying out his functions.
When one talks about the public confidence, one must bear in mind that the public are a very complex body of people—young, old, members of different classes, people of particular intelligence and of none. In this country, the population are increasingly elderly, over the state retirement age. It is profoundly unhealthy to be saying to people over the age of 65, as the hon. Gentleman would have us say, that, while they are quite capable of going to court as a defendant or as a litigant, when it comes to people in their age bracket being competent in a judicial capacity, out they must go.
It is entirely wrong that magistrates are moved on to the reserve list at the age of 65. What we should be looking for is the best person for the job—there, I am with the hon. Member for Brent, South entirely. I do not want to see any member of society who is properly qualified to perform a judicial office being barred from doing it. Speaking personally, however, I find it disturbing that we shall now see age as the only criterion. I hear and see no evidence for it. All I hear is this constant, carping cry from the public that they must be too old. It is time we did our job—which is to lead, not simply to follow.
Hearing the hon. Member for Teignbridge (Mr. Nicholls), I wondered whether I had listened to a different debate earlier. What my hon. Friend the Member for Brent, South (Mr. Boateng) said could in no way be regarded as a sustained attack on the judiciary. It was an attempt to address constructively public concern about the judiciary. If the hon. Member for Teignbridge will not recognise that there are those public concerns in today's society, he will not address them and he will not change things. Asserting that everything is wonderful in the judiciary is not true. It simply is the case that there are wide grounds for reform within the judiciary today.
Let me turn to the comments of the hon. Member for Monmouth (Mr. Evans). He said that pensions for judges were not generous. Let him tell that to my constituents, especially the pensioners who have worked hard, many of them having served their country in wartime, many of them professionally qualified, for example, nurses or teachers, who are having to survive on pensions which are much lower than those being given to judges.
I am obliged to the hon. Gentleman, but he must accept that the money offered to judges on retirement is generous when compared to the money offered to people who receive state pensions or pensions in almost any other profession.
On retirement, each High Court judge is likely to receive from the taxpayer a full financial package that is not far off £1 million. That is not my figure but has been calculated by the international lawyers' organisation, Justice, which recently published a report on judges' payments and pensions. Part of the package is a large sum, in excess of £80,000, on retirement, and the pension received yearly after that is in excess of £40,000.
Inquiries by Justice show that the purchase of an annuity from an insurance company to give a similar yearly pension would cost £839,000, so the value of a judge's salary plus the cost of purchasing his annuity gives him a salary package, in addition to the pension package, of more than £140,000. Given the economic hardships now facing this country, to give judges such large pension and salary packages is a very generous gift and is difficult to justify.
The Lord Chancellor seeks to justify that high salary and pension package on the basis that those appointed are at the peak of their career and could earn larger incomes outside of the judiciary. That is arguable when it comes to High Court judges, whose average net income in 1992 was some £220,000 per annum for the three years preceding the appointment. However, according to Justice, circuit judges' average net earnings in private practice are often as little as £75,000. The package available is worth less than £1 million but not massively so. Clearly, that is a lucrative incentive for them to seek appointment. That is especially so given the fact that advocates' earnings beyond their peak of about 55 or 60 years of age will not necessarily continue to rise.
I note the provisions in clause 18 and the Minister's comments, but it is now time to move beyond the pension schemes being made available. As my hon. Friend the Member for Brent, South said, it is time to look at a fully contributory pension scheme possibly arranged by the judge himself and possibly privately—a privatised pension scheme, if you will.
Those appointed as judges should be able to continue with pension schemes started, like any other professional person, in their 20s or 30s. Their appointment to the Bench should enable them to receive a salary, with an employer's contribution that is openly stated to the public, commensurate with continued payment into a pension scheme of their own. The idea that a barrister can fail to make any contributions to a scheme, then become a judge and serve 15 or 20 years, and come out of it with a package of almost £1 million is difficult to justify to any hard-working constituent who ends up with a small pension.
Nobody at any level should be encouraged to be a judge simply to get a pension. I do not accept the Minister's argument that the pension scheme contains no incentive to become a judge. At that level, there is an incentive.
Mr. John M. Taylor:
I have been following the hon. Gentleman's remarks, which, as usual, are well thought out, although that does not mean that I agree with them all. May I clarify my earlier comments? Anyone who makes a decision about a major promotion step within his or her career will look at the pension implications. However, I sincerely believe that few decisions are made for or against a promotion on the grounds of inhibition or encouragement by the pension. The main decision on whether to accept a promotion will be made in its own right and the pension will be considered in the margin as a serious and important element, but it will not be decisive.
Good judges will not come to their post by reason of seeking a pension, but I know from personal experience in practice that some lawyers believe that being a judge will provide them with a good pension. I doubt whether they will make good judges, but I have heard counsel aspire to that position and comment that the pension was very good if they reached it.
Furthermore, a judge should not be forced to stay in post beyond his sell-by date to clock up 15 or 20 years simply to get his full pension. When the Bill was being drafted, a much more fundamental look should have been taken at how judges' pensions are dealt with. As Justice says in its report:
the pensions arrangements for the Judiciary predate today's sophisticated pension arrangements".
Barristers who seek to become judges now have far more options on how to proceed.
As Lord Wigoder said in another place, before going to the Bench many people have been in a position to make some contribution towards their own and their families' future. That should be allowed to continue on a contributory basis, not on the basis now being suggested.
I question the claim that the Lord Chancellor made in another place that we need those pensions to attract judges. We need judges who are dedicated to the judicial process and the concept of justice, not motivated by a fat and wealthy retirement. Good judges become good judges for better reasons than a pension, but bad judges may well become bad judges for shorter hours, status and possibly a pension.
The Bill should put in place arrangements that allow flexibility and encourage appropriate persons to accept part-time and possibly term appointments, as my hon. Friend the Member for Brent, South suggested. Sadly, the Bill does not even attempt to do that.
May I suggest that the concern is not so much as the hon. Gentleman described, but rather that some of the most able potential judges might be deterred if the pensions arrangements are not good enough? Many Conservative Members are worried not about people accepting judgeships and judicial appointments because of the pensions, but about the risk of losing the best potential judges.
A full contributory pension scheme would avoid all those problems and ensure that, when a person decides whether to be a judge, the question of pensions simply does not arise because he has the option, with a salary that would allow him that option, to decide what sort of pension scheme he wants. It is not a question whether the pension scheme on offer from the state is adequate. An entirely contributory pension scheme would avoid the question of the 20-year rule and it would end any encouragement in the Bill for judges to remain until they are 70 years old. It is broadly accepted in Britain that 65 is an age beyond which retirement is appropriate. A citizen should not be judged by a person who is beyond the age commonly regarded, rightly or wrongly, as an age when the ability to work can become impaired.
To say that a judge has special skills and knowledge in justification is to demean our constituents—engineers, teachers, civil servants and others—who do intellectual work, all of whom accept the logic of a retirement age of 65. It is arguable that at 70 a judge is more likely than a man of 60 of 65 to be out of touch with a society whose members he has to judge.
It is also arguable that a later retiring age increases the difficulty of determining which judges are up to the exacting standards of health and mental capacity required of judges who determine serious cases involving civil liberty. At a time when we are looking at equalising retiring ages for men and women, perhaps at an age lower than 65, it cannot be right to distinguish judges as having qualities of endurance not possessed by any other group in society.
The clause allowing the recall of judges over the age of 70 is offensive. No man should be judged by a person beyond the age at which he should have retired. Litigants are entitled to be judged by a person in whom society has confidence. Many people beyond 70 are fit and mentally agile, but not all are in that happy condition. A judge is too important a figure to allow any question of capacity to be raised.
We need the attitudes and abilities of a younger, more in-touch judiciary. New blood prevents the judiciary from becoming stale and out of touch. If, instead of trying to encourage new blood, every time we need someone to judge a case we bring back someone who ought not to be sitting any longer, the judiciary will be much more out of touch than they are seen to be, even today.
Attitudes of members of the public to the judiciary have been revealed in a survey. There are few other surveys of that kind of which I am aware. It reflects what most hon. Members win find when talking to their constituents and to other members of the public—that there is in Britain today a concern about the judiciary who are perceived as being out of touch.
Whether judges are out of touch is not the point. That it the perception and it has to be addressed. Simply asserting that the public have it wrong does not address the central question of that perception and the difficulties that have arisen. That perception has been caused by a number of past injustices that have been mentioned. The public clearly think that too many judges are too old, male, white and out of touch.
I see no reason why someone over 65 should sit on a jury.
The Lord Chancellor has announced his intention to appoint more judges soon, including six new judges for the Court of Appeal, criminal division, and a number of High Court judges, because, as he said this week, we are short of judges. Yet the cost of judges is a huge drain on public funds. How can we be expected to sanction and tolerate such a large expenditure when those in receipt of public money are appointed by a system shrouded in secrecy with minimal input from the taxpayers' elected representatives? If new judges are to be appointed, the system of appointment must be changed.
As has already been said, a judicial appointments commission has been proposed by the Law Society, the Bar and Justice in its recent report on the judiciary. They show how that can be implemented in practice. It must include lay members, people who can look beyond the legal profession and its middle-class, middle-age and middle-minded attitudes, bringing a new influence and a wider perspective from other areas of life to the appointment of people who will have such a decisive effect on many people's liberty and lives.
