Amendment 126

Public Service Pensions and Judicial Offices Bill [HL] - Report – in the House of Lords at 5:00 pm on 29 November 2021.

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Lord Ponsonby of Shulbrede:

Moved by Lord Ponsonby of Shulbrede

126: Clause 107, page 78, line 27, leave out “75” and insert “72”Member’s explanatory statementThis would set the judicial retirement age to 72, rather than 75 as currently provided in this bill.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I will speak on the group of amendments consequential on Amendment 126. We have been talking about complex matters to do with public sector pensions, but this is a simple amendment that I will seek to explain to the House. I open by thanking the noble and learned Lord, Lord Etherton, and the noble and learned Baroness, Lady Hallett, for supporting this amendment. I look forward to the contribution later from the noble and learned Lord, Lord Etherton.

The Bill proposes harmonising the mandatory retirement age for all judicial officeholders at 75 years old. This group of amendments seeks to amend the mandatory retirement age to 72. I recognise that a lot has changed in the 27 years since the mandatory retirement age was set at 70. Life expectancy has risen, people are working longer and the mandatory retirement age has been abolished for most professions. None the less, the opposition Labour Party has reservations about raising the retirement age to 75 rather than 72.

When the Ministry of Justice consulted on this, it consulted on both 75 and 72 as possible retirement ages. While the overwhelming majority of respondents to the Government’s consultation, some 84%, supported raising the MRA, the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland, the President of the Supreme Court and the Lord President in Scotland were unanimous that it should be raised only to 72. In addition, the Magistrates’ Leadership Executive also favoured 72.

When the Minister comes to respond, I am sure he will quote other judicial associations that favour 75 over 72, as well as the results of the Ministry of Justice consultation, in which some 67% of the respondents favoured 75 over 72. I seek to persuade the House that the lower age, 72, is a more appropriate age and that 75 is a step too far. I believe it has distinct disadvantages. I base my argument on two principal reasons. The first is that it militates against judicial diversity. The second is that the mental decline of older members of the judiciary is a factor that should be borne in mind.

Simply put, raising the MRA to 75 will reduce the opportunities for candidates from BAME backgrounds. As we know, it is a scandal that only 1% of the judiciary are from a BAME background at the moment, and this has not changed in the last decade. The situation for magistrates is a bit better, but the same argument applies and there is still plenty of room for improvement among the magistracy as well.

Regarding mental decline, I remind the House that I sit as a magistrate. I regularly appraise colleagues, and this is a sensitive issue for me to address. It is my experience that some colleagues experience a mental decline. As a magistrate, it is a sensitive issue to appraise these colleagues. Of course, one has to be robust, but it is not unusual to find oneself appraising a colleague who has been a long-standing friend and having to have a frank discussion with them about some level of mental decline.

I will give a particular example from my own experience of sitting in the youth court in London. Almost always, when I have youths in front of me, I am considerably older than their grandparents. I see very serious crime in the youth courts, and a very high proportion of it is centred around communication apps for whatever the offence is—be it drugs, knives, or whatever. It is a reality that, although I am not nearly 70, I feel distant from the nature of the crimes; although I can understand their severity, the way that they are communicated among the youths is something that I have to work on to fully understand. But it is not only youth crime; it is also adult crime. I am also older than the grandparents of many of the adults that I see when I sit in magistrates’ courts in London.

I believe there is a limited administrative effort available for changing and updating the judiciary, and that effort should go into expanding the magistracy and increasing diversity. That limited administrative effort would be far better used in this way rather than in increasing the age of retirement to 75. I put forward 72 as a compromise, which has been consulted on, and I think it would be a step too far to go straight to 75 without taking into account the factors to which I have referred. I beg to move.

Photo of Lord Etherton Lord Etherton Crossbench 5:15, 29 November 2021

My Lords, I have joined in this amendment and I support it and the other amendments in the group, as I have previously with similar amendments by the noble Lord, Lord Ponsonby, because of the potentially severe adverse impact on diversity in our most senior courts, especially the Court of Appeal and the Supreme Court.

While all judges are critical to the administration of justice, the most senior courts are the courts that send the clearest message to our own nation and to other countries about whether we value diversity in those who administer the law. One must remember that the members of the most senior courts also provide the role models that are so important in encouraging and inspiring others. We do not have a diverse senior judiciary. Although some progress has been made, particularly in the last 10 years, with the recruitment of women, there is an unacceptable and embarrassing lack of people of colour who are senior judges.

There are no black and minority ethnic justices in the Supreme Court, and never have been. Just two of the 12 Supreme Court justices are women, one of whom is about to retire. Out of a maximum of 39 judges of the Court of Appeal, there is one judge from a minority ethnic background and only 10 women. Out of a maximum of 108 judges of the High Court, only five are from a minority ethnic background.

