* LORD MONKSWELL,
who had given notice—"To call attention to the Report of the Ridley Commission as to superannuation; to ask the Lord Chancellor whether he proposes to take any steps to apply the scheme of superannuation obtaining in the Civil Service, or any other scheme of superannuation, to the law clerks serving in the several divisions of the High Court; and to move for a Return of the total number of such clerks, giving the number, ages, salaries, and length of service of such clerks as are over the age of sixty," said—My Lords, I am very sorry to stand, even for a few minutes, between this House and the interesting debate to which we are about to listen, and my remarks will be as short as I can reasonably make them. In moving the Motion that stands in my name, I have to say, in the first place, that my most grateful thanks are due to the noble and learned Earl on the Woolsack for his courtesy in giving me information which is not accessible to the public. I hope I need not assure the House that in bringing forward this Motion I am not in any way actuated by a spirit of hostility to the noble and learned Earl. It is a perfectly friendly Motion. The noble Earl is, of course, entitled to his own opinion with regard to superannuation. He may agree, or lie may not agree, with the principle of compulsory superannuation as applied either to the Civil Service or to the law clerks; but I do say that the time has now come for the noble and learned Earl, and for the other Judges who are responsible for the efficiency of the Law Offices, to sate their views.
The Ridley Commission, to which I have directed your Lordships' attention, reported in September, 1888, and from that time to this, with two exceptions, there has been absolutely no authoritative exposition by the Judges of their views with regard to this important question of the superannuation of law clerks; although they have been very often pressed to give their views. The late Lord Herschell expressed a view in favour of a scheme of superannuation being applied to some, at all events, of the law clerks, and Sir Francis Jeune is very enthusiastic indeed in the same direction. But with those two exceptions, for fifteen years the 8 Judges have been asked for their opinion by the Treasury and by private people, and so far they have not given it. The authority in support of my view is very great indeed. There is the authority not of one, but of two, Royal Commissions, and the action of the Treasury enthusiastically endorsing the finding of those Royal Commissions; and I have not heard any reason stated why the great majority of the law clerks should be treated differently in this matter from the Civil Service. I shall not weary your Lordships with any views of my own on the subject. I shall content myself with making an extract from the Treasury Minute respecting the Order in Council of 15th August, 1890, which carried into effect, with regard to superannuation in the Civil Service, the recommendations, of the Ridley Commission. The Treasury Minute says that—The question of compulsory retirement was considered by the Royal Commission of 1857 on Civil Service Superannuation, and they suggested sixty-five years of age as a lit period at which retirement might be made compulsory. This regulation had, in the opinion of the Commissioners, the great advantage that it relieved heads of Departments of the invidious and painful duty of suggesting to a meritorious public servant chat his powers were beginning to fail. If, in special instances, long services were accompanied by undiminished power of usefulness, it might be left to heads of Departments to perform the more agreeable task of inviting a particular officer to continue in his post. The Commissioners, presided over by Sir M. White Ridley, expressed in their second Report their concurrence with the Commissioners of 1857 'That it is absolutely essential to fix an age for compulsory retirement.' They suggested 65 as the age. 'There should be no exception,' the Commissioners continue, to this rule, except in the case of certain scheduled offices in which the officer, if asked by the Government to do so, might be allowed to extend his services for a further period never exceeding five years. It should be clearly understood that at the age of 60 a man may be required to retire by the head of his Department upon such pension as by the length of his service he is qualified to receive.The Minute goes on to say—It will he seen that Clause 10 of the Order in Council gives effect to the recommendations of the Royal Commissioners, which may be said to represent the most recent utterance of competent opinion. My Lords entertain no doubt of the wisdom of the regulation as laid down by the Order in Council.It appears to me that the reasons given in this Minute appeal to one as common sense. A great deal has happened since 9 1890. This system of superannuation in the Civil Service has been going on for thirteen years. I can quite understand the noble and learned Earl on the Woolsack and the other Judges saying that they did not care to extend this system of superannuation to the law clerks until they had seen how it worked in the Civil Service, but we have now had thirteen years experience of how this system works in the Civil Service, and I do not think there is a man who wishes to go back to the old system.