That commission should set clear criteria for appointments, which should be openly advertised. It should use modern selective methods and tests and open the judiciary not only to solicitors and employed lawyers, but, as has already been said, to academic lawyers, many of whom have a valuable contribution to make. Most importantly, we need to open the judiciary to more women, members of ethnic minorities and younger people.
The Lord Chancellor's glib observations earlier this week about the lack of women judges is challenged by the Justice report which says that women are available now for appointment, but they are not being appointed. The present system of appointment relies much too heavily on the views of serving judges. The criteria for selection are woolly and imprecise. If the private sector used such criteria to appoint managers, it would be ridiculed.
What on earth does "having a sound temperament" mean? What does "having standing" mean in practice? It sounds good, but does it not mean to the selectors who meet in secret conclave that the candidate is of a similar style to them—a white, male advocate?
When Lord Lane was under criticism last year, a judge was asked what made a good judge. His reply was, "He is a jolly good chap. We were at Shrewsbury together." That sums up many of the attitudes that the public find worrying. Conservative Members may suggest that such attitudes are wrongly held by the public, but all too often judges substantiate and reinforce those attitudes by such comments.
My experience of judges, shared by many people of my background, is that they are out of touch with the people with whom they deal. I am not suggesting that today's judges are bad judges. The quality of judges has improved under this Lord Chancellor. Better candidates have come forward and have become judges. But there is much to be done and much that is not being addressed.
My hon. Friend the Member for Brent, South has already asked why one has to be an advocate in order to be a judge. Being a good advocate does not mean that a person has suitable judicial standards and independence.
Does the hon. Gentleman accept that the real skill of being an advocate is not necessarily being able to string together a fine sentence, but having clarity of thought in discerning the real issues from the peripheral issues, separating the wood from the trees—exactly the same skill that is required to be an effective judge?
Exactly the same skill that is required to be an effective university law professor—to be able to put forward a clear argument and be able to say what the law and the facts of the case should lead to. Therefore, a university law professor, with proper training—no one disputes that that is necessary--could be an entirely appropriate person to become a judge. The same applies to an employed lawyer, many of whom are excluded from the judiciary.
Many secret files contain comments by judges who are now dead and can no longer be questioned about what they said about a barrister who appeared before them many years ago. Such records should not influence decisions about persons who are to be appointed to the judiciary. That smacks of the masonic conclaves of centuries past, rather than of the functioning of a modern, democratic European state. That system also fails to produce judges in whom the public have confidence. A commission has the potential for bringing judicial appointments up to date and for making the system open and understandable. It would ensure a wider range of judges and create a more acceptable judiciary enjoying wider public support.
There is no point in improving the judiciary's pension arrangements if access to justice is to be damaged by destroying the legal aid system. The autumn statement reduced access to justice for 10 million people. As a solicitor, I know that those affected will include women seeking injunctions in cases of domestic violence and defendants, who, as a consequence of the lack of legal aid, will be unable to prepare an effective defence.
Mr. John M. Taylor:
The hon. Gentleman claims that legal aid will be denied to a rather large number of people. Last year, only 250,000 people litigated with the assistance of legal aid. I do not know how the hon. Gentleman produces a 10 million fall-out from a quarter of a million participants. Furthermore, by the admission of Labour's spokesman in another place, Lord Williams of Mostyn, chairman of the Bar Council,
we ought to bear in mind that the provision of legal aid and assistance at public expense is almost unique to this"—[Official Report, House of Lords, 12 November 1992, Vol. 540, c. 604.]——
I will, Mr. Deputy Speaker. However, the Minister did not accurately report my remark. I did not make the claim that he ascribed to me but spoke of access to justice being reduced for 10 million people. I reiterate that assertion, and could defend it at great length—but in deference to you, Mr. Deputy Speaker, I will not do so.
This debate could be effectively continued by the Opposition on another day, but I conclude by observing that the Bill provided an opportunity comprehensively to reform not only pensions but the judiciary. It offered a chance to create the basis of judicial stewardship into the next century, but that chance has been flunked.
The Bill contains the whiff of a Government in trouble and unwilling to take on the real need for judicial reform—unwilling to take on the judges when they should be taken on, to bring about reform and to establish a proper judiciary for the centuries to follow. My contention and that of my right hon. and hon. Friends is that the Bill is a missed opportunity to provide the House and this country with the opportunity to create a judiciary in which the public could have confidence.
The Bill does not go far enough in considering areas that it ought to have examined, and its provisions fail to measure up to an adequate presentation of either the pension needs of judges or of the ways of improving their overall quality.
In deference to the plea for ecumenicalism made by the hon. Member for Brent, South (Mr. Boateng) I will forebear from attacking the hon. Member for Warwickshire, North (Mr. O'Brien)—preferring to attack instead my hon. Friend the Minister. I begin by declaring my interest—although no other hon. Member has done so—as a practising barrister, a recorder, a Bencher, the chairman of the all-party barristers group, the Chairman of the Home Affairs Select Committee, which has responsibility for monitoring the Lord Chancellor's Department, and the chairman of the Conservative Back Bench home and legal committees. I apologise. Perhaps I should declare also that I have not the slightest interest in becoming a High Court judge, circuit judge, stipendiary, or anything else. If I had such a desire, probably I would not dare to speak in this debate—and certainly I would not dare to attack my hon. Friend the Minister.
Lawyers and their complicated pension arrangements are of course of enormous interest to the House. which explains why so many hon. Members are present—although the concentration of quality rather than quantity has allowed us to have a sensible and informed debate, which I am sure will continue. So much so, the Whips actually asked me not to be as hurried with my remarks as I am wont to be, but I will confine them to the purport of the Bill and not wander more widely over the attractive fields of legal aid.
I agree with the hon. Member for Brent, South that this is an opportune moment to debate the judges whose judgments, speeches, eating habits and dress are daily paraded before us by the media. There has been much ill-informed criticism of judges tonight, but I understand why the public find it confusing when they see a man dressed in a wig and a crimson dress trimmed with lace and fur, and wearing silk stockings sentencing a transvestite to community service. I myself would prefer to see fewer transvestites and rather more of the judges dressed like that.
My hon. Friend the Minister made a valiant, eloquent and loyal attempt to present the Bill as a thoroughly splendid measure that will in some way strengthen the judiciary and respect for the integrity of British justice. There was no hint in his speech of it being manifestly another socially structured measure that has the dead and deadly hand of the Treasury all over it.
There was no hint from my hon. Friend either that nearly all judges, leading barristers, the Lord Chief Justice of England and my noble and learned Friend the Lord Chancellor's predecessor deplore the Bill's pension arrangements.
The Bill is not all bad. It is time that pension arrangements were put on a unified basis so that the same rules apply to all judges—that is sensible. It is time that, as judges climb the ladder to higher office, their pensions have more relevance to their end income at the peak of their judicial career, than to the lower office that they have held—which is not the position with some pensions today.
It is probably time also that judges were younger. However, we must be careful not to denude the practising Bar of all its best and most experienced middle-aged practitioners. Without them, some of the long and complicated cases that are conducted in our courts might be even greater nightmares. There is something to be said for the skill and experience of the highly practised members of the Bar who conduct cases with such professionalism.
There is also much that is wrong with the Bill. We need more High Court judges, but how on earth does my hon. Friend the Minister expect to attract the best men and women if they are to lose not only substantial amounts of their earnings as they descend from the higher earnings of the Bar to the lower earnings of the judiciary, but the substantial amount of the money that they would have been able to leave to their families when the pressures of the job finally take their toll, had they not accepted the pensions that will be paid to them as judges when the Bill becomes law? If the retirement age is reduced from 75 to 70, which is probably a good idea, we should not extend the time served before pensions fall due from 15 to 20 years.
Mr. John M. Taylor:
I must tell my hon. and learned Friend, who is making his remarks with his usual felicity and force, that lengthening the tax privileged accrual from 15 to 20 years is an inevitable consequence of the Finance Acts of 1987 and 1989. The Lord Chancellor's Department has no option. We should need primary legislation to make judges subject to a separate tax regime from that of the citizens over whom they exercise their wisdom. We are merely bringing judges' tax provisions into line with general law.
The Treasury is responsible for the financial legislation that makes the Bill necessary, yet it refuses to allow an exemption whereby judges can have a better pension than is promised in the Bill. No fair comparison can be made between those who accrue an occupational pension over 40 years, which brings them within the purview of the Income Tax Acts, and judges who have only 15 or 20 years' service in which to accrue their pensions. Neither my hon. Friend the Minister nor our noble Friend the Lord Chancellor seems fully to have grasped that distinction.
In his successful years in practice prior to appointment, a judge can build up substantial pension rights in private schemes, which are not derogated from when he embarks on the 20 years pensionable accrual. That remains a privilege of judges, who can add their private pension to their public pension and can buy added years when in public service. They are in a better position, even with a 20-year accrual, than their fellow citizens.
My hon. Friend is misleading himself. The reality of life at the Bar is different from what he supposes. I shall address that when I come to it in my orderly remarks.
Five things will happen if this approach to the pensions of judges is allowed. First, barristers and solicitors who want to become judges in their fifties will not want to do so because they will not be able to have enough years to secure the full half-pay-on-retirement pension to which they would otherwise be entitled. Secondly, there will be more judges in their forties who may not have the experience, wisdom or gravitas necessary to command respect, which the judiciary still ought to have in our courts. Thirdly, judges may be pretty tired after 15 years sitting on the Bench, but now they will have to say to themselves, "I had better soldier on for another five years, or I will not get my full pension." From my own experience of judges who have soldiered on past the 20 years, I am not sure that that is likely to add significantly to the quality of justice.