There can be no doubt that an increase in the age of retirement from 70 to 75 in one go will have a severely adverse effect on inclusion and diversity in our most senior courts. It will diminish, almost to a vanishing point, opportunities for appointment and advancement for a number of years. That is why, as the noble Lord, Lord Ponsonby, has pointed out, all the most senior judges were in favour of an increase in the judicial MRA to 72 rather than 75.

My noble and learned friend Lady Hallett, who spoke in Committee but is unable to be here today, has added her name to the amendment. She chaired the diversity committee of the Judges’ Council until 2019 and was a member of the judicial diversity forum. She said:

“It is impossible to improve the diversity of the Bench significantly … unless there is a constant flow of new recruits”.—[Official Report, 11/10/21; col. GC 374.]

That is equally true of advancement within the higher courts, from the High Court to the Court of Appeal and ultimately to the Supreme Court. As she said, raising the MRA of the judges is bound to restrict the number of vacant posts. The point, one would have thought, is self-evident, and it is borne out by the facts.

As I have said, one of the two women justices of the Supreme Court will shortly retire. If the Bill is enacted with an MRA of 75, it will be a number of years before any further vacancy will arise. There is no evidence of a pattern of early retirement of justices of the Supreme Court. Of the nine justices who have retired in the last five years, eight continued until the MRA. As I have said before during the passage of the Bill, so far as concerns the Court of Appeal, the average age of judges is just under 64. This means that, potentially, if the MRA is raised to 75, there will be very few vacancies for a further 11 years. Of the 13 judges who retired from the Court of Appeal in the past two years or so, over 70% stayed until the current MRA of 70. The best evidence that I have been able to obtain is that 90% of those due to retire in the next three years will go beyond 70 if permitted.

How, then, will it be possible for those minority ethnic judges in the High Court to progress to the Court of Appeal, let alone to the Supreme Court? The short answer is that it will be highly unlikely. The Government have said that raising the MRA to 75 will increase diversity and the attractiveness generally of applying for judicial office, because it will enable potential applicants to work for longer before seeking judicial appointment. In Committee, my noble and learned friend Lady Hallett said that she had spoken to literally hundreds of potential applicants, including women and BAME lawyers, over the years, and had never once heard an argument that the MRA of 70 was a factor in not applying for the Bench. The Government also say that, in their pre-legislative consultation, a majority of women and BAME groups opted for 75. I do not accept for one moment that, if such groups had been aware of the potentially adverse impact of the MRA on their appointment to the higher courts and on promotion within those courts, they would have endorsed 75.

It has been said by one noble Lord who supports the proposed rise in the MRA to 75 that this is a once in a generation opportunity. Again, I do not accept for a moment that, if and when an increase above 72 is thought desirable, the Government would not readily find a suitable legislative vehicle. In choosing to prolong to 75 the judicial careers of those currently in office, to the disadvantage of underrepresented groups, especially those who are black and from ethnic minorities, the Government have preferred exclusivity to inclusivity. This is out of touch with social attitudes within our wider society, and indeed those of other European countries and the United States. The judiciary is not excused from the call of so many for greater fairness, equality of opportunity and advancement for people of colour and other underrepresented groups within our society. The statutory public sector equality duty, which had its origins in legislation that followed the Stephen Lawrence inquiry, is now to be found in Section 149 of the Equality Act 2010.

Subject to certain exceptions, it requires public authorities, in the exercise of their functions, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic—which includes race and sex—and persons who do not share it. The Act states that a person who is not a public authority as defined in the Act, but who nevertheless exercises public functions, must also have due regard to those matters.

Raising the MRA to 75 is inconsistent with such a duty, or at least its objective and underlying ethos. The House should not endanger its reputation by accepting the increase to 75. To do so would lay it open to the criticism that it is out of touch in preferring to prolong the status quo, rather than enhancing equality of opportunity and inclusivity; in preferring age and standing over fairness and greater participation in our judiciary of all groups within our society, whatever their background, ethnicity, sex or gender. I urge the House to endorse the amendment of the noble Lord, Lord Ponsonby.

Photo of Lord Woolf Lord Woolf Crossbench 5:30, 29 November 2021

My Lords, it is a pleasure to follow my noble and learned friend Lord Etherton, in this debate, but it was of great concern to hear what the noble Lord, Lord Ponsonby, said in his remarks. I am hugely impressed by the other names that have been supporting the suggestion that the age should be raised to 72 rather than 75, as the Government have proposed.

