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.
6 pm
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.