I thank the Minister for his full letter, following Second Reading, and his suggestion of a further meeting. I am very grateful for both of those. I support everything that the noble Lord, Lord Ponsonby, has said and it is a great pleasure to follow him.
I join in on this amendment and support it because of the adverse impact of the increase in the maximum retirement age to 75, rather than 72, on diversity in our most senior courts, especially the Supreme Court and the Court of Appeal. While all salaried judges are
critical to the administration of justice, the most senior courts are those that tend to send the clearest message to our nation, and indeed to other countries, of whether or not we value diversity within the judiciary. At present, we lack a sufficiently diverse senior judiciary. While some progress has been made, particularly in the last 10 years, on the recruitment of women—still inadequate—there is a notorious lack of people from a minority ethnic background. Indeed, in the just over four years that I was Master of the Rolls, it was sometimes extremely embarrassing not to have on the panel of judges in the Court of Appeal anybody from such a minority background.
To increase diversity, there must be sufficient opportunities for appointment to the senior courts. This requires existing judges to retire. The increase in the maximum retirement age to 75, rather than to 72, will in effect freeze the opportunity for the advancement of underrepresented groups and the throughput of more diversity within the judiciary. As the noble Lord, Lord Ponsonby, said, all the most senior judges in England and Wales were in favour of an increase in the judicial MRA to 72 rather than 75. The adverse impact of raising the MRA to 75 in a single stride is plain: the average age of judges in the Court of Appeal is just under 64. This means, potentially, that if the MRA is raised to 75 there will be very few vacancies for a further 11 years.
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It is said in response to this that the evidence is that judges tend to retire before they reach the MRA. That is not, however, true of the Court of Appeal or the Supreme Court. Of the 13 judges who retired from the Court of Appeal in the past two years or so, more than 70% stayed until the current maximum retirement age of 70. The best evidence 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. So far as concerns the Supreme Court, of the nine Justices who have retired in the past five years, eight went to the mandatory retirement age. There is nothing to suggest that this pattern would not be followed if the MRA was raised to 75.
The issue of raising the MRA gained traction when there was a worrying shortage of applicants to the High Court. To a very significant extent that was due to the pension amendments made in 2015, which were subsequently found to be unlawful and discriminatory on grounds of sex, race and age. Indeed, in some cases, it was only financially prudent for candidates to apply to the High Court if they refused a judicial pension altogether. The present Bill will remedy that state of affairs. The latest recruitment round has overall been a success and the shortfall, principally in the Queen’s Bench Division, is relatively modest. Accordingly, underrecruitment is not a sufficient justification for undermining future increase in diversity by going from 70 to 75 rather than to 72.
It has been 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. I am not aware, however, of any significant number of applicants in their sixties. They are, generally
speaking, in their forties and fifties. I should mention briefly that there are specific issues in the recruitment of district judges, but that has nothing to do with the MRA.
Then it is said that this is a once-in-a-generation opportunity. I respectfully do not accept that there can be weighed in the balance against increasing diversity in our senior courts a suggestion that the Government would not bring forward further legislation to change the MRA from 72 should there be a good case for doing so. The absence of a diverse judiciary in our most senior courts should be a cause of embarrassment. A large number of good initiatives to increase that diversity has been undertaken by the Judicial Appointments Commission, senior judges and others. There are all kinds of systemic difficulties in this task, but progress, even if slow, is being achieved. Let us not obstruct that progress by a measure which would freeze to a large extent the opportunities for those who are currently underrepresented to play their part in our senior courts.
The previous Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, was hoping to speak; he was sitting here in Committee but has had to go away. He has specifically asked me to convey to the Committee that he strongly supports this amendment.