I have the advantage that the noble Lord, Lord Ponsonby, perhaps has not—not yet, at any rate—of being considerably older than 75. I address the House on the basis of what I have learned during the period that I have been a judge and a former judge. I am absolutely committed, as, I am sure, are colleagues, to the need to have a judiciary that is as diverse as possible, to persuade the public that they can continue to have the faith in the judiciary that they have had up to now, and if all the evidence is looked at, I am convinced that the fears so eloquently described by my noble and learned friend Lord Etherton and the noble Lord, Lord Ponsonby, are unrealistic. They leave out of account another very important issue which, I suggest, is realistic.

Unfortunately, the evidence is that the change made 27 years ago to reduce the age from 75 to 70 produced a situation that was very dangerous to the judiciary’s standing. The most senior posts—the posts that should be most active and attractive to applicants—were not being taken up. There was a risk that we did not have the quality of applicant for those posts, which I am sure both previous speakers would agree is critical. Above all, the very best people available should be appointed to the most senior judicial posts of this country.

We have, fortunately, international standing as a judiciary because of its quality. I venture to suggest that advancement applies not only to the more junior judiciary but, above all, to the most senior judges in this country, who, when they retire, are offered all sorts of opportunities to serve in a judicial capacity elsewhere, where they recognise the quality of our judiciary.

The most telling evidence on this important and difficult question is the fact that now, for 27 years, we have had the reduction in the retirement age of the judiciary not to 72 but to 70. Attention must be paid to all the views expressed by colleagues with whom I served and whom I hold in regard. Surely the diversity in our judiciary that they and I desire would have been fulfilled in those 27 years. The fact is that the lamentable situation today is that we still do not have sufficient numbers in the two grades of the judiciary which have been referred to in argument.

My conclusion is that there is a real difficulty in getting the very best judges by changing the age to 72. There is a danger which is supported by evidence. There is no evidence to suggest that anyone else would apply if the age up to which they could retire was 72. Unfortunately, the people we wish to apply who currently support our position in respect of diversity do not see it as their chosen career at that stage.

I say to the House that the Government are right. The evidence from their consultation supports what I say, and that is what we should do—not adopt a compromise that serves no particular purpose.

Photo of Viscount Hailsham Viscount Hailsham Conservative

I declare an interest: I sit as a legal assessor for regulatory bodies, and I am very nearly 77—and therefore significantly older than the age of 72 proposed by the noble Lord, Lord Ponsonby. There are many other legal assessors of my sort of age sitting on regulatory authorities. I know full well that we are talking about judges, not legal assessors, but the principle is very much the same. If you were to say to legal assessors, “You cannot serve beyond 72”, you would lose an awful lot of quality which is now available to those regulatory authorities. I believe that the same is also true of the courts. I think judges should be able to sit until 75.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct

My Lords, I join those who have indicated that they fully support Part 3 of the Bill and would raise the retiring age for judges—or rather return it to where it was 27 or 28 years ago—to 75, which it was for nine years of my own time on the Bench. I should declare that I too am well beyond the age when such as the noble Lord, Lord Ponsonby, might be having a discreet word with me.

I point out that this provision is fully supported by—as I understand it from Second Reading—the noble and learned Lord, Lord Mackay of Clashfern, who originally lowered the age to 70. He recognises that, all these years on, frankly, 75 year-olds now are a good deal younger than the 70 year-olds of those days past.

I suggest that the most important consideration is really that of judicial recruitment, which is still proving extremely difficult. The imperative surely is to get the most able people on to the Bench, whether they be men or women, whether they be gay, trans or straight, and whether they be young or old. The fact is that most cases are decided by a single judge. It is no good having the most wonderful judge trying the case in the next court if your judge is perhaps rather an indifferent one. So it is too with courts of three, five, seven or whatever.

Of course diversity is a highly desirable objective; obviously, public confidence in the justice system overall is enhanced if more people see themselves represented among the judiciary. In a three-judge, five-judge or seven-judge court, the wider the diversity of judges—including, of course, more women—the likelier the court is to bring to bear a wider experience and judgment on the questions. But I suggest that the argument in favour of 72 rather than 75 being supportive of diversity is, frankly, somewhat speculative; certainly, it is not sufficiently clear, I suggest, to justify sacrificing the goal of individual excellence on the altar of supposed greater diversity. Getting the best candidates to apply and appointing them on merit has to be the cardinal rule.

As to that, raising the MRA to 75 is, to my mind, assuredly going to assist in the recruitment of the ablest candidates, and I suggest that is so equally of women candidates as of male ones. First, it becomes more attractive because it is viable to take the job rather later in one’s career than at present. It gives candidates, male and female, longer to pursue whatever their initial career has been—it may have been in academe or in a range of areas on the borders of the law. It certainly gives practitioners a longer working life in which they can earn more than we all recognise they are going to be earning on the Bench.

