Select Committee on Legislation and Security debate -
Thursday, 7 Dec 1995

SECTION 47.

Ms O'Donnell

I move amendment No. 43:

In page, 22 subsection (1), lines 33 and 34, to delete "a judge of the supreme Court and the High Court shall be 70" and substitute "any holder of judicial office shall be 65".

It may seem ironic, having fought tooth and nail to widen the pool of potential judges, that this amendment addresses the possibility of shortening their term in office. It is in the public interest that all judges should retire at 65 years in line with other public servants. My amendment is not based on ageism. It is in the public interest that this amendment is considered.

In the last Bill there was a proposal to reduce the age of retirement from 70 years and, in the case of Supreme Court judges, from 72 to 68. During her Second Stage speech the Minister said that necessary consultations were held with the Judiciary, which improved the Bill. In fairness to the consultation process, it might be more prudent for the Minister to have a view on this issue. I am sure my view is not shared by judges but the public interest would be better served by the introduction of a rule which required judges to retire at 65 years of age. It is in the public interest that there is an energetic Judiciary healthy in mind and body.

Given the rigours, hard work and strain of years on the bench, it is in the public interest that judges should retire at 65 years of age in common with other public servants. The committee has discussed at length the eligibility and appointment of judges and widening the net to include solicitors. If the net is widened and solicitors are on the bench, it would allow consideration to be given to reducing the age of judges.

I am informed the reason for retaining the status quo relates to the earning patterns at the Bar. In general, senior barristers do not tend to take up judicial office until they have made their money and they view the taking of office as entailing a reduction in their income which is true in many cases. Their eligibility for pensions is also relevant. However, it would be putting the cart before the horse not to consider reducing the retirement age of judges to 65 years of age just because it would complicate the pensions issue. The principle is in the public interest. It is not based on ageism but seeks to acknowledge the hard work, exhaustion and strains imposed on judges over many years. It would bring the working life of judges into line with that of other public servants.

It might be more properly dealt with by the courts commission in the context of recognising the difficulties and conditions under which judges serve. I am concerned to learn that judges have little back up. They have a ceremonial crier but few research facilities. I can imagine the work and research demanded of judges of the High and Supreme Courts in complicated matters of law, whether chancery, constitutional or family. It is a shame the Bill failed to tackle a move which would be in the public interest in the long-term. I welcome the opportunity for the Minister to explain why it was decided to leave the retirement age at 70 years.

Mr. Shatter

The difference in the retirement age between judges of the District Court and other judges is a cause of upset and genuine concern to District Court judges. The retirement age of other judges is either 70 or 72 years but the retirement age for District Court judges is 65 years. One can continue until one is 70 years provided one's judgeship is renewed on a yearly basis. District Court judges do not have an opportunity to speak for themselves on these issues but in that context they feel they are discriminated against.

Unlike Deputy O'Donnell they do not appear to express the view that others should be required to retire at 65 years. They want to be treated equally and they take the view that, if other judges are allowed as of right to continue in office untill 70 years of age, they should also be allowed to do so. I understand, when a District Court judge aplies for extensions on a yearly basis between 65 and 70 years most of these are granted as a matter of course. However, I am aware of one instance in recent years where an extension was not granted and this was a cause of great hurt. I do not know the background to the case or why it occurred and I will not go into it beyond making that point.

In the context of the independence of the Judiciary, there should be a common retirement age, whether it is 65, 68 or 70 years. I ask the Minister to examine this aspect again and the concerns genuinely held by District Court judges. It may not be possible to address the matter in this Bill but the judicial commission should examine it and consider whether this problem can be put to bed once and for all. It is not right that a sitting judge capable of properly adjudicating on cases at District Court level should for the last five years of his possible working life have to seek yearly extensions to continue to sit as a judge by the grace and favour of the Department of Justice.

Mrs. Owen

It is not the Department of Justice.

Mr. Shatter

Is it the President of the District Court?

Mrs. Owen

No, the Chief Justice, the President of the High Court and the Attorney General.