Fourthly, I was very interested in the confident assertion of my hon. Friend the Minister—as confident as his last assertion—that the Bill will attract more women of quality. Will it? As I understand the Government's defence to the attack on the pensions provisions of the Bill, which the Minister has just advanced again, it is that members of the Bar and the solicitors' profession will be able to augment their modest judicial pension with the pension contributions that they have been able to accrue as practitioners in the good years.
But how many good years will there have been before the practitioner is appointed to the Bench in his or her forties? We get low earnings at the Bar in our twenties, higher earnings in our thirties, but we have to pay for our children's education at school and university, take out mortgages and look after our elderly parents. Then, just as we enter our forties and are able to save for our futures and our families' futures, my hon. Friend decides that we should be obliged, if we are so inclined, to take judicial appointment.
In practice, it does not happen. These days, there is not the wealth available in the pockets of 30-year-old solicitors and barristers that allows them to increase their pension contributions. The Bill ensures that, if they want to get a 20-year pension accrual and retire at 70, they must be a judge by the time they are 50.
What chance has the professional woman of building up a respectable top-up capability when she has to take more time off than a man to bear, nurture and bring up children? How many more women would want to become judges if it would deliver low financial prospects for the family? My hon. Friend has it the wrong way round. The Bill will deter and therefore reduce the number of women who might otherwise go to the Bench, not increase it.
Fifthly, at the other end of the judicial scale, there will be fewer permanent judges, and so more need to bring back in a temporary capacity those who are over 70 but not yet 75. They will be paid less, of course, which will please the Treasury. Those five reasons show why the pension provisions of the Bill will go entirely in the wrong direction.
In his Second Reading speech in another place, my noble friend the Lord Chancellor said:
the pension Parliament provides to our judges should be sufficiently substantial to attract, or at least not deter, those candidates best fitted to serve.
That was a very wise and sensible pronouncement. Let us consider what some of the leading judges and lawyers in the land had to say about the Bill.
I am not sure whether there are any Scotsmen, I say with deference to my hon. and learned Friend, in the list to which I am about to refer.
Lord Hailsham, the Lord Chancellor's very eminent and distinguished predecessor, said:
if one is to recruit adequate judges on a sufficient scale to meet the vastly increasing demands of the courts and tribunals and is limited to a pool that was created 20 years ago, one has to be a little careful before one starts messing about with the retirement age, the employment of retired judges, and the accrual of pension.
The former Master of the Rolls said:
The major vice of this Bill is the combination of a reduction in the retiring age to 70 and the increase in the full term of office to 20 years. The message must be that if you accept judicial office, you are expected to serve for 20 years. That is far too long if the judge is not promoted or given different work."—[Official Report, House of Lords, 16 June 1992; Vol. 538, cc. 119, 146–47, 149.]
Lord Ackner, one of the great Lords of Appeal, who knows what he is talking about——
I am referring to what was said. I am not directly quoting; I am paraphrasing, or attempting to do so—perhaps not very well. Lord Ackner told us that there was
an element of wholly unacceptable hypocrisy"—[Official Report, House of Lords, 16 June 1992; Vol. 538, c. 157.]
those were his words—in proposing what appeared at first to be radical and sensible legislation and then, by a species of back-door mechanism, undermining its very purpose.
Finally, the Lord Chief Justice of England said that he was concerned that, if the 15-year period were extended to 20 years, not only would the policy of having a younger judiciary, at which parts of the Bill are aimed and which he applauded, be undermined; there would be serious problems of recruitment, judicial staleness and injustice. He then invited the Government to reconsider that provision.
Those are the great men who know what they are talking about. They are great men upon whom the dead hand of the Treasury does not fall, and they take issue with my hon. Friend the Minister.
The pensions issue may be marginal, but added to the fact that judges receive lower pay than practitioners, that issue becomes crucially marginal. For many people the deciding point is the pension—that is what their Lordships are all saying, and I invite my hon. Friend to take it seriously.
If one steps back and takes a good long look at the Bill, one realises that the combined effect of the retirement and pension proposals will achieve the opposite of what is claimed for them. Fewer of the best and most skilful practitioners will want to serve as judges. Fewer women will want to become judges. Judges will tend to be either younger when they come into the judiciary, or too old when they are called back to serve in a temporary capacity.
If there is trouble in recruiting judges, delays in the legal system will increase. Dissatisfaction and discontent will grow among judges, and thereby public respect for the judiciary will decline. I fear that, as with so many social reforms which are Treasury led, such as the so-called reforms of legal aid and of the legal profession, and the so-called reform of the brewing industry, it will all end in tears.
I endorse what has just been said by my hon. and learned Friend the Member for Burton (Sir I. Lawrence). I wish to follow up the matter that he raised at the beginning of his speech, by declaring not so much an interest as a background, as a member of the Bar Council and of the all-party barristers group chaired by my hon. and learned Friend, and as the vice-chairman for the coming year of the employed barristers organisation, the Bar Association for Commerce, Finance and Industry.
Towards the end of his speech the hon. Member for Warwickshire, North (Mr. O'Brien) mentioned the position inter alia of the employed Bar as regards any possible appointments that might be made to the Bench in coming years, and I agree that it is important to consider the whole of the legal profession. Several hon. Members on both sides of the House have done so, and I endorse what has been said by many of them—that the most important aspect of our consideration of the Bill will be to ensure that the best candidates are available for selection for judicial appointment.
I reject the suggestion by some Labour Members that there should be positive discrimination to ensure that a wider range of backgrounds is represented on the Bench. I argue strongly that it is essential to concentrate on one aspect alone when choosing between potential judges, and that is their ability. As someone who has shared chambers with colleagues from ethnic minorities, and with several distinguished lady members of the Bar, I am the first to recognise that there are many good judges and, I hope, potential judges among people from ethnic minority backgrounds, lady members of the Bar and solicitors, but it is entirely wrong to suggest that such people should be appointed simply because they come from such backgrounds, rather than according to the single test of ability. I stick to that belief.
I hope that what the hon. Member for Brent, South (Mr. Boateng) said in praise of the quality of the judiciary will be taken to heart by many of his hon. Friends who have not had the advantage of listening to the debate. I propose to keep a copy of the Official Report of those remarks about Her Majesty's judges. I welcomed those remarks and I shall keep them by me in order to refer to them when some of his hon. Friends indulge in what I can describe only as a knee-jerk reaction, or the reaction of Pavlovian dogs, on occasions when it suits them to criticise judges. I shall point out to them that their hon. Friend the Member for Brent, South does not agree with them.
It is important to recognise, as the hon. Member for Brent, South does, that one of the main reasons why the British judiciary is so highly respected, and why the parties to many important commercial disputes choose this country for their cases to be tried is the record of integrity and independence so obviously shown by Her Majesty's judges. In considering the Bill, we must realise that it is crucial that nothing should be done to detract from that record.
Many of us who have been interested in the passage of the Bill through the other place have welcomed the fact that the Government have made some concessions and brought forward several amendments there. In particular, they have made more generous provision for judges who retire early through ill health. I ask my hon. Friend the Minister to consider that question again and improve the position still further. If a judge, who may have been one of the most distinguished members of the Bar, takes a judicial appointment but, sadly, suffers ill health early in his judicial life and has to retire, he should get the full pension rather than, as has now been conceded by the Government, the lump sum and the pension being calculated on the basis of the length of actual service plus half the time remaining before he reaches the age of 65.
Like me, my hon. and learned Friend the Member for Burton and others of my hon. Friends will be able to think of particular examples from the recent past. Sadly, the health of several people who gave distinguished service both as members of the Bar and, having taken judicial appointments, after serving in connection with especially important public inquiries, suffered as a result of the great public services that they had rendered in those positions. Early in their subsequent judicial appointments they found themselves unable, through no fault of their own, to carry on. I welcome the concessions made in another place, but I urge the Minister to consider that aspect again and to go further than the Government have so far gone.
I also welcome the provision for tax-free additional voluntary contributions to be made to pensions. However, I endorse what my hon. and learned Friend the Member for Burton said—that it is not good enough to say, "Of course, members of the Bar will always have made provision during their early years at the Bar." As my hon. and learned Friend pointed out, many members of the junior Bar cannot do so, because of their low earnings, especially those who concentrate on legal aid work, to which many hon. Members have referred. At a time when their family obligations are heaviest, they are not in a position to concentrate on making pension contributions, especially not with thought to a future judicial appointment.
It is of special concern that members of the junior Bar who are concerned to do their best for their clients are frequently so busy every weekday evening preparing the next day's case, the cross-examinations and the examinations in chief that they have no time to think about their pension provision. They certainly have no time to think about the pension which may be available should they ever be lucky enough to benefit from a judicial appointment.
I am grateful to my hon. and learned Friend for making that valuable point, which I entirely endorse.
I agree with several of my hon. Friends that it would be wrong for a decision to be made by the Government, either on this or any other Bill, simply as a result of surveys of the public's perception of judges. I strongly believe that it is the responsibility of the Government and of all hon. Members to try to lead and to influence public opinion. Surveys of public perception are almost invariably wrong. They record prejudices, so it would be inappropriate for the Government to tailor their position as a result of surveys of public opinion, which are bound to be partial. It is crucial that the right decision, rather than the public's perception of the right decision, is made.