Secondly, it gives candidates the option—it is not compulsory; they do not have to serve until 75—of being employed, useful and busy, as most of us would wish to be, for longer and later in their lives. Most of us do not actually want to be forced into compulsory retirement at 70—or, for that matter, at 72.

Thirdly, not only does a retirement age of 75 provide a yet better incentive than 72 for encouraging the best applicants to apply but it serves the public good. It retains supposedly skilled and experienced judges for that much longer. Despite what the noble Lord, Lord Ponsonby, suggests, it is surely not to be supposed that judges suffer a significant and noticeable failing in their abilities between the ages of 72 and 75 sufficient to draw the line at 72. It must therefore be in all our interests to keep these judges working, if they wish to, for that much longer.

Finally, I add as a footnote that it will save the taxpayer the need to pay these reluctantly retired judges a judicial pension for those three years for doing nothing.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 5:45, 29 November 2021

My Lords, I too believe that the Government have made the right choice in going to 75 in one go, as my noble and learned friend Lord Etherton put it. We have to bear in mind that what is being suggested is a maximum; I think my noble and learned friend Lord Brown was making that point in passing in what he was saying a moment or two ago.

I am not sure that the examples that my noble and learned friend Lord Etherton gave of people going on until 70 is a very sound guide as to how people will behave if the age is raised to 75, for the very particular reason that a factor that someone has to bear in mind in choosing the age of retirement is whether he has served long enough to earn the full judicial pension. In my day, you had to serve for 15 years; now, you have to serve for 20. For those who have gone on to the Bench in their early 50s, the age of 70 does not give them long enough. When they reach the time when they have achieved that, they may well take the decision to go then, rather than going on for the extra few years, because they have actually earned their full pension. So we are, to a degree, in an area of speculation. We are having to consider human behaviour and how people will behave in view of the two choices of age that we are being given.

We are also contemplating human behaviour in the problem of diversity. I pay tribute to what my noble and learned friend Lord Etherton was saying about the need to increase diversity at all levels on the Bench. I had the responsibility for a while, as Deputy President of the Supreme Court, of being on a commission considering applicants for the position of justice. One of the issues that concerned us at the time was the lack of diversity in the applicants coming before us—a point that I think has been hinted at by my noble and learned friend Lord Brown of Eaton-under-Heywood. Again, we are trying to speculate about human behaviour. There is an immense amount to be said for the diversity element, but I do not think one can be sure that choosing 75 instead of 72 is going to be as damaging as has been suggested.

As for the in-one-go point, I think my noble and learned friend Lord Etherton was referring to me when he mentioned someone who said at Second Reading that the opportunity to legislate on this issue comes quite seldom. I would be concerned, if we were to settle on 72 this time, as to when one would ever get back to the age of 75. As it happens, the Bill has enormous importance behind it because of the need to deal with pensions, which is a pressing issue. It has been possible to bring in the retirement age element and other parts of the Bill because the Bill is already there and the issue fits quite neatly with its broad aim and subject matter. How soon could we be sure that we could ever get back to this issue? For that reason too, the in-one-go point has a lot to commend it.

There is even more to be said for the points made by my noble and learned friends and the point that we are dealing here with an element of speculation, since we are setting a maximum age, not a compulsory one, and it will have the benefits that have been referred to. I believe the Government have made absolutely the right choice here.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I am in the rather unusual position of having brought the judicial retirement age down, all those years ago, to 70 from 75. Your Lordships will remember that 75 was a fairly recent innovation because, originally, judges were appointed for life, and if they did not care for resignation, that sometimes meant fairly long periods in office.

I am very given to wishing for diversity on the Bench, and I realise what the authorities responsible for appointments have done over the past few years. I do not think the noble Lord, Lord Ponsonby, or the noble and learned Lord, Lord Etherton, can be sure that if they get 72 instead of 75 there will be an increase in diversity on the Bench. I had a great deal of experience—it is a long time ago—of trying to work with the ethnic minorities to improve their chances of getting to the top. Indeed, the death of one of those appointments—Mr Kadri, the first Muslim Silk who originated from Pakistan—was reported just the other day. During my time in office, I struggled to bring up the standards of ethnic minorities at the Bar because I felt that was the way to build up a chance of diversity. One of the difficulties in doing that was getting the arrangements needed for that purpose. I was of the view, and am still, that the best chance for ethnic minorities is not Chambers that are entirely of an ethnic minority but diverse Chambers with people from different backgrounds. That has happened to a considerable extent in recent times. It has produced some ethnic-minority members on the Bench, although nothing like as many as I would have liked.