With regard to the application of the Civil Service system to the law clerks, on that matter a distinction has been drawn by the Judges. They say that the law clerks may be divided into two classes—judicial clerks and non-judicial clerks; that is, clerks who perform judicial work, and clerks who do not. It is perfectly clear that when the Order in Council was issued it was supposed at the time that that Order not only ought to include the law clerks, but did, in point of fact, include them; and that appears very clear from a Memorandum to a Bill brought in by Lord Herschell in the year 1893 dealing, among other things, with the question of the retirement of law clerks. He puts the arguments of the Judges, and also his own views, in the Memorandum, and I chink it would be desirable that I should read a short extract from the Memorandum. The Memorandum states:Doubts have recently been raised whether Orders in Council regulating the Civil Service Apply to the legal departments.Therefore, clearly, before 1893, no doubt at all existed in the minds of the Treasury on this point.
§ * THE LORD CHANCELLOR
I think I ought to tell the noble Lord that that was the view of the Treasury. It was not the view either of Lord Herschel or of myself.
§ * THE LORD CHANCELLOR
But I think the noble Lord was reading it as if it had the concurrence of Lord Herschell.
* LORD MONKSWELL
I apologise if that is the case. Lord Herschell, in the 10 Memorandum to his Bill, goes on to say"—The organisation, qualifications, duties and requirements in those (the law) departments are so materially different from those in the ordinary branches of the Civil Service that great confusion would follow any such application; but, at the same time, there are recommendations in the recent Report of the Royal Commission on Civil Establishments which ought not to be disregarded ill the legal departments if they are thought right to he enforced in other public offices. The Bill, therefore, declares that the offices of the Supreme Court shall be regulated by Orders of the Lord Chancellor, with the consent as far as expenditure is concerned of the Treasury; and Orders based on similar principles to those recently laid down for the Civil Service are intended to be issued as soon as the power to make such Orders is given.Therefore I think I am justified in saying that Lord Herschell was, at all events, in favour of some of these clerks being compulsorily retired. Lord Herschell brought in another Bill dealing with the same subject in 1895, and on May 16, 1895, a Committee of five Judges reported on this Bill. The Report dealt with the proposal to extend the patronage of the Lord Chancellor, and with the compulsory retirement of la w clerks. The patronage proposals were discussed at considerable length, and I may say with some heat, and the Committee unanimously denounced the application of an age limit to judicial clerks. It is not wonderful that His Majesty's Judges should take a great interest in these matters; but the unfortunate part is that their interest seems to have stopped there, because, although they had been asked for five years by the Treasury and by other people to express some opinion as to whether the great body of law clerks should or should not be compulsorily retired on reaching a certain age, they express no opinion in the matter. They give it the go-by. They do not make any suggestion that they cannot agree. From all one can read in the Report, they did not take the matter into their consideration at all. One of the Judges on this Committee was the President of the Probate Division, Sir Francis Jeune, who is, and always has been, strongly in favour of an age limit for a great majority of law clerks. Therefore I suppose that, although the Report does not say so, the subject was considered, and that the reason they did not express an opinion 11 was that that opinion was very much divided.
On April 17, 1901, Sir Francis Jeune wrote to Admiral Field, who took up this matter in the House of Commons, a letter. The concluding paragraph of his letter reads as follows—Since the Ridley Commission the case for superannuation is overwhelming, and the absence of it leaves very many of the clerks in the Probate Registry in a very sad position. I have by personal influence obtained a good many resignations from clerks who were really beyond their work, and were wise enough and just enough to recognise the fact. But my power in that way is, of course, very limited, anal beyond question there should be a rule working automatically.The Judges, as I have said, unanimously agreed that judicial clerks ought to be exempted from age retirement. So far as my personal opinion is concerned, I cannot entirely agree with them. But there is a distinction, no doubt, between judicial and other clerks, and one that ought to be recognised, but it appears to me that it ought to be recognised in the way that it is recognised in the Civil Service. In the Civil Service, as well as with law clerks, there are persons who do not enter young, but in middle life, with great professional experience, but they are compelled to retire at sixty-five. The only difference is that a certain number of years are added to their service in calculating their pensions. Therefore I think the distinct on that has been made with regard to law clerks is one that will hardly hold water; but as the Judges are unanimously against me I will not press my opinion on that matter.
