My Lords, this has been a rather busy debate. I thank all noble Lords who have contributed, including the noble Lord, Lord Ponsonby, at the beginning, the noble and learned Lords, Lord Etherton and Lord Woolf, the noble Baroness, Lady Janke, and particularly the noble and learned Baroness, Lady Hallett, who I do not think has spoken in any of the debates I have been involved in; she is most welcome. I appreciate the careful consideration that has clearly been given to this knotty issue, and I welcome the opportunity to discuss the matter further and in depth. We obviously covered it in some depth at Second Reading.
I wanted to say something at the outset about Amendment 34, which seeks to raise the mandatory retirement age in the Judicial Pensions Act 1959 to 72, rather than 75 as proposed in the Bill. I point out that the amendment as drafted would have the effect of changing the retirement age to 72 for only a small number of senior judges. However, I understand from the contributions today that this is, if I have got this right, more of a probing amendment, and that its
intention is to raise for debate—which we have had today—what mandatory retirement age should be provided for in this Bill for all members of the judiciary. I just wanted to make that point.
I recognise that there are different views, not just among Members of this House but among others outside, including within the judiciary, on the most appropriate age at which members of the judiciary should retire. I therefore appreciate the close interest that this Committee has in the consultation that took place in 2020 on this matter. It is obviously a challenge to get agreement, and I take the view from the noble and learned Lords, Lord Woolf and Lord Etherton, and indeed the noble and learned Baroness, Lady Hallett, that there are definitely different views. We know that.
As the noble Lord, Lord Ponsonby, mentioned, I endeavoured to cover in some detail in the letter I wrote to your Lordships following Second Reading some more information on this issue. However, I welcome the opportunity to provide further reassurance—and I hope I can—on the robust consultation that took place, which has to led to the decision, and to explain why, on balance, the Government feel it is right at this point to raise the mandatory retirement age to 75. I shall expand on that in my remarks.
First, as this Committee will know, a full public consultation ran from July to October 2020 and received 1,004 responses. The vast majority of respondents, 84% in total, believed that the mandatory retirement age should be increased, with 67% of respondents indicating that a retirement age of 75 was the better option—in a measured way and all things considered, I should say. Of the individual respondents who reported their gender, 62% of female respondents supported a mandatory retirement age of 75. But let me now turn to the Government’s rationale for raising the judicial retirement age to 75.
It is interesting to note that there is, of course, a view that the mandatory retirement age should be raised. I think the point was raised that this is about whether it should be either 72 or 75; at least that is some form of agreement. It is important that we set a judicial retirement age which we believe will stand the test of time, given that such changes are once in a generation.
Just to put all this in perspective, the previous adjustment to the judicial retirement age was 28 years ago. I pick up the point raised by the noble and learned Lord, Lord Woolf. In my view, and in his, it would not be ideal to make a modest increase of just two years and then to have to revisit this question in the relatively near future. It is better for the smooth administration of justice that we make a change now—if we want to make a change, and we think it is right—that supports our judiciary to meet the demands of the justice system, both now and in the future.
We have, of course, seen many changes since 1993, when the current retirement age of 70 was set. By 2019, life expectancy had increased for men by 5.8 years and for women by 4.1 years. We have also seen changes in wider societal norms on retirement: the Equality Act 2010 resulted in the removal of a compulsory retirement age from most professions. It is a widely accepted position that the judiciary is different in this
respect, and there are very important principles we wish to maintain for setting a judicial officeholder’s retirement age in statute. However, the Government believe that the time is right to review the age at which that should be set. The proposal to increase it now is in line with the wider acceptance in our society that older people continue to make a significant contribution. Indeed, many noble Lords continue to make valuable contributions to the work of this House long past 70 or indeed 72 and even 75. As I expect noble Lords are aware, the average age of Members of this House in January last year was a positively spring chickenlike 77. I think we should bear that in mind.
The noble Lord, Lord Ponsonby, raised appraisal schemes, which I found interesting with my background in human resources. I would love to expand a lot on this, but appraisals are a matter for the judiciary. I shall set out the Government’s position on this as it is an important point. It is not for the Government to direct, but here we are. Having individual assessments undermines one of the core purposes of the mandatory retirement age, which is to maintain public confidence in the health and capability of the judiciary without the need for individual assessments. Individual assessments have the potential to infringe on the principle of judicial independence which is fundamental to our judicial system and must be fiercely protected. Judges must be free to hear and decide cases without the spectre of assessment sitting over their shoulder. Some sitting judges can already have their appointments extended past their compulsory retirement date to 75 without the need for a capability assessment. Subjecting only older judges to individual assessment risks being discriminatory on the basis of age, and we do not currently consider that that would be justified. However, I return to the first point that I made that appraisals are a matter for the judiciary and as I speak for the Government I have to stick with that.
A key issue here is trust. This was mentioned. The legitimacy of our judiciary relies on public confidence that its judgments can be accepted as right and fair. It is very positive that the Ipsos MORI Veracity Index shows a remarkably high level of trust in our judiciary. The 2020 index showed that 84% of the public trust the judiciary. Thank goodness for that. I do not think that more judges, magistrates and coroners sitting up to age 75 will dent that high level of trust.