Mr. Shatter

There should be a degreee of certainty about the matter. It is odd that District Court judges are put in that position when other judges are not.

Mr. J. O'Keeffe

I am glad Deputy O'Donnell put down the amendment because it provides an opportunity to debate this important issue. We should establish some common principles and objectives. For example, we should seek a common retirement age. I appreciate the differences between elder judges and new appointees but we should aim towards a common retirement age. We should also seek common treatment for all judges. It is outrageous that District Court judges are treated differently.

I understand this relates to the fact that District Court judges were originally classed as civil servants and therefore had to comply with a statutory retirement age of 65 years. This is the reason for that ancient traditional practice, but it is seen and perceived by District Court judges and others as singling them out for special treatment. However, looking at it from the outside, one could say if there is reason to bring up a District Court judge to consider whether he or she is fully compos mentisand capable of doing his job, there is ten times more reason to bring up more senior judges for the same test. We should aim towards abolishing that aspect.

We must aim towards a lower age. I am sure it was not Deputy O'Donnell's intention in putting down the amendment, but we cannot deal hastily with the matter. A whole series of issues must be examined, such as pensions and when and at what age people should be appointed. The matter should be considered in detail and dealt with by legislation, bearing in mind the principles I mentioned earlier.

Mr. O'Donoghue

Mark Twain, who wrote of the adventures of Huckleberry Finn and Tom Sawyer, was not getting any younger when he went to Oxford University to address students. He said Shakespeare was dead, Dickens was gone and he was not feeling too well himself, but nobody suggested he should stop writing. In that regard, the minds and experience of judges must be honed over a long period of time. It is often the case that they are middle aged when they are appointed to the bench and their wisdom and ability begins to excel around the age of 60 to 70 years. I would not deny the people their wisdom and in many cases their brilliance.

Mr. O'Dea

Will the Minister assure the committee that she will introduce legislation to end the appalling anomaly whereby District Court judges are put through a demeaning annual review system when this does not apply to other judges? There is no logical reason why they should be treated differently. Has the Minister legislative proposals in mind to address that anomaly?

I take Deputy O'Donnell's point about the age profile of the Judiciary. This matter is of major importance.

However, some of the best judgments I have read were written by judges over the age of 70, particularly in the chancery and tax divisions. It was the practice in the 1930s and 1940s that one or two judges dealt specifically with tax matters on the Queen's Bench in the UK. They were the experts and stayed on the Bench until well into their seventies delivering some great judgments, particularly later in life. Having said that, I accept that if the age of retirement was lowered, it would create a tendency to appoint people to the Bench at a younger age and this should be examined. Will the Minister give a commitment that she will introduce legislation to end this appalling anomaly between District Court judges and other judges?

Mrs. Owen

I will not accept the amendment. I have essentially made the age uniform for all judges. Every District Court judge bar one has been granted permission to go on into their seventies and superior court judges will now also continue until they are 70. "Demeaning" is a very strong word. The current process for District Court judges is that they apply in writing. They do not have to subject themselves to a medical test, walking the line or anything else.

Ms O'Donnell

It is just as well.

Mrs. Owen

Nobody stops us remaining on as Deputies until we are 100 if we are fit enough to stand for election and the electorate selects us. Many of us are moving towards the age of wisdom, as defined by Deputy O'Donoghue, at 60 to 70. I accept what Members said, that we should be moving towards a lower age if possible. I cannot give a commitment to introduce legislation but I can give one to examine the issue in the context of future legislation. It may also be an appropriate matter for the working group on the courts.

District Court judges have access to me. I recently had a meeting with the Association of District Judges, led by Judge McDonnell, when they said that they would like that anomaly removed. I asked if they would like me to remove it so they would all have to retire at 65. The matter is open for discussion. I have reduced the age by two years from 72 to 70. Most District Court judges get this service at present so I ask the Members not to press the amendment. It is an issue on which prudent steps have been taken.

Amendment, by leave, withdrawn.

Sections 47 and 48 agreed to.