I stress that the great difference between Conservative and Opposition Members is that we seek to present a judgment of what is in the country's interests. Too many Opposition Members take the view that whatever is the fashionable nostrum of the moment must influence public policy. That is wrong. I am sorry that so few Opposition Members are able to listen to the valuable points made by my hon. Friends along the same lines.
The jury opposite consists of only two hon. Members. Even in England a jury has 12 members. The remarks made by the Lord Chief Justice of England, which were broadcast to the nation, were hardly helpful to the cause he was advancing. Thank God they did not apply to Scotland.
I return to the subject of the concessions made by my hon. Friend the Minister, which were welcomed in another place. I urge him to go further. The Government conceded that the benefits payable to close relatives in the event of the untimely death shortly after retirement of someone who had held a judicial appointment should be improved from one and a half times pensionable pay to five times the annual rate of pension at the time of death. I urge my hon. Friend to look again at the provisions made for judicial spouses, whether widows or widowers, and to recognise that telling points were made by many distinguished judges in another place who will not benefit from any changes that may be introduced.
I especially urge my hon. Friend to pay heed to Lord Ackner's contribution to the debate and to the comments of Lord Donaldson in another place. I urge my hon. Friend to consider carefully the entirely objective views, based on considerable experience, of those who no longer have a vested interest in benefiting from the changes that they advocate.
I endorse what was said by my hon. and learned Friend the Member for Burton about the dangers of requiring, as the Bill does, that people should have to serve a full 20 years to qualify for a full pension. Hon. Members of all parties who have practised in the criminal courts will be aware of the tendency referred to as "judgeitis". There are those who, as my hon. and learned Friend the Member for Burton said, soldier on when they might be wiser not to do so and who become case-hardened and out of touch.
I strongly urge the Minister to bear in mind the fact that it would be entirely right to recognise that there is a great deal of common sense in the provision that 15 years should be the right period of accrual for a full pension. He should recognise especially that 15 years period has been the period for accrual since as long ago as 1799. There are many occasions in the House when we should recognise that our forefathers knew what they were doing and that a system that has been tried and tested for almost 200 years should not be abandoned without careful thought. It should certainly not be abandoned at the behest of the Treasury.
The Minister argues a difficult case to sustain. He says that the judges' position was unique, but he also says that the provision for pension must be brought into line with the general pension law which applies to people who have a complete working life in another kind of job. I urge my hon. Friend to take note of the fact that the judges' position is absolutely unique because of the late stage in life at which they take judicial appointment. It is precisely because of those special considerations that my hon. Friend and his ministerial colleague the Lord Chancellor should bear in mind that unique position.
The fact that the exception has continued ever since the pension law for other occupations was changed is a reason for continuing it and for recognising the special and unique position of the judges. Nothing that my hon. Friend does in the Bill should detract from the special and unique qualities of judicial appointment.
I very much recognise the strength of my hon. Friend's case when he talks about the importance of preserving the discretion to recall judges past the new retirement age of 70. Opposition Members were entirely wrong to suggest that there must be a specific cut-off date. Different judges retain their mental faculties to different ages. Reference was made to especially distinguished judges who have made an enormous contribution to the development of English law well beyond their 70th birthdays. English law would have been the poorer without that contribution.
Opposition Members should recognise that many of the decisions that they have applauded—the hon. Member for Brent, South would have regretted those decisions not being part of English law—and especially the contributions towards social legislation made by distinguished judges of the past such as Lord Reid would not have been made if the noble Lords in question had had to retire at the date that many Opposition Members suggest or at the age of 70.
I invite the Minister to reflect on Opposition Members' comments about footballers, including Sir Stanley Matthews, the distinguished former player for Blackpool in my constituency. The suggestion that he should not have played at the age of 50 should not be a reflection on his great contribution and the contribution of many other distinguished footballers to coaching players. It was their experience as players which enabled them to be such good coaches in various parts of the world. They especially helped young players.
The true parallel is the opposite of the parallel drawn by Opposition Members. The important point is not that those footballers were unable to play beyond the age of 50, but that they retained their footballing experience which they were able to pass on. There is an exact parallel with members of the Bar who benefit from their experience at the Bar when they become judges. We should concentrate on that parallel and not suggest that that experience should go to waste at any particular cut-off date. A judge may be a good judge at 71 or 72, so I welcome the provision for the recall of judges.
I recognise that the Bill has many strengths and I welcome it in many ways. I urge the Minister to consider especially some of the respects that I have mentioned in which the Bill could be further improved. The greatest flaw of the Bill is that it suggests that the accrual period should be extended from 15 to 20 years. If that provision is enacted, it will be seen to have been a grave mistake. I urge my hon. Friend to think again about that aspect.
At the risk of being clubbed to death by my colleagues who are banisters, I welcome the Bill and, in particular, the reduction in retirement age to 70, together with the discretion for judges to remain on the Bench until a cut-off point of 75. I also welcome the long overdue reforms of the pension measures applicable to the judiciary to bring them into line with other sectors in society and to eradicate some of the anomalies between different members of the Bench. That is a much-needed rationalisation, and it is welcome.
It is interesting that people outside the House have also welcomed the Bill. In a recent newspaper article, Gareth Williams QC, the chairman of the Bar Council, said:
This is a welcome step by the Lord Chancellor, and one for which the Bar has campaigned very strongly this year. I am very glad the Lord Chancellor has accepted our argument.
I am not alone in welcoming the measure.
I want to make three points in my contribution to this very interesting and wide-ranging debate. First, I wholeheartedly support the need for members of the Bench to have an attractive financial package, including pension rights. Secondly, as I have already said, I welcome the retirement age of 70. Thirdly, I want to express concern that the reduction in the retirement age should not be allowed to aggravate the existing iculties of access to justice through the shortage of judges. I urge the Government and my hon. Friend the Parliamentary Secretary to consider further urgent measures to speed up the judicial process by making more time available for members of the Bench, so that members of the legal profession can have access to them and members of the public are not prejudiced.
I am disappointed that no member of the Liberal Democrat party has been present during this debate. I have no doubt that that will not prevent the Liberal Democrats from rushing off a press release tomorrow morning stating that they were largely responsible for the measure being introduced. It is worth pointing out to the public that the measure of their concern and commitment to justice in the national is reflected in their absence from the Chamber tonight.
It is absolutely critical that members of the Bench have an attractive remuneration package. It has already been said that, in a free society, it is in all our interests that we attract on to the Bench men and women of the highest calibre and with the finest legal minds to try the issues that come before them.
We often take for granted in this country some of the things that are good about our society. We often take for granted the excellence of our judiciary and the fact that, while from time to time there is the occasional controversy about something that a member of the Bench may say, we rarely hear about corruption or impropriety from any member of the Bench. That is to be broadly welcomed. We would certainly miss that if it were otherwise.
It is therefore important that a substantial financial package is available for judges. That would help to ensure that corruption and temptation do not arise and that the judges remain as fiercely independent and impartial as they are today. We can be proud of our justice system, which is envied elsewhere in the world. We should not attack it too fiercely, as some hon. Members have done this evening.
If we are to attract the men and women of high quality on to the Bench, we must be able to compete with other sectors, notably with those who remain at the Bar—those who, like myself, indulge in the perhaps more demanding side of the legal professsion and practise as solicitors, and those who are engaged in industry. It is important to attract members from those sectors to the Bench.
The pension scheme that the Government propose in the Bill is attractive. It has been criticised and analysed in this debate. After an accrual period of 20 years, which is common to many other sectors in society, a pension of 50 per cent. of final salary is available. That is not an ungenerous provision, but we can go further than that. In addition to the 50 per cent., there is an additional lump sum of two and a quarter times the annual rate of pension. That lump sum is not obtained by commuting part of the annual pension payment—it is in addition, and that is attractive.
The pension is also index-linked, and is paid for the rest of the retiring judge's life. It is also non-contributory. That adds up to a very handsome package, and rightly so. As I have said, it is very important to attract the right sort of people on to the Bench. I therefore welcome the Government's proposals.
I also welcome the fact that the 20-year accrual ruling removes an anomaly that has existed for many years between various members of the judiciary—between High Court judges and district judges, and between circuit judges and stipendiary magistrates. There was no justification for a difference in the accrual period, and I welcome the fact that the Bill addresses that issue.
I also welcome the reduction of retirement age to 70. I want to quote from Aristotle who, as far as I know, was never a Member of Parliament, but a fine fellow none the less:
That judges of important causes should hold office for life is not a good thing, for the mind grows old as well as the body.
I agree with those sentiments. We should understand that being a judge is a very demanding and onerous task. In saying that, I speak as someone who, while not a court lawyer, has been in court on several occasions sitting
behind various eminent barristers watching them do their stuff. I was extremely impressed with the way in which judges conduct themselves and carry out their business.
Being a judge requires concentrating for hours on end. A judge must take copious notes on what is said in court. A judge must see through the arguments from various sides to get to the heart of the matter. The judge must weigh the issues, as has already been said, to make a judgment. Being a judge involves scrutinising witnesses and discerning whether what is said in court is true. It involves deciding the honesty of witnesses and seeing the wider implications of judgments. It is a demanding job, which requires great mental agility; we should not lose sight of that.