As the noble and learned Lord, Lord Woolf, said, it is important to note here that the new mandatory retirement is, of course, a maximum, rather than a minimum, retirement age. It is not expected that even a simple majority of the judiciary, and judges in particular, will wish to sit until they are 75, but I take the messages that were relayed by the noble and learned Lord, Lord Etherton, from his experience. I do not dismiss what he said. It again comes back to the balance that we have decided to take. Data from the Forty-Second Annual Report on Senior Salaries showed that from 2011-12 to 2018-19, the average age of retirement across salaried judges in England and Wales was 67, but the Government believe that it is right that this measure would provide the judiciary a little more flexibility over when they retire.
It is known that we already greatly benefit from the expertise of judges older than 70; indeed, many incredibly important inquiries are chaired by former Justices of Appeal and High Court judges whose intellectual capacity was undimmed when they retired at 70. There are also many instances in which members of the judiciary are, at present, able to retire up to the age of 75: a number of judges who, having been appointed before 1995 when the changes to retirement age came into effect, are not due to retire until after 72 or up to 75. Similarly, coroners appointed before the Coroners and Justice Act 2009 do not have a retirement age in statute.
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Furthermore, when there is a public need, some sitting judges can already have their appointments extended past their compulsory retirement date to 75. We believe that the justice system benefits from the extra flexible capacity provided by these judges. The current legislation does not allow all judicial officeholders to sit beyond 70, and those that do cannot all continue to sit on the same basis as they could before they were 70. That is why we feel that it is logical and fair to increase the retirement age for all judicial officeholders, including coroners and magistrates, to retain their vital expertise for longer.
At Second Reading, the noble and learned Lord, Lord Etherton, raised some important concerns about the impact of a higher mandatory retirement age on judicial diversity; the noble and learned Baroness, Lady Hallett, also made this point. I want to address this aspect, which is part of the balance.
First, let me reaffirm the Government’s commitment to judicial diversity: that we should aspire to a judiciary that better reflects the society it serves. As I stated in the course of my closing speech at Second Reading, we acknowledge that the retention of older officeholders could have an impact on the flow of new appointees to judicial offices, which may have a very small impact on the rate of diversity change overall. However, we also believe that the longer judicial career afforded by a higher retirement age could help to attract more diverse applicants. I am sure noble Lords will agree that this is a matter for further debate.
I want to pick up on the questions asked by the noble and learned Lord, Lord Etherton, and the noble and learned Baroness, Lady Hallett, about the impact of so-called bed-blocking in the senior judiciary caused by raising the age to 75. The Government recognise, along with the judiciary, that the senior judiciary—that is, the High Court and above—is less diverse than the judiciary as a whole in terms of women and black, Asian and minority ethnic judges. It is true that, in the senior courts, the average retirement age has been slightly higher than the overall average retirement age of 67 across all salaried judges, but it is still below 70. Given previous patterns, we do not expect all senior judges to choose to sit until 75, a point I made earlier. However, there may be a period of adjustment during which fewer vacancies arise following retirement, so we should expect to see movement in the senior courts. Of course, when vacancies do arise, the additional time may mean that a broader pool of candidates has developed. I hope that helps a bit.
In particular, the higher retirement age will make the option of beginning a judicial career later in life, possibly following career breaks to balance family and professional responsibilities, more attractive. In the legal profession itself, many lawyers work well into their 70s. Why would the legal expertise of lawyers in their 60s, when they may first consider applying for judicial office, not be an asset to the judiciary?
On average, lawyers have 17 years of post-qualification experience before they are appointed to judicial roles in the courts that require five years of post-qualification experience, and 27 years of post-qualification experience for roles that require seven years of post-qualification experience. That is why only about 5% of judges in our courts and tribunals are under 40, and about 27% are under 50. We therefore assess that, in the longer term, providing an extra five years of eligibility to apply for judicial office could broaden the pool of diverse candidates, including those senior lawyers—both solicitors and barristers—who may have ambitions for office in our senior courts.
The proposal to increase the mandatory retirement age would also apply to the highly valued magistracy. As of April 2021, we have more than 12,000 unpaid magistrates dispensing justice so ably in our magistrates’ and family courts. Around 50% of them are aged over 60. The majority of individual magistrates—67%—who responded to the Government’s consultation thought that their retirement age should be 75.
The Government think it very important, however, that we do not just rely on magistrates sitting longer but recruit younger magistrates, which is a helpful message to the noble and learned Baroness, Lady Hallett. That is why the Government are delivering a new recruitment programme for the magistracy to recruit greater numbers of magistrates from diverse backgrounds and identify the barriers we need to eliminate to attract more diverse people to apply for this worthwhile and very fulfilling role.
I hope I have reassured the Committee that the Government have given full consideration to this matter. In deciding the appropriate retirement age, we seek to strike a balance—and it is a balance—between the benefits that increasing the retirement age will bring against its impacts. I appreciate the concerns that the Committee might have about inhibiting the flow of new judicial appointments and age-related capability, but we consider that these are outweighed by the significant benefits for recruitment and retention at a time when some of our courts and tribunals need more judicial resource to support the timely delivery of justice. I thank again all noble Lords who have
taken part in this debate and ask the noble Lord, Lord Ponsonby, to withdraw his amendment if he feels able to.