Bringing judges into the real world
Will lowering retirement ages and changing pension arrangements help to create a younger judiciary? Roger Trapp reports
Wednesday 05 April 1995
Last Friday was the last day on which any judge aged over 75 was able to sit on the bench. And judges will be able to carry on beyond 70 only at the discretion of the Lord Chancellor. This means that we will hear no more pronouncements from the former Lord Chief Justice Lord Lane and the law lords Lord Bridge, Lord Lowry, Lord Templeman and Lord Roskill.
Henceforth, no one will be able to follow in the footsteps of Lord Denning, the former Master of the Rolls who carried on hearing cases and often influencing the law until he was 83. Now in his nineties, Lord Denning unsurprisingly does not agree with the change. "You can often do good work after 75; I think I did some of my best work, gave some of my judgments of greatest value, after 75," he was reported to have said last week.
However, the Labour Party argued in a policy document published earlier this year that the retirement age should be even lower - at about 65. Meanwhile, the Bar Council backs the reduction. Indeed, it sees it as part of the whole process of making the judiciary in more of a reflection of society in general. Later this year it will give evidence to the Home Affairs Select Committee's inquiry into judicial appointments in support of training for judges and efforts to ensure that they come from backgrounds appropriate to the sort of work they will be doing. There are quite often mismatches, whereby a barrister experienced in criminal law, say, ends up hearing civil cases, said a Bar Council spokesman.
Of course, lowering the retirement age from 75 for High Court judges, and from 72 for others, to 70 for all will not alone create a younger judiciary. But a related development that also comes into force this monthmight help to achieve that. The 1993 Judicial Pensions and Retirement Act also creates a single pension scheme for judges throughout the UK under which they have to serve 20 years in order to receive full rights.
The Lord Chancellor's Department argues that the new system merely replaces a "proliferation of schemes for judicial officers" and brings judicial arrangements into line with modern tax law. But the measure was fiercely opposed on its passage through Parliament. Lord Taylor, the Lord Chief Justice, described the legislation's "unfairnesses and meannesses", while others attacked it as "mean and penny-pinching". Judges argued that raising the period of service required from 15 to 20 years effected a pay cut of 7.5 per cent.
More importantly, it means that anybody wanting to qualify for a full pension is going to have to be a judge by the time they are 50 - not often the case now.
Lord Mackay, the Lord Chancellor, and John Taylor, his representative in the Commons, have claimed that the changes in the pension arrangements are unlikely to put people off wanting to become judges and so threaten the quality of the judiciary. But observers suggest that there is already evidence that money can be an important factor in a lawyer determining whether he or she wants to join the bench.
Salaries ranging from £69,500 for circuit judges through £95,000 for High Court judges to £118,000 for the Lord Chief Justice do not look particularly low. But they are dwarfed by the earnings of many top lawyers, particularly those in the commercial field.
While many of these eminent lawyers might feel they have put enough by to take a cut in pay in their mid- to late fifties, they might not be so ready a decade earlier, goes the argument.
For this reason, the Bar Council is urging the Government to look at paying different rates for different areas, rather than just levels of judicial work. Such an approach would aim to take account of the fact that in certain complex areas of the law - such as tax, where there is apparently difficulty in finding appropriately qualified law lords - there are few people suitable.
"You've got to have sufficient judge power in appropriate courts," said the Bar Council spokesman, pointing out that the commercial court - where this was an especial problem - actually benefited the British economy as a result of overseas corporations and individuals bringing cases there.
But other areas are also under increasing pressure. Judicial review of such matters as ministerial decisions is expanding and criminal appeals are on the increase.
In the desire to ease the logjam as well as to reduce costs there are growing calls for devolution of the courts system, so that judicial review cases, for instance, could be heard in Birmingham or Bristol rather than just in the Strand. But while such moves might release some pressure on the London courts, they will still not do much about overall demands on the judiciary,
The Lord Chancellor's Department says that while it is difficult to predict future caseloads, it does not anticipate the reduction in the retirement age leading to a lack of judge power. It also denies that the new regulations had taken two years to come into force because of a shortage of judges. The delay was just down to "the difficulty of getting the actuarial details right", said a spokeswoman.
