My Lords, on one level, I do not object to this legislation. In 2015, I think, the Finance Act made yet another round of changes to the various pension rules in our usual, chaotic way because we do not have properly consolidated legislation. Nobody recognised the unintended consequences that would flow from that for a wide range of taxpayers.
I am entirely with the noble Lord, Lord Davies of Brixton, on this: it was not just judges who found themselves in an unacceptable position that made it difficult to recruit and retain. We have had the same thing with senior medics, as he said, and senior people in the military. After ignoring the problem for months—people were constantly trying to raise the issue with them, for perhaps more than a year—the Government finally recognised that something had to be done. They have made different changes in different situations. I suspect that the temporary fixes that were put in place for the medics, military and senior civil servants will now run into serious trouble, given the inflationary pressures that will push up wages and the freezing of various thresholds.
I must say that judges clearly have the ear of those in power in a way that other professions do not. They have done an absolutely brilliant job of managing to carve out a solution that protects them entirely from the impact of those thresholds, which essentially meant that every additional penny people earned required them to pay a huge number of pounds in additional tax—talk about badly drafted legislation that was not thought through. I was particularly involved with some members of the military. We now have almost no three-star colonels as a result of people leaving that profession, and we had so many consultants, even during Covid, going out and working over weekends but knowing that it would have an awful impact on
their take-home pay because of tax consequences which were probably never originally intended. I do not have a problem with that, but here is my problem.
The Government say that they have put in place the new scheme to deal with the threshold problem, and that it will cost an initial £20 million a year. That is not that much; what I object to are the other measures that the Government have taken to offset the full cost of the scheme. One change which flows from it is to raise the retirement age of judges from 70 to 75. I am afraid I was involved only in the early stages of the Bill but was then trying to juggle too much legislation and relieved of duties on it.
The Minister said that we must have a scheme that encourages recruiting and retaining the highest calibre of judges. Unfortunately, over many years—this country is like many others on this—we apparently looked at those who were women or people of colour and decided that they did not meet that high calibre, on the grounds of either their gender or race. We have embedded discrimination that has affected the shape of our whole legal system. In this day and age, we find that unacceptable and are attempting to change it fundamentally but it has been a very slow process.
The Government produced a judicial diversity statistics report in 2021. The higher courts in this country in no way reflect our population among their judges—not by a wide margin. That flows out in all kinds of ways. When judges are appointed, an eligible pool is first identified and then there are recommendations for appointment. I read from the Government’s report:
“From the eligible pool, recommendation rates for Asian, Black and Other ethnic minorities candidate groups were an estimated 36%”—
that is for Asians—
“lower respectively compared to White candidates.”
For black candidates, they were 73% lower respectively compared to white candidates and for “Other ethnic”, which I think includes mixed-race people, 44% lower. The report noted:
“All of these estimates were statistically significant.”
It goes on:
“The proportion of Asian and Mixed ethnicity individuals in the judiciary has increased since 2014, while the proportion of Black individuals has stayed the same in that time.”
The number is shocking:
“As at 1 April 2021, 5% of judges were from Asian backgrounds, 1% were from Black backgrounds, 2% were from Mixed ethnic backgrounds and 1% were from Other … The proportion of ethnic minorities is lower for senior court appointments (4% for High Court and above) compared to others”—
that is for the entire cluster. The Minister will know that I could go on and on with similar statistics showing the lack of diversity in our more senior courts.
When the core legislation that sits behind this SI first came to the House, the noble and learned Lord, Lord Judge, gave an estimate that the Government have not challenged: that by extending the retirement age from 70 to 75, producing sets of judges on our courts who reflect the population was put back by 13 years. It is huge, and the report on diversity helps us understand why. It says:
“It is worth bearing in mind that changes in representation will always be gradual due to the relatively low numbers of joiners to and leavers from the judiciary each year”.
The number of leavers from, and therefore joiners to, has been dramatically slowed by that increase in the retirement age.
I understand the concern of many people who become judges. They step away from very lucrative practices and cannot take side business to enhance their income. They are concerned about the impact on their pensions for the rest of their lives, and therefore they are keen to keep working longer. I notice that we have Members of this House, often with friends whose calibre they admire and whose skills they regard very highly—I have no question about that calibre and those skills—who are very supportive of allowing people to extend their working life from 70 to 75. But no one has been able to give me any satisfactory answer on the issue of diversity and courts where the judges reflect the make-up of our population.
I know there are various programmes to get more and more people from different backgrounds into the legal profession, but that is at the beginning of the pipeline. At the end of the pipeline, in effect, a major block has now been put on that progress. The consequence of trying to save them money has driven the impact of this statutory instrument, so I would like to know why the Government did not simply decide to bear the additional cost—I am not sure what that number would have been, but I doubt it is huge—and allow diversity to come into our courts in the way it would have with the retirement age of 70. We need to understand how the Government set their priorities and how much they thought was too much to spend on avoiding 13 years of delay in getting senior courts that reflect our nation, which I think is fundamental in any democracy. There will be a number, and I am sure the Minister is able to give it to us.