Public Service Pensions and Judicial Offices Bill [HL]

Lord Etherton Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Etherton (CB)]

The provisions in the Bill for reform of judicial pensions, intended to rectify the scheme introduced in 2015, which applied only to younger judges, are welcome. The April 2015 pension provisions were held by successive courts to be unlawful and discriminatory on grounds of sex, race and age. I can say from my own experience, when I was head of the Chancery Division of the High Court, that they were a disincentive for practitioners to apply to become High Court judges. The proposed provisions will ultimately permit and require all members of the judiciary to be on the same new scheme and terms, which is highly desirable.

However, I regret that unlike the distinguished other former judges and judicial officeholders who have spoken—the noble and learned Lords, Lord Woolf, Lord Mackay of Clashfern and Lord Brown of Eaton-under-Heywood—I regard the raising of the judicial retirement age from 70 to 75 as very much a mixed blessing. On the one hand, it will enable experienced judges, as the noble and learned Lord, Lord Brown, said, to continue in office when they still have so much to contribute to a high standard of justice. It will also allow for applicants for judicial appointment to apply later in their careers—again, as emphasised by the noble and learned Lord, Lord Brown. That may be attractive to some practitioners. On the other hand, to raise the retirement age in one step from 70 to 75 rather than, say, 72, is highly likely to have an adverse effect on diversity, especially in the Court of Appeal and the Supreme Court.

There are far too few women and people from minority ethnic backgrounds in the Court of Appeal and, especially, the Supreme Court. There is universal recognition of that shortcoming. It is possible to progress diversity only if the ranks of those in the top courts are open to new members. However, both courts are relatively young: in the Court of Appeal, for example, the current average age is under 63, which means that potentially there could be a very long freeze, of possibly 12 or 13 years, for any substantial influx of new members. Will the Government think again about that issue, and the potential adverse outcome of raising the age of retirement in one go to 75 rather than to 72, at least in the first instance?

Will the Minister also confirm that, if at all possible, the retirement age increase, whatever it might be, will come into operation on 1 January, as there are judges—including one in the Supreme Court—whose 70th birthday falls between the beginning of January and April next year, when all judges will be moved to a single reformed scheme? If the retirement age increase does not come into effect until April 2022, when the new pension provisions come into effect, such judges, whose 70th birthday would have accrued between January and 1 April 2022, will be able to apply again for appointment. That would complicate the appointments process when they will be competing against other applicants. Alternatively, will the Government give consideration to introducing transitional provisions to address that problem?