House of Commons Hansard Debates for 3 Dec 1992

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agencies and private arrangements and so on must be the future course against obsolete and increasingly odious privileges which the civil service enjoys.

Mr. Nicholls : 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.

Mr. Evans : 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.

Mr. John M. Taylor : I can provide the reassurance for which my hon. Friend just asked.

Mr. Evans : 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

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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.

Mr. Barry Porter (Wirral, South) : 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?

Mr. Evans : 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.

6.56 pm

Mr. Stephen Byers (Wallsend) : 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

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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

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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 ?

Mr. Byers : The Minister's problem is that he does not go far enough. Many Labour Members will argue that there must be a radical reform of the way in which we treat the judiciary in the United Kingdom. Half measures simply will not be enough.

Mr. Nicholls : Will the hon. Gentleman give way ?

Mr. Byers : I will give way when I have finished advancing my argument. Under the present system there is a reluctance to recruit younger members to the Bench.

Mr. Barry Porter : 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.

Mr. Deputy Speaker (Mr. Michael Morris) : That was a very long intervention.

Mr. Porter : It was meant to be.

Mr. Deputy Speaker : The hon. Gentleman might like to rephrase that.

Mr. Porter : I apologise. I was trying to make my point.

Mr. Byers : 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.

Mr. Nicholls : 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

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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.

Mr. Byers : 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

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was good enough for the Director of Public Prosecutions, why was it not good enough for appointments to the Bench?

Mr. Hawkins : 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.

Mr. Byers : 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.

Mr. Sweeney : 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.

Mr. Byers : 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.

Mr. Boateng : 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

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training, the objections of the hon. Member for Vale of Glamorgan (Mr. Sweeney)--which I understand--could readily be overcome.

Mr. Byers : 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.

7.19 pm

Mr. Patrick Nicholls (Teignbridge) : 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

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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

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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

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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

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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.

Mr. Boateng : 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.

Mr. Nicholls : 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

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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.

7.37 pm

Mr. Mike O'Brien (Warwickshire, North) : 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.

Mr. Roger Evans : I did not say that the provision for judges was not generous but that it was not generous compared to the provision made for US Supreme Court judges, or for judges in Canada and Australia.

Mr. O'Brien : 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

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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.

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