I am convinced that the situation is very different now from what it was 27 years ago, as the noble Lord, Lord Ponsonby, said. Just after the Supreme Court was set up, the noble and learned Lord, Lord Irvine of Lairg, and I wrote to the then Lord Chancellor suggesting that the age limit for Supreme Court judges should be raised to 75 from 70 to accommodate for a reasonable length of time some of those who were there and had the potential to be very good examples of service in the Supreme Court. I am not sure that diversity has necessarily increased very much since then. It is perhaps worth my commenting that the President of the Supreme Court and the Deputy President of the Supreme Court are from Scotland. That is a very important move, although it is not in the way of diversity. It shows that those making the appointments are doing their best to secure the best quality they can at this time. However, it is important to do everything we can to raise the quality of those who are thinking of going to the Bench.

I do not know on what basis the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, whose experience and position is a matter of great importance so far as I am concerned, know that if this is left at 72 there will be greater diversity than now. The people making appointments are as keen on diversity as we are, but they find it difficult in the context in which they are working to bring it forward. I do not believe that it is at all likely that 72 will be more fruitful in that respect than 75. There is no doubt in my mind that going to 75 will increase the possibility of people in senior positions at the Bar taking the appointment. That is one of the things that I realised. The reason is simply that, as has been pointed out, the pension is important in these situations. People who are at the top of the profession are rather unwilling to take a judicial appointment unless they have a pension that encourages them to leave the Bar, with what they are making. I support this move to 75 very strongly, although I know it reverses what I did all those years ago.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, it is an enormous privilege and pleasure to be able to follow the noble and learned Lord, Lord Mackay, because when he was Lord Chancellor he swore me in as a judge of the High Court. At that time, the retirement age had been reduced to 70. Before turning to this particular amendment, because it is of particular relevance, I say how much I welcome and appreciate what the Government have done in bringing forward this Bill and clearing the terrible problem related to judicial pensions. Of all the research that was done during the time that I was the senior judge, it was clear that the biggest impediment to recruitment was what had happened on pensions, so I thank the Government with all my heart for putting this matter right.

I could not possibly begin to say that a retirement age of 75 was in ordinary circumstances the right age. It would be a difficult proposition to make to this House in any event, but I will be of that age next year and I still sit in a judicial capacity. However, that is not the issue. The issue is, starkly, diversity. I do not think that this House can run away from that, for reasons that I will endeavour to explain. The senior leadership judges whom the noble and learned Lord, Lord Etherton, has described all support moving only to 72 because of the imperative of diversity.

When I was Lord Chief Justice, I was under a statutory duty to promote diversity. Working hard with Lady Justice Hallett, as she then was—she is now the noble and learned Baroness, Lady Hallett—we did it not because we were under a statutory duty but because we believed it was imperative for the judiciary to increase its diversity. The figures are telling. In 2005, there were two female members of the Court of Appeal. By 2015, there were eight, but—the noble and learned Lord, Lord Etherton, gave the figures—there are only 10 now. In the Supreme Court, there was one, then there were three, and now there are two, so the battle for diversity has yet to be won, particularly as regards our ethnic communities.

Why do I have this belief in diversity? There are three reasons. First, it is critical to public confidence in the judiciary—without which, the whole of society suffers. Secondly, diversity represents the fundamental principles of justice: equality of opportunity and fairness. Thirdly, unless we fully embrace the principles of diversity, for the whole of our society, we will not recruit and bring into the judiciary the broad background that we need—possibly not to decide the most intellectually important cases but to bring justice that is appreciated to everyone.

The noble and learned Lord, Lord Etherton, gave the figures with great clarity. He explained the simple mathematics of the position—and mathematics is often the easiest way of seeing the difficulty. As the noble and learned Baroness, Lady Hallett, put it, unless there are vacancies at the most senior levels of the judiciary, we will not be able to improve on the figures that have been given. It seems to me that the critical question for this House is the extent to which we wish to give a message that diversity matters to our society, and then we can move in due course to 75.

My first point is that I do not understand the Government’s answer to this question. When I was Lord Chief Justice, there were a number of Lord Chancellors. Each and every one of them believed in diversity; some, such as the present Foreign Secretary, perhaps more than others. Why the change? Why is it not seen as an overriding objective to make the most senior levels of the judiciary more diverse?

Secondly, it seems to me that we have not only to look at the figures but, more importantly, to ask ourselves about the symbolism. Why are we setting an older retirement age, which—I regret to say—will largely benefit men to the detriment of advancing ethnic minorities and women? That is a question that each and every one of us must be prepared to answer publicly.