I desire to say that this is not a mere sentimental grievance; it is a very real grievance. Admiral Field moved for a Return in the House of Commons very similar to the Return I am moving for to day, and that Return showed that in 1900, there were twenty-five clerks between the ages of sixty-five and seventy-five with from thirty-two to fifty-tour years service, and six clerks of over twenty years seniority serving in the same class and on the same pay as at the time of entering, with ages varying from forty to seventy-one years. I asked one of the Judges the other day whether that state of things had been at all a meliorated, and he said it was just as 12 bad now as in 1900. I do not doubt for a single instant that the noble and learned Earl and the other Judges concerned do the best they can to find out what is going on in these law offices; but they cannot find out everything that is going on. What the junior clerks say is, that they have a double grievance, that they are compelled to do the work of incompetent seniors and promotion is blocked. It is said that vested interests stand in the way of reform. I leave that question to be dealt with by noble and learned Lords in this House. I would only point out this—that in the Army and Navy the age limit is applied to persons why joined before the limit was imposed, so that it would seem, with regal d to certain persons at all events, the question of vested interests is not entertained. So far as I am concerned, I shall be perfectly satisfied if the Lord Chancellor gives his adhesion to the general principle of superannuation with regard to non-judicial clerks, and will promise to take at once such steps as he thinks advisable to carry his views into effect. In addition to the Papers I have moved for, I should like to ask the noble and learned Earl on the Woolsack whether he would be inclined to grant me certain correspondence that has taken place between the Lord. Chancellor and the Treasury with regard to this question of superannuation.
Moved, "That there be laid before the House a Return of the total number of law clerks serving in the several divisions of the High Court, giving the number, ages, salaries, and length of service of such clerks as are over the age of 60; and all correspondence passing between the Lord Chancellor and the Treasury with respect to the superannuation of the law clerks serving in the several divisions: of the High Court.—(Lord, Monkswell.)
THE LORD CHIEF JUSTICE (Lord ALVERSTONE)
My Lords, before the noble and learned Earl on the Woolsack replies, I should like to say a few words upon this subject. Speaking as head of the King's Bench Division, I should be extremely sorry to see a hard and fast rule laid down, as indicated in the Motion, that there should be retirement at the age of 60.
I suggested that the Civil Service rule should apply—namely, that there should be compulsory retirement at 65, with the possibility of having a few years added, and optional retirement at 60.
§ * LORD ALVERSTONE
As I say, I should be sorry to see any hard and fast rule laid down. In all probability the difficulty has arisen in the past because there has not been sufficient consideration of individual cases. I think that in some cases it might be well that the power which now exists should be more freely exercised, but there is another aspect of the case which has been overlooked, and that is the hardship that would ensue if this proposal were carried out. In the King's Bench Division, with some eighty clerks, there are only nine first class clerks. The consequence is that only one in nine second class clerks ever can become a first class clerk. Therefore, if you are going to have a hard and fast rule of retirement, you must retire men who are second class clerks on a comparatively small pension, although they have done a great number of years service. If anything of the kind is established there ought to be some modification of the rule as to the salaries which the second class clerks receive. With regard to the present working of the office the noble Lord has suggested that there are cases in which second class or lower class clerks have had to do the work of their seniors, because the latter are incompetent. Speaking for the King's Bench Division, I can state that there is no justification whatever for that statement. If the noble Lord suggests that in regard to that Division there has been any necessity for calling upon lower clerks to do the work of the seniors, because of their incapacity through age or other causes, I can assure him that, to the best of my information, he is absolutely mistaken. I would remind the noble Lord that the present state of the office is peculiar. We have reduced the staff at the Law Courts very materially during the last fifteen or twenty years, and the slow promotion is due to the large reduction made in first class clerks. Until things right themselves and get into what I may call the normal state, the usual rate of promotion will not be restored. I would ask your Lordships to pause 14 before endorsing the theory that for clerks exercising such duties there should be this compulsory age retirement. I feel that the complaint arises to a certain extent from the scale of pay and the unavoidable delay in promotion. It may be said that they go into the office knowing what the salary is, and what the expectations are; but that does not prevent the hardship being felt, when the second class clerks are nearly eight or nine times as numerous as the first class clerks. In my Division, notwithstanding the slow promotion, the clerks have worked extremely well, and I desire to take this opportunity of publicly stating my high appreciation of the way in which they have done their work. Whatever view my noble and learned friend on the Woolsack may take with regard to this matter, speaking for myself I should be very sorry to see a hard and fast rule laid down.