Nevertheless, we should perhaps not assume that all of those septuagenarians will suddenly have a lot of time on their hands.
Lord Lane, the 76-year-old former Lord Chief Justice, said last week that his regret at being forced off the bench was due, at least in part, to the fact that his colleagues were "a jolly nice bunch of chaps". The remark certainly reinforces the prejudices of those who believe the judiciary is actually a sort of rarified gentlemen's club.
Lord Lane is a product of Shrewsbury School and Cambridge University - a similar background to that of many senior members of the Bar and the judiciary. Indeed, the 84-year-old Lord Roskill, another of those now barred from sitting, attended Winchester College and Oxford, while the 78-year-old Lord Bridge of Harwich missed out on university through war service but started out at Marlborough College. His brother was Dean of Guildford for nearly 20 years.
This would not be so noteworthy perhaps if it did not also lead to the perception that this uniformity of background also impinged on their work. Some of those who will now no longer be able to sit were involved in some way with the Guildford Four, Birmingham Six and other miscarriages of justice. Indeed, Judge James Pickles said in his book Judge for Yourself that Lords Lane and Bridge should - with the former Master of the Rolls Lord Donaldson - "have the Irish cases engraved on their consciences".
Although he was on such bodies as the Security Commission's inquiry into telephone tapping in 1985 and a working party on judicial training in the mid-1970s, Lord Bridge is little known outside his profession. Lord Roskill, however, was rather better recognised, if only for his description of the Housing Act 1980 as "the worst piece of parliamentary drafting for 1980".
And Lord Lane has certainly made his mark. Described in a recent study of the English legal system as humane and liberal when dealing with non- violent offenders and tough on drink-drivers and rapists, he created new law by ruling that a man could be guilty of raping his wife. While Judge Pickles has questioned his administrative abilities, others say he did a decent job of clearing up the mess left by Lord Widgery, his predecessor.
He has found it difficult, however, to deal with the press, in the words of one observer "confusing independence with isolation".
The popularity of long-standing tales of the "What is a T-shirt?" and "Who are the Beatles?" variety make it clear that the British public is convinced its judiciary is composed of a bunch of curmudgeonly old codgers.
The true picture is not quite so bad. The average age of the judiciary ranges from 54.3 for district judges to 66.5 for law lords, according to the latest figures from the Lord Chancellor's Department. Nevertheless, there is a strong body of opinion suggesting that younger judges would be more representative of society at large.
If this is so, the idea does not seem to have caught hold overseas. In Australia and Germany, the retirement ages are 70 and 68 respectively, according to the British Institute for International and Comparative Law. Elsewhere, the picture is more complex, although the overall effect is a retirement age little different from that in Britain.
In Canada, for instance, the retirement age is 75 for those serving in the supreme court, 70 for county and district courts and 65 for provincial courts. In France, they are apparently elected for life.
The United States also elects judges. Terms range in length from four to 15 years, depending on whether the position is federal or district. Likewise, retirement ages are 70 or 65, depending on the term or where the judge is based.
But it is to the US Supreme Court that opponents of lowering the judicial retirement age usually point for support. There, there is no official retirement age; justices either give up because of ill health or die in office - one reason why the hearings leading to their appointment can become so heated.
Many judges would no doubt agree with Henry Cecil's contention, quoted in David Pannick's book Judges, that an average age of 60 did not mean that the judiciary was elderly - even if few people in other professions continued to work at that age.
But they would perhaps do well to bear in mind the views of Oliver Wendell Holmes, who sat on the US Supreme Court until he was in his nineties. He said: "Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs piece of mind, than to fall in love with novelties."
Although Mr Pannick himself is understood to favour members of the judiciary being judged on their individual merits, he argues in his book that "a judiciary composed predominantly of senior citizens cannot hope to apply contemporary standards or to understand contemporary concerns."
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