Thirdly, this is not a question of the net benefit of keeping a number of very senior judges. When I was Lord Chief Justice, it became a common experience that people would calculate their prospects of moving to the Court of Appeal or the Supreme Court. If the retirement age is raised to 75 up to five years before there is much prospect of movement for some, we will lose judges, and among them we may well lose are those who presently represent diversity.

I strongly support the speeches made by the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Ponsonby; it seems to me that this is an amendment that we must carry. We must give the right message to the public as a whole, and we must do so from our hearts. I believe we should do as the noble and learned Baroness, Lady Hallett, has done: we must do all we can to promote diversity in our judiciary and thus increase public confidence in it. I warmly support the amendment.

Photo of Baroness Janke Baroness Janke Liberal Democrat Spokesperson (Work and Pensions), Liberal Democrat Lords Spokesperson (Work and Pensions) 6:00, 29 November 2021

My Lords, the debate this afternoon has been passionate and enlightening. Here is a quote from Second Reading:

“I think that everybody in this House would say that it is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society that we live in if they are to be respected and seen as part of our current era. At the moment, they do not.”—[Official Report, 7/9/21; col. 792.]

It is also a great pity that the Government have not conducted impact assessments with benchmarking of different ages, but they have not. In the absence of impact assessments, I look to the arguments that we have heard. The point has been admirably made: unless there are vacancies, there will not be opportunities for diversity.

We have heard arguments as to why we should not do this; for example—an argument we often hear when there is talk of promoting diversity—that somehow quality will suffer. I have heard those arguments for the last 40 years. Whether scientists, engineers or Members of Parliament, we now see women operating in spheres that were occupied only by men in the past, with no diminution in quality at all. In fact, the contrary has been the case.

I very much respect what was said by the noble and learned Lord, Lord Mackay, with his experience and knowledge. He mentioned context, however, and, the more we listen to this debate, the more we realise that it is the context that has to change. The present context does not promote diversity at all; I would venture to suggest that, to create greater diversity, the circumstances need to change. This amendment seems to me to promote the kind of change that we need.

We heard from the noble and learned Lord, Lord Etherton, that the position of women has improved and continues to improve slowly, but—to use his words—that the embarrassing position as far as minority ethnic judges is concerned is something we all ought to be ashamed of. The cause of diversity is one that we in this House, as well as people from all walks of life, welcome. Everybody here wants to see a more diverse judiciary. Whatever our own situation, and whether or not we believe, as some in this Chamber clearly do, that somehow the courts will not attract the very best people to be judges, the cause of diversity is absolutely self-explanatory and vital if the people of the country are to be able to respect those in eminent positions. From what I have heard today and in Committee, I would say that the cause of diversity is best served by this amendment. We on this side will support it.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

My Lords, I start by thanking all noble Lords for their contributions during this lively debate. I also thank the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, for the consideration they have both given to this issue, not just today but throughout passage of the Bill. I have listened with care to both sides of the argument put forward today. However, I would like to use this opportunity to set out in full why—in a robust response following detailed public consultation—the Government continue to believe that 75 is the right judicial mandatory retirement age.

All four nations of the UK conducted public consultations on this important question and, following careful analysis of responses, the decision taken by each Government was to increase the mandatory retirement age to 75. I appreciate the support of noble Lords today, from my noble friend Lord Hailsham, to the noble and learned Lords, Lord Woolf, Lord Brown and Lord Hope, and my noble and learned friend Lord Mackay.

I remind the House of some of the data emerging from the UK Government’s consultation. The vast majority of respondents—84%—believed that the mandatory retirement age should be increased, with 67% indicating that a retirement age of 75 was better, all things considered. Notably, 74% of respondents believed that such a change would not damage confidence in our world-class judiciary—something raised by one or two noble Lords today.

On a point raised by the noble and learned Lords, Lord Etherton and Lord Thomas, as to why we appeared to be going against the views of the senior judicial responses to the consultation, we recognise the varied opinions on the appropriate retirement age. However, I assure noble Lords that this decision was taken after careful consideration of all responses including those of the senior judiciary. Some 67% of respondents to the consultation on this matter favoured increasing the age to 75, as I have said. We recognise the concerns raised by the senior judiciary over impacts on judicial diversity, which I shall address later in my remarks. However, on balance, we believe that raising the retirement age to 75 sets the right balance.

It is clear that we agree on one point: that the mandatory retirement age should be increased. The question being debated here is to what age. Here is a point raised by the noble and learned Lord, Lord Hope. If the retirement age is to be increased as this Bill intends, it should be a meaningful increase, which will bring a clear and tangible benefit to the resourcing of our courts, not just a minor raise by two years to 72—a decision which I suspect will not put this issue to bed and will mean that we find ourselves discussing it again in the not-too-distant future, as has been said.

