Jeremy Bentham (1748-1832) (left) was a utilitarian philosopher, whose radical ideas on education inspired those who founded University College London. Nowadays, the Bentham Association (formerly the Bentham Club) is the Alumni Association for UCL’s lawyers, and it annually hosts a Presidential Address from an invited senior lawyer. This year’s address was given by Lord Pannick QC on the topic:
“Better that a horse should have a voice in that House [of Lords], than that a judge should” (Jeremy Bentham).
Replacing the Law Lords by a Supreme Court
It broadly concerned the implications of the removal of the final court of appeal from parliament, and can be heard online here. It covers a wide range of very interesting material, and is very well worth listening to. There’s no text yet online, but one aspect of it appears in Pannick’s column in today’s Times, taking the field on an issue I’ve looked at already on this blog (here and here); some extracts:
Seventy is far too early for a supreme court judge to retire . . .
… The argument for a retirement age of 75 for all supreme court justices is very simple. Those appointed are the cream of the judiciary. They inevitably take time to rise to the top, normally after serving for several years in the High Court and then in the Court of Appeal. It seems an awful shame to throw out judicial resources of such quality after a short stay in the supreme court when they are still fresh in mind and body and well short of their sell-by date.
… One can sympathise with the comments of Lord Bridge of Harwich in his final case in the Appellate Committee in 1995 when he expressed his annoyance at “the statutory presumption of judicial incompetence at the age of 75”. Lord Bridge, still at the peak of his considerable intellectual powers, went off to study for a mathematics degree.
… The appropriate balance between innovation and experience (or, if you prefer, between immaturity and senility) is, I think, a retirement age of 70 for judges of the High Court and the Court of Appeal. But for the supreme court, given the length of time that it will take for judges to arrive at such legal heights, a retirement age of 75 is more appropriate. Lords Reid, Wilberforce and Bingham of Cornhill, whose intellectual force, constitutional perspective, and good sense adorned the Appellate Committee of the House of Lords over the past 40 years, did much of their best work after 70. It would be a great detriment to the legal system if their successors were prematurely retired to a life as arbitrators.
On this one, I’m with Pannick, but I’m not sure Bentham would have approved: he didn’t trust judges much.
Update: joining Pannick’s column in the Times Online is the following related news story:
Judges fail in Tribunal bid to extend working lives beyond 70
Two judges fighting to work beyond the age of 70 have lost their case, the Tribunals Service has said. … The decision coincides with a move by legal peers to enable Britain’s top judges – those appointed to the new Supreme Court in the autumn – to stay on until the age of 75. …
I’ve blogged about the judges’ age discrimination challenge already; what I find most interesting is the throwaway line in the article that legal peers are lining up to support a retirement age of 75.
5 Reply to “Bentham and judicial retirement”
Did Bentham actually care how old the judges were, or is that a red herring? It was more the judicial philsophy of the day he objected to. As for Pannick’s view, I would say that we make our practitioners wait for so long for their judgeships that there is certainly a temptation to let the good ones stay on longer … but that may be an argument for appointing at a younger age.
No, he didn’t care how old they were; my point was that e didn’t like them at any age, and would therefore not have approved of them hanging around. As for Pannick’s view, I agree with you that the easier solution is to appoint earlier, but the likely appointees will not want to lose out on peak earning years by accepting an earlier appointment.
I seem to recall a senior retired Court of Appeal judge speaking at an SLS plenary on judicial appointments pointing out that there are proportionately fewer commercial than other silks seeking advancement to the bench. I remember being struck that in a session focussing on the difficulties of women and minorities gaining judicial appointment, she focussed on the difficulties of that well-known minority, the millionaire barrister.