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.
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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.