This leads me to an important point on life expectancy. Since the current mandatory retirement age was set in 1993, life expectancy is longer, and social attitudes to working in later life have changed significantly. An age of 75 much better reflects this change. That was a point that the noble and learned Lord, Lord Brown, alluded to in his powerful remarks. Indeed, as I have noted previously, many Members of this House over the age of 75 are among its most knowledgeable, productive and vibrant. I look around now—not wishing to bring any individual Peer to the attention of the House—but I hope that my point is well made.

I stress that the mandatory retirement age is a maximum, not a minimum. Judges will by no means be forced to continue working to 75. The key objective here is additional flexibility, both for officeholders themselves as well as for the resourcing of courts and tribunals. Increasing the mandatory retirement age to 75 maximises this flexibility. Indeed, we already have some officeholders sitting up to the age 75 who play a key role in the administration of justice.

I must also note that, based on the evidence available, it is not clear that all, or even most, judges would choose to continue working to 75. With some trepidation, I do not entirely agree with the statistics put forward by the noble and learned Lord, Lord Etherton, on judiciary retirement. The average retirement age of salaried judges is, I understand, about 67. Over the last five years senior judges—that is, judges of the High Court and above—with a mandatory retirement age of 70, have also on average retired at 67. Evidence therefore suggests that the majority of judges do not continue working till their mandatory retirement age. As I have stated, the objective of this measure is additional flexibility to support the resourcing of courts and tribunals.

I understand that the intended effect of this amendment is to raise the mandatory retirement age to 72 rather than to 75, as has been made clear. However, I must make it clear that this presents a number of consequential issues for other related provisions in the Bill. I note that the amendments do not include changes to paragraph 25(2)(b) of Schedule 1, which repealed the powers to provide for extensions up to 75. In the consultation, only 10% of respondents believed that, if the mandatory retirement age were 72, extensions past the mandatory retirement age should not remain. The amendments as drafted would leave us with a lower retirement age but without retaining these provisions for extensions which are currently in place. Additionally, those “sitting in retirement” can currently continue to decide cases up to the age of 75. The effect of the amendment to Clause 107 would require those sitting in retirement to also retire at the age of 72. This would reduce the resourcing flexibility that “sitting in retirement” arrangements provide.

I also highlight that the amendments do not appear to take account of Part 2 of Schedule 1 to the Bill, which allows for the reinstatement of retired magistrates who are younger than the mandatory retirement age, where there is a business need. This would provide necessary additional capacity in the magistrates’ and family courts to meet forecast case volumes and provide timely access to justice as the courts recover from the pandemic. The Government’s modelling indicates a pool of about 4,000 retired magistrates would be eligible to be considered for reinstatement with a retirement age of 75, but only around 1,300 would be eligible to be considered with retirement at 72. In addition, an age of 72 would provide a much shorter timeframe over which those magistrates reinstated could sit, which means that, when the time and investment necessary to reappoint and retrain is taken into account, the number who would be able to make a meaningful contribution would be smaller still. Therefore, the amendments as tabled result in a hard cut-off at age 72, and with less flexibility than now.

I turn to one of the main thrusts of this debate, which is judicial diversity. I have listened very carefully to the arguments put forward by the noble Lord, Lord Ponsonby, and the noble and learned Lords, Lord Etherton and Lord Thomas. I reaffirm the Government’s unwavering commitment to judicial diversity, including recruitment north of the border. We aspire to a judiciary that better reflects the society that it serves. I understand that the Judicial Diversity Forum’s updated action plan is to be published this winter and will include more detail about the important actions that the Ministry of Justice and other members of the forum will be taking to continue to drive recruitment and improvements in diversity.

While we must strive to do more in this space, progress continues to be made in increasing judicial diversity. Some 48% of new court and tribunal judges in 2020-21 were women, and 14% were from a black, Asian, or minority ethnic background. Furthermore, women judges made up 48%, and black, Asian, or minority ethnic judges made up 12% of all judges promoted in that period. In years to come, I have no doubt that many of these fine putative legal minds will climb to the highest levels of our judiciary, and a later mandatory retirement age will give them more time to do so.

I also make clear the projected diversity impact of a higher mandatory retirement, and how this differs depending on the age. If the mandatory retirement age is increased from 70 to 72, this is projected to result in a 1% decrease in diversity growth in the medium to long term, considering both gender and ethnic diversity together. This is a crucial argument, and it is where I do not agree with the noble and learned Lord, Lord Etherton, who called the impact severely adverse. If the MRA is increased from 70 to 75, this is projected to result in a 1% to 3% decrease. While there is a difference in impact, as I acknowledge, I hope that it makes clear just how marginal this would be: between a 0% and 2% difference in diversity impact when considering 72 against 75, a point raised by my noble and learned friend Lord Mackay.