§ THE LORD CHANCELLOR
We all desire to further the public interest in this matter. I very much deprecate the notion that any body of junior clerks or junior employés have the right to start an inquiry on this subject on the ground that they are entitled to promotion. They may be entitled to promotion in due course, but I protest against that notion because I think it would be mischievous to the public service. In the first place let me deal with what the noble Lord said with reference to the Ridley Commission. I am sorry the noble Viscount is not here who presided over that Commission, because I know what his views are. It is an entire mistake to suppose that the Ridley Commission was ever intended to apply to the judicial body at all. It did not take a single witness from that body, but, apart from that question, which, after all, is not a very important one, I am not fascinated with the age rule, even as it has been accepted during its thirteen years trial. It has frequently happened that Civil servants, who have been retired under the age rule upon the ground, arid only upon the ground, that they are unfit any longer to perform their duties, have immediately found employment at high salaries in commercial establishments to the great loss of the public, 15 who are deprived of services to which they were entitled.
My noble and learned friend the Lord Chief Justice has answered for the Division with which he is connected. I can assure the noble Lord that, with regard to the Division of which I am the head, it is not in the smallest degree true to say that the junior officers are employed more than they should be by reason of their seniors being incompetent. Do not person unable let it be supposed that we do not know what goes on. I can assure the noble Lord that if there is any cause for complaint, there is no reluctance to make it. I get reports from time to time of the conduct of the officers, and there is not the smallest ground for supposing that there is any complaint on the ground stated. With the Lord Chief Justice I must bear testimony to the efficient way in which the duties are performed, and they are discharged without complaint of undue pressure. Of course these clerks like other people, may think that their services are not adequately requited, and the with respect to some of them I should be disposed to agree with that view. But, with reference to the question raised, I may say that I have never heard any complaint such as the noble Lord has suggested, and I do not think there is any ground at all for it.
I personally should have no objection to a rule of retirement for non-judicial clerks, but the House of Commons refused to pass the necessary Bill; and if there is anything to be done in that direction the noble Lord should bring in a Bill for the purpose. I do not believe I have the power to do it without an Act of Parliament. Some of the learned persons who are associated with me in this matter are of opinion that we have this power, and some certainly think we have not; and in that divided state of authority I certainly should not think to acting without the sanction of an Act of Parliament. But as I have said, personally I should have no objection to any Bill which provided that the persons who are not invested with any judical authority should be retired at the age of sixty-five. Thereare some positions—such as that of the Chancery Masters—which cannot be held without considerable professional experience, and it would be 16 absurd to retire men in those positions at the age of sixty-five.
With regard to the proposal that the period should be extended at the suggestion of the Treasury, if there is one thing more objectionable than another, it is that any Government Department should have the power to affect the future of any judicial person. The power is possessed by me, in common with other heads of Departments, to remove any person unable to perform his duties, and I have more than once exercised that power. It is quite a mistake to suppose that there is no such power. To the best of my ability I will continue to exercise it, and anybody in my position must exercise it. It do not think on a single occasion during the fifteen years I have had to exercise that power it has been necessary to do it by order. It has been sufficient to intimate that the time has arrived when they had better retire, and they have always acted upon that. I very much object to the notion that they should be compelled to retire, because the public would thereby be deprived of services which are extremely valuable. In these circumstances, I cannot give the noble Lord any such assurance as he asks from me. With reference to the Return, if the noble Lord Presses for it I shall place no impediment in the way of its being given. If, as he says, there are a number of officers in the Probate Division who are unfit to discharge their duties, the President of the Probate Court has not exercised the power which I have been called upon to exercise, but has allowed the Court to remain in a condition in which it ought not to remain. But Speaking for my own Division no such state of affairs exists.
* LORD MONKSWELL
Will the noble and learned Earl give me the correspondence between the Treasury and the Lord Chancellor, which I think might be interesting?
* THE LORD CHANCELLORE
So far as I am concerned I have no objection to my predecessor's correspondence being given.
* LORD MONKSWELL
The noble and learned Earl on the Woolsack goes 17 further with me than the Lord Chief Justice, and I am glad to find that he is in favour of some age for the retirement of clerks who do not exercise any judicial function. But I would suggest that a Bill on the subject would come very much better from him than from me.
§ On Question, Motion agreed to.