I am concerned about the provision for extending to 20 years, because at the moment, given the demanding nature of the job, many judges reach 65 and feel that that is the proper retirement age. Under the proposal, any judge who is appointed at 50 will have to soldier on until he is 70, perhaps against that judge's better judgment, but for purely financial reasons. Is not that a fault in the provision?
My hon. Friend has made a very interesting and helpful point. However, I believe that it is important that we are beginning to recruit younger judges. The perception point that was raised this evening has some validity. It is not just a matter of the perception of society, it is also my perception that some of our judges stay on too long. However, we must also recruit judges at a younger age.
I must point out that the pension is non-contributory. Although we must take account of the salaries of other members who carry on at the Bar or the salaries that are available in industry, if a judge is concerned about the final pension, that judge can make additional voluntary contributions. There are not many professions in the country in which a pension of 50 per cent. of one's end year salary is available on a non-contributory basis.
Taking one thing with another, it is an attractive package and should not deter anyone from becoming a member of the Bench. It has been said that 70 is an arbitrary age, but any line drawn at any age is of necessity arbitrary, and there are always anomalies. There are always people who could go on for an extra year or two but are hit by a rule.
Of course the Bill gives discretion to the Lord Chancellor up to the age of 75. It is right to reduce the age to 70, and that will be broadly welcome, but it is also right to allow the discretion to the Lord Chancellor to allow some judges to continue until they are 75. We have heard of the example of Lord Denning who went on late into his eighties and made many excellent judgments and made a great impact on the legal affairs of this country over many years.
I had the experience of a long-running High Court case in which a judge was brought back from retirement to sit; he was there for a number of weeks. In my opinion, he did an excellent job, not just because he found for our side wholeheartedly and awarded us costs, but because he was on top of the arguments throughout the proceedings. That gives strength to the discretion of the Lord Chancellor to bring people back, provided that they are not over 75, to take part in the judicial process when the pressure requires it.
I have already said that it is important to deal with public perception—an issue which we avoid at our peril. The perception of judges going on too long, being out of touch and remote, is sometimes justified. It is not just an issue of age: increasingly, as the pace of modern society changes, it is necessary for most people who go through the judicial process to feel that the wise person on the judicial bench has some idea of what life is about.
This modest step to bring down the age of retirement will be widely welcomed. It is important to recall the expression that justice must not only be done but also be seen to be done. That is about perception. There is difficulty in how some judges are perceived, and the Bill seeks to address that in an acceptable manner.
We have to recognise that the new rules apply only to new members of the judiciary. I look to the Minister for confirmation of that. It does not include judges who are at present on the Bench.
Mr. John M. Taylor:
Anyone who is promoted after this Bill comes into place will be bound by the new rules. Anybody first appointed after the Bill will be bound by the new rules. The only persons who will have the option to stick by their historic rights are those who are promoted within the envelope of the same pension scheme, such as from the High Court to the Court of Appeal, at present covered by the same scheme. That would be seen as promotion which did not cross the boundary, and the option would not have to be taken.
I am glad that that point was taken, and I now come to my final and most important point.
I hope that the Government will not believe that they have done enough to address the difficulties facing the judicial system. There is a need to review access to justice. I welcome the courts charter introduced last week setting time limits and standards for access to justice. This is timely and right, and it is urgent that the Government should respond to that difficulty. One way do so is to recruit at an earlier age and from a wider background, and it is certainly important to recruit more women judges.
A recent newspaper article said:
Legal history was made yesterday when Lord Mackay announced the appointment of Ann Marian Ebsworth as a high court judge. Judge Ebsworth, aged 54 will be the first high court woman judge not to be assigned to family law cases. She will sit in the Queen's bench division dealing with accident cases, libel and claims for money owing. Her appointment brings the number of women on the high court bench to three out of 84.
I believe that that is intolerable in 1992. Why should a woman judge be automatically assigned to the family law division? It is a condescending attitude that we have to shake ourselves out of.
I would therefore like to see a far broader spectrum of people becoming judges, and at an earlier age. If people are fit to run the country at 47 in the excellent way our Prime Minister does, surely one is fit to be a High Court judge. If one is ready to be a member of Her Majesty's Cabinet at the age of 40, surely one is ready to be a High Court judge. It is time we revised some of our traditional attitudes and caught up with modern thinking.
We need to recruit from a wider background and to recruit more judges, because there is often a waiting list for people to come to trial and the only stumbling block or sticking point—the only reason for a waiting list—is the absence of a judge to try the issue. Many lawyers often find when they get to court that there are innumerable delays and witnesses and lawyers can be standing idle, including expert witnesses called at great expense, all waiting for judges to become available. That is something that we have to address urgently.
I welcome the Bill and I am grateful to the Minister for the way he introduced it. The sooner it becomes law the better.
Order. There are three hon. Gentlemen wishing to catch my eye. I understand that the winding-up speeches will start at about half past 9 so if they bear that in mind, it will be possible for me to call all three.
I shall indeed try to be brief, Mr. Deputy Speaker—a task made simpler by the great common sense shown by my hon. Friend the Member for Plymouth, Sutton (Mr. Streeter) with whose words I agree in great measure.
I do not have a professional interest in the debate, nor do I have a great knowledge of Stanley Matthews, which some hon. Members may be grateful to hear. As a medical man and a politician talking about the legal profession, I can at least claim to unite three of the four oldest professions. Any hon. Members who can unite all four are welcome to send me a postcard or leave it in the Members' Lobby.
My hon. Friend the Member for Sutton was right to point out that hon. Members have not emphasised—nor do the population in general appreciate—the excellent standard of our judges, and I take that matter seriously. We take their excellent qualities too much for granted. However, it is important to recognise that there is a great deal of public disquiet about our judiciary. The public perception, which is important and which the Government would be complacent to ignore, is that there is too great a gap between natural justice and the application of law. We must take into account public disquiet about the ages of our judges.
My hon. Friend the Member for Monmouth (Mr. Evans) mentioned crude tabloid journalism, which undoubtedly strikes a chord with the general public and echoes some public disquiet. The public are worried about inconsistencies in sentencing. Why should someone in Bath get a different sentence for the same crime, under many of the same circumstances, as someone in Bristol?
The public worry about the failure to utilise sentences that have been made available by Parliament, and they worry about elderly judges. I have never been a lawyer, but I have been in court—as a medical witness, I hasten to add, before anyone rushes to the News of the World. I know that it can be difficult to communicate in a modern vocabulary with a judge who is a touch out of date, and that cannot be good for the public's perception of justice.
There are too few young judges. As my hon. Friend the Member for Sutton said, if one can be a Cabinet Minister in one's thirties and a hospital consultant at 40, why can there not be more younger judges? Surely that would benefit our entire legal system and not least lawyers?
Yes, but the Prime Minister was younger than that when he became leader of the party and Prime Minister. Even if the average age has decreased, it would be desirable for it to fall further. I notice that the hon. Gentleman has no objection to the fact that the average age of Members of Parliament has fallen far below what it was in the previous Parliament.
There will always be difficulties with fixed retirement ages. It is interesting to note that the age of retirement was first fixed, 33 years ago, at 75 for the senior judiciary and 72 for the circuit benches. Given average life expectancy then, that would equal a retirement age of more than 80 for the senior judciary now. There has been a change in the way society views justice.
I congratulate the Government on the fact that the Bill provides a balance between judges' experience and what one might charitably call their potential cerebral vitality. My hon. Friend the Member for Monmouth said that the provision was arbitrary and ageist, but he was unable to tell us how to define judges who are—to paraphrase him—of sound mind. He said that the law, unlike science or medicine, was only a matter of accumulated knowledge. If medicine and science are not matters of accumulated knowledge, then I do not know what they are. It worries me that my hon. Friend does not think that it is necessary for judges to have that quality.
There must be some flexibility. I welcome the provisions in the Bill, but I caution against too much flexibility in allowing judges to return to work under exceptional circumstances. My hon. Friend the Member for Sutton also mentioned that, and I wonder whether the Minister could give us some guidelines later on how many members of the judiciary might be invited to return and what percentage he would expect to do so. If too many return, it makes the provision pointless.
I take issue with some of the arguments of the hon. Member for Brent, South (Mr. Boateng). He quite rightly mentioned the demands of the administration of justice, and the use of part-time and deputy judges. He also mentioned establishing a fixed retirement age of 65. I am sorry that we got on to the subject of costing that proposal, but—more importantly—he did not tell us how that would reduce the number of available judges, as we already have long waiting lists. Will the Opposition tell us how many judges would be affected if the age were fixed at 65, and who would fill those places if not the very part-time judges that he does not wish to see in courts?
By the same token, I ask the Minister what effect the proposals in the Bill will have—although I regard them as reasonable—on the work load of the courts, and what shortfall the Government envisage during the next two or three years as a result of the present problems.
I shall make only a couple of comments on pensions. I agree with my hon. Friend the Member for Sutton that the package is not ungenerous, and may be looked on by other professions as rather generous. It seems strange that those who administer the law should find themselves in such confusion over their pension schemes.
I regard some aspects of the present system with scepticism, such as the inequality in treatment on pensions. A registrar can take 20 years to reach maximum pension, as can a Scottish sheriff, but a circuit judge—his English equivalent—takes only 15 years. I am very sorry not only that there are almost no Opposition Members here, but that the very vocal Scottish lobby that we often see championing the Scottish legal system seems notable again by its absence tonight.
There is also the question of the rigidity of the current treatment. If a judge retires on his birthday, he stands to lose a full year's pension, as it depends on fully completed years. That is too rigid a system, and it needs to be addressed.