I also stress that this is not a decrease in diversity per se, but in the rate of diversity improvement compared to maintaining the current retirement age. We expect that judicial diversity will continue to improve, because we intend to continue recruiting around 1,000 judges per year in the coming years. I accept that, if current officeholders opt to remain until 75, the progress in increasing diversity of the senior judiciary would be affected in the short term. Requiring senior judges to retire earlier than 75 could result in more vacancies sooner. However, the path to a more representative senior judiciary is long, as the candidate pool in the short to medium term is also not particularly diverse. This is emblematic of why projected differences in overall judicial diversity are marginal even with a higher mandatory retirement age. But I again stress the important actions that the Ministry of Justice and all members of the Judicial Diversity Forum are, and will be, taking to improve the diversity of senior lawyers and the judiciary.

While judicial diversity is an extremely important issue which we must continue to take steps to address, the capacity of our justice system is also critical. A mandatory retirement age of 75 gives us scope to significantly boost the capacity of our judiciary with only a very marginal overall diversity impact. A mandatory retirement age of 75 brings significantly greater operational advantages than 72. As of April 2021, we have over 12,000 highly valued magistrates dispensing justice in our courts, which is simply not enough to meet demands. An age of 75 would retain around 2,000 additional magistrates, more than double the amount retained by a mandatory retirement age of 72, at a time when we have a significant shortfall.

I want to spend a short amount of time explaining what we are doing to improve the diversity of the magistracy, because we are delivering a new recruitment programme to recruit a greater number of magistrates from diverse backgrounds. We are planning to recruit 1,500 per annum overall. In addition, we are gathering qualitative research through surveys and discussions to identify the barriers that we absolutely need to eliminate when recruiting magistrates to recruit a more diverse pool. Using these findings, we will invest in a targeted marketing strategy, directed at underrepresented groups in local areas, to improve diversity. It is important that we do not just rely on magistrates sitting longer. That is why the Government are delivering a new recruitment programme for the magistracy.

I end by noting that legislative consent Motions are being processed in Scotland and Wales, while one has been passed in Northern Ireland, to agree to the UK Government changing the mandatory retirement age to 75. I must stress how important it is, in the Government’s view, that we retain a consistent mandatory retirement age for judicial officeholders in all four nations. These amendments could seriously jeopardise that imperative. With that, I hope that noble Lords will not press their amendments.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs) 6:15, 29 November 2021

My Lords, let me provide some context to the figures that the noble Viscount has given. He said that there are 12,000 magistrates in England and Wales today, but when I became a magistrate 14 years ago there were 30,000, so there has been a managed decline of the magistracy. I support, of course, the recruitment programme, which is targeting and, as he said, marketing to try to get greater diversity through that process.

The simple point is that you cannot run away from diversity. There is an absolute imperative to increase diversity within the whole of the judiciary. It is not good enough just to wring your hands and say, “It’s all very difficult”. It has been very difficult for decades and the situation has not improved. The maths is very simple; we heard the maths from the noble and learned Lord, Lord Etherton, who also quoted the noble and learned Baroness, Lady Hallett, who is in a particular position to know. There need to be vacancies for people to progress through the system. It is a simple argument, which I do not think a number of noble Lords fully took on board.

When I introduced this debate, I made a simple example of my role as a youth magistrate and how I felt that I was moving further and further away from the youths I was judging. I gave the example that I am older than the grandfathers of nearly all the youths I am judging. Not one noble and learned Lord addressed that point. They addressed points about the difficulties of recruitment and the ins and outs of the pension scheme, but not the central issue that I tried to raise about the judiciary being further away from the people who they are judging. I argue that we need to have some level of connection to reach fair judgments.

My amendment is a modest compromise. It says that 75 is too far and that 72 is a better age to see how it goes. I acknowledge that people are working and living longer—I made those points when I introduced the amendment—but I say to the noble Viscount and to a number of contributors to this important debate that I am not convinced. I wish to test the opinion of the House.

Ayes 147, Noes 211.

Division number 1 Public Service Pensions and Judicial Offices Bill [HL] - Report — Amendment 126

Aye: 147 Members of the House of Lords

No: 211 Members of the House of Lords

Aye: A-Z by last name

No: A-Z by last name

Amendment 126 disagreed.

Schedule 1: Retirement date for holders of judicial offices etc

Amendments 127 to 202 not moved.