Then there is the problem of elevation. The Bill is to be commended for simplifying the current rules, which may be a disincentive to promotion. At present, acceptance of higher office can mean that a judicial officer may not be able to retire with immediate pension at the same age as in a lower scheme.
All these are areas of legitimate concern. I believe that in this measure the Government are addressing the public concern and the need to reassure the public about justice. They are taking on board the fact that there are changes in society and that we do not need more women judges or more black judges, necessarily; we need more good judges. That, ultimately, is the guarantee of quality in our legal system.
I am extremely sorry not to have been here at the beginning of this debate to hear what I suspect were some very erudite and learned comments from both sides of the House. I was otherwise occupied on a Standing Committee.
To be one of Her Majesty's judges is to hold one of the highest offices of this land. It is an office that carries with it the highest esteem, integrity and probity. Indeed, high judicial office is a coveted appointment even among learned counsel, who frequently take a substantial reduction in earnings to be appointed to such high office. In an increasingly money-conscious world, such financial sacrifices are indeed a salutary pointer to the high esteem in which judicial office is still held in this country.
It is therefore a bounden duty, an imperative of the public interest, that those holding high judicial office should be treated fairly and equitably and have the same opportunity as those who are employed or occupied elsewhere.
This Bill is intended to rectify a number of anomalies in the current arrangement on judicial pensions, but it is my contention that it does not go far enough. I know that a number of my hon. Friends have mentioned this, so I will not go into it in great detail.
Our judges come from the finest ranks of the legal profession. If we are to attract the best, their pension arrangements must also be of the best that we as a nation can afford. It is an incontestable fact that those now appointed to judicial office from the ranks of counsel or learned counsel are expected to earn as judges far less than they would otherwise have earned as counsel or learned counsel. Having made one financial sacrifice by being appointed to judicial office, they are then expected to make a second in their pension arrangements under existing provisions.
This has come about because judges are appointed in mid-life, in their 40s or early 50s; thus, their pensionable period is no more than 20 years at best. While others in different professions can look forward to pensionable careers of 40 to 45 years, in the case of the judiciary the pensionable career is reduced by one half in most cases. Since pensions are calculated on the number of years in service, judges incur a double penalty, first in the reduction of their income on appointment——
Mr. John M. Taylor:
I am very grateful to my hon. Friend for giving way because I know that he is keeping to the tightness of the time schedule, but I want him to know that, alongside the 20 years of the judicial pension, it is entirely possible for successful practitioners at the Bar to have accumulated private pension rights beforehand in that phase of their careers, which are in no sense subsumed into the judicial pension. So they end up with two pensions.
I am very grateful to my hon. Friend for that intervention.
The second penalty is in the pension that they receive at the end of their careers. I welcome the steps taken in the Bill to correct a number of anomalies which have been with us for a number of years. In particular, I welcome the intention of the Bill to create a single pension scheme for all members of the judiciary throughout the United Kingdom. That will end the proliferation of schemes for different judges, some based on 15 years' accrual of service and other on 20 or more years' service. Instead, all pensions will be calculated on a 20-year accrual rate.
I listened with interest to the remarks of my hon. and learned Friend the Member for Burton (Sir I. Lawrence). I have also noted with some concern the Bar Council's objection to the 20-year accrual period, based on the contention that such a period would reduce the prospect of gradually reducing judicial retiring ages into the 63 to 68 band, which is what the Bar Council wants. If we say that all judicial officers must serve 20 years before being entitled to a full pension, we shall be building in problems for the future. The Bar Council would prefer a 15-year accrual period, and I have some sympathy with that point of view.
The general thrust of the Bill is to be welcomed. Its key points are that it brings the current haphazard system into line through the introduction of a single pension scheme; by ensuring that judicial pensions comply with financial legislation, it enables pensions to attract tax relief, in common with other pension schemes; and it will enable the standardisation of retirement age, currently 75 years for most judges, to 70 years. We have heard much in the debate about whether that will be a good move.
I welcome amendments made in another place designed to make more generous provision for judges who retire early through ill health, with provision for tax-free additional voluntary contributions. They also provide for benefits to be payable to close relatives in the event of death shortly after retirement. Those benefits will be improved from 1·5 times pensionable pay to five times the annual rate of pension at the time of death.
The Bill will help to attract some of the best legal minds to the judiciary from the ranks of the legal profession. It will make the judiciary more in tune with contemporary life by attracting younger people. It will also go a long way to redressing the balance in the nation in favour of the judiciary.
I must at the outset declare an interest as yet another lawyer, albeit only a humble solicitor with no aspirations or expectations towards judicial appointment.
My hon. and learned Friend the Member for Burton (Sir I. Lawrence) made a strong case for more generous pension arrangements for the judiciary, with a full pension available after 15 instead of 20 years. I appreciate the Treasury difficulty in achieving that, given the existing tax relief rules.
My hon. Friend the Member for Monmouth (Mr. Evans) went to the other extreme and argued that judges should provide their own pensions through private pension schemes. I believe that that has much to commend it. The difficulty is that most judges are expected to accept a substantial reduction in income on their appointment to the Bench, and it would be a grave deterrent to potential appointees on realising that they would not only suffer a large decrease in salary but also be deprived of a non-contributory pension.
I welcome the amendment in another place which ensures that, if a judge is forced to retire early through ill health, the lump sum and pension to which he would be entitled will be calculated on the basis of the length of time actually served, plus half the time remaining before the recipient reaches the age of 65.
Hon. Members have spoken of the age limit—upper and, effectively, lower. In respect of the upper limit, I recall during my law student days the tremendous admiration I had for Lord Denning. I am reluctant to support any rigid age limit, although I accept that, if there is no limit, there is a danger that judges may fall below their original level of mental prowess. They may not be so fuddy-duddy as to fail a medical examination, but their continued presence on the Bench might become an embarrassment and a disadvantage to the judicial system.
Therefore, I reluctantly accept that it is necessary to have an age limit, notwithstanding the fact that that may sometimes work harshly and deprive us—as it certainly would have done in the case of Lord Denning—of an outstanding judge. The reduction in the age limit to 70 is appropriate, especially given the discretion provided in the Bill for the Lord Chancellor to extend that age limit to 75 in appropriate cases to fulfil the needs of the judiciary.
The hon. Member for Brent, South (Mr. Boateng) said that he wanted to see more young people, women, ethnic minorities and solicitors appointed to the Bench. I echo that view, but I do not agree that it is appropriate to widen the scope of the Bill to achieve those objectives. I prefer to rely on the Lord Chancellor's Office to bear in mind the comments that have been made this evening. I am sure that the Parliamentary Secretary will relay our comments to the Lord Chancellor. It is important to have younger people, more women and people from ethnic minorities on the Bench to reflect more accurately the community at large.
My hon. Friend the Member for Monmouth rightly, in his typically rich, robust and even rampant manner, exploded the idea of the hon. Member for Brent, South that appointments should be made to the Bench for six or eight years. To make such short-term appointments would wreck the career development of a successful member of the Bar. Anybody who moved from the Bar to the Bench for a period of six or eight years would fully realise that his earning capacity on his ultimate return to the Bar would be severely impaired, certainly temporarily, until he proved his worth in his previous milieu.
I support the Bill, which has a great deal to commend it.
With the leave of the House, it falls to me to wind up what has been an interesting debate for Labour Members.
In the latter stages, the debate was marked by dissension among Conservative Members which surpassed anything seen since yesterday. We are becoming increasingly accustomed to such dissension. Conservative Members could not seem to make up their minds whether they thought that the Bill was good. Powerful vested interests, which were extremely hostile to the Bill, were represented in no less a person than the Chairman of the Select Committee on Home Affairs, the hon. and learned Member for Burton (Sir I. Lawrence).
Others who wholeheartedly embrace the Bill took strong exception to the bileful speech of the hon. Member for Teignbridge (Mr. Nicholls). I am sorry that the hon. Gentleman is not in his place for the wind-up speeches. He made it sound as though it was vaguely improper to listen to what the general public—the electorate—have to say in a crucial public debate on what the role of the judiciary should be in the 1990s.
In a useful contribution, the hon. Member for Plymouth, Sutton (Mr. Streeter) took strong exception to what the hon. Member for Teignbridge said. He was not alone among Conservative Members in feeling that it was important for deliberations in the House to be guided by the public perception of the judiciary.
It has been an interesting and worthwhile debate. The House will expect me to respond to a number of issues raised, and I want to do so. Important speeches were made by a number of my hon. Friends. My hon. Friend the Member for Warwickshire, North (Mr. O'Brien) stressed the importance of our being prepared to take a look at the root and branch reform of the pension scheme for the judiciary. He suggested that it was important that there should be provision, albeit at a future date, for a fully contributory scheme. That must be right, and he made a strong case for it.
Interestingly, that proposal was touched on by the hon. Member for Monmouth (Mr. Evans), who called for the wholesale privatisation of the judicial pension scheme. It is important that we should consider that proposal, not simply dismiss it out of hand. No less a person than a former Lord Justice of Appeal, Sir Frederick Lawton, said in The Times in July 1992:
Money is not the lure of the bench.
He was right to say that.
It is important to recognise that it is public service that calls people to the judiciary, particularly its higher reaches. To their credit, people make considerable sacrifices in their earnings in order to serve on the Bench. That is the answer to the argument of the hon. Member for the Vale of Glamorgan (Mr. Sweeney), who denounced the Conservative proposal—albeit of 92 years ago—to introduce fixed-term appointments for the High Court. He rightly said that I floated that; it is entirely proper and healthy to have a public debate on the issues.
The strength of the proposal is that there may well be senior barristers or solicitors, whether men or women, who are satisfied with their careers and unwilling to opt out of them completely, but who have a sufficient sense of public duty to say that they will, for a limited period, forswear the additional earnings that they would otherwise receive in order to make a public service contribution.
In the various branches of the profession—solicitors, barristers and, I hope, if we win the day and extend access to higher judicial office to those in academic life and in commercial employment in industry—there is a tradition of public service. When we bear in mind the current crisis in the staffing of the higher judiciary, we should consider once again the option of fixed-term appointments.
Sir Frederick Lawton, or Lord Justice Lawton, as he was, makes the point that not only is money not the lure of the Bench but, importantly, he says:
The Government cannot afford, however, to assume that barristers, and in the future solicitors, too, will continue to find the supreme court bench an attraction. The prospect of a pension on retirement is no longer as attractive as it was. Ever since the Finance Act 1956 allowed insurance premiums on pension policies to be set off against income tax, any barrister who has taken full advantage of that Act can now retire with a better pension than a judge receives. It will not, however, be index-linked as a judge's is.
That is precisely the point. Bearing in mind what Sir Frederick has said, there is no reason why we should not consider actively the introduction at a later date of a wholly contributory pension scheme, provided that, at the same time, the remuneration of the judiciary is made sufficient to fund the contributions. By failing to provide the context in which that could be introduced later, the Bill may be seriously flawed. In Committee we will seek by amendment to make that a possibility.
The judicial retirement age was touched on by my hon. Friend the Member for Wallsend (Mr. Byers) and other hon. Members. Again, the hon. Members for Monmouth and for Teignbridge were reactionary to the last. The hon. Member for Monmouth gives flesh to the concept of reaction; he is reaction incarnate, and it is not a pretty sight. I am sorry that he is not present to hear me say that, but he may read it tomorrow, if he has a mind to.
Of course, the hon. Member for Monmouth dismissed any notion that we should take into account the age of judges or anyone else. He extended it even to the civil service. Someone ought to point out to him that civil servants at permanent secretary level are only too happy to retire at the age of 60. Within months, they proceed to much more lucrative fields. That may not be the case in the Lord Chancellor's Department where they have a much harder lot but certainly elsewhere I doubt whether there will be any sympathy for the views of the hon. Member for Monmouth.
Some civil servants are only too happy to retire at 60 for the lucrative chewing fields of the city of London. In a way, the Lord Chancellor spared some thought for them and dismissed out of hand any notion——
Is not one reason why civil servants are so happy to retire at 60 the fact that they have a full pension which is index-linked? If judges were in the same position, they might be just as happy to go at 60, too.
That is an interesting point and no doubt it will be heard in the Treasury, although I doubt very much whether it will act on it.
The hon. Member for Teignbridge accused us of ageism for suggesting that judges ought to retire at 65. To be accused of any "ism" by the hon. Member is a bit rich. I can think of a number of "isms" that he has embraced in his time, not all of them particularly attractive. In any event, ageism is what he flung at us. I am happy to say that there were many other, saner voices, even on the Government side, who recognised that it was perfectly reasonable for the Lord Chancellor to propose a retirement age of 70 and who went even further in agreeing with us and with the chairman of the Bar Council, who was quoted with approval by a number of Conservative Members in relation to another matter, that the retirement age should be reduced to 65.
I will tell the hon. Member why by reference to the words of an eminent and distinguished American jurist whom he and, no doubt, other hon. Members will know, Oliver Wendell Holmes. He was the beneficiary of a constitution which protected his right to sit in the United States Supreme Court for as long as he wanted, and he sat there until he was 90, so he had some insight into the problems of an elderly jurist. He said:
elderly judges are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties.
That is a wonderful expression of what I believe to be a profound truth; it is a recognition by a great jurist of the desirability of having a retirement age which would avoid having a judiciary composed predominantly of senior citizens who, by definition, cannot so easily understand contemporary concerns or apply contemporary values.
That, as the hon. Member for Woodspring ought to recognise, is the overwhelming case for a lower retirement age. It is the case to which we accede, the case which we put and the case which we intend to pursue. Judges should retire at the age of 65.
There has also been an interesting sharing of views—and, again, there was a certain amount of cross-party support for this notion, although there was also some disagreement—about whether there should be such a thing as a judicial career, whether it should be possible to enter the judicial arena at a lower rung of the ladder and work one's way up. It is rather unfortunate that somebody who does that under the provisions of the Bill will, as the Minister says, lose the privileged position that he or she would otherwise have in being exempt from its provision as someone already sitting in the judiciary, because, again, that militates against promotion rather than encouraging it, and recognising it as being not exceptional, as one hon. Member suggested, but an ordinary part of the process of ensuring that we get the right people for the job.
We support the notion of some form of judicial career. Although we believe that it is perfectly right and reasonable, we do not embrace the continental model. My hon. Friend the Member for Wallsend, who is a former distinguished law lecturer, made well the point that, with appropriate judicial training, not least on the issue of sentences, it is perfectly proper and eminently desirable that people should move up the ladder. The pension arrangements must assist and facilitate that process.
Although I agree with the hon. Gentleman that people with ability should be able to rise up, irrespective of their age, why is he so keen to deny people between the ages of 60 and 70, who may have something to offer this country, the chance of doing so?
I am glad that the hon. Gentleman is here for this part of the debate, although he could not join us earlier, but I do not consider it necessary to repeat the overwhelming case—so ably put by my hon. Friends the Members for Warwickshire, North and for Wallsend, as well as several Conservative Members—for the retirement of judges at the age of 65. It is precisely to maintain that flexibility of mind and sense of being in touch with contemporary life, which tends to become less apparent as one grows older.
The important point that my hon. Friends have made time and again in this debate, and which has again been echoed by several Conservative Members, is that it is vital that we draw on a pool of expertise and talent that runs wide and deep.
No one is talking about diluting standards when we say that it is important that women and ethnic minorities should be facilitated in joining the ranks of the judiciary, particularly the higher judiciary. It is a matter of concern to those of us who know and love the law and practise in the courts that only three women are High Court judges. We remain totally unconvinced that there are only three women of sufficient ability to occupy that role. Although the steps that the current Lord Chancellor has taken to deal with that issue are welcome—he has done a great deal in that area—they do not give us the luxury of being able to afford any complacency in relation to the nature and breadth from which the higher judiciary are called.
That is why, throughout this debate, we have made the plea for, and will continue to push for, a judicial appointments commission that would have the brief to ensure that quality, breadth and variety of legal experience and background are represented in the judiciary. I accept that it would sweep away some of the mystique, secrecy and lack of transparency that currently surround judicial appointments made by the Lord Chancellor, but that is one of the things that endear the proposal to us. We shall push it and the other matters that my hon. Friends have addressed this evening to the fullest extent as we give the measure a fair wind in Committee.
I thank the hon. Member for Brent, South (Mr. Boateng) for his contributions and, through him, his hon. Friends for theirs. I also particularly thank my hon. Friends for keeping me entertained and on my toes.
The debate has been wide-ranging, so wide-ranging that many matters might, on a strict and mean interpretation, have been thought to be rather outwith the ambit of the Bill, but I make no complaints about that. I am grateful for the thoughtful comments that have been made by many hon. Members.
I welcome the endorsement of the principle of judicial independence as an essential constitutional safeguard by the hon. Member for Brent, South and his endorsement of the quality and integrity of our judiciary which I believe to be shared by all hon. Members.
The Lord Chancellor's policy is to appoint to judicial office those best qualified regardless of sex, ethnic origin, political affiliation or religion. Without prejudice to that general principle, the Lord Chancellor has repeatedly stressed that he welcomes application from suitably qualified women and members of the ethnic minorities.
A major factor has been a relative lack of such candidates in the relevant age groups. For example, some well qualified women have said that they do not wish to be considered for judicial appointment. The composition of the Bench at any one time must reflect the composition of the legal profession within the group of the relevant age and seniority.
That position will change appreciably as the composition of the professions in those groups changes to reflect the larger number of women and ethnic minority practitioners now represented in the younger age groups at the Bar and among solicitors.
I hope that the hon. Member for Brent, South will accept in good faith that I do not wish to split hairs with him. I have a marginal correction and no more. The hon. Gentleman's figures for women in the judiciary are a week or two out of date. Four women high court judges are currently in office, not three as the hon. Gentleman said. Two of those, Mrs. Justice Smith and Mrs. Justice Ebsworth, to whom reference was made by my hon. Friend the Member for Plymouth, Sutton (Mr. Streeter), are assigned to the Queen's Bench Division.
Our figures show that there is no difference between men and women in the length of time between call or admission and appointment as assistant recorders.
The hon. Member for Wallsend (Mr. Byers) claimed that judges were out of touch. In making appointments, the Lord Chancellor must appoint those with the necessary ability and experience. It is not the function of the professional judiciary to be somehow representative of the community they serve, and it is inevitable that appointments will reflect the profession from which they are drawn.
The Lord Chancellor has taken steps to broaden the field of selection through the changes in the formal qualifications for appointment made by the Courts and Legal Services Act 1990 and by other means such as encouraging solicitors to apply. A solicitor judge is now eligible for appointment to the High Court and there are many solicitors on the circuit Bench and serving as recorders and assistant recorders.
In making or recommending appointments to the judiciary, the Lord Chancellor looks for evidence that a candidate has, apart from anything else, the necessary human qualities of understanding and tolerance. The proposal for a judicial appointments commission is nothing new, and my noble and learned Friend the Lord Chancellor has gone on record as opposing one. Judicial appointments are very much the Lord Chancellor's own responsibility, and he makes all appointments personally. If they are to continue to be made on merit alone, it is difficult to imagine how a commission could reach different decisions—but such a body could undermine the Lord Chancellor's personal and direct accountability to Parliament, increase bureaucracy and delay, and risk introducing external pressures for lobbying into the appointments process.
It is the striking that, despite the claims of those who want to change the system, the appointments made under the present arrangements are generally recognised as being of very high quality. I was interested to hear the hon. Member for Brent, South argue for a career judiciary. It is a fundamental tenet of the Lord Chancellor's policy for judicial appointments that candidates should serve first part-time, as assistant recorders and recorders or in other categories, before being appointed to full-time posts. There is also the opportunity for the advancement of circuit judges to the High Court Bench, and a number of such appointments have been made recently.
The new pension scheme will facilitate those avenues of promotion by doing away with the severe pension penalties that such judges currently experience. There are of course statutory requirements for appointees, and that necessarily has a bearing on the age at which judges can be appointed for the first time.
As to the Bill's choice of 70 as the retiring age for all members of the judiciary, in the course of this debate the full range of possible retirement dates has been suggested. The hon. Member for Brent, South chose 65, and some of my hon. Friends thought that any restriction would be likely to rob the Bench of vital talent. As I said in my opening remarks, that question is one of balancing conflicting considerations. As the hon. Gentleman acknowledged, there is no one age at which every single judge suddenly loses touch overnight.
It is reasonable, however, to take account of the fact that, in general, we all diminish in our effectiveness as we grow older and the burdens of office appear heavier. It is ultimately a question of judgment, and my noble and learned Friend the Lord Chancellor and I believe that 70 is a reasonable age at which judges should retire. In the Dimbleby lecture to which the hon. Member for Brent, South referred, the Lord Chief Justice strongly endorsed that proposal.
As to the power of extension, the Bill provides that service may continue after the age of 70 for periods of no more than one year at a time up to, but not beyond, the age of 75. That power may be exercised only in the public interest and is applicable only to judicial officers below the rank of High Court judge and the equivalent in Scotland—and it is expected to be used sparingly.
Provision for the extension of service beyond the maximum retirement age otherwise applicable in relation to circuit judges, district judges and others has been enshrined in statute for many years, and has not attracted criticism as being in any way untoward or inappropriate.
My hon. Friend the Member for Woodspring (Dr. Fox) asked about the likely use of that power of extension. As I said in my opening speech, it is expected that it will be used sparingly and applied only where it is clearly in the public interest, taking accout of all relevant considerations. It is not feasible to make a more precise estimate of the number of future occasions on which that power may be applied.
On the question whether there are too many sittings by part-time judges, it is important to draw a distinction between deputy High Court judges who are part-timers and circuit judges who sit as judges of the High Court by virtue of section 9(1) of the Supreme Court Act 1981. The latter are not part-timers. Indeed, the Beeching commission recognised the benefits of the flexible use of circuit judges to assist in the disposal of High Court business.
My hon. and learned Friend the Member for Burton (Sir I. Lawrence) commented on the pensions provisions of the Bill, to which I now turn. He said that they disadvantaged women and that a longer accrual span will mean that they will be unable to earn maximum pension benefits due to family commitments. I direct his attention to clause 10, which provides for the purchase of added years and the making of additional voluntary contributions. This will benefit not only women in the circumstances that he described but any officer who would otherwise be unable to complete the full 20 years service required to obtain maximum benefits.
I cannot let the question of my hon. Friend the Member for Monmouth (Mr. Evans) about the Lord Chancellor's pension go unanswered. In response to his intervention, I pointed out that the office of Lord Chancellor is unique. With the Speaker of the House of Commons and the Prime Minister, he has statutory arrangements governing his pension peculiar to himself. His pension is governed by the Lord Chancellor's Pension Act 1832. A day's service in the Lord Chancellor's office entitles him to a full pension under that Act. If he were to seek to make use of his service in other capacities as a judge to enhance that pension, he would be subject to the same rules that apply to the judiciary in general.
My hon. Friend the Member for Teignbridge (Mr. Nicholls) asked why the word "or" is missing from clause 7(1)(a) when it was included in the Judicial Pensions Act 1981. The answer is that the word "or" in clause 7(1)(b) covers paragraph (a). It is merely a matter of drafting style. The fact that the draftsmen included it in section 21(1) of the 1981 act but chose not to do so in the Bill has no bearing on the substance of the clause.
My hon. Friend the Member for Teignbridge asked whether widowers' pensions, introduced by the Courts and Legal Services Act 1990, were covered by the Bill. The answer is yes. We have, however, recognised in the Bill that female judges are entitled to be granted a pension in respect of their husbands. The Bill adopts the neutral term, "surviving spouse". I refer my hon. Friend to clause 5.
My hon. and learned Friend the Member for Burton, who is in his place, suggested that the tax privilege of retained benefits for judges, which the Lord Chancellor has succeeded in preserving in the Bill, is of little value because few manage to make pension provision for themselves and their families in the years before their appointment. That may be true in some cases. However, many of those appointed to the most senior judicial offices have made considerable private pension provision. Those at the more junior levels are also often able to make such arrangements.
For example, the district judges, who no one would claim to be drawn from the highest earning levels of private practice, said in their response to the consultation paper:
we accept that continuing to leave retained benefits out of account confers an advantage on those joining a judicial pension scheme which may be of significant value to those who have actually made personal pension contributions before appointment to judicial office. We consider that any alteration in the current treatment of retained benefits could have a seriously adverse effect upon recruitment. We therefore welcome the proposal not to alter the existing position.
District judges, almost by definition, do not come from the high-earning Bar. High-earning barristers become High Court or senior judges. We need to appoint more High Court judges rather than district judges.
I thought that my hon. and learned Friend was making a point about pensions. I am saying that a lower earning category have expressed themselves grateful for the protected position of the pensions that they build up privately before accepting public appointment.
I have already mentioned the facility of added years and additional voluntary contributions, which will help those who, for whatever reason, have been unable to make private provision.
It has been suggested by various hon. Members that the Bill is solely motivated by the Treasury's desire to save money. That is not correct. The Bill seeks to bring the judicial pension arrangements into line with modern tax law, which already applies to the rest of us. It is not expected that the introduction of the new pension scheme will greatly affect public expenditure on judicial pensions.
I shall say a last word on the extension on the accrual span from 15 to 20 years. The matter has been: raised several times, but I spoke about it at some length 'in my opening speech and, with respect to the House, I need not go through the same arguments again. I am grateful to my hon. Friend the Member for Sutton, who rightly pointed to the significant benefits that judges will derive from the new pension scheme. I agree wholeheartedly with his suggestion that the package will attract candidates for judicial office rather than discourage them.
My hon. Friend the Member for Monmouth asked about the age of immigration appeal adjudicators. He will not have failed to note my written answer to the hon. Member for Birmingham, Erdington (Mr. Corbett) of 12 November which at column 862 of Hansard, gives precise details of the age of serving officers, among other things. My hon. Friend will find that that answer reveals that his assertions are misplaced, although I am sure that they were made in good faith.
I have said that I do not know the answer, and I am not ready simply to swallow a suggestion, either. Before I put my hon. Friend wise I shall find out for myself.
It is often forgotten that the various tribunal and other judicial appointments are equally part of our judiciary. The Bill aims to cover the range of appointments of a judicial nature. It therefore extends both pension and retirement arrangements to officers such as the masters of the Queen's Bench and Chancery Divisions of the High Court, taxing masters and registrars in bankruptcy. Those judicial officers, along with others, make a vital contribution to the work of the High Court by relieving pressure on judge time. Likewise, the work of district judges in the county courts is essential to the disposal of cases in those courts. Stipendiary magistrates ensure that the volume of work in the magistrates courts is processed speedily.
There are far too many tribunals for me to mention them all individually and to give them the credit which they deserve. Much of the adjudications process for social security benefits generally falls not to judges but to tribunals. Social security tribunal appeals chairmen fulfil the important role of presiding over the appeals of those who are dissatisfied with the decisions on their claims for social security benefits. Similar tribunals operate in relation to medical and disability appeals. There is a further appeal in limited circumstances to a social security commissioner who is also appointed by the Lord Chancellor. Those tribunals, which come under the umbrella of the independent tribunals service, are shortly to receive the addition to their number of the new child support appeal tribunals.
I have ranged as widely as I reasonably can over the matters mentioned this evening. I am sorry that I have not been able to mention by name and individually all the excellent contributors—not only Conservative Members, but Opposition Members. Rather surprisingly, the debate has turned, in an interesting and unpredictable week, into a rather valuable Thursday debate. I add my personal thanks for the quality of the contributions. We can look forward to a very interesting, if not long, Committee.
I quote the leading article in The Independent. It says:
There is little doubt that in Lord Mackay and Lord Taylor, the legal system has its best leadership for at least a generation.
So be it, Madam Speaker.